Salm v. Revere Teamworks, Llc.

Full title: VITO SALM & another v. REVERE TEAMWORKS, LLC.

Court: COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Mar 10, 2017

81 N.E.3d 823 (Mass. App. Ct. 2017)

Opinion

16-P-577

03-10-2017

Vito SALM & another v. REVERE TEAMWORKS, LLC.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Vito Salm was injured while playing in an ultimate frisbee league game at an athletic facility owned by Revere Teamworks, LLC (Teamworks). He and his wife, Clare E. Bertrand, filed a complaint against Teamworks, with Salm claiming negligence, Bertrand claiming loss of consortium, and both plaintiffs claiming negligent infliction of emotional distress. Teamworks answered and made a counterclaim for indemnification against Salm.

The judge allowed Teamworks's motion for summary judgment on both of Salm's claims, ruling that Salm waived the claims by signing a release of liability when he registered to play in the ultimate frisbee league. Bertrand's claims proceeded to a three-day jury trial. At the close of evidence, the same judge entered a directed verdict for Teamworks on its indemnity counterclaim against Salm, and the jury then returned a verdict for Teamworks on Bertrand's claims. Both plaintiffs appeal. Salm challenges the judge's allowance of Teamworks's motions for summary judgment and directed verdict and the judge's award of attorney's fees and costs. Bertrand challenges the judge's allowance of two motions in limine made by Teamworks. Discerning no error in any of these rulings, we affirm.

Background . We summarize the undisputed material facts. Teamworks operates an indoor sports facility in Revere. The facility has two turf fields, which Teamworks rents to organizations for the playing of indoor sports, including ultimate frisbee.

The Boston Ultimate Disc Alliance (BUDA) is a nonprofit organization that runs ultimate frisbee leagues. To participate in a BUDA-sponsored league, players must sign a release of liability form, which is available on BUDA's Web site. Salm signed such a release when he registered to play in one of BUDA's 2010 winter leagues. In material part, the release states:

"I, for myself and on behalf of my heirs, assigns, personal representatives and next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS THE Boston Ultimate Disc Alliance, their officers, officials, agents, and/or employees, other participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and lessors of the premises used for the activity (Releasees), WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law."

During the winter of 2009–2010, BUDA rented one of the fields at the Teamworks facility. In February of 2010, Salm was playing in a BUDA-league game at the facility, when he jumped to catch a thrown frisbee and was knocked headfirst by his teammate into the boards surrounding the field. He sustained injuries, and, in January of 2013, he and Bertrand filed this action to recover his medical costs and other damages from Teamworks.

Discussion . 1. Summary judgment on Salm's claims . The judge ruled that the plain language of the release barred both of Salm's claims against Teamworks and entered summary judgment accordingly. We review the judge's decision de novo, viewing the evidence in the light most favorable to Salm, the nonmoving party. See Pinti v. Emigrant Mort. Co ., 472 Mass. 226, 231 (2015).

"Massachusetts law favors the enforcement of releases," including in cases related to sports and recreation. Sharon v. Newton , 437 Mass. 99, 105, 106-107 (2002). See Lee v. Allied Sports Assocs., Inc ., 349 Mass. 544, 550–551 (1965) ; Cormier v. Central Mass. Chapter of the Natl. Safety Council , 416 Mass. 286, 288–289 (1993). Where a release is unambiguous, its interpretation is a question of law, which can be resolved on summary judgment. See Post v. Belmont Country Club, Inc ., 60 Mass. App. Ct. 645, 647, 651-652 (2004).

Here, we agree with the judge that the release signed by Salm is unambiguous and bars his negligence claims against Teamworks. As described above, the release applies to a category of "Releasees," which includes, "if applicable, owners and lessors of the premises used for the activity." Salm agreed to indemnify those "Releasees" and to waive any claim for injuries or losses "arising from the negligence of the Releasees or otherwise." Thus, pursuant to its plain language, the release shields Teamworks—the lessor of the premises used by BUDA—from liability for Salm's injuries.

In arguing otherwise, Salm does not point to any language in the release that renders it ambiguous.³ Instead, he contends that there is a disputed issue of fact as to whether he understood when he signed the release that it applied not just to claims against BUDA, but also to claims against third parties. Even if disputed, however, the issue is not material. "[I]t is a rule in this Commonwealth that the failure to read or to understand the contents of a release, in the absence of fraud or duress, does not avoid its effects." Sharon , 437 Mass. at 103, quoting from Lee , 349 Mass. at 550-551. See Cormier , 416 Mass. at 289 ("[The plaintiff's] subjective belief that the release did not encompass negligence, and her subjective intent not to release any claim for negligence, do not furnish a basis for avoiding the release on the ground of mistake"). It is undisputed that Salm signed the release voluntarily, and so his subjective understanding of the scope of the release does not create a material issue of fact for trial.

