Opinion
21-P-35
03-23-2022
TIMOTHY SILVA & another[1] v. CRANSTON/BVT ASSOCIATES LIMITED PARTNERSHIP & another;[2] CLOVER PAVING COMPANY, INC., third-party defendant.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Massachusetts resident Timothy Silva was working on a construction worksite in Rhode Island when a piece of heavy machinery, a roller, crushed his leg. At the time of the accident, Timothy and the operator of the roller were working for Clover Paving Company, Inc. (Clover), a subcontractor of Rochester Bituminous Products Inc. (Rochester). Following the accident, Timothy and his wife, Theresa Silva, brought a complaint for negligent supervision and loss of consortium against Rochester. Rochester, in turn, brought a third-party 1 complaint against Clover, which was dismissed on summary judgment. The Silvas' claims against Rochester proceeded to trial; a jury concluded that Timothy and Rochester were both negligent but that Timothy was sixty-five percent at fault whereas Rochester was only thirty-five percent at fault. Final judgments, which were based on Rhode Island comparative negligence law but Massachusetts prejudgment interest law, entered in favor of the Silvas.
Because the plaintiffs share a surname, we refer to them by their first names.
The Silvas also asserted claims against the owner of the worksite, Cranston/BVT Associates Limited Partnership (Cranston/BVT). Following a trial, a jury concluded that Cranston/BVT was not negligent. The Silvas raise no arguments regarding Cranston/BVT in this appeal. While Cranston/BVT filed an appeal and argued that the claims against it should have been dismissed on summary judgment or that it should have received a directed verdict, Cranston/BVT explained at oral argument that it filed its appeal preemptively, on the belief that the Silvas were going to seek a new trial. The Silvas have not sought a new trial, however, and as Cranston/BVT acknowledged at oral argument, we need not address the arguments raised in its appeal.
Rochester sought to recover from Clover on (1) a tort-based theory of contribution and (2) express and implied theories of indemnification. Regarding contribution, the judge who ruled on Clover's motion for summary judgment concluded that Clover could not be liable in tort -- because Clover paid workers' compensation benefits to Timothy -- and that Rochester therefore could not pursue its tort-based theory of contribution. On appeal, Rochester does not challenge this ruling but does argue that it should have been able to pursue its express and implied theories of indemnification.
All parties except Clover appealed, and we are asked to decide issues regarding indemnity, conflict of laws, and costs. We conclude that (1) Clover had no obligation to indemnify Rochester and that Rochester's third-party complaint against Clover was properly dismissed on summary judgment, (2) Rhode 2 Island law governs the comparative negligence and prejudgment interest issues that arose in this case, and (3) the Silvas were awarded costs that were inadvertently and erroneously excluded from their judgments.
1. Clover's summary judgment motion.
Construing the facts in the light most favorable to Rochester, as we must for summary judgment purposes, Clover orally agreed to "take all steps to protect Rochester from being sued as a result of [Clover's] work." See Psychemedics Corp. v. Boston, 486 Mass. 724, 731 (2021). Based on this agreement, Rochester argues that it should have been able to pursue an express indemnification claim against Clover for the injuries Timothy sustained while working for Clover. Rochester further argues that, due to the circumstances surrounding the contractual relationship between Rochester and Clover, Rochester should have been able to pursue an implied indemnification claim against Clover. We agree with the judge who ruled on Clover's motion for summary judgment that there were no genuine issues of material fact as to either claim and that Rochester did not have a viable express or implied indemnification claim against Clover.
First, as to express indemnification, G. L. c. 149, § 29C, provides that "[a]ny provision for or in connection with a contract for construction . . . which requires a subcontractor to indemnify any party for injury to persons or damage to 3 property not caused by the subcontractor or its employees, agents or subcontractor, shall be void." The prohibition set forth in G. L. c. 149, § 29C, "is against indemnification agreements that obligate a subcontractor to provide indemnification for losses that it in no way caused." North Am. Site Developers, Inc. v. MRP Site Dev., Inc., 63 Mass.App.Ct. 529, 535 (2005). In determining whether an indemnification agreement is void under G. L. c. 149, § 29C, our focus "is on the language of the provision rather than the facts of the accident or assessment of the parties' fault." Bjorkman v. Suffolk Constr. Co., 42 Mass.App.Ct. 591, 592 (1997). We ask whether the agreement "requir[ed] the subcontractor to indemnify the general contractor for an injury [or damage] that may not have been caused by the subcontractor or its employees, agents, or subcontractors." Callahan v. A.J. Welch Equip. Corp., 36 Mass.App.Ct. 608, 611 (1994).
The agreement at issue required Clover to "take all steps to protect Rochester from being sued as a result of [Clover's] work," not just to indemnify Rochester for injury or damage as a result of Clover's work. The language requiring Clover to protect Rochester from being sued, in effect, required Clover to indemnify Rochester for injury or damage alleged to be caused as a result of Clover's work. As this court held in Sheehan v. Modern Continental/Healy, 62 Mass.App.Ct. 937, 937 (2005), 4 language requiring a subcontractor to indemnify another for injury or damage "'alleged to be caused in whole or in part by any negligent act or omission of the [s]ubcontractor' . . . exceeds what is permissible under G. L. c. 149, § 29C." This is so because a claim for indemnity based on "mere allegations of the subcontractor's responsibility . . . could result in indemnification for injury or damage 'not caused by the subcontractor.'" Sheehan, supra, quoting G. L. c. 149, § 29C. Accordingly, the indemnity agreement between Clover and Rochester was void.
