Cruz et al v. Raymond Talmadge et al

Filing 76

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER For the forgoing reasons, plaintiffs motion for reconsideration (Docket No. 54) is ALLOWED, and upon reconsideration, plaintiffs motion to remand (Docket No. 14) is ALLOWED.The Clerk of Court will process the remanding of this case to the Massachusetts Superior Court Department. So ordered.(Caruso, Stephanie)

United States District Court
District of Massachusetts

Megan Cruz, et al.,
Plaintiffs,
v.
Raymond Talmadge, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Civil Action No.
15-13258-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises out of an accident that occurred when a
motor coach approximately 12 feet in height tried to drive under
a bridge that had a clearance of only ten feet or so.

Plaintiff

Matthew Cruz and ten others seriously injured in the crash
(collectively, “plaintiffs”) assert various state law tort
claims against the manufacturer, owner and operator of the bus,
a GPS provider and the Commonwealth of Massachusetts Department
of Conversation and Recreation, the entity in charge of the
relevant road signage.
Pending before the Court is 1) the motion of Prevost and
Prevost Car (the manufacturer of the bus) for judgment on the
pleadings with respect to Counts III, IV and V of plaintiffs’
first amended complaint alleging breach of implied warranty of
merchantability, negligence and strict liability, 2) the motion

-1-

of plaintiffs for leave to file a second amended complaint,
3) the motion of plaintiffs’ for reconsideration of this Court’s
Order dated June 14, 2016 denying their motion to remand the
action to state court and 4) the motion of defendants Samuel J.
Jackson and Raymond Talmadge (the owner and operator of the bus)
for summary judgment.

For the reasons that follow, the motion

for reconsideration will be allowed and, upon reconsideration,
the motion to remand will be allowed.

The Court declines to

decide the remaining motions.
I.

Background
A.

The Bus Crash

Plaintiffs are residents of Pennsylvania.

On February 2,

2013, plaintiffs boarded a 1996 model Prevost motor coach
(“bus”) in Bristol, Pennsylvania, for a day trip to Harvard
University in Cambridge, Massachusetts.

The bus was owned by

defendant Raymond Talmadge d/b/a Calvary Coach (“Talmadge”) and
was operated by defendant Samuel J. Jackson (“Jackson”).

Both

Talmadge and Jackson are citizens of Pennsylvania.
After the visit to Harvard University concluded, plaintiffs
boarded the Prevost bus for their return trip home.

Jackson

followed the directions dictated by his Garmin GPS and turned
eastbound onto Soldiers Field Road in Boston, Massachusetts.
Soldiers Field Road has a ten-foot height restriction
because of low overpasses but the Prevost bus was well over ten-

-2-

feet tall.

Although there were multiple warning signs of the

height restriction on Soldiers Field Road, Jackson either failed
to notice them, or noticed them too late, and the bus slammed
into the overpass at the Western Avenue Bridge.
As a result of the crash, plaintiff Matthew Cruz (“Cruz”)
sustained severe head, neck and back injuries which left him
paralyzed from the waist down.

The other plaintiffs in this

case also sustained severe head and neck injuries.
B.

Litigation in Pennsylvania and the Release Agreements

In February, 2013, Matthew Cruz brought suit against
Talmadge and Jackson (the owner and operator, respectively) in
the Pennsylvania Court of Common Pleas, asserting negligence
claims.

His lawsuit was consolidated with other cases initiated

by several of the 35 passengers on the motor coach.
That Court entered an order appointing a special master to
conduct mediation.

The parties reached a settlement and agreed

to divide approximately $4.6 million of the $5 million of
liability coverage tendered by Occidental Fire & Casualty
Company, the insurer of Talmadge and Jackson.

Cruz received

$3.75 million of that amount, the most of any of the plaintiffs.
Pursuant to the settlement, the plaintiffs in that matter
signed three different release agreements:

-3-

1.

The Pro Tanto Joint Tortfeasor Release

All of the plaintiffs in this action, except Cruz, signed a
release titled “Pro Tanto Joint Tortfeasor Release”.

The first

paragraph states:
I, [Claimant], . . . release discharge and acquit
SAMUEL J. JACKSON, RAYMOND TALMADGE D/B/A CALVARY
COACH, OCCIDENTAL FIRE AND CASUALTY COMPANY OF NORTH
CAROLINA, INC. and their agents, employees, insurers
or third-party administrators, only, of and from any
and all claims, rights, demands and damages arising
out of or in any way connected with any and all known
and unknown, foreseen and unforeseen, bodily and
personal injuries, and the consequences thereof or any
other loss or damage sustained by Claimant which arise
out of the bus accident which occurred on February 2,
2013 on Soldier’s Field Road in Boston, Massachusetts
and which is the subject of litigation filed in the
Court of Common Pleas, Philadelphia County,
Pennsylvania, which is entitled Cruz v. Raymond
Talmadge d/b/a Calvary Coach, February Term 2013, No.
01443.
The release further provides:
It is understood and agreed that this is a pro tanto
and not a pro rata release and that any verdict or
judgment rendered in favor of Claimant shall be
reduced only to the extent of the monies paid to
Claimant pursuant to this Release. In the event that
Samuel J. Jackson and Raymond Talmadge d/b/a Calvary
Coach are found to be joint tortfeasors with any other
person or party not herein released, Claimant hereby
releases that portion or share of the cause of action
against Samuel J. Jackson and Raymond Talmadge d/b/a
Calvary Coach only to the extent of monies paid
pursuant to this Release without in any way
discharging or releasing any claims of any persons or
corporations against Samuel J. Jackson and Raymond
Talmadge d/b/a Calvary Coach.
If any legal action, arbitration, mediation, or other
proceeding has been initiated, Claimant consents to
the dismissal of such proceedings with prejudice.

