November 8, 2016
ORDER ON POST-VERDICT ISSUES AND FOR
P. Leibensperger, Justice
action was commenced by Everest National Insurance Company as
subrogee of three persons: Timothy J. Barletta ("
Timothy"), Barletta Engineering Corporation ("
Barletta Corp.") and Osprey Equipment Corporation
(" Osprey"). The action is one for contribution
under G.L.c. 231B, § 1(d). Everest, as insurer for all
three persons, paid a settlement amount to a state trooper
who was seriously injured in a car accident when he was
struck from behind by a car driven by Timothy. Everest
asserted in this case that defendant, Berkeley Place
Restaurant Limited Partnership, d/b/a Grill 23 (" Grill
23"), is jointly liable to the state trooper as a result
of negligently serving Timothy alcohol in the hours before
the accident. Following a jury verdict in favor of Everest
that determined that Grill 23 is liable as a joint tortfeasor
and that the settlement reached by Everest with the state
trooper and his wife was reasonable, the parties address two
issues: (1) how many tortfeasors bear responsibility for a
pro rata share of the settlement, and (2) what amount is
Everest entitled to receive as contribution from Grill 23?
Both questions involve application of the contribution
statute. For the first question, the court must determine
whether " if equity requires, the collective liability
of some as a group shall constitute a single share."
G.L.c. 231B, § 2(b). The second question is whether,
under G.L.c. 231B, § 1, Everest may obtain contribution
for more than a pro rata share of what it paid in settlement.
Saturday night, September 27, 2008, Timothy attended a
private birthday party at the Grill 23 restaurant in Boston.
The person being celebrated was Timothy's sister-in-law,
Laura Barletta, and the person throwing the party was her
husband, Timothy's brother, Vincent Barletta.
Approximately 40 people attended the party and the guests
were, generally, friends and family of Laura Barletta. The
party was held in a function room, separate from the rest of
was evidence before the jury sufficient to show that at the
party Timothy was served alcohol after it had been recognized
by the Grill 23 manager on duty that Timothy was visibly
intoxicated. Timothy left the party with his girlfriend, got
into a motor vehicle, and drove west on the Mass. Pike.
Several minutes later, Timothy, while operating under the
influence of alcohol, smashed into the rear of a state police
vehicle parked on the edge of the Pike to assist a stopped
car. State Trooper Christopher Martin was inside the state
police vehicle. As a result of the collision, Trooper Martin
suffered serious personal injuries. Subsequently, Timothy
pleaded guilty to the criminal charge of operating under the
influence of alcohol.
September 18, 2009, Trooper Martin and his wife commenced a
lawsuit against Timothy, Barletta Corp. and Osprey. The
lawsuit alleged the negligence of Timothy as the driver. The
lawsuit also alleged that the vehicle Timothy was driving at
the time of the accident was " owned, controlled and
maintained by" Barletta Corp. " and/or"
Osprey. Therefore, " as owner(s) of the vehicle, [the
companies] were responsible for the negligent operation,
ownership, control and maintenance of the motor
vehicle." Complaint, ¶ s 12 and 15.
3, 2010, the lawsuit commenced by Trooper Martin and his wife
was settled. In connection with the settlement, a Settlement
Agreement and Release (the " Release") was
executed. Exhibit 3. Pursuant to the Release, Everest and
Travelers Insurance Company, as liability insurers of all
three of Timothy, Barletta Corp. and Osprey, agreed to pay a
total of $3, 750, 000, present value, to the Martins as part
of a structured settlement to be paid over twenty years. In
return, the Martins released Timothy, Barletta Corp. and
Osprey from any and all claims arising out of the
evidence at the trial of this case established that at the
time of the accident, Timothy was employed by Barletta Corp.
Barletta Corp. was a family business. The president of
Barletta Corp. was Vincent Barletta.
was a wholly-owned subsidiary of Barletta Corp. Osprey owned
the vehicles and equipment used by Barletta Corp. Certain
employees of Barletta Corp., including Timothy, were provided
with cars owned by Osprey. Pursuant to company policy,
employees provided with company cars were allowed to utilize
the cars for personal use as well as for company business.
There was no restriction on the use of a company car. Vincent
Barletta had no direct involvement in supervising the use of
company cars. On the night of the accident, Timothy was
driving a car owned by Osprey and provided to him by his
Barletta testified that, at the birthday party, he had very
little contact with Timothy. He did not see Timothy show any
signs of intoxication. To the extent he did observe Timothy,
nothing in his behavior stood out. The testimony from several
witnesses confirmed that Timothy was seated at a table for
six to eight people, away from the head table where Vincent
Barletta was seated with his wife. Vincent Barletta had no
memory of observing Timothy consume alcohol. I find Vincent
Barletta's testimony to be credible.
the settlement, counsel for Trooper Martin wrote two demand
letters to the insurers. In the first letter (Exhibit 28),
counsel stated that " I understand from our
conversations that liability in this matter is admitted (at
least for purposes of mediation)." The letter focused
upon the damages suffered by Trooper Martin and requested $7,
500, 000 to settle. The second letter (Exhibit 29), stated
more specifically that " [t]he evidence of clear
liability against [Timothy] Barletta is undisputed." The
rest of the letter focused on damages and the additional
claim that the insurers were acting in violation of G.L.c.
93A and c. 176D by not yet agreeing to settle. A demand for
settlement of $11, 000, 000 was asserted. Neither letter
asserted a theory of liability against Barletta Corp. or
Osprey, other than that Timothy was allegedly a "
principal" of those companies.
trial, Everest called as a witness Robert A. DeLello. Mr.
DeLello was counsel on the Complaint filed for the Martins to
commence the lawsuit against Timothy, Barletta Corp. and
Osprey. He continued as counsel to the Martins in connection
with the negotiation of the settlement. As a result of the
determination that the question of pro rata shares of
tortfeasors is an issue to be decided based upon principles
of equity (see G.L.c. 231B, § 2(b)), Mr. DeLello gave
the following testimony to the court, outside of the hearing
of the jury.
DeLello testified that the theory of the Martins' case
against Barletta Corp. and Osprey was to hold the companies
liable under G.L.c. 231, § 85A; that is, as the owner of
the vehicle Timothy was driving on the night of the accident.
Mr. DeLello testified that the police report listed both
companies as the owner of the vehicle. While he acknowledged
that if the litigation had not settled he would have taken
discovery regarding possible other theories of liability of
the companies such as negligent entrustment or negligent
maintenance, his ...