Winer v. Sodexo, Inc. et al

Filing 71

Judge Richard G. Stearns: ORDER entered denying 47 Motion for Summary Judgment; denying 48 Motion for Summary Judgment (RGS, law1)

Case 1:17-cv-11071-RGS Document 71 Filed 12/05/18 Page 1 of 11

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 17-11071-RGS
GEORGE WINER
v.
MARRIOTT HOTEL SERVICES, INC. and TOWNE PARK, LLC
v.
DTG OPERATIONS, INC.
MEMORANDUM AND ORDER ON
MOTIONS FOR SUMMARY JUDGMENT OF
TOWNE PARK, LLC, AND DTG OPERATIONS, INC.
December 5, 2018
STEARNS, D.J.
George Winer brought this lawsuit in Suffolk Superior Court against
Marriott Hotel Services, Inc., and Towne Park, LLC, among others, for
damages he suffered after tripping over an exposed drain hole.1 Defendants
subsequently removed the case to the federal district court.2 The Amended

In the Amended Complaint, Winer withdrew allegations against
Sodexo, Inc., and Towne Park, Ltd.
1

Winer is a resident of Massachusetts. Marriott is a Delaware
corporation with a principal place of business in Maryland. Towne is a
Maryland LLC with a principal place of business in Maryland. Am. Compl.
2

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Complaint sets out claims of negligence and premises liability against both
Marriott (Counts I and III) and Towne (Counts II and IV). In its Answer,
Towne asserts a crossclaim for contribution against Marriott. In response,
Marriott asserts three crossclaims against Towne: contribution, contractual
indemnification, and common law indemnification. Marriott also filed a
Third Party Complaint against Winer’s employer, DTG Operations, Inc., for
contractual indemnity.3 DTG now moves for summary judgment on that
claim, while Towne moves for summary judgment on Winer’s claims and
Marriott’s crossclaims. For the reasons to be explained, DTG’s and Towne’s
motions for summary judgment will be denied.
BACKGROUND
The facts, viewed in the light most favorable to Winer and Marriott as
the nonmoving parties, are as follows. In May of 2014, Winer was employed
as a location manager by DTG, which operated a rental car service at the
Marriott Copley Hotel in Boston. DTG has a rental car desk in the hotel and,
at the time, had the use of parking spaces one through nine in the hotel’s

¶¶ 1-3. Its sole member is Towne Holdings, Inc., a Maryland corporation
with a principal place of business in Maryland. Dkt # 69 ¶¶ 2-3.
DTG, doing business as Dollar Rent A Car, is an Oklahoma
corporation with a principal place of business in Florida. Third Party Compl.
¶ 4.
2
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garage. Winer was responsible for inspecting the spaces. On May 16, 2014,
Winer was walking to parking space number nine to move a rental car when
he tripped over an uncovered drain hole in parking space number eight. As
a result of the fall, Winer suffered serious injuries.4
Marriott repairs drains when a specific problem is reported or when a
defect is noted during a quarterly inspection of the garage. Marriott from
time to time hires Drain Doctor to clean the drains. Towne operates a valet
parking service in the garage that is staffed twenty-four hours a day, seven
days a week.

Towne is “responsible for the general maintenance and

cleanliness of the Service Area(s),” which includes certain parking spaces.
Towne Stat. of Facts (TSOF) (Dkt # 56-1) ¶¶ 37, 54-55. When cleaning the
floor of the garage, Towne employees occasionally remove a drain cover
(including the one in parking space number eight) to empty water and
cleaning solution from a Tomcat floor scrubber. Winer alleges that Towne
employees, on May 16, 2014, removed the drain cover in parking space
number eight to drain the Tomcat. Winer asserts that Marriott and Towne
were, in turn, negligent in leaving the drain cover exposed.

4

DTG has since paid Winer worker’s compensation benefits.
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DISCUSSION
Summary judgment is appropriate when, based upon the pleadings,
affidavits, and depositions, “there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “To succeed, the moving party must show that there is an absence
of evidence to support the nonmoving party’s position.” Rogers v. Fair, 902
F.2d 140, 143 (1st Cir. 1990). Although all reasonable inferences are drawn
in the nonmovant’s favor, the court cannot “‘draw unreasonable inferences
or credit bald assertions, empty conclusions, rank conjecture, or vitriolic
invective.’” Pina v. Children’s Place, 740 F.3d 785, 795 (1st Cir. 2014),
quoting Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir.
2007).
Winer’s Claims Against Towne
Towne asserts that Winer’s negligence and premises liability claims fail
for three reasons.

