682 F.Supp.3d 78
D. Mass.2023Background
- Plaintiff Alexander Raheb slipped on a wet concourse at TD Garden on April 13, 2019, allegedly from spilled beer and injured his leg.
- TD Garden is owned/operated by Delaware North; UG2 LLC provided janitorial services under a 2016 Facility Service Contract.
- The contract required UG2 to indemnify and defend Delaware North "upon prompt written notice" for injuries "arising from or caused by any negligent act or omission of [UG2]," and to maintain specified commercial general liability insurance naming Delaware North for defense/subrogation waivers.
- Plaintiff’s counsel informed Delaware North’s claims administrator in May 2019; Delaware North’s administrator sent UG2 a written request for defense/indemnity on August 6, 2019; UG2/its insurer declined to defend.
- Delaware North asserted crossclaims against UG2 (including express indemnification and breach of contract) and moved for summary judgment on the duty-to-defend component of its express-indemnification claim and on breach of contract.
- The court denied summary judgment: genuine factual dispute exists over whether notice was "prompt," UG2 has a duty to defend claims alleging UG2 negligence but not claims asserting Delaware North’s own negligence, and there is insufficient evidence that UG2’s insurance failed to meet the contract requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether UG2 had a contractual duty to defend Delaware North (express indemnity) | Delaware North: UG2 agreed to indemnify and defend; it was put on notice and thus must defend. | UG2: Contract conditions not satisfied (no prompt written notice); duty limited to claims arising from UG2’s negligence. | Denied summary judgment. Disputed whether notice was "prompt"; UG2 must defend claims alleging UG2 negligence but not claims alleging Delaware North’s own negligence. |
| Whether Delaware North’s notice to UG2 was "prompt written notice" (condition precedent) | Delaware North: notice to claims administrator in May and notice to UG2 in August 2019 was timely. | UG2: Notice was untimely; promptness not satisfied. | Denied summary judgment. Reasonable juror could find notice timely or untimely; material factual dispute exists. |
| Whether UG2 must defend the entire lawsuit under an "in for one, in for all" principle | Delaware North (arguably): if any claim arises from UG2 negligence, UG2 should defend entire suit. | UG2: Contract limits duty to defend to claims "arising from or caused by" UG2 negligence; no duty to defend Delaware North’s own alleged negligence. | Court declined to extend "in for one" beyond insurance context; UG2 not required to defend claims alleging only Delaware North’s negligence. |
| Whether UG2 breached the insurance-procurement clause of the contract | Delaware North: UG2 failed to secure a policy satisfying contract (insurer declined defense), thus breached. | UG2: Maintained an insurer (Travelers); record lacks proof policy terms violated contract. | Denied summary judgment. Record insufficient to establish as a matter of law that UG2’s policy failed to satisfy contractual requirements. |
Key Cases Cited
- Billings v. Commerce Ins. Co., 458 Mass. 194 (Mass. 2010) (duty to defend triggered when complaint is reasonably susceptible of an interpretation that claims fall within coverage)
- Essex Ins. Co. v. BloomSouth Flooring Corp., 562 F.3d 399 (1st Cir. 2009) (duty-to-defend comparison of underlying complaint facts to policy provisions)
- Gorelick v. Star Markets Co., Inc., 102 Mass. App. Ct. 219 (Mass. App. Ct. 2023) (commercial indemnity provisions not readily subject to "in for one, in for all" expansion outside insurance context)
- Segal v. Aetna Cas. & Sur. Co., 337 Mass. 185 (Mass. 1958) (notice timeliness analyzed in indemnity/insurance contexts)
- Caldwell Tanks, Inc. v. Haley & Ward, Inc., 471 F.3d 210 (1st Cir. 2006) (interpretation of indemnity clauses as questions of law when facts undisputed)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary judgment standards)