United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON CROSS MOTIONS FOR SUMMARY
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
North Coast Sea-Foods Corp. (“North Coast”)
brings claims for breach of contract and for a declaratory
judgment arising from Defendant Philadelphia Indemnity
Insurance Company's (“PIIC”) refusal to
defend and indemnify North Coast pursuant to an insurance
policy. Currently before the Court are cross motions for
summary judgment. [ECF Nos. 15, 21]. For the reasons
discussed herein, PIIC's cross motion for summary
judgment is GRANTED, and North Coast's motion
for summary judgment is DENIED.
Coast is a Massachusetts seafood wholesaler that relied on
Diamond Staffing Services, Inc. (“Diamond”) for
some of its staffing needs. North Coast Facts ¶¶ 1,
12. On March 8, 2009, North Coast and Diamond entered into a
six-page Temporary Staffing Services Agreement (the
“2009 Agreement”). Id. ¶ 1. It is
North Coast's general practice to have a master written
agreement with its staffing agency and to change the rates on
a periodic basis. Id. ¶ 11. The 2009 Agreement
included provisions with headers such as “Terms of
Agreement, ” “Scope of Agreement, ”
“Safety, ” “Client and Diamond Staffing
Obligations, ” as well as a lengthy section concerning
“Proprietary Information.” [See ECF No.
15-4 at 1-5]. There are also sections of the 2009 Agreement
that cover insurance, workers' compensation, and
indemnity. Id. at 4. The indemnity clause of the
2009 Agreement provided, in pertinent part:
[Diamond] unconditionally indemnifies, holds harmless,
protects and defends [North Coast] . . . against any and all
claims, demands, damages, injuries, deaths, actions, costs
and expenses and all other consequences of any sort,
regarding any claim by any [Diamond] Employee related to or
arising out of any workplace Injury . . . . The provision
shall survive the termination of this Agreement.
Id. at 4.
4 of the 2009 Agreement, titled “Rates and Invoicing,
” states that “[t]he rates for the Services will
be set forth in Attachment A. Id. at 2. Attachment
A, which is attached to the 2009 Agreement and numbered as
page 7, is a one-page rate sheet that specifies costs for
temporary employees and day laborers. It also states, in
Terms will remain in effect for a period of 3 years beginning
on the date this Agreement is signed.
If you choose to terminate our business relationship
following the full length of the term of agreement, a thirty
(30) day written notice is required, at which time all
outstanding invoices must be paid in full.
Id. at 7. North Coast and Diamond signed both the
Services Agreement and Attachment A on March 8, 2009.
Id. at 6-7; see also North Coast Facts
2009 Agreement states that it “will continue in effect
until March 3, 2012.” [ECF No. 15-4 at 1]. On March 9,
2012, after the 2009 Agreement expired, North Coast and
Diamond signed the “2012 Agreement, ” which was
drafted by Diamond. North Coast Facts ¶ 17;
[see ECF No. 15-6]. North Coast did not seek advice
from counsel before signing the 2012 Agreement, and there is
no record of PIIC making any representation that the 2009
Agreement's terms and conditions would continue in
effect. PIIC Facts ¶¶ 44-45. The 2012 Agreement is
similar in format and length to Attachment A to the 2009
Agreement in that it is a one-page document that primarily
focuses on rates and costs. The 2012 Agreement contains all
of the terms of Attachment A to the 2009 Agreement and
additionally includes the following: a commitment by Diamond
to maintain general liability insurance; workers'
compensation insurance, and liabilities concerning
unemployment benefits; a statement that the rate will
automatically renew at the end of the term; a provision
concerning minimum wage adjustments; and a requirement that
“invoices are Due Net 21 Days.” [ECF No. 15-6].
Both Attachment A and the 2012 Agreement end with
“[s]ignature below verifies and confirms terms and
conditions between Diamond Staffing Services, Inc. and North
Coast Seafoods.” [ECF No. 15-4 at 7; ECF No.
15-6]. The 2012 Agreement does not have a
separate services agreement, is not labeled as an attachment,
does not explicitly refer to or integrate the 2009 Agreement,
and makes no reference to indemnification. PIIC Facts
¶¶ 38-40; [see also ECF No. 15-6].
SUMMARY JUDGMENT STANDARD
judgment is appropriate where the movant can show that
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). “A fact is material if
its resolution might affect the outcome of the case under the
controlling law.” Cochran v. Quest Software,
Inc., 328 F.3d 1, 6 (1st Cir. 2003) (citation omitted).
“A genuine issue exists as to such a fact if there is
evidence from which a reasonable trier could decide the fact
either way.” Id. (citation omitted).
succeed in showing that there is no genuine dispute of
material fact, ” the moving party must point to
“specific evidence in the record that would be
admissible at trial.” Ocasio-Hernandez v.
Fortuño-Burset, 777 F.3d 1, 4 (1st Cir. 2015).
“That is, it must ‘affirmatively produce evidence
that negates an essential element of the non-moving
party's claim,' or, using ‘evidentiary
materials already on file . . . demonstrate that the
non-moving party will be unable to carry its burden of
persuasion at trial.'” Id. (quoting
Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir.
2000)). “One of the principal purposes of the summary
judgment rule is to isolate and dispose of factually
unsupported claims or defenses . . . .” Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Once the
movant takes the position that the record fails to ...