I. Pending Matters
Pending for decision are matters related to the followingfilings:
(1) Motion of Third-Party Plaintiff, Massachusetts TurnpikeAuthority, for Summary Judgment Against Third-Party Defendant,Caliber One Indemnity Co. (Docket No. 62, filed September 2,2004);
(2) Memorandum in Support of Third-Party Plaintiff,Massachusetts Turnpike Authority's Motion for Summary JudgmentAgainst Third-Party Defendant, Caliber One Indemnity Co. (DocketNo. 63, filed September 2, 2004);
(3) Motion of Third-Party Plaintiff, Massachusetts TurnpikeAuthority, for Summary Judgment Against Third-Party Defendant,Transcore, Inc. (Docket No. 66, filed September 24, 2004);
(4) Memorandum in Support of Third-Party Plaintiff,Massachusetts Turnpike Authority's Motion for Summary JudgmentAgainst Third-Party Defendant, Transcore, Inc. (Docket No. 67,filed September 24, 2004);
(5) Defendant Transcore, Inc.'s Opposition to the MassachusettsTurnpike Authority's Motion for Summary Judgment Against CaliberOne Indemnity Company (Docket No. 70, filed October 1, 2004);
(6) Affidavit of Grace V. Bacon (Docket No. 71, filed October1, 2004);
(7) Opposition of Third-Party Defendant, Caliber One IndemnityCompany to Motion for Summary Judgment of Third-Party Plaintiff,Massachusetts Turnpike Authority (Docket No. 73, filed October 6,2004);
(8) Response of Third-Party Defendant, Caliber One IndemnityCompany to Statement of Fact of Third-Party Plaintiff, MassachusettsTurnpike Authority (Docket No. 74, filed October 6, 2004);
(9) Motion to Amend Caption of Opposition of Third-PartyDefendant, Caliber One Indemnity Company to Motion for SummaryJudgment of Third-Party Plaintiff, Massachusetts TurnpikeAuthority (Docket No. 75, filed October 7, 2004);
(10) Third-Party Defendant Transcore, Inc.'s Response toThird-Party Plaintiff Massachusetts Turnpike Authority'sStatement of Facts Contained in Its Motion for Summary Judgment(Docket No. 79, filed October 26, 2004);
(11) Defendant Transcore, Inc.'s Opposition to theMassachusetts Turnpike Authority's Motion for Summary Judgmentand Cross-Motion for Summary Judgment (Docket No. 80, filedOctober 26, 2004);
(12) Memorandum of Third-Party Plaintiff, MassachusettsTurnpike Authority, in Opposition to Cross-Motion of Third-PartyDefendant, Caliber One Indemnity Co., for Summary Judgment(Docket No. 81, filed October 28, 2004);
(13) Defendant Paino's Motion for Partial Summary JudgmentAgainst Third-Party Defendant Massachusetts Turnpike Authority(Docket No. 83, filed November 1, 2004);
(14) Defendant Paino's Motion for Partial Summary JudgmentAgainst Third-Party Defendant Massachusetts Turnpike Authority(Docket No. 84, filed November 1, 2004);
(15) Letter (non-motion) from John Racicot dated November 2,2004 (Docket No. 88, filed November 2, 2004);
(16) Memorandum of Third-Party Plaintiff, MassachusettsTurnpike Authority, in Opposition to Cross-Motion of Third-PartyDefendant, Transcore, Inc., for Summary Judgment (Docket No. 91, filed November 24, 2004);
(17) Opposition of Third-Party Defendant, Caliber One IndemnityCompany to Defendant Paino's Motion for Partial Summary JudgmentAgainst Third-Party Defendant Massachusetts Turnpike Authority(Docket No. 92, filed November 30, 2004);
(18) Response By Third-Party Defendant, Caliber One IndemnityCompany to Defendant Paino's Concise Statement of Facts, inSupport of Its Motion for Partial Summary Judgment AgainstThird-Party Defendant Massachusetts Turnpike Authority (DocketNo. 93, filed November 30, 2004);
(19) Cross-Motion of Defendant, Massachusetts TurnpikeAuthority, for Summary Judgment Against Paino Associates (DocketNo. 94, filed December 1, 2004);
(20) Memorandum of Defendant, Massachusetts Turnpike Authority,in Opposition to Motion of Paino Associates for Partial SummaryJudgment, and in Support of the Massachusetts TurnpikeAuthority's Cross-Motion for Summary Judgment Against PainoAssociates (Docket No. 95, filed December 1, 2004);