-4-

2.

The Release Signed by Matthew Cruz

Matthew Cruz signed a release (“the Cruz release”) titled
“Pro Tanto Release” that differs from that signed by the other
plaintiffs in this action.
The first paragraph of the Cruz release states, in part:
I, Matthew Cruz, . . . release discharge and
acquit[,] subject to the limitations set forth below,
Samuel J. Jackson, Raymond Talmadge d/b/a Calvary
Coach, Occidental Fire & Casualty Company of North
Carolina, Inc., and their agents, employees, insurers
or third-party administrators, only, of and from any
and all claims, rights, demands and damages arising
out of or in any way connected with any and all known
and unknown, foreseen and unforeseen, bodily and
personal injuries, and the consequences thereof or any
other loss or damage sustained by Matthew Cruz which
arise out of the bus accident which occurred on
February 2, 2013 on Soldier’s Field Road in Boston,
Massachusetts . . . and which is the subject of
litigation filed in the Court of Common Pleas,
Philadelphia County, Pennsylvania, which is entitled
Cruz v. Raymond Talmadge d/b/a Calvary Coach, February
Term 2013, No. 01443 . . . . (first emphasis added)
Paragraph four of the Cruz release states:
It is understood and agreed that this is a pro tanto
and not a pro rata release and that any verdict or
judgment rendered in favor of Matthew Cruz shall be
reduced only to the extent of the monies paid to
Matthew Cruz pursuant to this Release. In the event
that Samuel J. Jackson and [Talmadge] are found to be
joint tortfeasors with any other person or party not
herein released, Matthew Cruz, hereby releases that
portion or share of the cause of action against Samuel
J. Jackson and [Talmadge] only to the extent of the
monies paid pursuant to this Release without in any
way discharging or releasing any claims of any persons
or corporations against Samuel J. Jackson and
[Talmadge].

-5-

Unlike the release signed by the other plaintiffs, the Cruz
release does not contain a clause requiring the dismissal of
current litigation with prejudice.
3.

The General Release

Finally, there is a third release signed by claimants in
the Pennsylvania action who are not a part of this case.

Those

individuals signed a release titled “RELEASE OF ALL CLAIMS”.
The first paragraph states:
I, [Claimant], . . . release[] and discharge[] SAMUEL
J. JACKSON, RAYMOND TALMADGE D/B/A CALVARY COACH,
OCCIDENTAL FIRE & CASUALTY COMPANY OF NORTH CAROLINA,
INC. and any and all other persons or entities who are
liable or might be claimed to be liable . . . from any
and all claims, damages, costs, expenses, demands,
actions and suits of whatever kind, whether known or
unknown, foreseen and unforeseen, bodily and personal
injuries at this time, resulting from a bus accident
that occurred on February 2, 2013 on Soldier Fields
Road in Boston, Massachusetts.
The second paragraph reiterates, several times, that the
claimant releases all claims without exception.
C.

Procedural Background

In January, 2015, plaintiffs filed a complaint in the
Massachusetts Superior Court for Suffolk County alleging that
all of the defendants in this action were liable for plaintiffs’
injuries based on, inter alia, theories of negligence and
products liability.
Prevost later removed the case to the United States
District Court for the District of Massachusetts in September,

-6-

2015.

That same month, plaintiffs filed a motion to remand the

case to state court.

That motion was referred to United States

Magistrate Judge Marianne B. Bowler for a Report and
Recommendation (“R&R”).

In June, 2016, this session accepted

and adopted the R&R denying the motion to remand.
Also in June, 2016, Prevost filed a motion for judgment on
the pleadings with respect to Counts III, IV and V of
plaintiffs’ first amended complaint (the counts relating to
plaintiffs’ claims for breach of implied warranty of
merchantability, negligence and strict liability).

Plaintiffs

responded by filing an opposition to that motion as well as a
motion for leave to file a second amended complaint.
Three weeks later, in July, 2016, plaintiffs filed a motion
for reconsideration of this Court’s Order denying their motion
to remand.

Defendants Samuel J. Jackson and Raymond Talmadge

responded with a motion for summary judgment on all claims
asserted against them.
II.

Plaintiffs’ Motion for Reconsideration
A.

Legal Standard

“[A] district court has the inherent power to reconsider
its interlocutory orders . . . .”

