Post v. Belmont Country Club, Inc.

• Decision Date: 16 May 2003
• Docket Number: No. 02-P-304.,02-P-304.
• Citation: 805 NE 2d 63,60 Mass. App. Ct. 645
• Parties: SARAH DANA POST, executrix, v. BELMONT COUNTRY CLUB, INC.
• Court: Appeals Court of Massachusetts

60 Mass. App. Ct. 645

805 NE 2d 63

SARAH DANA POST, executrix,¹ v.BELMONT COUNTRY CLUB, INC.

No. 02-P-304.

Appeals Court of Massachusetts, Middlesex.

May 16, 2003.

March 19, 2004.

Present: Perretta, Gelinas, & Duffly, JJ.

Richard John Shea for the plaintiff.

Joanne L. Goulka for the defendant.

GELINAS, J.

The estate of John Post(estate) appeals two grants of summary judgment in favor of the Belmont Country Club (club).A first motion for summary judgment, and later an amended motion for summary judgment, resulted in rulings that an indemnity clause contained in the club's handbook required the estate to indemnify the club for losses sustained as a result of an injury to John Post that resulted in his death.We affirm.

The facts are not in issue.Post was a ten year member of the club.The club's golf course was under reconstruction, and ropes had been set to guide carts along temporary paths.While driving his golf cart along one of these paths, Post drove the cart into a rope.An iron pin, used to anchor the rope in place, became dislodged and struck Post in the head.Unlike other ropes on the course, the rope in question was not clearly marked.The blow caused serious injury.Post succumbed to the injury a few days later.

The estate brought suit for wrongful death and for conscious pain and suffering.The club counterclaimed under the indemnity clause.After some discovery and other preliminary matters, and while the club's motion for summary judgment on the indemnity question was pending, the club agreed to settle the estate's claims, paying the total sum of $4,500,000.The settlement specifically reserved the club's counterclaim for indemnification, but provided that any recovery was to be limited to Post's homeowner's policy both as to source and amount.The agreement and related documents released the estate, and, by implication, Post's heirs and next of kin, from any liability under the indemnity agreement.

The club claimed indemnity under a clause in the club's membership handbook that provided the following with respect to the use of golf carts:

"Each person using a cart does so at his/her own risk.Each person renting or driving a cart is responsible for any personal injury or property damage caused, including without limitation, injury to him/herself and damage to the cart, and agrees to indemnify the Club against all loss, claims or expenses resulting from use of said cart."

Discussion."Summary judgment is appropriate where there is no genuine issue of material fact, and when, viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law."Gray v. Giroux,49 Mass. App. Ct. 436, 438(2000).SeeMass.R. Civ.P. 56(c), 365 Mass. 824(1974)."[A]party moving for summary judgment in a case in which the opposing party[has] the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass.R. Civ.P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case."Kourouvacilis v. General Motors Corp.,410 Mass. 706, 716(1991).The facts not being in dispute, interpretation of the indemnity clause is a question of law.SeeUSM Corp. v. Arthur D. Little Sys., Inc.,28 Mass. App. Ct. 108, 116(1989)(where material facts are not in dispute, interpretation of contract is question of law for the court).

We conclude that in these circumstances, Post was bound by the release and indemnity clause, even though, as the estate argues, it was contained in a member's handbook among many other rules, regulations, and provisions; that the section was not highlighted, as other sections of the handbook were; and that there was no evidence that Post had ever read the provision or knew of its existence, either before he became a member of the club, or during the ten years of his membership.

When Post became a member of the club, he entered into an obligation, in the nature of a contract, to be bound by the club's rules and by-laws, and accepted all obligations that were not inconsistent with law.Snay v. Lovely,276 Mass. 159, 163(1931)("by becoming a member of the union and agreeing to support it, [plaintiff] entered into an obligation in the nature of a contract to become bound by its constitution and governing rules so far as not inconsistent with controlling principles of law").Sullivan v. Barrows,303 Mass. 197, 201(1939)("in becoming a member of the local [union], [plaintiff] had entered into a contract.The terms and conditions of the contract were expressed by the constitution and by-laws, which defined not only the benefits and privileges secured but also the duties and obligations assumed").Comstock v. Dewey,323 Mass. 583, 587-588(1949)("[o]ne becoming a member of the club assumed an obligation in the nature of a contract to become bound by such a rule or by-law in so far as it was not inconsistent with some principle of law").Other jurisdictions are in accord, see, e.g., Rowland v. Union Hills Country Club,157 Ariz. 301, 304-305(1988);Stewart v. Monongahela Valley Country Club,177 Pa. Super. 632, 640(1955);Jeffersonian Club v. Waugh,217 S.W.2d 103, 107(Tex. Civ. App.1949).

