Transamerica Premier Insurance v. Electro Maintenance & Service Corp.

1 Mass. L. Rptr. 639
CourtMassachusetts Superior Court
DecidedMarch 31, 1994
DocketNo. 92-5767
StatusPublished

This text of 1 Mass. L. Rptr. 639 (Transamerica Premier Insurance v. Electro Maintenance & Service Corp.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Transamerica Premier Insurance v. Electro Maintenance & Service Corp., 1 Mass. L. Rptr. 639 (Mass. Ct. App. 1994).

Opinion

Lenk, J.

Plaintiff, Transamerica Premier Insurance (“TPI”) brought this action to enforce a written indemnify agreement against the successor corporation of a bonded principal, and three individual indemnitors. On January 25, 1994, this case came before the court on plaintiffs motions for summary judgment against defendants- Lynne Fraser and Alfred T. Fraser.2 In support of its motion, plaintiff asserts that no genuine issues of material fact remain for trial because the individual defendants have admitted that they signed the indemnify agreements, TPI incurred losses in connection with four bonded projects, and defendants have refused to indemnify TPI.

In response to plaintiffs motion, defendant Alfred Fraser argues that plaintiff is not entitled to judgment as a matter of law because TPI, through its alleged agent defendant Lynne Fraser (Alfred Fraser’s wife), fraudulently induced him to sign the indemnity agreement.

Defendant Lynne Fraser argues in response to plaintiffs motion that she only indemnified plaintiff to the extent of the face value of the bonds. Furthermore, she contends that TPI did not act in good faith in settling the claims against Electro and that her liability is limited to the amount plaintiff paid in good faith.

For reasons set forth below, TPI’s motion is allowed as to both Alfred Fraser and Lynne Fraser.

BACKGROUND

The pleadings of the parties, affidavits, depositions, and Alfred Fraser’s revised response to plaintiffs requests for admissions reveal the following undisputed facts. Electro Contracting and its successor corporation, Electro Maintenance and Service Corporation (“Electro Maintenance”), were involved in performing electrical renovations for several construction projects. In relation to these projects, Electro Contracting requested that TPI issue surety bonds. On January 5, 1989, and again on a later date, Electro Contracting and Service Corporation (“Electro Contracting”) executed two identical general indemnify agreements in order to induce TPI to execute surety bonds on behalf of Electro Contracting. Lynne Fraser, the president of the corporation, Timothy Bauer, her brother and vice-president, and Alfred Fraser, Lynne Fraser’s husband, signed the agreements as individual indemnitors. The indemni-tors promised to reimburse TPI for “loss, costs, damages or expenses ofwhatevernatureorkind, including fees ofattorneys and all other expenses, includingbut not limited to cost and fees of investigation, adjustment of claims, procuring or attempting to procure the discharge of such bonds and in attempting to recover losses or expenses from the Undersigned or third parties...” General Indemnify Agreement, at para. 2. The agreement also provided that “[i]n any claim or suit hereunder, an itemized statement of the aforesaid loss and expense, sworn to by an officer of Surety, or the vouchers or other evidence of disbursement by Surety, shall be prima facie evidence of the fact and extent of the liability... of the Undersigned.”

On April 27, 1990, Electro Contracting filed bankruptcy, leaving four bonded projects incomplete and numerous suppliers unpaid. Pursuant to the bonds, TPI completed two of the remaining jobs and settled the accounts of various claimants for labor and materials. TPI’s unreimbursed damages as a result of Elec-tro Contracting’s default on the bonded projects amounted to $504,263. TPI then sought recovery from the three individuals who had signed the general indemnity agreement. The indemnitors have not reimbursed TPI.

DISCUSSION

Summary judgment shall be granted where there are no genuine issues as to any material fact and where the moving party is entitled to judgment as a matter of law. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community National Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue “and [further,] that the moving party is entitled to judgment as a matter of law.” Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). “A complete failure of proof concerning an essential element of the non-moving party’s case renders all other facts immaterial” and mandates summary judgment in favor of the moving party. Kourovacilis, 410 Mass. at 711.

