Hermis YANIS, Jr.
Keith PAQUIN & another ; Vincent Masterson, Third-Party Defendant.
January 10, 2019
Practice, Civil, Counterclaim and cross-claim,
Judgment, Entry of judgment. Contribution Among
Tortfeasors . Indemnity .
ACTION commenced in the Superior Court Department on November
15, 2013. A motion for entry of separate and final judgment
was heard by Janet Kenton-Walker, J.
T. Anglin, Boston, (Lauren Plante also present) for Keith
R. Anderson, Cambridge, for Sclamo’s Appliance & Furniture,
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 right hand.
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, 737 N.E.2d 885 (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 Yanis’s injuries.
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