Bearbones, Inc. v. B&G Rest. Supply, Inc.

• Decision Date: 04 October 2019
• Docket Number: 18-P-928
• Citation: 137 N.E.3d 1078 (Table)
• Parties: BEARBONES, INC., & another v. B & G RESTAURANT SUPPLY, INC., & others.
• Court: Appeals Court of Massachusetts

137 N.E.3d 1078 (Table)

BEARBONES, INC.,¹ & another²
v.
B & G RESTAURANT SUPPLY, INC., & others.³

18-P-928

Appeals Court of Massachusetts.

Entered: October 4, 2019.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This case arises out of a broken water pipe at a bakery in Pittsfield and the bakery's subsequent disagreement with its insurer regarding the amount of the loss. The plaintiffs, Bearbones, Inc., and Amaral Enterprises LLC, are the legal owners of the bakery and the condominium unit out of which the bakery operated, respectively. The narrow issue currently before us is whether the plaintiffs have a cause of action under G. L. c. 233, § 4, for damages against B & G Restaurant Supply, Inc., and two of its employees, Blake Purry and Jim Clary, for the employees' failure to testify at an insurance reference proceeding.⁵ Because we conclude that Purry and Clary were not compelled to appear and to testify, which is a prerequisite for liability under G. L. c. 233, § 4, we modify the judgment and, as so modified, affirm the summary judgment in the defendants' favor.⁶

1. Background. We set out the facts in the summary judgment record viewed in the light most favorable to the plaintiffs. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991) ("standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law"). When the plaintiffs and their insurer were unable to agree on the amount of the loss resulting from a broken water pipe, they proceeded to reference. See G. L. c. 175, § 99 (if parties fail to agree as to amount of loss, "it is mutually agreed that the amount of such loss shall be referred to three disinterested [people] ... and the award in writing by a majority of the referees shall be conclusive and final upon the parties as to the amount of loss or damage"). A significant area of dispute appears to have been the value of certain damaged kitchen equipment. On this issue, the plaintiffs wanted Purry and Clary to testify regarding an estimate that B & G Restaurant Supply, Inc., provided to the plaintiffs for removal and replacement of the damaged equipment.

On April 3, 2015, the plaintiffs summoned Purry to appear and to testify at the insurance reference proceeding. When it became apparent that Purry did not plan to do so, the plaintiffs submitted an emergency motion for a capias in the Superior Court in Suffolk County. A judge of that court (Suffolk judge) denied the plaintiffs' motion because the plaintiffs did not follow the proper procedure, noting that the motion needed to be submitted by the referees on the insurance reference panel and suggesting that the plaintiffs follow that procedure. On April 25, 2015, the referees asked plaintiffs' counsel if he knew of any authority by which they could enforce the summons. Two days later, plaintiffs' counsel responded that he knew of no such authority, despite having been informed of the proper procedure from the Suffolk judge earlier in the month.⁷ The plaintiffs subsequently summoned Clary to appear and to testify; he, too, was either unable or unwilling. The plaintiffs thus filed this action in which they sought a preliminary injunction requiring Purry and Clary to appear at the insurance reference proceeding, as well as damages pursuant to G. L. c. 233, § 4.⁸ A judge of the Superior Court in Berkshire County (Berkshire judge) denied the plaintiffs' request for a preliminary injunction for the same reason that the Suffolk judge denied the plaintiffs' emergency motion for a capias. The Berkshire judge also granted the defendants' motion for summary judgment, which is the matter currently before us.

2. Discussion. The plaintiffs seek damages under G. L. c. 233, § 4, which provides, "If a person who has been duly summoned and required to attend as a witness ... fails, without a sufficient excuse, to attend, he shall be liable to the aggrieved party in tort for all damages caused by such failure." The plaintiffs argue that Purry and Clary were duly summoned to attend as witnesses and that they are therefore liable for all damages caused by their failure to testify. The plaintiffs' interpretation of G. L. c. 233, § 4, however, omits two requirements for liability: (1) that Purry and Clary were...