(21) Third-Party Defendant Transcore, Inc.'s Motion to StrikeCertain Exhibits Attached to Third-Party Plaintiff, MassachusettsTurnpike Authority's Opposition to Its Cross-Motion for SummaryJudgment (Docket No. 97, filed December 13, 2004);
(22) Exhibit A (Docket No. 99, filed December 15, 2004);
(23) Motion of Defendant, Massachusetts Turnpike Authority, forSummary Judgment Against Plaintiffs, Great Northern InsuranceCompany, CNA Commercial Insurance Company and National GrangeMutual Insurance Company (Docket No. 100, filed December 16,2004); (24) Memorandum of Defendant, Massachusetts Turnpike Authority,in Support of Motion for Summary Judgment Against the Plaintiffs,Great Northern Insurance Company and CNA Commercial InsuranceCompany (Docket No. 101, filed December 16, 2004);
(25) Opposition of Third-Party Plaintiff, MassachusettsTurnpike Authority, to Third-Party Defendant, Transcore, Inc.'sMotion to Strike (Docket No. 102, filed December 20, 2004);
(26) Joint Motion to Modify Scheduling Order By One Week(Docket No. 109, filed December 30, 2004);
(27) Third-Party Defendant Transcore, Inc.'s Reply toThird-Party Plaintiff, Massachusetts Turnpike Authority'sOpposition to Its Cross-Motion for Summary Judgment (Docket No.111, filed January 4, 2005);
(28) Joint Motion of Plaintiffs and Defendant MassachusettsTurnpike Authority to Dismiss Massachusetts Turnpike Authority(Docket No. 116, filed January 28, 2005);
(29) Defendant Paino's Objection to Joint Motion to DismissDefendant Massachusetts Turnpike Authority (Docket No. 117, filedFebruary 10, 2005);
(30) Defendant Paino's Objection to Joint Motion to DismissDefendant Massachusetts Turnpike Authority (Docket No. 118, filedFebruary 11, 2005);
(31) Defendant Paino's Opposition to Cross-Motion for SummaryJudgment By Massachusetts Turnpike Authority Against Paino(Docket No. 121, filed February 21, 2005);
(32) Affidavit of John C. Barker in Support of DefendantPaino's Oppositions to Motions for Summary Judgment (Docket No.124, filed February 21, 2005);
(33) Exhibits (Docket No. 127, filed February 22, 2005); (34) Motion of Third-Party Defendant Massachusetts TurnpikeAuthority to Continue Hearing on Motions Scheduled for March 24,2005 (Docket No. 133, filed March 22, 2005);
(35) Plaintiffs' Reply to Third-Party Defendant MassachusettsTurnpike Authority's Motion to Continue the Hearing Set forTomorrow — March 24, 2005 (Docket No. 134, filed March 23, 2005);and
(36) Assented To Stipulation of Dismissal Under Fed.R.Civ.P.41(c) of Cross-Claims Between Defendants Paino Associates andMassachusetts Turnpike Authority (Docket No. 135, filed March 24,2005).
II. Factual and Procedural Background
The procedural background of this case was set forth in detailin my Opinion of April 13, 2005. In that opinion, I denied thesummary judgment motions of defendant Transcore, Inc., andManpower, Inc., and denied Transcore's oral motion to strike. AsI noted in that opinion, the Massachusetts Turnpike Authority("MTA") moved to continue argument on the motions relating to it;I allowed the continuance at the hearing held on March 24, 2005.
The remaining issues relating to the MTA are relatively narrow.Pursuant to stipulations of dismissal, the claims of theplaintiffs and defendant Paino Associates, LLC, have beendismissed, as has MTA's cross-claim against Paino Associates.(Docket Nos. 116, 135) MTA still has a third-party claim againstCaliber One Indemnity Co. ("Caliber One") for indemnity andbreach of contract. The parties have filed opposing motions forsummary judgment on these claims. (Docket Nos. 62, 75) MTA alsohas asserted cross-claims against defendant Transcore for breach of indemnity clauses of its contract, breachof a clause relating to the maintenance of insurance, andcontribution. MTA moved for summary judgment in its favor on thefirst of these three counts. (Docket No. 66) Transcorecross-moved for summary judgment on all three counts. (Docket No.80) Transcore has also filed a motion to strike some exhibitsfiled by MTA. (Docket No. 97)
On May 17, 2005, I heard oral argument on these remainingmotions.