First, Towne argues that Winer “has no reasonable

expectation of proving negligence” because there is no evidence that its
employees, as opposed to Marriott’s, removed the drain cover on May 16,
2014. Towne Mem. (Dkt # 50) at 6. Second, Towne argues that Winer
cannot successfully invoke res ipsa loquitur because it did not have control

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over the garage. Third, Towne argues that Winer cannot recover because the
danger posed by the exposed drain hole was open and obvious.
Negligence consists of a breach of a duty of care that directly and
proximately causes harm to a plaintiff. Delaney v. Reynolds, 63 Mass. App.
Ct. 239, 241 (2005). The existence of a duty of care (a prerequisite for a
finding of negligence) is a question of law. Leavitt v. Brockton Hosp., Inc.,
454 Mass. 37, 40 (2009).
Here, as a matter of law, Towne owed Winer a duty of care arising out
of its contractual obligation to clean and maintain the garage. Even if the
uncovered drain was open and obvious, Towne would only be excused of its
duty to warn, not its duty of care. See Judge v. Carrai, 77 Mass. App. Ct.
803, 806 (2010) (“[T]he fact that a danger is open and obvious does not
operate to negate a duty of care.”). It is undisputed that Towne employees
operated the garage twenty-four hours a day and, at times, removed drain
covers when cleaning. Winer testified that Josh Jones, a Towne account
manager, told him after the fall that a Town employee named “Adam must
have left a cover off after cleaning the Garage.” TSOF ¶ 71.5 Whether Towne,
or Marriott, or both, were negligent in leaving the drain cover exposed in
parking space number eight on May 16, 2014, is a question of fact for the

5

Jones denies making this statement. Towne Mem. (Dkt # 50) at 7 n.1.
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jury.6

See Foley v. Matulewicz, 17 Mass. App. Ct. 1004, 1005 (1984)

(“[S]ummary judgment is rarely granted on the merits of a negligence action
because of the jury’s unique competence in applying the reasonable man
standard to a given fact situation.”) (citation omitted); see also Hebert v.
Enos, 60 Mass. App. Ct. 817, 820-821 (2004), quoting Kent v.
Commonwealth, 437 Mass. 312, 320 (2002) (“Summary judgment is . . .
appropriate . . . if a plaintiff has no reasonable expectation of proving that
‘the injury to the plaintiff was a foreseeable result of the defendant’s
negligent conduct.’”).
Marriott’s Crossclaims Against Towne
Towne argues that Marriott’s crossclaims for contribution, contractual
indemnification, and common law indemnification must be dismissed,
mainly because Winer cannot prove negligence.7 Towne also argues that it is
not obligated to indemnify Marriott for negligent acts caused solely by
Marriott employees. Winer, however, alleges that both Marriott and Towne

Having so concluded, the court need not address Towne’s argument
regarding res ipsa loquitur, Winer’s alternate theory of negligence under
which a trier of fact can draw an inference of negligence in the absence of
evidence of specific causation. Enrich v. Windmere Corp., 416 Mass. 83, 88
(1993).
6

Towne agreed to “defend, indemnify and hold [Marriott] harmless . . .
from and against any and all actions, costs, [and] claims . . . for personal
injuries . . . of any person arising out of [its] Service.” TSOF ¶ 72.
6
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were negligent in leaving the drain cover exposed. And given that Winer’s
negligence claims are an issue of fact, Towne’s derivative argument
concerning Marriott’s crossclaims is similarly a question for the jury. See
Berube v. Northampton, 413 Mass. 635, 638 (1992) (“Contribution claims
are derivative and not new causes of action. Without liability in tort there is
no right of contribution.”); Fireside Motors, Inc. v. Nissan Motor Corp. in
U.S.A., 395 Mass. 366, 369 (1985), quoting Stewart v. Roy Bros., 358 Mass.
446, 459 (1970) (“At common law a person may seek indemnification if that
person ‘does not join in the negligent act but is exposed to derivative or
vicarious liability for the wrongful act of another.’”).
Marriott’s Contractual Indemnity Claim Against DTG
DTG argues that it is immune from suit because it paid Winer worker’s
compensation benefits and its contractual indemnity provision does not
apply to Winer’s claims. Under state law, an employer is immune from suit
after an employee accepts worker’s compensation benefits, unless there is a
valid express contract for indemnification.

