Angelo v. USA TRIATHLON

Filing 30

District Judge Leo T. Sorokin: ORDER entered. The Defendant's 18 Motion for Summary Judgment is ALLOWED IN PART and DENIED IN PART. See attached Memorandum and Order. (Matteson, Nicholas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CHERYL ANGELO, Personal
Representative of the ESTATE OF
RICHARD ANGELO,
Plaintiff,
v.
USA TRIATHLON,
Defendant.

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Civil Action No. 13-12177-LTS

MEMORANDUM AND ORDER ON DEFENDANT’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
September 18, 2014
SOROKIN, D.J.
This action arises from a tragic set of facts in which Richard Angelo died while
participating in the swim portion of a triathlon organized by the defendant, USA Triathlon
(“USAT”). Plaintiff Cheryl Angelo (“the plaintiff”), as personal representative of Richard
Angelo (“Angelo” or “the decedent”), has brought claims of wrongful death, conscious pain and
suffering, and negligent infliction of emotional distress. USAT has counterclaimed for
indemnity against any liability and legal costs associated with this action pursuant to indemnity
agreements executed by the decedent prior to his participation in the triathlon. USAT has now
moved for partial summary judgment on its claim for indemnity. Doc. No. 18. The plaintiff has
opposed the Motion. Doc. No. 19. For the reasons stated below, USAT’s Motion is ALLOWED
IN PART and DENIED IN PART.

I.

STATEMENT OF FACTS
The following facts are stated in the light most favorable to the plaintiff as the

nonmoving party, although the key facts for the purposes of this motion are not disputed.
Angelo was a member of USAT since, at the latest, 2011. Doc. No. 18-1 at 1 ¶ 3. When Angelo
last renewed his membership on August 12, 2011, he agreed to and electronically signed a
“Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement.” Id. at 1 ¶ 3,
4. That agreement only required the member to execute the document, and, accordingly, the
plaintiff did not sign the form. Id. at 4-5. That document contained a provision that, in its
entirety, reads as follows:
4. I hereby Release, Waive and Covenant Not to Sue, and further agree to Indemnify,
Defend and Hold Harmless the following parties: USAT, the Event Organizers and
Promoters, Race Directors, Sponsors, Advertisers, Host Cities, Local Organizing
Committees, Venues and Property Owners upon which the Event takes place, Law
Enforcement Agencies and other Public Entities providing support for the Event, and
each of their respective parent, subsidiary and affiliated companies, officers, directors,
partners, shareholders, members, agents, employees and volunteers (Individually and
Collectively, the “Released Parties” or “Event Organizers”), with respect to any liability,
claim(s), demand(s), cause(s) of action, damage(s), loss or expense (including court costs
and reasonable attorneys [sic] fees) of any kind or nature (“Liability”) which may arise
out of, result from, or relate to my participation in the Event, including claims for
Liability caused in whole or in part by the negligence of the Released Parties. I further
agree that if, despite this Agreement, I, or anyone on my behalf, makes a claim for
Liability against any of the Released Parties, I will indemnify, defend and hold harmless
each of the Released Parties from any such Liability which any [sic] may be incurred as
the result of such claim.
Id. at 4.
USAT arranged to hold its National Age Group Championship on August 18, 2012, in
Burlington, Vermont. Id. at 2 ¶ 5. On February 17, 2012, Angelo registered for the
championship and, as part of his registration, electronically signed an indemnity agreement
identical to the one excerpted above. Id. at 2 ¶ 6. As with the prior agreement, only Angelo as
the participant was required to, and in fact did, sign the form. Doc. Nos. 18-1 at 33-34, 19-2 at 3.
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Angelo competed in that triathlon and died during his participation in the swim portion of that
event or shortly thereafter. Doc. No. 18-2 at 11-12.
The plaintiff, the decedent’s wife and the personal representative of his estate, then
brought this action in Essex Superior Court, alleging wrongful death, conscious pain and
suffering by the decedent, gross negligence resulting in the decedent’s death, and negligent
infliction of emotional distress suffered by the plaintiff, who was present at the site of the race.
Doc. No. 6 at 12-16. USAT subsequently removed the action to this Court. Doc. No. 1.
II.