III. Disposition of Summary Judgment Motions
1. Summary Judgment Standard
Summary judgment should be granted only where the court,viewing the evidence in the light most favorable to thenon-moving party, determines that no genuine dispute of materialfact exists. See Fed.R.Civ.P. 56. The movant has the"initial responsibility of informing the district court of thebasis for its motion, and identifying those portions" of therecord showing the absence of a genuine dispute of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Then thenon-moving party must demonstrate that "every essential elementof its claim or defense is at least trialworthy." Price v.General Motors Corp., 931 F.2d 162, 164 (1st Cir. 1991)(italics in original).
A dispute is genuine if it "may reasonably be resolved in favorof either party." Cadle Co. v. Hayes, 116 F.3d 957, 960 (1stCir. 1997). Facts are "material" if they possess "the capacity tosway the outcome of litigation under the applicable law." Id.The facts in genuine dispute must be significantly probative inorder for summary judgment to be denied; "conclusory allegations, improbable inferences, and unsupported speculationwill not suffice." Id. Moreover, "[t]he standards are the samewhere . . . both parties have moved for summary judgment."Bienkowski v. Northeastern Univ., 285 F.3d 138, 140 (1st Cir.2002) (citing 10A Charles Alan Wright, Arthur R. Miller & MaryKay Kane, Federal Practice and Procedure § 2720, at 335-36 (3ded. 1998) ("The court must rule on each party's motion on anindividual and separate basis, determining, for each side,whether a judgment may be entered in accordance with the Rule 56standard.")).
This opinion assumes familiarity with the undisputed facts ofthis case as detailed in Part III.A.2 of my opinion of April 13,2005, and incorporates herein that recitation of facts. I add afew facts related to the MTA and its claims against Caliber Oneand Transcore.
2. Facts Relevant to the Claim by MTA Against Caliber One
MTA asserts that it is entitled to coverage as an additionalinsured under the policy between Caliber One and Transcore. Underboth the Violation Processing System and Violation ProcessingServices Agreement ("VPS Agreement"), and under the ElectronicToll Agreement, the MTA required Transcore to maintain CommercialGeneral Liability Insurance "for all damages arising out ofbodily injury or death, or damage to personal or real propertyincurred with respect to work performed under the [contract.]"(MTA Memo., Docket No. 63, Exhs. 3, 5) Transcore obtained aninsurance policy from Caliber One. (MTA Memo., Docket No. 63,Exh. 9) This insurance policy included coverage for additionalinsureds as named by contract. (MTA Memo., Docket No. 63, Exh. 9)The endorsement for additional insureds is in relevant part asfollows: It is agreed that any person or organization described below is an additional insured, but only with respect to liability arising out of the operation performed for the additional insured by or on behalf of the named insured. * * * Additional Insureds: As Required by Written Contract(MTA Memo., Docket No. 63, Exh. 9, Endorsement #18)
MTA tendered its defense to Caliber One, but Caliber Onerefused. (MTA Memo., Docket No. 63, Exh. 12)
3. Facts Related to MTA Cross-Claims Against Transcore
MTA leased two suites at 27 Midstate Drive from PainoAssociates, both on the second floor of the office building.(Transcore Memo., Docket No. 110, Exh. A, Rahn Aff. [hereinafter"Rahn Aff."], ¶¶ 6, 8) MTA allowed Transcore to occupy these twosuites; Transcore also leased and occupied a third suite on thesecond floor. (Id., ¶ 3) Transcore provided services to the MTAunder two contracts: the Electronic Toll Agreement and the VPSAgreement. (Id., ¶¶ 5, 11) Timothy Mickiewicz, who admittedsetting the four fires at 27 Midstate Drive, performed work underthe VPS Agreement at times of the fires. (Id., ¶ 11) At thetimes of the fires, he worked as an appeals clerk, handlingincoming appeals of violations of the MTA's Fastlane system.(Eckert Dep. at 27-28)
Transcore hired Mickiewicz as a temporary employee fromfourth-party defendant Manpower, Inc. (Id. at 59) The MTA wasnot involved in interviewing workers that Transcore received fromManpower. (Rahn Dep. at 62)
Mickiewicz had some contact with MTA employees as part of hisrole as an appeals clerk. On one occasion in July 2001, after anMTA employee gave some instructions to him, he was instructed by his superiors at Transcore not to takedirections from the MTA, but to allow Transcore management tohandle contact with the MTA instead. (Eckert Dep. at 65-67)Mickiewicz also made contact with an MTA employee, RobertFerrara, in the fall of 2001, regarding some drug-related threatshe was receiving from fellow employees. (Ferrara Dep. at 47-48)Ferrara reported this information to Mickiewicz's supervisor atTranscore, David Miller. (Ferrara Dep. at 47)
