Wilhelm v. Bonnie & Clyde Contracting Co., 9700482
| Decision Date | 23 February 1999 |
| Docket Number | 9700482 |
| Parties | Withold H. Wilhelm v. Bonnie & Clyde Contracting Co. et al.1 |
| Court | Massachusetts Superior Court |
Mass L. Rptr. Cite: 9 Mass. L. Rptr. 625
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.
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 expenses were $40,740 and his lost wages were $24,407 (Joint Pre-Trial Memorandum, p. 2). The fact that the amount of a settlement is low relative to the plaintiff's estimate of his own damages is not, in and of itself, material. Noyes, supra at 190. There are many reasons aside from "bad faith" to explain a low settlement. A low settlement may reflect uncertainty about whether the settling party would be found liable, uncertainty about whether the damages could be proven, or the general unpredictability of juries on both liability and damage issues. Id. Accordingly, given the multitude of reasons for a low settlement, a rule which determines "good faith" based only on the amount of the settlement would Noyes, supra quoting Tech-Bilt, Inc. v. Woodward-Clyde & Assocs., 38 Cal.3rd 488, 502 (1985).4
Mr. Wilhelm admittedly made a tactical decision to settle with METCO and E-Z because of his belief that their presence at trial would confuse the jury and distract from the evidence.5 To avoid these problems, the plaintiff believed that he could ultimately obtain a better result by settling with METCO and E-Z. This strategy, although planned and concurred in by the third-party defendants, does not constitute collusion, fraud, dishonesty, or other wrongful conduct. See Noyes, supra. Given the facts presented to this court, it is reasonable that Mr. Wilhelm would settle with METCO and E-Z for a relatively nominal amount in light of Mr. Wilhelm's belief that these third-party defendants were not responsible for his injury.6 Accordingly, Mr. Wilhelm's settlement with METCO and E-Z, although they are parties whom he did not name as defendants, was not made in bad faith. Therefore, pursuant to G.L.c. 231, 4, Bonnie & Clyde and Bruno's claim for contribution against METCO and E-Z must fail as a matter of law.
Mr. Wilhelm's theories of liability against Bonnie & Clyde and Mr. Bruno consist of negligent operation of the truck towing the stump grinder and failure to properly light the stump grinder. The defendants clearly do not seek indemnity if they are found liable for negligent operation of the truck because any negligence on their part would preclude tort based indemnity. See Slocum v. Donahue, 44 Mass.App.Ct. 937, 939 (1998). Bonnie & Clyde and Mr. Bruno allege that if they are found liable to Mr. Wilhelm based upon the claim that the stump grinder was not properly lit, such liability is derivative or vicarious resulting solely from the act or omissions of METCO and E-Z. Thus, Bonnie & Clyde and Mr. Bruno contend that they are entitled to seek indemnity from METCO and E-Z. For the following reasons, this court disagrees.
In Massachusetts, the following three sets of circumstances give rise to indemnification: (1) an express agreement; (2) a contractual right implied from the nature of the relationship between the parties; and (3) a tort-based right. Araujo v. Woods Hole, Martha's Vineyard, etc., 693 F.2d 1, 2 (1st Cir. 1982); see Fall River Housing Authority v. HV Collins, 414 Mass. 10 (1992); H.P. Hood & Sons, Inc. v. Ford Motor Co., 370 Mass. 69 (1976); Stewart v. Roy Bros., 358 Mass. 446 (1970). Clearly, the first two circumstances are inapplicable to this case. There was no express indemnification agreement between Bonnie & Clyde and Mr. Bruno and METCO and E-Z. Moreover, a contractual right to indemnity will only be implied when there are unique special factors demonstrating that the parties intended that the would be indemnitor bear the ultimate responsibility for the plaintiff's safety, or where there is a generally recognized special relationship between the parties. Araujo, supra at 2-3. An examination of the summary judgment record does not support the conclusion that the parties intended that E-Z or METCO take responsibility for plaintiff's safety nor that there is a special relationship between the third-party plaintiffs and the third-party defendants.7
Tort based indemnity exists independently of whether there is a statute...
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