Sampel v. Whole Foods Mkt. Grp.
| Decision Date | 27 August 2020 |
| Docket Number | Civil Action No. 18-cv-11752-ADB |
| Parties | SUSAN SAMPEL, Plaintiff, v. WHOLE FOODS MARKET GROUP, INC., AA CLEANING COMPANY INC., and ARD CLEANING, INC., Defendants, WHOLE FOODS MARKET GROUP, INC., Cross Claimant, v. AA CLEANING COMPANY, INC. and ARD CLEANING, INC., Cross Defendants. |
| Court | U.S. District Court — District of Massachusetts |
BURROUGHS, D.J.
Susan Sampel ("Sampel") filed the instant complaint against Whole Foods Market Group, Inc. ("Whole Foods") after she slipped and fell at a Whole Foods store in Hyannis, Massachusetts ("the Store") on August 12, 2015. [ECF No. 1-1 at 4]. Sampel later added AA Cleaning Company, Inc. ("AA Cleaning") and ARD Cleaning Inc. ("ARD") as co-defendants. [ECF No. 20-1; ECF No. 42-1]. Sampel alleges that her injuries were a result of negligence from all three co-defendants. See generally [ECF No. 44]. Whole Foods subsequently filed a crossclaim against AA Cleaning. [ECF No. 39].
Currently before the Court is a joint motion from AA Cleaning and ARD for summary judgment, [ECF No. 79], on all of the claims brought against them in Sampel's third amended complaint, [ECF No. 44].1 Also before the Court is Whole Foods' motion for partial summary judgment, [ECF No. 76], on three of the five claims brought in its crossclaim, [ECF No. 36], against AA Cleaning. Whole Foods seeks a declaratory judgment that AA Cleaning has a duty to defend and indemnify Whole Foods in the underlying tort action as well as summary judgment on its claims for contractual indemnity and breach of contract. [ECF No. 76 ¶¶ 10, 11].
For the reasons set forth below, AA Cleaning and ARD's motion for summary judgment as against Sampel, [ECF No. 79], is GRANTED, and Whole Foods' motion for partial summary judgment as against AA Cleaning, [ECF No. 76], is DENIED.
Sampel claims that she slipped and fell on a puddle of water near the registers at the Store on August 12, 2015, [ECF No. 1-1 ¶ 3-6; ECF No. 85-2 at ¶ 2], and had medical expenses and lost wages that totaled $97,757.17, [ECF No. 76-10 at 8]. According to Sampel's interrogatory responses, on August 12, 2015, Whole Foods employees were giving bags of ice to customers in the register area to keep perishable products cold. [ECF No. 76-10 at 3]. The Store's manager, Michael Sousa ("Sousa"), states that handing out ice bags to customers is a Whole Foods practice, and Whole Foods employees are responsible for individually bagging and packagingthe ice in coolers to give to customers. [ECF No. 86-5 at 11]. Before Sampel fell, she and her friend reportedly saw a child drop a bag of ice, which caused the puddle, and a Whole Foods employee, Sonya Grewel ("Grewel"), attempt to clean up the spill. [Id.]. After Sampel fell, Grewel apologized to Sampel and her friend, stating that she had mistakenly believed that she had cleaned up the entire puddle. [Id.].
Whole Foods employees are instructed to clean up a spill themselves, should they be present when it happens, [ECF No. 86-5 at 6-7], though they may page AA Cleaning to assist with the cleanup, so long as they do not leave the spill unattended, [id. at 6]. The Store has an electronic system for tracking cleaning activity called "Gleason Logs." [ECF No. 76-6 at 18]. Per Whole Foods' instructions, the Gleason Log only records services performed by a contracted cleaning service, not Whole Foods employees. [Id.]. According to Sousa, if a spill had been cleaned up by an AA Cleaning employee, it would have been reflected in the Gleason Log. [ECF No. 76-6 at 18-19]. The Gleason Log for the day Sampel fell only reports four spills, all of which occurred and were cleaned up after her fall. [ECF No. 76-8 at 7-9; ECF No. 85-2 ¶ 13].
At the time of Sampel's alleged injury, Whole Foods had entered into a contract with AA Cleaning ("the Agreement"), [ECF No. 76 ¶ 2], which required AA Cleaning to "perform certain cleaning and maintenance services at [the Store]," [id.]. According to deposition testimony from Whole Foods Regional Manager Daniel Sullivan ("Sullivan"), well before Sampel's injury, in March 2014, Sullivan had contacted AA Cleaning on behalf of Whole Foods and requested its cleaning services. [ECF No. 76-1 at 4]. Whole Foods and AA Cleaning ultimately entered into the Agreement on April 1, 2015, [ECF No. 86-4 at 1], but even before that AA Cleaning had been providing cleaning services pursuant to an informal understanding. [ECF No. 76-1 at 11].Sullivan testified that, during that time, AA Cleaning was "doing [Whole Foods] a favor." [Id.]. According to Sullivan's deposition, he was willing to have this informal arrangement because AA Cleaning was already providing cleaning services at another Whole Foods location in Connecticut and had been performing satisfactory work. [Id. at 7-8].