Citing to Walsh v. Telesector Resources Group, Inc.,40 Mass. App. Ct. 227, 233(1996)("a party cannot be bound to essential and material terms of a contract to which he has not agreed"), the estate argues that there is no evidence that Post assented to the clause requiring release and indemnity, and therefor neither he nor his estate should be bound.We conclude that in becoming a member of the club, Post should be charged with knowledge of the Club's by-laws and rules and regulations, and that his actual knowledge of the provision need not be shown in order that the provision apply.Decisions both in Massachusetts and elsewhere support this conclusion.In Massachusetts, a member of an incorporated co-operative banking society is charged with knowledge of the society's by-laws, Richardson v. Devine,193 Mass. 336, 338(1907), as is a stockholder with respect to provisions as to preference contained in an agreement of association, Crimmins & Peirce Co. v. Kidder Peabody Acceptance Corp.,282 Mass. 367, 375(1933).Other jurisdictions hold that a member of an unincorporated society is presumed to know, and to be bound by, the society's constitution and by-laws, and that the presumption of knowledge is conclusive.See, e.g., Rachford v. Indemnity Ins. Co. of N. America,183 F. Supp. 875, 879(1960)(member of organization was charged with "knowledge of and was subject to the regulations concerning membership and the rights of members, as set forth in the charter, constitution and by-laws");Pharmacists & Retail Drug Store Emp. Union, Local 330 v. Lake Hills Drug Co.,255 F. Supp. 910, 912(1964)("members of a voluntary unincorporated association are presumed to have knowledge of and are bound by the constitution and by-laws of the association").

Some jurisdictions require that there be notice of any provision in a by-law or regulation which provides indemnity.See, e.g., Blanc v. Windham Mountain Club, Inc.,115 Misc.2d 404, 409(N.Y. Sup. Ct.1982)(club members must be afforded notice of by-law providing that they indemnify club for injuries to which they were to be held accountable).²As described below, Massachusetts declines to apply this rule.

Nor do we think, as urged by the estate, that should Post be bound by the provisions of the club's constitution and by-laws, the contract containing the release and indemnity agreement was one of adhesion, and as such should be strictly construed against the club.While there is no evidence, and it is highly unlikely, that Post negotiated over the terms of membership, cf.Lechmere Tire & Sales Co. v. Burwick,360 Mass. 718, 720-721(1972);Chase Commercial Corp. v. Owen,32 Mass. App. Ct. 248, 251(1992);Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 Harv. L. Rev. 1173, 1177(1983), the contract Post entered was one not only with the club, but with his fellow members.The contract, with the provision regarding release and indemnification, was adopted by the membership for their mutual benefit, Post included.Given the extent of the membership and the expected use of carts during the golfing season, with the possibility that others might be injured and lay claim against the club, the indemnity clause was in fact more likely to have worked in Post's favor than not, shielding him and the other members from increased dues related to payment of claims or additional insurance costs.Further, the membership collectively retained the power to change or eliminate the provision, and, as the trial judge found, as a member, Post had the ability to work and vote for change, should he have been so inclined.The membership had, in effect, the constant opportunity to negotiate changes in the membership agreement, including the indemnity clause.Because members retain the right to change those terms by majority vote, or the election of new officers, with the constant opportunity to "negotiate" changes in the membership agreement, the contract here differs substantially from that where a consumer, in order to acquire needed goods and services, is required to accept its terms on a take it or leave it basis.Other jurisdictions are in accord, concluding that contractual agreements with respect to a club's by-laws, rules and regulations, established when a person joins a club or association, are not contracts of adhesion requiring strict construction.See, e.g., Cruise v. Castleton, Inc.449 F. Supp. 564, 570(1978);Bennett v. Appaloosa Horse Club,201 Ariz. 372, 376(2001).

Having determined that the provision in question constitutes a contractual obligation of Post, and need not be strictly construed against the club, the remaining...