Hopkins v. Yi

• Court: U.S. District Court — District of Massachusetts
• Writing for the Court: Hennessy, M.J.
• Decision Date: 26 January 2021
• Docket Number: CIVIL ACTION NO. 4:18-cv-40197-TSH
• Citation: Hopkins v. Yi, CIVIL ACTION NO. 4:18-cv-40197-TSH (D. Mass. Jan 26, 2021)
• Parties: CAMERON HOPKINS, Plaintiff, v. SEAN E. YI, JACKYMOON CORP., GREENMAN-PEDERSEN, INC., J.H. LYNCH & SONS, INC., and HILL & SMITH, INC., Defendants.

CAMERON HOPKINS, Plaintiff, v. SEAN E. YI, JACKYMOON CORP., GREENMAN-PEDERSEN, INC.,J.H. LYNCH & SONS, INC., and HILL & SMITH, INC., Defendants.

CIVIL ACTION NO. 4:18-cv-40197-TSH

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

January 26, 2021

REPORT AND RECOMMENDATION

Hennessy, M.J.

This Report and Recommendation issues pursuant to District Judge Hillman's referral of J.H. Lynch & Sons, Inc.'s ("J.H. Lynch's") motion to file a third-party complaint against Northeast Traffic Control Services, Inc. ("NTCS"), which is fully briefed and ripe for adjudication. [Dkt. No. 129]. For the reasons that follow, the undersigned RECOMMENDS that J.H. Lynch's motion pursuant to Fed. R. Civ. P. 14(a) be ALLOWED in part and DENIED in part.¹

I. FACTUAL BACKGROUND

At approximately 3:30 p.m. on September 12, 2018, Sean E. Yi ("Yi"), an employee of Jackymoon Corp. ("Jackymoon"), was driving north on Route 146 through Millbury, Massachusetts in a tractor trailer owned by Jackymoon. [Dkt. No. 68 ("Am. Compl.") ¶¶ 2-3, 15-16]. At the time, that area of Route 146 was undergoing bridge and construction repairs. [Id. ¶ 11]. The Massachusetts Department of Transportation ("MassDOT") engaged J.H. Lynch & Sons to "oversee and carry out" the construction, and Greenman-Pedersen, Inc. ("Greenman-Pederson"), a design and engineering firm, to oversee J.H. Lynch. [Id. ¶¶ 12, 13]. Defendant Hill & Smith, Inc. manufactured and supplied temporary barriers. [Id. ¶ 14]. Yi was operating the tractor trailer at a speed in excess of the posted limit in the construction zone, and unsuitably for the weather and road conditions. [Id. ¶ 17]. As a result, Yi lost control of the tractor trailer, which crashed into the barriers separating the north and southbound traffic on Route 146. [Id.] Upon impact, several hundred feet of the barrier tipped over, resulting in the tractor trailer veering into the opposite lane. [Id. ¶ 18]. At the same time, Plaintiff was driving southbound on Route 146 in a vehicle owned by his father. [Id. ¶¶ 1, 15]. After the Jackymoon trailer crossed the median, it collided with Plaintiff's car. [Id. ¶ 18]. Plaintiff suffered severe and permanent injuries, including paraplegia and a left leg amputation above the knee. [Id. ¶ 23].

Three years prior to the September 12, 2018 accident, J.H. Lynch engaged NTCS to purchase the temporary zone guard barriers. [Dkt. No. 126-1 ("Third Party Compl.") ¶¶ 1,2,8]. Thus, NTCS acted as J.H. Lynch's supplier of the barriers. [Dkt. No. 126-2 ("Purchase Order") at 1]. The Purchase Order for the barriers included an indemnity clause, which stated:

To the fullest extent permitted by law, [NTCS] shall indemnify, hold harmless and defend [Lynch] and the Owner, their agents and employees, from any and all injuries, claims, damages, losses and expenses (including but not limited to attorney's fees), directly or indirectly, arising out of or in connection with the performance of [NTCS'] work or materials furnished under this Purchase Order, provided that such claim, damage, loss or expenses results from bodily injury, sickness, disease or death to any person(s) or the destruction of tangible property but only if the claim, damage, loss, or expense is caused by or resulting from the act or omission of [NTCS], [NTCS'] subcontractors, or anyone directly or indirectly employed by any of them, for whose acts they may be liable. [NTCS] shall not be required by this Purchase Order to indemnify [Lynch] or the Owner for that portion of any loss that is directly attributable to the negligence of [Lynch] orOwner, respectively, except to the extent that such indemnification is permitted by law. [NTCS] expressly agrees to assume the cost of attorneys' fees for defense of [Lynch] and/or Owner by their own counsel for any claim, proceeding, lawsuit, and/or litigation arising out of any accident, incident or occurrence caused by, or in any way related to the performance of [NTCS'] work or materials furnished. [NTCS] agrees that the obligation to defend commences when a claim is made against [Lynch] or Owner, their agents and employees, even if [NTCS] disputes its obligations to indemnify and hold harmless.

[Id. ¶ 10]. On September 11, 2020, J.H. Lynch sent a tender letter to NTCS, seeking indemnification in connection with the accident. [Dkt. No. 126 at 4; Dkt. No. 126-3]. On October 12, 2020 First Mercury Insurance Company, NTCS' excess insurance carrier, sent J.H. Lynch a letter denying its tender. [Dkt. No. 126 at 4; Dkt. No 126-4]. NTCS' primary insurance carrier did not respond to J.H. Lynch's tender. [Dkt. No. 126 at 4].

