Opinion
20-P-636
04-05-2021
Robert S. LEO v. The CHARTER OAK FIRE INSURANCE COMPANY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Robert S. Leo, appeals from a judgment entered in favor of the defendant, The Charter Oak Fire Insurance Company (Charter Oak), on Charter Oak's motion for summary judgment. We affirm.
"We review a grant 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 judgment as a matter of law" (quotation and citation omitted). DeWolfe v. Hingham Ctr., Ltd., 464 Mass. 795, 799 (2013).
Background. The undisputed facts taken in the light most favorable to Leo are as follows. On December 21, 2011, Leo and Charter Oak's insured (Matos) were involved in a motor vehicle accident for which Matos was at fault. Leo was injured and he received workers' compensation benefits from Granite State Insurance Company (Granite State) in the amount of $43,681.69. Granite State secured a lien against any recovery from at-fault third parties.
In September 2013, Leo underwent two brain surgeries.
The record contains no evidence that the surgeries were related to the accident.
In November 2013, Leo signed a petition under G. L. c. 152, § 15 (petition), for approval of third-party settlement between himself and Charter Oak. That petition provided that Charter Oak would pay Leo $25,000 to resolve his claim against Matos, Granite State would accept $12,500 of that money to satisfy and release its lien for workers' compensation benefits paid to Leo, and the remainder of the settlement proceeds would be retained by Leo. On February 28, 2014, the petition was approved by an administrative law judge of the Department of Industrial Accidents. In March 2014, Leo signed a release and settlement agreement (release), waiving "any and all claims" against Matos or Charter Oak arising from the accident in exchange for $25,000, "the receipt and sufficiency of which are hereby acknowledged." Charter Oak thereafter delivered a check to Leo in the amount of $12,500.
Subsequently, Leo brought a negligence action against Matos (Matos litigation) seeking additional damages from the collision. Leo argued that, because of his brain surgeries, he lacked capacity to contract when he signed the petition and the release and that they therefore did not bar his action. The judge in the Matos litigation concluded that Leo's claims were barred by the petition and release and granted summary judgment for Matos. In granting summary judgment, the judge concluded that there was no evidence that the settlement was unreasonable or that a reasonably competent person would not have entered into it. In addition, Leo had "failed to produce the required medical evidence to establish that he lacked the capacity to contract due to the existence of a mental condition."
Leo then brought this action, alleging that Charter Oak violated G. L. c. 176D and c. 93A in the settlement of his claims. The motion judge entered a thoughtful memorandum and order, and granted summary judgment to Charter Oak.
Discussion. The thrust of Leo's appeal is that he did not receive $25,000 from Charter Oak as stated in the release. Leo argues first, that Charter Oak deceived him about the amount of the settlement he would receive, a deception made possible by his brain surgeries and exploitation of his resulting incapacity, and second, that because the release stated that he would receive $25,000 and did not incorporate the petition by reference, he was entitled to receive the full $25,000.
1. Capacity. Leo contends that collateral estoppel does not apply because "there are no identical issues in the two matters." Leo does not cite to relevant authority and his argument therefore fails to rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). Even were we to consider this argument, Leo would fare no better.
Collateral estoppel, also known as issue preclusion, may be applied defensively when:
"(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; ... (3) the issue in the prior adjudication was identical to the issue in the current adjudication; ... [and] [4] the issue decided in the prior adjudication [was] essential to the earlier judgment" (citation omitted).
Supeno v. Equity Office Props. Mgt., LLC, 70 Mass. App. Ct. 470, 473-474 (2007). All four conditions are met here: there was a final judgment on the merits in the prior litigation, Leo was a party to the prior action, the issue of his competence is identical, and his competence was essential to the prior decision. On the record before us, there is also no evidence that Leo lacked a full and fair opportunity to litigate his competency in the Matos litigation. See Martin v. Ring, 401 Mass. 59, 61 (1987). Leo is precluded from relitigating the enforceability of the release and the settlement based on his competence; accordingly, he is bound by the terms of those documents. See Supeno, supra at 473-474.
2. The release. Leo also argues that the release required Charter Oak to pay him $25,000 -- not $12,500 -- because the release neither stated that he would receive only $12,500 nor incorporated by reference the terms of the settlement of the workers' compensation lien that Leo also signed. This argument is unavailing.
Leo makes no argument that he did not understand the nature of Granite State's lien. The release he signed explicitly states that "[Leo] ... acknowledges and assumes all risk that certain medical providers, insurers and/or governmental agencies may have a claim to part or all of the proceeds of th[e] settlement." Leo also signed the petition, which explicitly states the portions of the settlement to be allocated to him and to Granite State. While the release between Charter Oak and Leo also states that it is the entire agreement "between the parties hereto," Granite State is not a party to the release and therefore its lien is not affected. The doctrine of incorporation by reference allows a drafter to incorporate the terms of a prior document by specifically referring to them. See NSTAR Elec. Co. v. Department of Pub. Utils., 462 Mass. 381, 394-395 (2012). It does not require that an agreement specifically refer to all collateral conditions. The release is not fraudulent or deceptive.
Leo also argues that the trial court should have imposed sanctions for Charter Oak's failure to serve its motion for summary judgment and file its Rule 9A package within the required time. A judge has discretion to hear dispositive motions at any time, even during trial, provided that the opposing party has a fair opportunity to prepare and present a response. See Makino, U.S.A., Inc. v. Metlife Capital Credit Corp., 25 Mass. App. Ct. 302, 317-318 (1988). Here, there is no evidence that Leo lacked the opportunity to oppose the merits of the motion and he does not argue that the delay itself was prejudicial. We therefore discern no abuse of discretion.
Conclusion. The judgment for Charter Oak is affirmed.
We have carefully considered all the arguments raised in Leo's brief. To the extent any additional arguments have not been addressed specifically herein, they are without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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So ordered.
Affirmed