Opinion
13-P-1757
11-14-2014
GLORIA STELLA LOPEZ TORRES v. THE CORNU MANAGEMENT COMPANY, INC.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Gloria Stella Lopez Torres (Lopez Torres), appeals from a judgment of the Superior Court following the allowance of a motion for summary judgment. We review the entry of summary judgment de novo to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Miller v. Mooney, 431 Mass. 57, 60 (2000), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Because the release of claims of one tortfeasor did not bar Lopez Torres's cause of action against a second tortfeasor, see G. L. c. 231B, § 4; Cram v. Northbridge, 410 Mass. 800, 804 (1991), we vacate the judgment and remand the matter for further proceedings.
Lopez Torres claims to have slipped and fallen on ice while walking in the parking lot of her apartment building on January 25, 2010. The defendant, The Cornu Management Company, Inc. (Cornu), was responsible for maintenance at Lopez Torres's apartment building under a contract with Fitchburg Affordable Housing Corporation (FAHC). The parties have proceeded on the premise that Twin Cities Community Development Corporation (Twin Cities) was the parent company of FAHC at the time of Lopez Torres's injuries, that Twin Cities is a charitable corporation, and that FAHC held title to the building on behalf of Twin Cities.
Neither party has provided the court with the statement of material facts provided to the motion judge. See Superior Court Rule 9A(b)(5); Mass.R.Civ.P. 56, 365 Mass. 824 (1974).
Lopez Torres sent a demand letter to Cornu in which she claimed that Cornu maintained the premises in a negligent manner. An insurer responded; its letter referred to a policy with Twin Cities. Thereafter, counsel for Lopez Torres and the insurance adjuster agreed to a settlement in the amount of $20,000, and Lopez Torres executed a release, dated October 11, 2011, in favor of Twin Cities. The uncontroverted evidence in the record before us is that the adjuster represented that Twin Cities was a charitable organization, and that damages were capped at $20,000. Lopez Torres has averred, also without contradiction, that she did not intend to settle with Cornu.
Lopez Torres subsequently filed suit against Cornu. Cornu sought summary judgment on the basis of the language of the release which exempted "all other persons, firms and corporations whomsoever" from further liability. The release did not refer to Cornu by name. Relying on the release alone, and without consideration of G. L. c. 231B, § 4, or Cram, supra, the judge allowed the motion.
General Laws c. 231B, § 4, inserted by St. 1962, c. 730, § 1, provides in pertinent part:
"When a release or covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury:
"(a) It shall not discharge any of the other tortfeasors from liability for the injury unless its terms so provide."
This was error. General Laws c. 231B, § 4, states that a general release does not release unnamed tortfeasors unless the release so provides. The Supreme Judicial Court has interpreted the statute to mean that a general release of a tort claim will not discharge joint tortfeasors who are not specifically named in the release unless the plaintiff intended to do so. Cram, supra. Here, as in Cram, Lopez Torres filed an affidavit stating that she did not intend to release the defendant. This is sufficient to create a dispute of fact as to intent for purposes of summary judgment. Ibid.
Although Cornu unsuccessfully attempted to argue below that Twin Cities could not be held vicariously liable, it did not address on appeal whether Twin Cities could be held independently liable as a joint tortfeasor for an allegedly defective condition. See, e.g., Papadopoulos v. Target Corp., 457 Mass. 368 (2010).
Cornu did, however, concede for purposes of the appeal that Twin Cities stood in the shoes of the property owner FAHC with respect to reciprocal indemnification obligations between FAHC and Cornu. We therefore treat any claim that Twin Cities could not be a joint tortfeasor within the meaning of G. L. c. 231B, § 4, as waived on appeal, but not on remand. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
Cornu contends that the language of the release is plain and unambiguous, and that the judge correctly allowed summary judgment for that reason, without reference to Lopez Torres's affidavit. However, all of the cases cited by Cornu either predate the statute or concern claims other than those involving joint tortfeasors. See, e.g., Radovsky v. Wexler, 273 Mass. 254, 258 (1930); Eck v. Godbout, 444 Mass. 724, 728-730 (2005). For similar reasons, we reject Cornu's argument that consideration of parole evidence (the affidavits of Lopez Torres and her counsel) regarding Lopez Torres's intent is precluded by the plain and unambiguous language of the release. The statute represents a legislative abrogation of the common-law rule upon which Cornu relies. Cram, 410 Mass. at 803-804.
Cornu further contends, in the alternative, that it is undisputed that the parties intended to release Cornu because Cornu participated in the settlement negotiations and was covered by the insurance policy. Assuming without deciding that Cornu was an insured under the policy, the current record is devoid of any evidence of participation by Cornu in the settlement process other than the initial demand letter, to which the insurer responded on behalf of a different party. There is likewise no evidence that Lopez Torres or her counsel were directly informed that the settlement amount was intended to cover Cornu's liability. To the contrary, counsel's affidavit states that the adjuster informed him that the offer was limited by the charitable immunity cap. This representation would support the inference that the settlement applied to Twin Cities alone, since the cap was inapplicable to Cornu. There are facts in dispute as to both Cornu's participation and Lopez Torres's knowledge and intent.
Finally, Cornu argues that both the statute and Cram are inapplicable because Lopez Torres was represented by counsel and she is therefore not the type of unsophisticated person G. L. c. 231B, § 4, was intended to protect. See Cram, supra at 803. Neither the statute nor Cram elevate Cram's discussion of statutory purpose to an explicit limitation on the reach of § 4. The plain language of § 4 is not restricted to unrepresented parties. See Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008) ("Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent"); Campatelli v. Chief Justice of the Trial Ct., 468 Mass. 455, 464 (2014) ("When the meaning of statutory language is plain and unambiguous, our obligation is to interpret the statute according to its words").
The judgment is vacated and the matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Graham, Brown & Sullivan, JJ.),
Clerk Entered: November 14, 2014.