3 Salm makes a one-sentence assertion that "the words ‘if applicable’ may suggest that there is limitation on the application of the release." This single sentence does not constitute adequate appellate argument. See Commonwealth v. O'Laughlin , 446 Mass. 188, 211 (2006). And in any event, we concur with the judge's reading of "if applicable" as "refer[ring] to the presence or absence of owners and lessors of premises utilized by BUDA, rather than to a specific limitation on the indemnity intended to extend to such owners and lessors."
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2. Directed verdict on Teamworks's counterclaim . For similar reasons we conclude that the judge correctly allowed Teamworks's motion for a directed verdict on its counterclaim for indemnification against Salm. In reviewing a directed verdict, we evaluate whether there is any evidence that would allow a reasonable jury to find in favor of the nonmoving party. See Global Investors Agent Corp . v. National Fire Ins. Co. of Hartford , 76 Mass. App. Ct. 812, 827 (2010). Here, Salm contends that the judge erred in directing a verdict because the jury could have found from the evidence that Teamworks was not an intended beneficiary of the indemnification provision of the release. We disagree. Again, the indemnification provision applies to the "Releasees," which expressly includes "owners and lessors of the premises used for the activity." The plain language of the release therefore shows that Salm agreed to indemnify Teamworks for any injuries or losses arising out of BUDA-league games played at the Teamworks facility.

3. Attorney's fees and costs . The judge awarded Teamworks $20,116.50 in attorney's fees and costs on its indemnity counterclaim against Salm. In arriving at this figure, the judge rejected Teamworks's initial request, which sought fees and costs related to the entire case, ruling that Teamworks was entitled to recover only for fees and costs attributable to its defense of Salm's claims. After Teamworks resubmitted its request, removing the entries associated with Bertrand's claims, the judge made further reductions and arrived at the final figure of $20,116.50.

Salm argues that the judge erred as a matter of law in awarding attorney's fees and costs because the right to such an award was not specifically set out in the indemnification provision of the release. "It has long been held, however, that when a right to indemnity is conferred, by written contract or otherwise, the indemnitee may recover reasonable legal fees and costs incurred in resisting a claim within the compass of the indemnity." Amoco Oil Co . v. Buckley Heating, Inc ., 22 Mass. App. Ct. 973, 973 (1986). This is true even where the indemnity clause does not "speak expressly about indemnification of legal expenses." Ibid . See Callahan v. A.J. Welch Equip. Corp ., 36 Mass. App. Ct. 608, 613 n.6 (1994) ("Ordinarily, an indemnitee is entitled to recover reasonable attorney's fees and costs incurred in resisting a claim within the scope of the indemnity clause even where the written indemnity agreement makes no specific reference to attorney's fees"). Salm fails to explain why we should reach a contrary result in this case.

We also reject Salm's argument that the award was excessive because the "majority of the requested fees represent duplicative work" and the fees "were not apportioned appropriately" between Bertrand's claims and Salm's claims. "The computation of fees rests in the sound discretion of the trial judge." Howe v. Tarvezian , 73 Mass. App. Ct. 10, 13 (2008). Salm's conclusory assertions that the fees were not correctly calculated are insufficient to demonstrate that the judge abused her discretion. Furthermore, the record reflects that the judge carefully considered Teamworks's request and twice ordered that it be reduced to exclude time that was attributable to the defense of Bertrand's claims. The judge, who was intimately familiar with the case, acted well within her discretion in calculating the final award.

4. Motions in limine . Bertrand's only arguments on appeal concern the judge's rulings on two motions in limine brought by Teamworks. "We review a judge's evidentiary rulings on a motion in limine for abuse of discretion." Commonwealth v. Rosa , 468 Mass. 231, 237 (2014). We discern none here.

Bertrand first asserts that the judge erred in allowing Teamworks's motion to limit the testimony of her expert witness. The judge allowed the motion only in part, precluding the expert from testifying as to legal issues—such as the duty owed by Teamworks to Salm and whether Teamworks breached that duty—but permitting him to testify as to nonlegal issues. Bertrand then chose not to call the expert as a witness for any purpose.

Bertrand fails to show that the judge's ruling constituted an abuse of discretion. In fact, she concedes in her brief that an expert "may not offer a legal conclusion or invade the province of the jury." Although she claims that the "[j]udge far exceeded these concerns," she does not support her claim with citations to legal authority or with an explanation of how the alleged error prejudiced her, the latter omission being particularly significant given her own choice not to call the expert to testify. Her discussion of this issue therefore fails to rise to the level of adequate appellate argument. See Commonwealth v. O'Laughlin , 446 Mass. 188, 211 (2006).

Bertrand next asserts that the judge erred in allowing Teamworks's motion to exclude the introduction of Salm's medical records. Here, too, Bertrand offers only conclusory assertions without citing to any supporting legal authority. In any event we conclude that the judge was within her discretion in excluding the medical records. As the judge observed, the proof of Bertrand's damages was not dependent on the medical records but, rather, on how Bertrand was affected by Salm's injuries. The judge thus excluded the records but at the same time stated that she would "permit expansive testimony from [Bertrand] about the nature of [Salm's] injuries" and would likewise permit Salm to "testify at length about his injuries, how long he was in the hospital, how much he's forgotten, [and] what he suffered." Both Bertrand and Salm then did in fact testify extensively about Salm's injuries and their effect on Bertrand. Bertrand fails to show how the judge abused her discretion in this respect.

Judgment entered January 21, 2016, affirmed .