MTA argues that two provisions of the VPS Agreement between MTAand Transcore say that Transcore must indemnify MTA againstliability from various acts by Transcore. (MTA Memo., Docket No.67, Exh. 3) The first such provision stated: 9. Independent Contractor Relationship The Parties intend that an independent contractor relationship will be created by this VPS Agreement. As between the Contractor and the Authority, the Contractor shall be responsible for any liability to third parties resulting from the negligent or intentional acts or omissions of the Contractor, its agents, consultants, employees, subcontractors, or suppliers arising from or occurring during the term of this VPS Agreement.(Id. at 9) The second such provision stated in part: 16a. Indemnification The Contractor [Transcore] shall indemnify, defend and hold harmless the Authority . . . from and against any and all liability . . . arising out of or resulting from any intentional acts, negligent acts, errors or omissions, or fault of the Contractor or its employees, subcontractors or agents in the provision and performance of the VPS System and Services.(Id. at 14) MTA and Transcore take opposing positionsconcerning the meaning of these two provisions. The VPS Agreement also contained a section concerning themaintenance of insurance. This section states, in part: 16a. Indemnification * * * D. Insurance Policies The Contractor shall take out and maintain, during the term of this Agreement "Insurance Policies" as set forth in Attachment D.(Id. at 15) Attachment D states in part: INSURANCE REQUIREMENTS I. Contractor shall maintain for the entire term of the VPS Agreement the insurance coverage described below: * * * (iii) Commercial General Liability Insurance for all damages arising out of bodily injury or death, or damage to personal or real property incurred with respect to work performed under the VPS Agreement. Said insurance shall provide for bodily injury and property damage coverage limits of One Million Dollars ($1,000,000) per occurrence with an annual aggregate limit of Three Million Dollars ($3,000,000) and an annual aggregate limit for person injury of One Million Dollars ($1,000,000). * * * II. . . . Those insurance policies maintained by Contractor pursuant to the Contract shall identify the Authority as an additional insured and shall provide that insurance for the benefit of the Authority shall be primary and the Authority's own insurance shall be noncontributing.(MTA Memo., Docket No. 63, Exh. 5) The other contract under which Transcore was performingservices for MTA, the Electronic Toll Agreement, contained thefollowing provision relating to indemnification: 45.1 Indemnification by Contractor Contractor [Transcore], at its expense, shall indemnify, defend and hold harmless the Authority . . ., its members, officers and employees from and against any and all claims . . . arising out of or resulting from any negligent acts . . . of Contractor, its agents, employees, subcontractors or suppliers in the performance of the Contract.(MTA Memo., Docket No. 67, Exh. 1, at 54)
This contract also had provisions relating to the maintenanceof insurance by Transcore: 45.5 Insurance Policies Contractor shall take out and maintain, during the Contract Period, "Insurance Policies" as set forth in Appendix I.(Id. at 55) Appendix I stated, in part: I. Contractor shall maintain for the Contract Period the insurance coverage described below: * * * (iii) Commercial General Liability Insurance for all damages arising out of bodily injury or death, or damage to personal or real property incurred with respect to work performed under the Contract. * * * II. . . . Those insurance policies maintained by Contractor pursuant to the Contract shall identify the Authority as an additional insured and shall provide that insurance for the benefit of the Authority shall be primary and the Authority's own insurance shall be noncontributing. (Id.) B. Third-Party Claim Against Caliber One by MTA
MTA has moved for summary judgment in its favor on its claimsagainst Caliber One for failure to defend and failure toindemnify. Although the motion is captioned a motion for summaryjudgment, it does not ask that any form of judgment be entered. Iwill construe this motion, instead, as a motion for aninterlocutory ruling of law as to the meaning and applicabilityof the contractual provisions at issue in this case. SeeDooley v. Liberty Mut. Ins. Co., 307 F. Supp. 2d 234, 240-41(D. Mass. 2004) (using this approach). In making these rulings Iapply the standard set forth in Fed.R.Civ.P. 56(d). SeeDooley, 307 F. Supp. 2d at 240 (explaining that in thesecircumstances "a court may both (i) make legal rulings aboutmateriality of factual assertions that are not properlycontroverted, and (ii) make legal rulings about factualassertions that are properly shown to be controverted.").