Spellman v. Shawmut

Woodworking & Supply, Inc., 445 Mass. 675, 679-680 (2006), citing Mass.
Gen. Laws c. 152 § 23.
It is undisputed that DTG paid Winer worker’s compensation benefits.
The Agreement at issue provides the following:
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Marriott hereby leases to [DTG] that space, including walls, floors,
wiring and fixtures (“Premises”) in the Hotel . . . and containing
approximately 110 square feet . . . for the purpose of constructing and
operating a car rental counter. [DTG] will manage said counter in
accordance with the policies, standards and procedures established by
Marriott, including the “Rules and Regulations” attached hereto as
Exhibit “B”, and in accordance with the terms and conditions
hereinafter set forth.
Marriott will also designate six (6) parking spaces for use by [DTG].8
DTG Mot. (Dkt # 48), Ex. B § 1. DTG also agreed “to indemnify, defend and
hold harmless Marriott . . . from and against all claims, suits, demands,
damages, judgments, including reasonable attorney’s fees . . . arising from
the use of or work done to the Premises.” Id. § 6.3. The question is, therefore,
whether the term “Premises” covers both the hotel lobby and the garage,
where Winer was injured.
DTG argues that “Premises” concerns only the rental counter because
the reference to the parking spaces appears in a separate paragraph and is
not explicitly included in the definition of “Premises.” See Massachusetts
Higher Educ. Assistance Corp. v. MassDevelopment/Saltonstall Bldg.
Redevelopment Corp., 2016 WL 819025, *3 (Mass. Super. 2016) (finding
that a lease covered taxes assessed against the “premises,” which included
the rented spaces and the office building but not the parking garage). DTG

On May 16, 2014, DTG was using parking spaces one through nine.
DTG Stat. of Facts (Dkt # 55-1) ¶ 17.
8
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also notes that since Marriott agreed to “provide daily janitorial service for
the Premises,” it would be illogical that such “dusting,” “cleaning,” and
“vacuuming” would occur in the concrete parking garage. DTG Mot. (Dkt
# 48), Ex. B § 3.2.9

DTG therefore contends that the indemnification

provision, which only covers claims “arising from the use of or work done to
the Premises,” is not applicable because Winer was injured in the garage, not
at the counter. Id. § 6.3.
In response, Marriott argues that the indemnity provision is applicable
because the term “Premises” can only reasonably be read to cover both the
counter and the garage. Marriott also asserts that DTG’s requirement to
maintain general liability insurance and name Marriott as an additional
insured are evidence of the parties’ intent to indemnify. Id. § 6.1; see also
Urban Inv. & Dev. Co. v. Turner Const. Co., 35 Mass. App. Ct. 100, 108
(1993) (“Insurance protection is purchased to obtain the insurer’s twofold
obligation to indemnify the insured against judgments for which liability is
covered under the policy and to defend the insured against claims alleging
such liability.”). I agree.

But under its Agreement, DTG was responsible for “maintain[ing]
and clean[ing] the Premises.” DTG Mot. (Dkt # 48), Ex. B § 2.4.
9
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Under Massachusetts law, contract interpretation is ordinarily a
matter of law for the court. Nadherny v. Roseland Prop. Co., Inc., 390 F.3d
44, 48 (1st Cir. 2004); see also Fleet Nat’l Bank v. Anchor Media Television,
Inc., 45 F.3d 546, 556 (1st Cir. 1995) (“[W]hether a provision can reasonably
support a proffered interpretation is a legal one, to be decided by the court.”).
The accepted rules of construction prefer reading a contract as a whole in
interpreting a disputed part, rather than balkanizing its language. Smart v.
The Gillette Co. Long Term Disability Plan, 70 F.3d 173, 179 (1st Cir. 1995).
“An ambiguity is not created merely because a controversy exists between
parties, each favoring an interpretation contrary to the other.” Wyner v. N.
Am. Specialty Ins. Co., 78 F.3d 752, 756 (1st Cir. 1996) (citation omitted).
Here, the express purpose of the Agreement was to enable DTG to
operate a car rental service for the benefit of Marriott’s guests. DTG, in turn,
agreed to indemnify Marriott for claims “arising from the use of or work done
to the Premises.” Common sense dictates that the indemnity provision
would cover DTG’s entire business, both at the counter and in the garage. A
car rental agency without access to cars, like a bank without access to money,
would hardly satisfy the purpose of the agreement. See Fishman v. LaSalle
Nat’l Bank, 247 F.3d 300, 302 (1st Cir. 2001) (“Common sense is as much a
part of contract interpretation as is the dictionary or the arsenal of canons.”).
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ORDER
For the foregoing reasons, DTG’s motion for summary judgment on
Marriott’s contractual indemnity claim is DENIED.

Towne’s summary

judgment motion on both Winer’s claims and Marriott’s crossclaims is
DENIED. The Clerk will set the case for trial.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

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