Opinion
17-P-1231
08-03-2020
BAHIG BISHAY v. NATIONAL INVESTIGATIONS, INC., & others.
NOTICE: 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
The plaintiff, Bahig Bishay, brought suit against the defendants alleging conversion, breach of contract, intentional misrepresentation, negligent misrepresentation, and unfair and deceptive business practices. After concluding that Bishay (1) failed to state a claim, (2) failed to establish the requisite control, and (3) failed to enter into a reasonable settlement agreement the Superior Court disposed of all claims by entry of summary judgment in favor of four of the defendants and dismissal of the complaint against all defendants. We affirm.
Background. In a prior proceeding, Bishay was removed from his home by Harvard 45 Associates, LLC, an entity owned by Harold Brown and Enrique Darer (collectively, Harvard). Harvard contracted with National Investigations, Inc., an entity owned by Glenn Gillis and Garry Gillis (collectively, National), to remove and store items that Bishay left at the property after his removal. After several years, National disposed of Bishay's items. Bishay sent a formal demand letter to National requesting $477,300 in damages. Bishay also sent a copy of the formal demand letter to Allied Finance Adjusters Conference, Inc. (Allied), alleging that National was insured by Allied. Allied denied being involved because National "was not a member of Allied Finance Adjusters on, during, or before the time of the business transaction."
The estate of Harold Brown has since been substituted for Harold Brown.
Discussion. 1. Dismissal of Allied. Against Allied, Bishay's complaint asserted only that Allied listed National as one of the members of its client protection bond, denied his claim pursuant to that bond, and refused his records request. Such thin factual allegations do not support any of the five claims he alleged and, thus, the judge properly dismissed his claims against Allied. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (to survive motion to dismiss, complaint must contain "factual allegations plausibly suggesting [not merely consistent with] an entitlement to relief" [quotation omitted]).
Notably, Bishay makes no demand for relief regarding the bond, does not allege that Allied was covered by the bond at the time when the property was disposed of (as opposed to at the time the complaint was filed), and does not allege that National's actions are covered by the bond. Bishay was given an opportunity to seek leave to file an amended complaint but failed to do so.
2. Summary judgment for Harvard. The judge also properly granted summary judgment in favor of Harvard. Contrary to Bishay's assertions, National was not an employee of Harvard but rather an independent contractor hired to remove Bishay's belongings from the property. See Brigham's Case, 348 Mass. 140, 141-142 (1964) ("[I]f [one] is only responsible for the accomplishment of an agreed result in an agreed manner, [one] is an independent contractor"). As such, Harvard is liable for National's actions only if it retained control over National's work. See Paradoa v. CNA Ins. Co., 41 Mass. App. Ct. 651, 654 (1996). However, there are no factual allegations which support any suggestions that Harvard directed National as to the manner or means it employed in the removal, storage, or otherwise handling of Bishay's property. Accordingly, summary judgment was appropriate. See Corsetti v. Stone Co., 396 Mass. 1, 10 (1985), quoting Restatement (Second) of Torts § 409 comment b (1965) ("If the employer retains no control over the manner in which the work is to be done, 'it is to be regarded as the contractor's own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it'").
3. Dismissal of National. An insurer or other interested party who objects to a settlement/assignment agreement has a right to be heard on whether the amount of the settlement is reasonable. See Commerce Ins. Co. v. Szafarowicz, 483 Mass. 247, 267 (2019). "Where the challenge is made before judgment enters, a judge who decides that the amount set forth in (or determined by) the settlement/assignment agreement is not reasonable may decline to enter a judgment in that amount. . . ." Id. In determining whether a settlement/assignment agreement is reasonable, the judge may consider the totality of the circumstances. Id. at 265.
Here, both Allied and Harvard objected to Bishay and National's agreed-upon settlement of a nearly $1.5 million judgment that contemplated satisfaction by them and in which National stood to gain $28,980 in payback monies plus the reimbursement of all its attorney's fees. The judge held several hearings regarding the reasonableness of such terms. After each of these hearings, the judge ordered Bishay and National to amend the agreement to acceptable terms, but the subsequently filed amended agreements contained substantially the same terms. Finding the agreement unreasonable, the judge ultimately rejected the settlement agreement. We discern no abuse of discretion.
Pursuant to the terms of the agreed judgment, National agreed that Bishay suffered $477,300 in actual damages. The parties further agreed that Bishay was entitled to treble damages.
A settlement agreement which (1) provided for a nearly $1.5 million judgment for the purported loss of household furnishing in radical and inexplicable contrast to National's presettlement position that Bishay's loss was at most the value of a few rakes, a lawnmower, and a ladder, (2) contemplated satisfaction by Harvard and Allied, who were neither a party to the agreement and who had already secured judgments in their favor, and (3) gave National a substantial sum of payback monies in addition to the recovery of all its attorney fees reeked of improper collusion. See Fistel v. Car & Gen. Ins. Corp., 304 Mass. 458, 460 (1939) ("It would be a reproach to the law if a court of equity could not prevent the enforcement of a judgment against a third person when it has been shown that such judgment was procured by fraud or collusion for the purpose of defrauding such third person").
Finally, where National and Bishay reported the case settled, the judge properly entered a twenty-day nisi order to dismiss the case on July 17, 2017. See Basis Tech. Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29, 44 n.9 (2008). Bishay's objection to such dismissal lacked merit. To resume litigation Bishay was required to establish that a "problem or obstacle beyond the control of the parties" impeded settlement. Id. No such outside factors impeded settlement here.
Bishay and National were afforded several opportunities to reach an acceptable settlement agreement. Despite three attempts, the settlement agreement, whose terms were in their total control, remained substantially the same. Bishay's and National's failure to reach a reasonable settlement agreement, therefore, was in no way attributable to outside factors, and entry of dismissal per the twenty-day nisi order was wholly appropriate.
Judgments affirmed.
By the Court (Maldonado, Blake & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 3, 2020.