After Whole Foods reached out to AA Cleaning in March 2014, but before the parties executed the Agreement, AA Cleaning subcontracted the cleaning services out to a third-party company, ARD, without notifying Whole Foods. [ECF No. 76-2 at 14]. The agreement between AA Cleaning and ARD, ("the Subcontract"), was executed on January 18, 2015. [ECF No. 76-5].
For this case, the two most relevant provisions in the Agreement are the subcontracting clause—Section 7(e)—and the indemnification clause—section 5(b). [ECF No. 86-4 at 2-3, 4]. The subcontracting clause forbids AA Cleaning from subcontracting out any of the "services" under the Agreement to a third party without Whole Foods' written or oral consent. [ECF No. 86-4 at 4]. In pertinent part, the indemnification clause provides that AA Cleaning agrees to defend and indemnify Whole Foods for any actions that arise out of AA Cleaning's "services" or "operations" under the Agreement. [ECF No. 86-4 at 2-3]. The terms "operations" and "services" are not defined in the Agreement. [ECF No. 86-4 at 2-3]. The "Purpose" section of the document, where such terms could have been defined, was also left blank. [ECF No. 86-4 at 1]. Whole Foods acknowledges that the Agreement was sent to AA Cleaning with the "Purpose" section left blank. [ECF No. 86-8 at 7]. Nonetheless, AA Cleaning never expressed confusion concerning the scope of its duties under the Agreement. [ECF No. 86-17 at ¶ 62].
Neither party disputes that Whole Foods was not notified of the Subcontract between AA Cleaning and ARD. [ECF No. 76-2 at 13-15; ECF No. 76-1 at 12]. AA Cleaning maintains thatsuch subcontracts are "industry standard" and should have been anticipated by Whole Foods. [ECF No. 76-2 at 11-12]. Whole Foods, meanwhile, claims that it first learned about the Subcontract through this litigation. [ECF No. 76-1 at 12].
Sampel filed her tort action against Whole Foods in Barnstable County Superior Court on August 3, 2018. [ECF No. 1-1]. Whole Foods removed the case to federal court on August 17, 2018. [ECF No. 1]. Thereafter, Sampel filed an amended complaint and added AA Cleaning as a defendant. [ECF No. 20-1]. Whole Foods answered Sampel's second amended complaint and filed a crossclaim against AA Cleaning on December 26, 2018, which was amended on April 17, 2019 and answered by AA Cleaning on April 25, 2019. [ECF Nos. 25, 39, 41]. On May 1, 2019, Sampel amended her complaint a third time to add ARD as a defendant. [ECF No. 44].
AA Cleaning filed the instant motion for summary judgment as to Counts VI-XII of Sampel's third amended complaint, [ECF No. 44], on December 20, 2019, [ECF No. 79], which Sampel opposed, [ECF No. 85].
Whole Foods filed its motion for partial summary judgment as to Counts I, II, and V of the amended cross complaint, [ECF No. 39], on December 18, 2019, [ECF No. 76], and AA Cleaning opposed, [ECF No. 86].
Summary judgment is appropriate where the movant can show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003) (citation omitted).
"To succeed in showing that there is no genuine dispute of material fact," the moving party must point to "specific evidence in the record that would be admissible at trial." Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 4 (1st Cir. 2015). "That is, it must 'affirmatively produce evidence that negates an essential element of the non-moving party's claim,' or, using 'evidentiary materials already on file . . . demonstrate that the non-moving party will be unable to carry its burden of persuasion at trial.'" Id. at 4-5 (quoting Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000)). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Once the movant takes the position that the record fails to make out any trial worthy question of material fact, "it is the burden of the nonmoving party to proffer facts sufficient to rebut the movant's assertions." Nansamba v. N. Shore Med. Ctr., Inc., 727 F.3d 33, 40 (1st Cir. 2013).
In reviewing the record, the Court "must take the evidence in the light most flattering to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Cochran, 328 F.3d at 6. The First Circuit has noted that this standard "is favorable to the nonmoving party, but it does not give him a free pass to trial." Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011). "The factual conflicts upon which he relies must be both genuine and material," Gomez v. Stop & Shop Supermarket Co., 670 F.3d 395, 397 (1st Cir. 2012), and ...
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