The central dispute between Caliber One and MTA is over thescope of coverage afforded by Caliber One's insurance policy.Caliber One does not dispute that insurance coverage isavailable, generally, to MTA as an additional insured under itspolicy with Transcore. The only issue is whether such coverageapplies in the present case.
MTA's third-party complaint states that Caliber One violatedboth its duty to defend and its duty to indemnify. These twoduties involve different standards. Brazas Sporting Arms, Inc.v. American Empire Surplus Lines Ins. Co., 220 F.3d 1, 4 (1stCir. 2000) ("Under Massachusetts law, the duty to defend isbroader than, and independent of, the duty to indemnify."). Iaddress these two questions in turn. 1. Duty to Defend
First, I consider whether Caliber One had a duty to defend MTAin these circumstances. The Massachusetts Supreme Judicial Courthas described how courts are to determine the scope of the dutyto defend: The question of the initial duty of a liability insurer to defend third-party actions against the insured is decided by matching the third-party complaint with the policy provisions: if the allegations of the complaint are reasonably susceptible of an interpretation that they state or adumbrate a claim covered by the policy terms, the insurer must undertake the defense. The scope of an insurer's duty to defend is based on the facts alleged in the complaint and those facts which are known to the insurer.Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co.,439 Mass. 387, 394 (2003) (internal quotation marks, citations, andalterations omitted). The defense must be undertaken "even if theclaim is baseless, as `it is the claim which determines theinsurer's duty to defend.'" Mt. Airy Ins. Co. v. Greenbaum,127 F.3d 15, 19 (1st Cir. 1997) (quoting Sterilite Corp. v.Continental Cas. Co., 17 Mass. App. Ct. 316, 324 n. 17 (1983)).The policyholder or, in this case, MTA as an additional insured,bears the initial burden of proving coverage, then the burdenshifts to the insurer to prove application of a specificexclusion. Camp, Dresser & McKee, Inc. v. Home Ins. Co.,30 Mass. App. Ct. 318, 321 (1991).
In this case, the parties dispute whether MTA has met itsinitial burden to show coverage. Both the original complaint(Docket No. 1) and the Amended Complaint (Docket No. 38) allegethat negligent acts were committed by the agents of MTA orTranscore in the scope and course of employment. Count II of theAmended Complaint (Docket No. 38) accuses MTA, acting by andthrough its employees, of committing negligence by failing toprovide adequate security, failing to monitor the restroom, failing to take othersteps to reduce the risk of fires, and failing to adequatelyscreen or select its employees. Count III of the AmendedComplaint accuses Transcore of the same forms of negligence. Therelevant policy provision is the additional insured provision,which states that coverage shall be available if the "liabilityaris[es] out of the operation performed for the additionalinsured by or on behalf of the named insured." (MTA Memo., DocketNo. 63, Exh. 9, Endorsement #18) A court must decide the initialquestion of coverage by matching the language in the complaint tothis policy language. Herbert A. Sullivan, 439 Mass. at 394.
Caliber One argues that Mickiewicz's act of arson did not"arise out of" Transcore's operations under the agreement.Caliber One reasons that Mickiewicz was not acting in theinterest of his employer Transcore at the time he wasintentionally setting fires, so Transcore cannot be heldvicariously liable for his actions. This argument, however, ispremised upon a misreading of the complaint. The complaints inthis case allege negligence by theories other than ordinaryrespondeat superior liability. As noted, the claims allegesupervisory negligence — that is, negligence on the part of thosewho supervised Mickiewicz — and negligence of those who providedsecurity at the office. The complaints could reasonably beinterpreted to state that the negligence of these employees aroseout of Transcore's operations under the contract.