STANDARD OF REVIEW
Summary judgment is appropriate when “the movant shows 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). Once a party “has properly supported its motion for summary judgment, the
burden shifts to the non-moving party, who ‘may not rest on mere allegations or denials of his
pleading, but must set forth specific facts showing there is a genuine issue for trial.’” Barbour v.
Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986)). The Court is “obliged to []view the record in the light most
favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving
party’s favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the
Court is to ignore “conclusory allegations, improbable inferences, and unsupported speculation.”
Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008) (quoting Medina–Muñoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). A court may enter summary judgment “against a
party who fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).

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III.

DISCUSSION
USAT has moved for partial summary judgment on their counterclaim for indemnity. 1

USAT asserts that the decedent’s execution of the two release and indemnity agreements (“the
indemnity agreements”) released or indemnified, or both, all claims that arise from his
participation in the National Age Group Championship, including all claims brought by the
plaintiff in this action. The plaintiff counters that the indemnity agreements could not function to
release her claims for wrongful death or negligent infliction of emotional distress, and that an
indemnity agreement is not enforceable insofar as it exempts the indemnitee from liability for its
own grossly negligent conduct.
Under Massachusetts law, 2 “[c]ontracts of indemnity are to be fairly and reasonably
construed in order to ascertain the intention of the parties and to effectuate the purpose sought to
be accomplished.” Post v. Belmont Country Club, Inc., 805 N.E.2d 63, 69 (Mass. App. Ct.
2004) (quoting Shea v. Bay State Gas Co., 418 N.E.2d 597, 600 (Mass. 1981)). Indemnity
contracts that exempt a party from liability arising from their own ordinary negligence are not
illegal. Id. at 70. Further, contracts of indemnity can survive a decedent’s death and become an
obligation of a decedent’s estate. Id. at 71.
Here, the language in the indemnity provision is broad. The plaintiff argues, briefly, that
the indemnity agreements are ambiguous as to who is bound by the agreements. The Court
disagrees. The agreement clearly states that “I . . . agree to Indemnify, Defend and Hold
Harmless” the released parties from liability “of any kind or nature . . . which may arise out of,
result from, or relate to my participation in the Event.” Doc. No. 18-1 at 4. By the plain
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The Court understands this motion for summary judgment to be limited to the scope of the release and
indemnity agreement and its application to the plaintiff’s claims as raised in the Complaint and as
amplified in the motion papers. Despite USAT’s argument to the contrary, the Court does not believe this
motion to be an appropriate vehicle to address the substantive merits of the plaintiff’s pleadings or claims.
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The parties do not contend that the law of any other state applies.
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language of the provision, the signatory of the agreement agreed to indemnify USAT for any
losses arising from his participation in the triathlon, including losses and damages associated
with lawsuits arising from his participation. See Post, 805 N.E.2d at 70. Both the scope of the
indemnity and the party bound by the agreement are clear and unambiguous. A close
examination is required, however, to ascertain the applicability of the provision to the specific
claims raised and the sources available to satisfy the indemnity.
A.

