Zapata v. Bradley

6 Mass. L. Rptr. 576
CourtMassachusetts Superior Court
DecidedApril 15, 1997
DocketNo. 951387E
StatusPublished

This text of 6 Mass. L. Rptr. 576 (Zapata v. Bradley) 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
Zapata v. Bradley, 6 Mass. L. Rptr. 576 (Mass. Ct. App. 1997).

Opinion

Lauriat, J.

Third-party defendant ISS International Services Systems, Inc. (“ISS”) has moved, pursuant to Mass.R.Civ.P. 14(a), to strike the third-party complaint of the defendant/third party plaintiff, R.M. Bradley (“Bradley”). For purposes of this decision, the court treats ISS’s motion as a motion for summary judgment.1 Bradley has moved, pursuant to Mass.R.Civ.P. 56(c), for judgment as a matter of law in its favor on its claims against ISS.2 For the following reasons, ISS’s Motion to Strike is allowed and Bradley’s Motion for Summary Judgment is denied.

BACKGROUND

On July 1, 1992, ISS, a provider of janitorial services, entered into a contract with the Massachusetts Port Authority (“Massport”) and the Commonwealth of Massachusetts Division of Capital Planning and Operations (“DCPO”),3 pursuant to which ISS, as “the Contractor,” agreed to perform janitorial services at the State Transportation Building in Boston, Massachusetts. Massport, the “Building Manager” under the contract, assigned the contract to Bradley on August 17, 1992, effective September 1, 1992.

The plaintiff, Gustavo Zapata (“Zapata”), was an employee of ISS. On September 2, 1992, he was assigned to wash the walls in one of the offices of the State Transportation Building. This office contained a “tapmate,” a recessed outlet in the floor which was designed to accommodate electrical outlets and wires. The tapmate is usually covered by a plastic lid called a “tapmate cover,” which in turn is covered by carpet. Zapata used a ladder to wash the walls in the office. He climbed to the next-to-last rung on the ladder and began to wash the walls. He had placed the ladder over the tapmate, which did not have a cover. One leg of the tapmate punched through the carpet and into the tapmate, causing Zapata to be thrown to the floor and injured. ISS was not required to maintain or replace tapmate covers. Stipulation of Agreed Facts as between Third Party Plaintiff R.M. Bradley & Company and ISS Cleaning Services Group, Inc., ¶¶1-10. On March 10, 1995, Zapata brought suit against Massport and Bradley.

The ISS-Massport/Bradley contract contained a clause requiring ISS to indemnify “the Building Manager” for any claims and liabilities arising out of the ISS’s operations. The clause, the full text of which is set forth in the margin, also states that the Building Manager “shall give Contractor reasonable notice of any claim ... which in any way would result in a claim of indemnification . . .”4

On June 7, 1996, Bradley sent a certified letter to ISS informing it of Zapata’s suit against Bradley. On August 7, 1996, Bradley, as third-party plaintiff in the Zapata suit, brought an indemnification action against ISS.

DISCUSSION

Summary judgment must be granted where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. 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 that the moving party is entitled to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); accord, Kourouvacilis v. General Motors Corp. 410 Mass. 706, 716 (1991). “If the moving parly establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat a motion for summary judgment.” Pederson v. Time, Inc., 404 Mass. at 17. The opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment. LaLonde v. Eissner, 405 Mass. 207, 209 (1989).

In ruling on a motion for summary judgment, the court must not consider the “credibility of the witnesses or the weight of the evidence, nor should the [577]*577[court] make findings of fact." Riley v. Presnell, 409 Mass. 239, 244 (1991), citing Attorney General v. Bailey, 386 Mass. 367, 370 (1982). However, “the movant is held to a stringent standard .. . [A]ny doubt as to the existence of a genuine issue of material fact will be resolved against the movant.” 10A C. Wright, A.R. Miller & M. Kane, Federal Practice and Procedure, §2727, at 125-125 (1983) (construing Fed. R. Civ. P. 56).

I.Reasonable Notice

ISS first asserts in its motion to strike the third-party complaint that Bradley failed to provide it with “reasonable notice” of the Zapata claim as required by the indemnification clause of the ISS-Massport/Bradley contract.

Numerous Massachusetts cases have found that notification of an insurer or indemnitor was, as a matter of law, untimely. See, e.g., Parker v. Middlesex Mut. Assur. Co., 179 Mass. 528 (1901) (eight-month delay); Powell v. Fireman’s Fund Ins. Companies, 26 Mass.App.Ct. 508 (1988) (five-month delay); Peters v. Saulinier, 351 Mass. 609 (1967) (nine-month delay); Cheschi v. Boston Edison Co., 39 Mass.App.Ct. 133 (1995) (more than two-year delay). However, the contracts in these cases contained much more precise language regarding timely notice than the contract in the instant case. See, e.g, Parker, 179 Mass. at 529 (requiring insured to provide notice of accident “forthwith”); Powell, 26 Mass.App.Ct. at 508 (insured required to give notice “as soon as practicable”); Cheschi, 39 Mass.App.Ct. at 140 (“prompt” notification required). Indeed, neither party has cited an analogous case where the phrase “reasonable notice” was employed.

“Reasonable notice” is indeed a more ambiguous term than, for example, “prompt notice.” And unlike the term “prompt,” the term “reasonable” has many non-temporal connotations. It could be argued, for example, that the phrase “reasonable notice” referred to the form of the notice, rather than its timeliness.

Nevertheless, in the circumstances of this case, the court concludes, as a matter of law, that Bradley’s notification of ISS was not reasonable. The earliest ISS received any notification regarding the Zapata suit was on June 7, 1996, about fifteen months after the suit was brought.5 “What is a reasonable time is a question of fact, but where the basic facts are undisputed it becomes a question of law.” Parker v. Middlesex Mut. Assur. Co., 179 Mass. 528. Here, there is no real dispute that Bradley notified ISS well after the fact that indemnification might be required. Bradley’s failure to give reasonable notice relieves ISS from any obligation to indemnify Bradley, and ISS’s motion to strike the third-party complaint must be allowed on this basis.

II.Voidability Under G.L.c. 149, §29C

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Related

Peters v. Saulinier
222 N.E.2d 871 (Massachusetts Supreme Judicial Court, 1967)
Pederson v. Time, Inc.
532 N.E.2d 1211 (Massachusetts Supreme Judicial Court, 1989)
LaLonde v. Eissner
539 N.E.2d 538 (Massachusetts Supreme Judicial Court, 1989)
Attorney General v. Bailey
436 N.E.2d 139 (Massachusetts Supreme Judicial Court, 1982)
Community National Bank v. Dawes
340 N.E.2d 877 (Massachusetts Supreme Judicial Court, 1976)
Powell v. Fireman's Fund Insurance Companies
529 N.E.2d 1228 (Massachusetts Appeals Court, 1988)
Riley v. Presnell
565 N.E.2d 780 (Massachusetts Supreme Judicial Court, 1991)
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)
Parker v. Middlesex Mutual Assurance Co.
61 N.E. 215 (Massachusetts Supreme Judicial Court, 1901)
M. DeMatteo Construction Co. v. A. C. Dellovade, Inc.
652 N.E.2d 635 (Massachusetts Appeals Court, 1995)
Cheschi v. Boston Edison Co.
654 N.E.2d 48 (Massachusetts Appeals Court, 1995)

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Bluebook (online)
6 Mass. L. Rptr. 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zapata-v-bradley-masssuperct-1997.