HERMIS YANIS, JR.
KEITH PAQUIN & another;  VINCENT MASTERSON, third-party defendant.
Heard: January 10, 2019.
Practice, Civil, Counterclaim and cross-claim, Judgment,
Entry of judgment. Contribution Among Tortfeasors. Indemnity.
Civil action commenced in the Superior Court Department on
November 15, 2013.
motion for entry of separate and final judgment was heard by
Janet Kenton-Walker, J.
T. Anglin (Lauren Plante also present) for Keith Paquin.
Stephen R. Anderson for Sclamo's Appliance &
Present: Vuono, Meade, & Rubin, JJ.
appeal we consider the propriety of the certification and
entry of a separate and final judgment under Mass. R. Civ. P.
54 (b), 365 Mass. 820 (1974), following the settlement by the
plaintiff of his claims against one of the defendants in a
personal injury action.
following background emerges from the record materials before
us, consisting mostly of the pleadings. The plaintiff, Hermis
Yanis, Jr., was a tenant in an apartment building that was
owned and managed by the defendant, Keith Paquin. When Yanis
moved into his apartment, Paquin informed him that the
natural gas stove did not work and that he should select a
new one from defendant Sclamo's Appliance &
Furniture, Inc. (Sclamo's). Once Paquin ascertained the
cost of removing and disposing of the old stove, however, he
decided to have it repaired rather than replace it. At
Paquin's request, an employee of Sclamo's, allegedly
the third-party defendant Vincent Masterson, went to
Yanis's apartment on three separate occasions to make the
repairs. It is disputed whether the employee was acting on
his own behalf or as an employee of Sclamo's when he
worked on the stove. After the final visit, the employee told
Yanis that the stove had been fixed and was operational. One
morning shortly thereafter, Yanis discovered that the
stove's pilot light had gone out, he attempted to relight
it, there was an explosion, and Yanis severely burned his
November 15, 2013, Yanis filed a complaint in the Superior
Court against both Paquin and Sclamo's. With regard to
Paquin, Yanis asserted claims of negligence, vicarious
liability for Sclamo's negligence, breach of the implied
warranty of habitability, and breach of the covenant of quiet
enjoyment. Against Sclamo's, Yanis asserted claims of
negligence, breach of contract as a third-party beneficiary,
violation of G. L. c. 93A, and strict liability. Paquin filed
an answer to Yanis's complaint in which he neither
admitted nor denied that he had entered into a contract with
Sclamo's to repair the stove. Paquin also asserted a
cross claim against Sclamo's for contribution (as a joint
tortfeasor) and for indemnification (based on vicarious
liability). Sclamo's, in turn, filed an answer to
Paquin's cross claim as well as its own cross claim
against Paquin for contribution and for
and Sclamo's subsequently reached a settlement whereby
Yanis received a payment of $15, 000, and he executed a
release of any and all claims he may have had against
Sclamo's.With Yanis's assent, Sclamo's
filed a motion for entry of a separate and final judgment
pursuant to Mass. R. Civ. P. 54 (b).Relying on Long
v. Wickett, 50 Mass.App.Ct. 380 (2000), Paquin
opposed the motion on the grounds that there were no
exceptional and compelling circumstances warranting relief
under rule 54 (b), that his cross claim against Sclamo's
for indemnification substantially overlapped the settled
claims, and that an indemnification claim, unlike a
contribution claim, was not extinguished by the settlement
pursuant to G. L. c. 231B, § 4 (b) .
a hearing, a judge approved the settlement and ordered the
entry of a separate and final judgment that dismissed
Yanis's complaint against Sclamo's but did not on its
face address the cross claims. In her memorandum of
decision on Sclamo's motion, the judge properly
acknowledged that G. L. c. 231B, § 4 (b), which
discharges the tortfeasor to whom a good faith release is
given from all liability for contribution to any
other tortfeasor, does not "impair any right of
indemnity under existing law." G. L. c. 231B, § 1
(e) . Nonetheless, the judge stated that Paquin was
not entitled to indemnification from Sclamo's because, as
she put it, Paquin was "not without fault" for
present appeal by Paquin ensued. Paquin contends that the
judge erred in certifying the entry of the separate and final
judgment for Sclamo's. He asserts that such relief was
not appropriate where his cross claim overlapped factually
and legally with Yanis's dismissed claims against
Sclamo's, and where the judge did not make an express
finding that there was no just reason for delay. Because we
agree with Paquin's arguments, we vacate the
certification and entry of the separate and final judgment
pursuant to rule 54 (b), and remand the case for further
proceedings consistent with this opinion.