Counts 1 and 3: Wrongful Death

The first count in the plaintiff’s Complaint alleges wrongful death due to USAT’s
negligence. The third count alleges wrongful death due to USAT’s gross negligence and seeks
punitive damages. Under Massachusetts law, an action for wrongful death is “brought by a
personal representative on behalf of the designated categories of beneficiaries” set forth by
statute. Gaudette v. Webb, 284 N.E.2d 222, 229 (Mass. 1972); see Mass. Gen. Laws ch. 229, §§
1, 2. “The money recovered upon a wrongful death claim is not a general asset of the probate
estate, but constitutes a statutory trust fund, held by the administratrix as trustee for distribution
to the statutory beneficiaries.” 3 Marco v. Green, 615 N.E.2d 928, 932 (Mass. 1993) (quoting
Sullivan v. Goulette, 182 N.E.2d 519, 523 (Mass. 1962)). These aspects of Massachusetts law
have led another judge of this Court to the conclusion that “[w]rongful death is not, in any
traditional sense, a claim of the decedent.” Chung v. StudentCity.com, Inc., Civ. A. 10-10943RWZ, 2011 WL 4074297, at *2 (D. Mass. Sept. 9, 2011).
As stated above, the indemnity agreements signed by the decedent, by their terms, clearly
were intended to indemnify losses arising from an action for wrongful death as a claim “aris[ing]
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The Massachusetts Legislature has created limited statutory exceptions whereby the recovery on a
wrongful death claim may be reached to pay certain specified expenses. Mass. Gen. Laws ch. 229, § 6A.
None of those exceptions are implicated by the present Motion. See id.
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out of” the decedent’s participation in the triathlon. Thus, USAT is entitled to indemnity on
losses resulting from that claim. That does not end the matter, however, because the parties raise
the question of where USAT may look in order to satisfy the indemnity obligation. The
decedent, while having authority to bind his estate, see Post, 805 N.E.2d at 71, lacked authority
to bind his surviving family members who did not sign the indemnity agreements and are not
bound thereby, see Chung, 2011 WL 4074297, at *2. Accordingly, to satisfy the indemnity
obligation, USAT may look to the assets of the decedent’s estate. See Post, 805 N.E.2d at 71
(noting that a contract of indemnity agreed to by a decedent became an obligation of the
decedent’s estate). USAT may not, however, look to any recovery on the wrongful death claim
for satisfaction, as that recovery would be held in trust for the statutory beneficiaries and would
not become an asset of the estate. See Estate of Bogomolsky v. Estate of Furlong, Civ. A. 1412463-FDS, 2014 WL 2945927, at *2 (D. Mass. June 26, 2014). 4 USAT concedes this outcome
as to the plaintiff’s negligent infliction of emotional distress claim, Doc. No. 20 at 11-12, and
given the structure of wrongful death claims in Massachusetts, there is no reason for a different
result as to the wrongful death claims. 5
Count three of the plaintiff’s Complaint, alleging that the decedent’s death was a result of
USAT’s gross negligence, raises the issue of whether Massachusetts courts would enforce an
indemnity contract to the extent it functioned to indemnify a party’s own gross negligence. The