Accordingly, MTA has sustained its initial burden to show thatthe coverage applies for purposes of giving rise to a duty todefend. Caliber One has not identified any express exclusionprovision that applies to this case.
I conclude that Caliber One owed a duty to defend MTA in thiscase. 2. Duty to Indemnify
Next, I consider whether Caliber One is required to indemnifyMTA as an additional insured under the terms of the insurancepolicy with Transcore. The interpretation of an insurance policyis appropriately decided as a matter of law. See Norfolk &Dedham Mut. Fire Ins. Co. v. Quane, 442 Mass. 704, 707 (2004);Merchants Ins. Co. v. United States Fidelity and Guar. Co.,143 F.3d 5, 8 (1st Cir. 1998).
The parties dispute whether any of the claims against MTA arefor damages "arising out of" Transcore's operations under thecontract. (MTA Memo., Docket No. 63, Exh. 9, Endorsement #18) Therelevant claims made against MTA in this case were the claims ofthe plaintiffs and the cross-claims of the co-defendant PainoAssociates, both of which have now been voluntarily dismissed.These claims were for negligence in providing security, andnegligence in the hiring, retention, and supervision ofMickiewicz. Caliber One's argument is primarily directed towardexplaining why MTA or Transcore cannot be liable for Mickiewicz'sarson under the doctrine of respondeat superior. This theory ofliability, however, is not advanced by any party.
Under Massachusetts law, a claim of negligent provision ofsecurity is covered by a commercial general liability insurancepolicy unless an express exclusion applies. "The terms `arisingout of' and `in connection with' are not be to be construednarrowly but are read expansively in insurance contracts."Metropolitan Property and Cas. Ins. Co. v. Fitchburg MutualIns. Co., 58 Mass. App. Ct. 818, 820-21 (2003). In holding thata claim for negligent provision of security was covered by acommercial general liability insurance policy with similar termsto the present policy, the Massachusetts Supreme Judicial Courtstated: [T]he O'Brien claim [for negligent failure to provide adequate security] would involve an `accident' under an `occurrence' policy like Hermitage's [the insurer] because Lamplighter [the insured] would not have known to a substantial certainty that bodily injury it could have guarded against would result from conduct by its patrons. If Hermitage had intended to preclude coverage to Lamplighter for a claim based on an allegation of negligent failure to provide security, it could have done so in clear and unmistakable language.
Liquor Liability Joint Underwriting Ass'n v. Hermitage Ins.Co., 419 Mass. 316, 322 (1995) (citations and internal quotationmarks omitted). Subsequent cases in Massachusetts courts haveaffirmed that insurers can exclude claims for negligence inproviding security if the policies contain specific, broadlyworded exclusions. See Peters v. United Nat. Ins. Co.,53 Mass. App. Ct. 775, 778 (2002) (finding no coverage based on anassault and battery exclusion); First Financial Ins. Co. v.LaRosa, 49 Mass. App. Ct. 901, 901-02 (2000) (same). Thesecases do not change the default rule that commercial generalliability policies cover claims for negligent provision ofsecurity.
Caliber One does not claim that a specific exclusion applies inthis case.
Accordingly, I conclude that Caliber One's insurance policycovers the claim for negligent provision of security.
Courts have sometimes reached conflicting results concerningwhether a claim for negligent supervision is covered by acommercial general liability policy when the supervised employeecommits an intentional tort. See, e.g., King v. DallasFire Ins. Co., 85 S.W.3d 185, 190-92 & nn. 25-27 (Tex. 2002)(noting split and finding coverage); Mutual of Enumclaw v.Wilcox, 123 Idaho 4, 9 (1992) (finding no coverage); seegenerally 2 Allan D. Windt, Insurance Claims and Disputes §11.3, at 319-329 (4th ed. 2001 & Supp. 2004) (collecting cases).The Supreme Court of Texas in the King case criticized thedecisions finding no coverage, noting that those decisionserroneously conflated the intent of the employee with that of theemployer. Id., 85 S.W.3d at 191-92. Caliber One commits thesame error in this case.
