Wilhelm v. Bonnie & Clyde Contracting Co., 9700482

CourtSuperior Court of Massachusetts
Writing for the CourtJudge (with first initial, no space for Sullivan, Dorsey, and Walsh): BRASSARD
Citation1999 MBAR 057
PartiesWithold H. Wilhelm v. Bonnie & Clyde Contracting Co. et al.1
Docket Number9700482
Decision Date23 February 1999


Withold H. Wilhelm

Bonnie & Clyde Contracting Co. et al.1

No. 9700482

Superior Court of Massachusetts

February 23, 1999

Mass. L. Rptr. Cite: 9 Mass. L. Rptr. 625

Venue: Superior Court, Middlesex, SS

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): BRASSARD

Plaintiff, Withhold Wilhelm ("Mr. Wilhelm") brought this action alleging that defendants Mark J. Bruno ("Mr. Bruno") and Bonnie & Clyde Contracting Company ("Bonnie & Clyde")3 failed to equip a heavy piece of equipment, the "Wood Hog," with appropriate lighting and marking for safe night driving, and that this failure was the cause of an automobile collision. Bonnie & Clyde has filed third-party claims for contribution and indemnification against third-party defendants, Morbark of New England ("METCO") and E-Z Wood Hog, Inc. ("E-Z"), claiming that it was their duty to assure that the Wood Hog was equipped with appropriate lighting and marking. Third-party defendants, METCO and E-Z, now move for summary judgment contending that the third-party claims are barred as a matter of law because the Federal Highway Administration's ("FHWA") regulations relieve these parties from responsibility to equip the Wood Hog with proper lighting and marking. The third-party defendants also urge that because they have settled with Wilhelm, G.L.c.231B, 4 relieves METCO and E-Z from any claim for contribution. Finally, METCO and E-Z contend that there are no facts which give rise to common law indemnification. For the reasons set forth below, third-party defendants' motions for summary judgment are ALLOWED.


Viewing the facts in the light most favorable to the nonmoving parties, Bonnie & Clyde and Mr. Bruno, the undisputed facts are as follows.

On October 8, 1996 at 4: 50 pm, on Salem Street in Reading, Massachusetts, Mr. Wilhelm sustained injuries when he collided with a Bonnie & Clark truck driven by Mr. Bruno, a Bonnie & Clyde employee. The truck was towing a large Wood Hog tree stump grinder. Mr. Wilhelm's vehicle struck the rear of the stump grinder which was being towed by the truck driven by Mr. Bruno. At the time of the accident, both vehicles were traveling in the same direction on Salem Street.

Mr. Wilhelm filed a complaint against Bonnie and Clyde and Mr. Bruno alleging negligence. On April 24, 1998, Bonnie & Clyde and Mr. Bruno served a third-party complaint on METCO and E-Z, claiming that because E-Z manufactured the tree stump grinder and METCO sold the tree stump grinder, they were liable under a theory of contribution or indemnification. On August 10, 1998, Mr. Wilhelm signed a "Release and Settlement of Claim" which, in return for $2,000.00, discharged METCO and E-Z from "any and all claims, demands, rights, actions or causes of action" arising out of the October 8, 1996 accident.


Summary judgment shall be granted where there are no issues of material fact and where the moving party is entitled to judgment as a matter of law. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community National Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and that the moving party is entitled to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material fact. Id. at 17.

I. Contribution

Pursuant to G.L.c. 231B, 1, where two or more persons are 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. However, when a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort for the same injury, it shall discharge the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor. G.L.c. 231B, 4(b). Although the statute neither defines "good faith" nor describes the burden of the party seeking to be discharged on the basis of a settlement, the purpose of the statute provides some guidance regarding this issue. Noyes v. Raymond, 28 Mass.App.Ct. 186, 188 (1990).

Massachusetts courts have stated that G.L.c. 231, 4 was intended to encourage settlements. Noyes, supra at 189; see Bishop v. Klein, 380 Mass. 285, 293-94 (1980); Robertson v. McCarte, 13 Mass.App.Ct. 441, 444 (1982). Moreover, the fact that the Legislature specified that the settlement be made in "good faith" indicates its concern with the avoidance of collusion, fraud, and other wrongful conduct. Noyes, supra. The goal of encouraging settlement will be met only if motions for discharge based upon settlement are routinely allowed, with extended hearings to determine whether such settlements are in "good faith" constituting the exception. Id. Otherwise the purpose of the statute would be compromised, as the issue of "good faith" would become the subject of a full trial or a defendant who settles with a plaintiff could nevertheless be subject to a trial on the merits of the tort claim. Id. at 190.

In this case, Mr. Wilhelm has entered into a settlement and release with E-Z and METCO. The settlement amount was $2,000. Plaintiff's medical...

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