II. PROCEDURAL BACKGROUND

Hopkins filed this action against Sean Yi and Jackymoon Corp. on November 11, 2018. On August 19, 2019, the court consolidated this case with Ferreira v. Yi, et al., No. (1:19-CV-40045-TSH) for discovery purposes only. [Dkt. No. 49]. On February 28, 2020, Hopkins amended his complaint, adding J.H. Lynch, Greenman-Pederson, and Hill & Smith as defendants. [Dkt. No. 68]. J.H. Lynch answered on April 22, 2020, and submitted this motion to file a third party complaint on November 5, 2020. [Dkt. Nos. 86,125]. NTCS filed an opposition on November 19, 2020. [Dkt. No. 128]. J.H. Lynch filed a reply on December 2, 2020. [Dkt. No. 130].

III. LEGAL STANDARD

Federal Rule of Civil Procedure 14(a) states "[a] defending party may, as a third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it." The claim is proper only if "the third party's liability is in some way dependent on the outcome of the main claim or when the third party is secondarily liable to the defendant." R.H. v. Lorilee I, LLC, No. 15-CV-30204, 2016 WL 7105870, at *4 (D. Mass. Nov.14, 2016) (quoting Katz v. Denn, No. 05-CV-40014, 2007 WL 763896, at *6 (D. Mass. Mar. 12, 2007)). A district court has discretion in deciding whether to grant the claim, but "should allow impleader on any colorable claim of derivative liability that will not unduly delay or otherwise prejudice the ongoing proceedings." Lehman v. Revolution Portfolio LLC, 166 F.3d 389, 393 (1st Cir. 1999). "Ultimately, '[a] district court must oversee third-party practice with the core purpose of Rule 14(a) in mind: avoiding unnecessary duplication and circuity of action.'" Brettell v. Omron Sci. Techs., Inc., No. 14-CV-13936, 2016 WL 11660535, at *1 (D. Mass. May 10, 2016) (quoting Lehman, 166 F.3d at 393). A third-party complaint is treated like a complaint under Rule 8(a) in all respects. See Wright & Miller, Federal Practice and Procedure § 1455 (3d ed. 2020).

Recovery under 14(a) "depends at least in part upon the resolution of the primary lawsuit . . . Its relation to the original complaint is thus not mere factual similarity but logical dependence." Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 376 (1978) (internal citations omitted). "Impleader places the burden on the third-party plaintiff to show that if it is found liable to the plaintiff, then the third-party defendant will in turn be liable to the third-party plaintiff." Mass. Laborers' Health & Welfare Fund v. Varrasso, 111 F.R.D. 62, 63 (D. Mass. 1986).

IV. ANALYSIS

In its proposed third-party complaint, J.H. Lynch alleges four claims: (1) contribution; (2) contractual indemnity; (3) breach of contract, and (4) a request for declaratory judgment.² The undersigned will address three of these claims in turn.

A. Contribution

J.H. Lynch has properly stated a claim for contribution in its complaint. Mass. Gen. Laws. ch. 231B §1(a) states "where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them even though judgment has not been recovered against all or any of them." Mass. Gen. Laws. ch. 231B §1(a). "The right to contribution is available only 'where two or more persons become jointly liable in tort.'" Woods Hole Oceanographic Inst. v. ATS Specialized, Inc., No. 17-CV-12301, 2020 WL 1452579, at *13 (D. Mass. Feb. 10, 2020), report and recommendation adopted, No. 17-CV-12301, 2020 WL 1446845 (D. Mass. Mar. 24, 2020) (quoting Dighton v. Federal Pacific Elec. Co., 399 Mass. 687, 691 (1987) (emphasis in original)).

Because claims of contribution sound in tort, the question is whether NTCS could be held liable to Hopkins through its contract with J.H. Lynch. "[A] defendant under a contractual obligation 'is liable to third persons not parties to the contract who are foreseeably exposed to danger and injured as a result of its negligent failure to carry out that obligation.'" LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 328 (2012) (quoting Parent v. Stone & Webster Eng'g Corp., 408 Mass. 108, 114 (1990)). "Liability will be imposed, however, only if it is foreseeable that the defendant's work, if negligently performed, may cause harm to third parties." Hayes v. CRGE Foxborough, LLC, 167 F. Supp. 3d 229, 246 (D. Mass. 2016) (quoting Trotman v. Massachusetts Bay Transp. Auth., No. 09-CV-04649, 2014 WL 1758103, at *2 (Mass. Super. Ct. Mar. 3, 2014)).

The proposed complaint sufficiently alleges that NTCS had a contractual duty to supply J.H. Lynch with temporary barriers that would protect persons using the highway during construction. [See Third Party Compl. ¶¶ 7-13]. Further, NTCS represented in a certificate ofcompliance that the barriers it provided for this specific project satisfied "the requirements of the pertinent project plans" and "specifications of the Massachusetts Highway Department, in all respects." [Dkt. No. 131 at 1]. Hence, NTCS was on notice that the construction would occur on a highway and that the barriers were intended to protect highway safety during construction. J.H. Lynch alleges that NTCS supplied "defective" barriers. [Third Party Compl. ¶ 16]. It is reasonably foreseeable that furnishing defective barriers for such a project would expose travelers to harm and serious injury. Accordingly, as to...