Fernández–Vargas v. Pfizer,

522 F.3d 55, 61 n.2 (1st Cir. 2008).

A motion for

reconsideration will be allowed only if 1) the movant presents
newly discovered evidence, 2) shows there has been an

-7-

intervening change in the law or 3) demonstrates that the
initial “decision was based on a manifest error of law or was
clearly unjust.” Noel v. Walt Disney Parks & Resorts U.S., Inc.,
No. 10-40071, 2011 WL 6258334, at *1 (D. Mass. 2011).
A motion for reconsideration is “not a promising vehicle
for . . . rearguing theories previously . . . rejected.” Palmer
v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006).
B.

Application

Plaintiffs request that the Court 1) reconsider its June,
2016 Order denying their motion to remand and 2) remand the
matter to Massachusetts state court whence it came.
They generally contend that the release signed by Matthew
Cruz preserved his claims against Talmadge and Jackson and,
therefore, because the plaintiff and those defendants are
residents of Pennsylvania, this Court lacks diversity
jurisdiction.

Defendants respond that plaintiffs merely advance

the same arguments that this Court previously rejected and have
not met the high burden required to obtain relief.
Although the parties do not clarify whether Massachusetts
or Pennsylvania law applies, in both jurisdictions, the
interpretation of a release is a question of law for the court.
See A.J. Props., LLC v. Stanley Black & Decker, Inc., 989 F.
Supp. 2d 156, 163 (D. Mass. 2013); State Farm Mut. Auto. Ins.

-8-

Co. v. Philly Family Practice, Inc., 525 F. Supp. 2d 718, 723-34
(E.D. Pa. 2007).
The crux of the dispute is the interpretation of paragraph
four of the Cruz release.

It provides, in pertinent part:

Matthew Cruz, hereby releases that portion or share of
the cause of action against Samuel J. Jackson and
[Talmadge] only to the extent of the monies paid
pursuant to this Release without in any way
discharging or releasing any claims of any persons or
corporations against Samuel J. Jackson and [Talmadge].
By its plain meaning, the use of “any persons” in the last
clause of that paragraph is not limited to claims brought by
other joint tortfeasors as defendants contend.

Rather it can

reasonably be construed as referring to “any” other individual,
including Matthew Cruz.

Thus, the release preserves claims

against Talmadge and Jackson brought by Cruz and others.
Although defendants maintain that such an interpretation is
“illogical,” that argument is undermined by the express language
in the first paragraph of Cruz’s release which “subject[s]” the
terms of the release to the “limitations set forth” in paragraph
four.

The release is surely unorthodox but, as defendants

acknowledge, the parties “may settle their differences upon such
terms as are suitable to them”. Ford Motor Co. v. Buseman, 954
A.2d 580, 586 (Pa. Super Ct. 2008) (quoting Buttermore v.
Aliquippa Hosp., 561 A.2d 733, 735 (Pa. 1989)).

Accordingly,

the Court concludes that the release signed by Matthew Cruz

-9-

unambiguously preserves future claims brought by him against
Talmadge and Jackson.
Because this Court incorrectly concluded, in June, 2016,
that the release executed by Matthew Cruz discharged Talmadge
and Jackson from any future claims asserted against them,
plaintiff’s motion for reconsideration will be allowed. See
DeGrandis v. Children’s Hosp. Bos., No. 14-101416, 2015 WL
1959433, at *6-7 (D. Mass. Apr. 30, 2015) (allowing a motion for
reconsideration after the misinterpretation of an agreement
between the parties).
Consequently, this matter will be remanded to Massachusetts
Superior Court.

Diversity jurisdiction requires “complete

diversity” among the parties. Picciotto v. Cont’l Cas. Co., 512
F.3d 9, 17 (1st Cir. 2008) (emphasis removed).

Here, it is

undisputed that plaintiff Matthew Cruz and defendants Talmadge
and Jackson are all citizens of Pennsylvania.

Therefore,

complete diversity does not exist and the case must be remanded
to state court. See Cambridge Place Inv. Mgmt., Inc. v. Morgan
Stanley & Co., 813 F. Supp. 2d 242, 245-46 (D. Mass. 2011)
(remanding the matter after concluding that complete diversity
was lacking).
III. Additional Motions
Also pending in this matter are 1) Prevost’s motion for
judgment on the pleadings, 2) plaintiffs’ motion to amend their

-10-

complaint and 3) the motion of Talmadge and Jackson for summary
judgment.

Having determined that it lacks subject matter

jurisdiction in the case, this Court declines to resolve those
motions on the merits. See Christopher v. Stanley-Bostitch,
Inc., 240 F.3d 95, 100 (1st Cir. 2001) (“When a federal court
concludes that it lacks subject matter jurisdiction over a case,
it is precluded from rendering any judgments on the merits of
the case.”).

ORDER
For the forgoing reasons, plaintiffs’ motion for
reconsideration (Docket No. 54) is ALLOWED, and upon
reconsideration, plaintiff’s motion to remand (Docket No. 14) is
ALLOWED.
The Clerk of Court will process the remanding of this case
to the Massachusetts Superior Court Department.

So ordered.
/s/ Nathaniel M. Gorton
d
Nathaniel M. Gorton
United States District Judge
Dated March 23, 2017

-11-