Second, as to implied indemnification, we "recognize an implied right to contractual indemnity only when there are 'special factors' surrounding the contractual relationship which indicate an intention by one party to indemnify another in a particular situation." Fall River Hous. Auth. v. H.V. Collins Co., 414 Mass. 10, 14 (1992). Rochester asserts that the following circumstances indicate an intention by Clover to indemnify Rochester: (1) Clover was responsible for the manner and method by which it did the work, (2) Rochester's only directive to Clover was to do the work in a workmanlike manner and to follow the specifications set forth in Rochester's contract with the owner of the worksite, and (3) whenever Rochester observed a deficiency in Clover's work, Rochester took no action other than to notify Clover's principal or on-site 5 foreman. Even assuming these facts to be true, they (1) show only that Clover had a certain amount of independence to do the work and (2) stand in contrast to the unique circumstances that we have found indicate an intention by one party to indemnify another See, e.g., Monadnock Display Fireworks, Inc. v. Andover, 388 Mass. 153, 157-158 (1983) ("primary interest in contracting" with town for police protection "was the prevention of personal injuries and the attendant liability that might result"). We conclude that Rochester did not have a viable implied indemnification claim against Clover.
2. Conflict of laws.
While the accident occurred in Rhode Island, the Silvas are residents of Massachusetts. In addition, Rochester is a Massachusetts company. Based on these different contacts with both Massachusetts and Rhode Island, the Silvas and Rochester dispute whether Massachusetts or Rhode Island law applies to the issues of comparative negligence and prejudgment interest that arose in this case.
In deciding questions of conflict of laws, we are guided by the following principles. We apply "the conflict-of-laws rules of Massachusetts, the forum State, in order to determine which State's law is applicable." Clarendon Nat. Ins. Co. v. Arbella Mut. Ins. Co., 60 Mass.App.Ct. 492, 495 (2004). The first step is to ascertain "whether the choice between the laws of the involved jurisdictions will affect the legal result." Lou v. Otis Elevator Co., 6 77 Mass.App.Ct. 571, 584 (2010). The next step is to determine whether the matter is procedural or substantive. For procedural matters, "Massachusetts courts . . . apply their own rules of procedure." Cosme v. Whitin Mach. Works, Inc., 417 Mass. 643, 645 (1994). For substantive matters, the inquiry is more complicated: Massachusetts has adopted a functional approach that "responds to the interests of the parties, the States involved, and the interstate system as a whole" (citation omitted). Clarendon Nat. Ins. Co., supra at 495-496. See Lou, supra at 583. This functional approach is "explicitly guided by the Restatement (Second) of Conflict of Laws (1971)." Clarendon Nat. Ins. Co., supra at 496. See Lou, supra at 584 .
a. Comparative negligence.
The Silvas and Rochester dispute whether Massachusetts or Rhode Island comparative negligence law applies. Under Massachusetts law, plaintiffs are barred from recovering damages if their own negligence is "greater than the total amount of negligence attributable to the person or persons against whom recovery is sought." G. L. c. 231, § 85. In the same circumstances under Rhode Island law, plaintiffs are not barred from recovering damages, but their damages are "diminished ... in proportion to the amount of negligence attributable to [them]." R.I. Gen. Laws § 9-20-4. Because the jury found that Timothy was sixty-five percent at 7 fault and awarded him $1,142,000 in damages, he either recovers no damages under Massachusetts law or $399,700 in damages under Rhode Island law. Given the conflict between Massachusetts and Rhode Island comparative negligence law, we must determine which law applies.
The jury awarded Theresa $25,000 in damages, and a judgment entered in favor of Theresa awarding her the full amount of those damages. Rochester does not argue that her damages should have been reduced, or that there is a conflict between Massachusetts and Rhode Island comparative negligence law with respect to Theresa's damages, and we do not discuss the issue further.
Because comparative negligence law is a substantive matter, we look to the Restatement (Second) of Conflict of Laws for guidance. "In accordance with § 146 of the Restatement, the law of [Rhode Island] (the State where the injury occurred) applies, unless Massachusetts has a more significant relationship to the occurrence and the parties under the principles stated in § 6." Pasha v. Adelman, 45 Mass.App.Ct. 418, 424 (1998). Under § 6 of the Restatement, we consider various factors, including "the 8 relevant policies of the forum" and "the relevant policies of other interested states." "The likelihood that some state other than that where the injury occurred is the state of most significant relationship is greater in those relatively rare situations where, with respect to the particular issue, the state of injury bears little relation to the occurrence and the parties." Restatement (Second) of Conflict of Laws § 146 comment c.