As a general rule, indemnity provisions are interpreted “like any ordinary contract, with attention to language, background, and purpose.” Speers v. H.P. Hood, Inc., 22 Mass.App.Ct. 598, 600, rev. denied, 398 Mass. 1105 (1986). Absent fraud, a court will enforce a written agreement against a signator, whether or not the individual has read the document. Tiffany v. Sturbridge Camping Club, Inc., 32 Mass.App.Ct. 173, 175 n.5 (1992). “One who knowingly signs a writing that is obviously a legal document without bothering [641]*641to ascertain the contents of the writing is ordinarily bound by its terms, in the same manner as if he had been fully aware of those terms, unless it can be shown that he was induced to sign it by fraud or undue influence." Markell v. Sidney B. Pfeifer Foundation, Inc., 9 Mass.App.Ct. 412, 440 (1980).

An indemnification agreement will not be enforced, however, against an individual whose signature was obtained by fraud. In order to show fraud in the inducement, defendant Alfred Fraser must show that TPI knowingly made false representations of material fact in order to induce him to sign the agreements, and that Alfred Fraser reasonably relied upon the representations to his detriment. Bolen v. Paragon Plastics, Inc., 754 F.Supp. 221, 226 (D.Mass. 1990); see Barret Assoc., Inc. v. Aronson, 346 Mass. 150, 152 (1963).

Alfred Fraser asserts that TPI made such misrepresentations through an agent. An agency relationship “results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control." Kirkpatrick v. Boston Mut. Life Ins. Co., 393 Mass. 640, 645 (1985). A putative agent’s words or conduct are not competent evidence of authority to bind a principal; rather, there must be evidence of a principal’s consent. Rubel v. Hayden, Hardin & Buchanan, Ins., 15 Mass.App.Ct. 252, 255 (1983).

In the present case, Alfred Fraser asserts that on January 5,1989 he visited his wife and brother-in-law at Electro Contracting’s office. Timothy Bauer’s girlfriend and two other unidentified individuals were there as well. Alfred Fraser alleges that Lynne Fraser and Timothy Bauer showed him one page of a document which they had already signed, and told him that he had to sign because Electro Contracting was obtaining a bond. Fraser contends that he said he had “nothing to do with the company," but was told that he had to sign as Lynne Fraser’s husband to allow the bonding company to reach any property his wife might try to put in his name. Alfred Fraser maintains that he signed the one-page document, and on a later date, signed a four-page document, as a result of these statements. He also states that he did not read the pages attached to the signature page of the second document, although no one prevented him from doing so.

Alfred Fraser has not raised a genuine issue for trial with regard to his claim that he was fraudulently induced by TPI or an agent of TPI to sign the indemnify agreements. Alfred Fraser has submitted no evidence that Lynne Fraser or Timothy Bauer acted as agents of TPI, with TPI’s consent.

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Related

Speers v. HP HOOD, BLOOM, SOUTH & GURNEY
495 N.E.2d 880 (Massachusetts Appeals Court, 1986)
Pederson v. Time, Inc.
532 N.E.2d 1211 (Massachusetts Supreme Judicial Court, 1989)
Kirkpatrick v. Boston Mutual Life Insurance
473 N.E.2d 173 (Massachusetts Supreme Judicial Court, 1985)
Rubel v. Hayden, Harding & Buchanan, Inc.
444 N.E.2d 1306 (Massachusetts Appeals Court, 1983)
Markell v. Sidney B. Pfeifer Foundation, Inc.
402 N.E.2d 76 (Massachusetts Appeals Court, 1980)
Community National Bank v. Dawes
340 N.E.2d 877 (Massachusetts Supreme Judicial Court, 1976)
Kourouvacilis v. General Motors Corp.
575 N.E.2d 734 (Massachusetts Supreme Judicial Court, 1991)
Flesner v. Technical Communications Corp.
575 N.E.2d 1107 (Massachusetts Supreme Judicial Court, 1991)
Cassesso v. Commissioner of Correction
456 N.E.2d 1123 (Massachusetts Supreme Judicial Court, 1983)
Barrett Associates, Inc. v. Aronson
190 N.E.2d 867 (Massachusetts Supreme Judicial Court, 1963)
Tiffany v. Sturbridge Camping Club, Inc.
587 N.E.2d 238 (Massachusetts Appeals Court, 1992)
Bolen v. Paragon Plastics, Inc.
754 F. Supp. 221 (D. Massachusetts, 1990)
Hartford Accident & Indemnity Co. v. Millis Roofing & Sheet Metal, Inc.
418 N.E.2d 645 (Massachusetts Appeals Court, 1981)
American Employers' Insurance v. Horton
622 N.E.2d 283 (Massachusetts Appeals Court, 1993)

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Bluebook (online)
1 Mass. L. Rptr. 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/transamerica-premier-insurance-v-electro-maintenance-service-corp-masssuperct-1994.