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In Estate of Bogomolsky, a recent decision of another session of this Court, Judge Saylor came to the
same conclusion, finding that a judgment creditor of a decedent’s estate would not be able to restrain the
proceeds of an insurance policy distributed pursuant to the wrongful death statute, as the proceeds of the
policy were held in trust for the decedent’s next of kin and did not belong to the decedent’s estate. Estate
of Bogomolsky, 2014 WL 2945927, at *2.
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While the plaintiff notes that the Massachusetts Appeals Court has reserved the question of whether an
indemnification provision would be enforced to effectively release the claims of people who were not
signatories of such an agreement, see Post, 805 N.E.2d at 70-71, this case, as in Post, does not present that
circumstance, as the indemnity agreements in this case do not purport to extinguish the plaintiff’s right to
bring her claims nor her right to recover on those claims.
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Court has uncovered no controlling authority from the Supreme Judicial Court of Massachusetts
on this issue, nor any case of the Massachusetts Appeals Court on point. In such a case,
“[w]here the state’s highest court has not definitively weighed in, a federal court applying state
law ‘may consider analogous decisions, considered dicta, scholarly works, and any other reliable
data tending convincingly to show how the highest court in the state would decide the issue at
hand.’” Janney Montgomery Scott LLC v. Tobin, 571 F.3d 162, 164 (1st Cir. 2009) (quoting N.
Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 38 (1st Cir. 2001)).
In the closely analogous context of releases, the Massachusetts Appeals Court has held
that, for reasons of public policy, a release would not be enforced to exempt a party from liability
for grossly negligent conduct, though otherwise effective against ordinary negligence. Zavras v.
Capeway Rovers Motorcycle Club, Inc., 687 N.E.2d 1263, 1265 (Mass. App. Ct. 1997). The
Supreme Judicial Court, although not adopting that holding, has noted that public policy reasons
exist for treating ordinary negligence differently from gross negligence when enforcing releases.
Sharon v. City of Newton, 769 N.E.2d 738, 748 n.12 (Mass. 2002). Finally, Judge Saylor of this
Court, examining this caselaw, has concluded that the Supreme Judicial Court would not enforce
an indemnity agreement to the extent it provided for indemnification of a party’s own gross
negligence. CSX Transp., Inc. v. Mass. Bay Transp. Auth., 697 F. Supp. 2d 213, 227 (D. Mass.
2010).
This Court, having studied the caselaw, agrees with and reaches the same conclusion as
Judge Saylor: specifically that Massachusetts courts would not enforce an indemnity provision
insofar as it relieved a party from liability stemming from its own gross negligence. Thus, the
indemnity agreements executed by the decedent are not enforceable to the extent they would

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require the decedent’s estate to indemnify losses arising from USAT’s grossly negligent
conduct. 6
Accordingly, USAT’s Motion for Summary Judgment as to the plaintiff’s claims of
wrongful death is ALLOWED insofar as it seeks indemnity from the decedent’s estate for
USAT’s allegedly negligent conduct. The Motion is DENIED insofar as it seeks to satisfy the
indemnity obligation from any amounts recovered on the wrongful death claim and insofar as the
agreement would require the decedent’s estate to indemnify liability arising from USAT’s
grossly negligent conduct.
B.

Count 2: Conscious Pain and Suffering

The second count of the plaintiff’s Complaint alleges that USAT’s negligence caused the
decedent’s conscious pain and suffering. Under Massachusetts law, a claim for conscious pain
and suffering is a claim of the decedent, which may be brought on the decedent’s behalf by his or
her personal representative. Gaudette, 284 N.E.2d at 224-25; see Mass. Gen. Laws ch. 229, § 6.
Any recovery on such a claim is held as an asset of the decedent’s estate. Mass. Gen. Laws ch.
229, § 6. By executing the two agreements, the decedent both released his claim of conscious
pain and suffering caused by USAT’s negligence and indemnified USAT for any losses
occasioned by such a claim. Putting aside the release for a moment, if the personal
representative of the decedent received any recovery for his conscious suffering, USAT would be
able to reach that recovery to satisfy the decedent’s indemnity obligation. See Estate of
Bogomolsky, 2014 WL 2945927, at *2. Thus, USAT’s Motion for Summary Judgment is
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This conclusion would gain significance if the plaintiff were to be awarded punitive damages owing to
USAT’s alleged gross negligence. Punitive damages awarded under the wrongful death statute, unlike
compensatory damages under that statute, are considered general assets of the decedent’s estate. Burt v.
Meyer, 508 N.E.2d 598, 601-02 (Mass. 1987). Any punitive damages, however, could not be reached in
satisfaction of the indemnity obligation because gross negligence or more culpable conduct is the
predicate upon which an award of punitive damages is based under the statute. See Mass. Gen. Laws ch.
229, § 2.
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ALLOWED insofar as the claim for conscious suffering caused by USAT’s negligence was both
released and indemnified.
In response to this argument, however, the plaintiff has stated her intent to proceed on the
conscious suffering count only on a theory of gross negligence, and not to proceed upon ordinary
negligence. As noted above, both the release and the indemnity provisions of the agreements are
unenforceable to exempt USAT from liability for their own grossly negligent conduct. See CSX,
697 F. Supp. 2d at 227; Zavras, 687 N.E.2d at 1265. Thus, insofar as the plaintiff chooses to
proceed on the conscious pain and suffering count only on a theory of gross negligence, USAT’s
Motion for Summary Judgment is DENIED. If she chooses to so proceed, the plaintiff shall
amend her Complaint accordingly.
C.