See 1 Comparative Negligence Manual § 3:1 (3d ed. 2022) . We are not persuaded by Rochester's arguments to the contrary. In particular, Rochester argues that Massachusetts previously followed contributory negligence principles; that the Supreme Judicial Court concluded that contributory negligence was a procedural matter; and, accordingly, now that Massachusetts follows comparative negligence principles, comparative negligence is also a procedural matter. The premise of Rochester's argument is incorrect; contributory negligence was a substantive matter governed by the law of the State where the injury occurred. See Gregory v. Maine Cent. R.R. Co., 317 Mass. 636, 639-640 (1945) .
The remaining factors to be considered under § 6 of the Restatement include "the needs of the interstate and international systems," "the protection of justified expectations," "the basic policies underlying the particular field of law," "certainty, predictability and uniformity of result," and "ease in the determination and application of the law to be applied." Aside from noting that the last two factors weigh in favor of the default rule of applying the law of the State where the injury occurred, we find little guidance in these remaining factors. See Restatement (Second) of Conflict of Laws § 146 comment c. See, e.g., Lou, 77 Mass.App.Ct. at 586 n.29, citing Pasha, 45 Mass.App.Ct. at 424 n.14 (finding little guidance in remaining factors).
Rhode Island has a significant relationship to the occurrence and the parties, as (1) the accident occurred on a construction worksite in Rhode Island and (2) Rhode Island has a policy interest in ensuring the safety of workers within its boundaries. Moreover, Rhode Island's comparative negligence law furthers the State's policy interest by creating an incentive for contractors in Rhode Island to avoid even partial negligence. While Massachusetts also has a relationship to the 9 Silvas and Rochester insofar as they are Massachusetts residents and a Massachusetts company, that relationship has no bearing on the occurrence itself and is not greater than Rhode Island's relationship to the occurrence and the parties. Rhode Island comparative negligence law therefore applies; consistent with that law, a judgment properly entered in favor of Timothy awarding him $399,700 in damages.
b. Prejudgment interest.
The Silvas and Rochester also dispute whether Massachusetts or Rhode Island prejudgment interest law applies. In Massachusetts, interest is added to tort judgments at the rate of twelve percent per year from the date of the commencement of the action, see G. L. c. 231, § 6B, while in Rhode Island prejudgment interest runs from the date the cause of action accrued, see R.I. Gen. Laws § 9-21-10. This conflict again requires us to determine which law applies.
Prejudgment interest is a substantive matter, see Lou, 77 Mass.App.Ct. at 583, and so we look to the Restatement (Second) of Conflict of Laws for guidance. In accordance with § 171 comment c of the Restatement, "[t]he law selected by application of the rule of § 145 determines whether the plaintiff can recover interest and, if so, at what rate for a period prior to the rendition of judgment as part of the damages for a tort." Section 145 of the Restatement directs us back to the principles stated in § 6 -- including the relevant policies 10 of the forum and other interested States -- to determine which State "has the most significant relationship to the occurrence and the parties."
Rhode Island has a significant relationship to the parties and the occurrence because it has a policy interest in ensuring that individuals who work on construction sites in Rhode Island are fully compensated for injuries arising from worksite negligence. Rhode Island's prejudgment interest law furthers this policy interest by "compensat[ing] persons for the loss of use of money that was rightfully theirs" (citation omitted). Glassie v. Doucette, 159 A.3d 88, 97 (R.I. 2017) . In contrast, as discussed above, Massachusetts has a relationship to the Silvas and Rochester, but not to the occurrence itself. Rhode Island prejudgment interest law therefore applies. Contrast Lou, 77 Mass.App.Ct. at 587 (where accident occurred in China but Chinese law did not provide for prejudgment interest, Massachusetts prejudgment interest law applied because China's "posture appear[ed] to arise from a difference in the way [China] regard[ed] the nature of the relationship between the parties as of the time of suit, rather than a difference in its interest in, or concern with, seeing that victims of injuries caused by defective products are fully compensated"). Accordingly, we remand for the trial court to recalculate prejudgment interest consistent with Rhode Island law. 11
3. Costs.
Lastly, the Silvas argue that they were awarded costs against Rochester that were inadvertently and erroneously excluded from their judgments. Rochester does not dispute this but notes that the Silvas filed a joint request for costs and that the cost award of $3,455.63 included costs for both Timothy and Theresa. Rochester argues that the cost award should be apportioned between Timothy and Theresa or that the cost award should be added to either Timothy's judgment or Theresa's judgment, but not both judgments, as that would effectively double the cost award. We agree. As this is a matter best left to the discretion of the trial judge in the first instance, we remand for the judge to determine whether and how to apportion the cost award or whether to add the total award to one of the judgments.
4. Conclusion.
So much of the amended judgment dated October 28, 2020, as awarded prejudgment interest to the plaintiffs is vacated. The case is remanded for recalculation of the prejudgment interest award and incorporation of the cost 12 award consistent with this memorandum and order. The remainder of the amended judgment dated October 28, 2020, is affirmed.
So ordered.
Rubin, Wolohojian & Blake, JJ. 13
The panelists are listed in order of seniority.
Theresa Silva.