Massachusetts state law maintains the conceptual separationbetween the intent of the employee and the employer. SeeWorcester Ins. Co. v. Fells Acres Day School, Inc.,408 Mass. 393, 407-09 (1990). In this regard, Massachusetts courts followthe weight of authority from other state appellate courts thathave considered this problem. Id. Accord King,85 S.W.3d at 192 (holding that coverage applied); Agoado Realty Corp. v.United Intern. Ins. Co., 95 N.Y.2d 141, 145 (2000) (same);Horace Mann Ins. Co. v. Independent Sch. Dist. No. 656,355 N.W.2d 413, 420 (Minn. 1984) (same); Hanover Ins. Co. v.Crocker, 688 A.2d 928, 930-31 (Me. 1997) (same); Wayne Tp. Bd.of Sch. Com'rs v. Indiana Ins. Co., 650 N.E.2d 1205, 1209(Ind.App. 1995) (same); Property Cas. Co. of MCA v. Conway,147 N.J. 322, 330 (1997) (same); Catholic Diocese of Dodge Cityv. Raymer, 251 Kan. 689, 698-99 (1992) (same); Northern Sec.Ins. Co. v. Perron, 172 Vt. 204, 221-22 (2001) (same). Butsee Wilcox, 123 Idaho at 9. Caliber One has not provided anyreason for me to anticipate that the Massachusetts SupremeJudicial Court would not apply this rule in this case.
Massachusetts law does, however, contain a narrow exception tothis general rule: the intent of an employee may be imputed tothe insured employer if the intentional torts are "so routine asto constitute a general practice or policy" of the employer.Fells Acres, 408 Mass. at 407 (remanding to trial court forfurther factual development of this question). In this case,Caliber One has made no contention that this case would fit underthis exception identified in the Fells Acres case that theintentional tort, here, arson, "was so routine as to constitute ageneral practice or policy" of Transcore or MTA. Id. Nor does it appearfrom the record that such a contention would have any merit.
I conclude that Caliber One is obliged to indemnify MTA in thissituation.
Accordingly, I will allow MTA's motion for summary judgmentinsofar as it seeks the above rulings of law, and I will denyCaliber One's Cross-Motion for Summary Judgment.
C. Cross-Claims of MTA Against Transcore
MTA has moved for summary judgment in its favor on Count I ofits third-party complaint, for breach of the indemnity clauses ofits contract with Transcore. MTA's moving papers againstTranscore do not propose that a particular form of judgment beentered. In essence, MTA seeks a ruling that Transcore is inbreach of indemnity provisions in two contracts because it failedto defend and indemnify MTA in this action. Accordingly, as I didwith MTA's motion for summary judgment against Caliber One, Iwill treat MTA's motion as a motion for an interlocutory rulingof law.
Transcore, on the other hand, has cross-moved for entry ofjudgment in its favor on the grounds that these provisions do notapply in this case. Transcore argues that the fire did not "ariseout of" the agreement between MTA and Transcore, and thatMickiewicz's arson activities were outside the scope of hisemployment. This motion is properly described as a motion forsummary judgment, and I will treat it as such.
1. Count I: Breach of Indemnity Clauses
MTA identifies two clauses of the VPS Agreement — Sections 9and 16a, quoted above — that, it says, created a duty forTranscore to indemnify and defend MTA in this case. MTA arguesthat these two clauses explicitly indemnify the MTA from anyliability resulting from intentional acts, including Mickiewicz's arson. Transcore arguesthat its duty to indemnify is limited to damages "arising out of. . . the provision and performance of the VPS System andServices." Transcore argues that this language relieves it of itsduty to indemnify because Mickiewicz was not providing servicesunder the VPS agreement at the time he set the fires. Transcoredoes not address MTA's argument with respect to Section 9.
Both arguments miss the mark. The liability faced by MTA inthis case was not under a respondeat superior theory of liabilityfor Mickiewicz's acts. The plaintiffs' claims were for negligentsupervision and negligence in providing security. (See AmendedComplaint, Docket No. 38) The question concerning whether theseprovisions apply, therefore, turns upon the actions of theemployees of MTA and Transcore who supervised Mickiewicz andundertook the security at the office, and not Mickiewicz himself.
As I have explained in Part III.B.2, above, under Massachusettslaw, these two theories of negligence are considered to "ariseout of" business operations for the purposes of a commercialgeneral liability insurance policy. Mickiewicz worked under theVPS contract around the time he was setting fires at the office.His supervisors, who were allegedly negligent, were acting "inthe provision and performance of the VPS System and Services."Accordingly, the indemnification and defense clause of the VPSAgreement applies to their actions. The record does not indicateunder which contract those who undertook to provide securityworked. Such a distinction, however, is not material, becauseboth the VPS Agreement and the Electronic Toll Agreement providedfor indemnification and defense of those allegedly negligentacts.
