Opinion
No. 11–P–1765.
2012-08-21
AMERICAN ENGINEERING & TESTING, INC., & another v. PAUL F. YOUNG CO., INC., & others.
By the Court (GRASSO, GREEN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a summary judgment. We affirm, essentially for the reasons explained in the motion judge's thoughtful memorandum and order.
And from an order denying their reconsideration motion.
We need not belabor the undisputed facts, as they were thoroughly summarized by the motion judge, noting for present purposes only that the underlying lawsuit resolved via settlement in January, 2010, long after the applicable three-year limitations period expired. The plaintiffs thus did not “discharge [ ] by payment the common liability within the statute of limitations” so as to preserve their contribution rights against the defendants under G.L.c. 231B, § 3( d )(1), inserted by St.1962, c. 730, § 1.
Nor are we persuaded that the January, 2010, release evidences the plaintiffs' intent to “agree[ ] while action is pending ... to discharge the common liability” within the meaning of § 3( d )(2). The release, containing a complete integration clause, designates the plaintiffs as the released parties; it makes no reference, direct or indirect, to any of the defendants. Nor does the release contain language suggesting that the defendants' common liability had been, at that time, discharged fully. The release is the product of a negotiated transaction among sophisticated parties, represented by counsel, who could have preserved their contribution claims by specific language so stating, had they wished to do so. As the motion judge ably put it, we perceive nothing in the present record suggesting that “Fallon intended in January 2010 to include the defendants in the instant action in the discharge of liability.” Cram v. Northbridge, 410 Mass. 800, 804 (1991), a factually distinguishable decision construing G.L.c. 231B, § 4 (a provision not at issue here), does not compel a different result. We see no legal error or abuse of the judge's broad discretion in denying the plaintiffs' reconsideration motion, that motion being supported solely by arguments previously considered and addressed during the summary judgment hearing. See Paquette v. Department of Envtl. Protection, 55 Mass.App.Ct. 844, 845 (2002).
The motion judge did not ignore release paragraph numbers six and seven, specifically referring to that language when observing that, under paragraph number six, Fallon “had no choice” but to cooperate. We also reject the plaintiffs' argument that the motion judge's decision is contrary to public policy. Deciding as we do, we do not reach Arthur Choo Associates, Inc.'s defense that it was not the proximate cause of Fallon's claimed damages.
Judgment affirmed.