Great Northen Insurance Company v. Eastern Propane Gas, Inc.

Filing 88

Magistrate Judge Judith G. Dein: ORDER entered denying 62 & 81 Defendant's Motions in Limine to Preclude Evidence of Damages. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

GREAT NORTHERN INSURANCE COMPANY, )
)
Plaintiff,
)
v.
)
)
EASTERN PROPANE GAS, INC.,
)
)
Defendant.
)

CIVIL ACTION
NO. 15-12955-JGD

ORDER ON MOTIONS IN LIMINE
TO PRECLUDE EVIDENCE OF DAMAGES
April 12, 2017
DEIN, U.S.M.J.
I. INTRODUCTION
This matter is before the court on “Defendant, Eastern Propane Gas, Inc.’s, Motion in
Limine to Preclude Evidence of Damages” (Docket No. 62), and on “Defendant, Eastern Propane
Gas, Inc.’s, Supplemental Motion in Limine to Preclude Evidence of Damages” (Docket No. 81).
At issue is whether the limitation of liability provision contained in Eastern Propane’s contract
with the property owners (“Contract”) bars the plaintiff’s claim for damages based upon a
negligence theory. After consideration of the parties’ written submissions and their oral
arguments, and for the reasons set forth below, the defendants’ motions to preclude Great
Northern from introducing evidence of damages at trial are DENIED.
II. DISCUSSION
As described during the Final Pretrial Conference held on April 4, 2017, Great Northern’s
theory of liability is that the property damage and resulting loss were caused by Eastern

Propane’s negligence in failing to complete the agreed upon delivery of propane to the Davis’s
property. There is no dispute that the defendant agreed to the automatic delivery of propane
to the property. Nor is there any dispute that if the propane had been delivered as Eastern
Propane had promised, the amount would have been sufficient to keep the pipes in the Davis’
home from freezing. Therefore, as the case has been presented to the court, Eastern Propane
may be held liable for negligence only if it failed to make the agreed upon delivery of propane.
If the evidence were to show that Eastern Propane completed the delivery as promised,
something other than the exhaustion of propane would have had to have caused the pipes to
freeze, and the defendant’s conduct could not have been the proximate cause of damage to the
property and resulting loss to the plaintiff.
The Contract does not preclude the plaintiff from pursuing this theory of liability. As the
relevant language of the Contract provides:
In recognition that the depletion of the supply of LP gas at the Location
varies with the usage demands of the Customer(s), and that the
Customer’s(s’) usage demands will fluctuate in relation to the
Customer’s(s’) fuel requirements, Eastern cannot and does not assume
responsibility and is not accountable for the exhaustion of the LP Gas
supply at the Location, or the consequences of its exhaustion, direct or
indirect.
(Docket No. 32 at Ex. C). Thus, while the plain language of the Contract bars damages resulting
from “the exhaustion” of propane “or the consequences of its exhaustion,” it does not excuse
the defendant’s failure to deliver propane that it specifically agreed to deliver. Instead, it
contemplates the existence of a “supply” that could become depleted based on the Customer’s
usage demands. Accordingly, the Contract does not bar Great Northern from seeking damages

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against Eastern Propane for its alleged negligence in failing to complete an agreed upon
delivery of propane to the property.
Even if the Contract could arguably be read to excuse the defendant’s alleged
negligence in failing to make a specific delivery of fuel to the property, the plaintiff would still
be able to pursue a claim against Eastern Propane. Under Massachusetts law, “releases are
effective against liability for ordinary negligence.” Zavras v. Capeway Rovers Motorcycle Club,
Inc., 44 Mass. App. Ct. 17, 18, 687 N.E. 2d 1263, 1265 (1997) (emphasis in original). See also
Cormier v. Cent. Mass. Chapter of Nat’l Safety Council, 416 Mass. 286, 288, 620 N.E. 2d 784,
786 (1993) (ruling that defendant could enter into an enforceable contract “exempt[ing] itself
from liability which it might subsequently incur as a result of its own negligence” where there
was “nothing to show that the release was procured by deceit or fraud or under duress”).
However, a party may not “contract against liability for harm caused by . . . its gross
negligence.” Zavras, 44 Mass. App. Ct. at 19, 687 N.E. 2d at 1265. Because a reasonable jury
could conclude that the failure to complete an agreed upon delivery of fuel was grossly
negligent, the plaintiff may pursue its claim for damages against Eastern Propane regardless of
the terms of the Contract.
The Massachusetts courts have defined “gross negligence” as
“an act or omission respecting [the] legal duty of an aggravated character
as distinguished from a mere failure to exercise ordinary care.” Altman v.
Aronson, 231 Mass. 588, 591, 121 N.E. 505 (1919). It is “substantially and
appreciably higher in magnitude than ordinary negligence.” Id.; accord
Matsuyama v. Birnbaum, 452 Mass. 1, 890 N.E. 2d 819 (2008). It is
defined as “indifference to a present legal duty and ... utter forgetfulness
of legal obligations so far as other persons may be affected” and “very
great negligence, or the absence of slight diligence, or the want of even
scant care.” Altman, 231 Mass. at 591, 121 N.E. 505. However, “[i]t falls
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short of being such reckless disregard of probable consequences as is
equivalent to a willful and intentional wrong.” Id.
Doe v. Cultural Care, Inc., Civil Action No. 10-11426-DJC, 2011 WL 4738558, at *3 (D. Mass. Oct.
7, 2011) (unpub. op.) (alterations and punctuation in original).
In evaluating whether a defendant’s actions were grossly negligent, the court must
consider the defendant’s conduct as a whole. Id. Furthermore, “[e]very act or omission . . .
must be considered in connection with all the other circumstances before the whole can be
properly held to amount to gross negligence.” Id. (quoting Driscoll v. Pagano, 313 Mass. 464,
468, 48 N.E. 2d 11 (1943)). Thus, the question whether a party’s conduct was grossly negligent
involves a fact-based inquiry into the circumstances of the case. In the instant case, a jury
could reasonably conclude that the failure to complete an agreed upon delivery of propane, to
a house that was vacant, particularly during a season in which outside temperatures could dip
below freezing, constituted “very great negligence” or “the want of even scant care.”
Therefore, even if the plaintiff were precluded from seeking damages under an ordinary
negligence theory, it would not be barred from seeking damages against Eastern Propane based
on a theory of gross negligence.
III. CONCLUSION
For all the reasons detailed above, “Defendant, Eastern Propane Gas, Inc.’s, Motion in
Limine to Preclude Evidence of Damages” (Docket No. 62) and “Defendant, Eastern Propane
Gas, Inc.’s, Supplemental Motion in Limine to Preclude Evidence of Damages” (Docket No. 81)
are both DENIED.
/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge
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