Count 4: Negligent Infliction of Emotional Distress

The fourth and final count of the plaintiff’s Complaint alleges USAT’s negligent
infliction of emotional distress on the plaintiff, who was present at the race venue. As an initial
matter, the plaintiff, as currently denominated in the Complaint, only brings claims as personal
representative of the estate of the decedent. Negligent infliction of emotional distress, however,
alleges a harm directly against the plaintiff in her individual capacity, see Cimino v. Milford
Keg, Inc., 431 N.E.2d 920, 927 (Mass. 1982), and thus cannot be brought in a representative
capacity.
In response, the plaintiff has indicated her intent to amend her Complaint to bring this
claim in her individual capacity. The Court will allow the amendment, as it is not futile in light
of the Court’s rulings on the indemnity agreements. The indemnity language in those
agreements is broad enough to reach a claim for negligent infliction of emotional distress as a
claim “aris[ing] out of” the decedent’s participation in the triathlon. Thus, USAT is entitled to

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indemnification on any losses resulting from such a claim. As conceded by USAT, however, any
recovery on the emotional distress claim would belong to the plaintiff individually, and thus
USAT would not be able to use that recovery to satisfy the indemnity and may look only to the
estate of the decedent. Doc. No. 20 at 11-12. Accordingly, the plaintiff may so amend her
Complaint to perfect her claim of negligent infliction of emotional distress.
D.

Defense Costs

USAT also claims an entitlement to defense costs arising from the provisions in the
indemnity agreements obligating the signatory to defend and hold harmless USAT. The
language of the indemnity agreements does clearly obligate the decedent’s estate to make USAT
whole on these losses. As with the claims discussed above, USAT may seek indemnity from the
decedent’s estate for their defense costs which predate this Motion as well as prospective costs to
the extent that the plaintiff chooses to proceed on at least one claim which is subject to
indemnification. 7 See Mt. Airy Ins. Co. v. Greenbaum, 127 F.3d 15, 19 (1st Cir. 1997)
(“[U]nder Massachusetts law, if an insurer has a duty to defend one count of a complaint, it must
defend them all.” (citing Aetna Cas. & Surety Co. v. Continental Cas. Co., 604 N.E.2d 30, 32 n.1
(Mass. 1992)).
IV.

CONCLUSION
In conclusion, USAT’s Motion for Summary Judgment, Doc. No. 18, is ALLOWED as

set forth above insofar as USAT seeks to establish the release of the conscious pain and suffering
claim and indemnity from the decedent’s estate for the claims wrongful death, conscious pain
and suffering, and negligent infliction of emotional distress caused by USAT’s ordinary
negligence. USAT’s Motion is DENIED, however, insofar as it argues for release of or
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Should the plaintiff decide to proceed only on those claims that, following the reasoning of this Order,
are not subject to the indemnity obligation, the parties may request leave to brief the issue of USAT’s
entitlement to prospective defense costs at that time.
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indemnity on any claims caused by their own gross negligence and insofar as it seeks satisfaction
of the indemnity obligation from any recovery on the wrongful death or emotional distress
claims. The plaintiff shall amend the Complaint within seven days to more clearly specify the
capacity in which each claim is brought and add the allegations of gross negligence, both as
described in the plaintiff’s papers. The defendant shall respond to the Amended Complaint
within seven days of its filing. The Court will hold a Rule 16 conference on October 21, 2014 at
1 p.m.

SO ORDERED.
/s / Leo T. Sorokin
Leo T. Sorokin
United States District Judge

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