I conclude that Transcore agreed to indemnify and defend MTAfor the claims presented in this case. Accordingly, I will allow MTA's motion for summary judgmentinsofar as it seeks the above ruling of law and deny Transcore'smotion for summary judgment in this respect.
2. Count II: Breach of Maintenance of Insurance Clause
Transcore argues that it was not obligated to secure insurancefor the benefit of MTA in this case. This argument is also basedupon the incorrect premise that the claims in this case are forrespondeat superior liability for the acts of Mickiewicz. Theclaims, as explained above, are for the negligence ofMickiewicz's supervisors and for the negligence of those whoprovided security at 27 Midstate Drive.
Accordingly, I will deny Transcore's motion for summaryjudgment in this respect.
3. Count III: Contribution
MTA has asserted a cross-claim against Transcore forcontribution. Transcore has moved for summary judgment in itsfavor on this claim. Under the Massachusetts joint tortfeasorstatute, any joint tortfeasor who has paid more than its pro ratashare of a judgment is entitled to seek contribution from theother joint tortfeasors. See Mass. Gen. Laws ch. 231B, §§ 1-4(2004). Whether this provision applies depends upon whether aparticular defendant has been found to be a joint tortfeasor.
I conclude that a disputed question of fact exists with respectto whether Transcore and MTA are subject to joint liability. Thejury could find that one or more of the parties were negligentand that some of the other parties are jointly liable on thistheory. Thus factual findings of the jury on the question ofnegligence are essential to any determination about rights ofcontribution. Accordingly, I will deny Transcore's motion for summaryjudgment on this ground.
IV. Other Matters
A. Motion to Strike
Transcore has moved to strike certain exhibits submitted byMTA. At the hearing on May 17, 2005, I noted that both partiescommitted improprieties in this situation. First, Transcoreshould have consulted with MTA before bringing the motion tostrike. If Transcore had consulted with MTA before bringing themotion to strike on this ground, it seems likely that thecontroversy could have been avoided by an agreement that MTAwould submit a new, accurate copy with a supporting affidavit.MTA, however, has responded to Transcore's motion by accusingTranscore's counsel of bad faith. This accusation is notsupported, and MTA's counsel should not have been so needlesslycontentious.
MTA and Transcore stipulated during the hearing that adifferent copy of the disputed exhibit, which had been submittedby MTA as part of an earlier filing, was accurate and could berelied upon by the court in deciding these summary judgmentmotions. In light of this stipulation, Transcore's motion tostrike is now moot, and I will deny the motion for that reason.
I note that the authenticity of other exhibits submitted by theMTA without an affidavit has not been challenged by any party. Ofparticular import to the present motions are the contracts atissue in the dispute between Caliber One and MTA. Although MTAfailed to include an affidavit attesting to their authenticity,MTA referred to these exhibits in MTA's statement of undisputedfacts, and Caliber One did not raise the issue of theirauthenticity at that time. On this record, it does not appear that any dispute as to theirauthenticity exists and that I may appropriately rule on thesummary judgment motions as I described above.
Accordingly, I will deny the motion to strike as moot.
B. Motion to Dismiss
The plaintiffs have moved to dismiss their claims against theMTA. Defendant Paino Associates initially opposed this motion todismiss, but later withdrew their opposition. I will allow themotion insofar as it seeks dismissal of the plaintiffs' claimsagainst the MTA. MTA will remain a party to this case, however,because it still has an outstanding cross-claim against Transcoreand a third-party claim against Caliber One.
For the foregoing reasons, it is ORDERED:
(1) As explained in Part III.B of the foregoing opinion, Motionof Third-Party Plaintiff, Massachusetts Turnpike Authority, forSummary Judgment Against Third-Party Defendant, Caliber OneIndemnity Co. (Docket No. 62) is ALLOWED insofar as it seeks the rulings of law stated in Part III.B.
(2) As explained in Part III.C.1 of the foregoing opinion,Motion of Third-Party Plaintiff, Massachusetts TurnpikeAuthority, for Summary Judgment Against Third-Party Defendant,TransCore, Inc. (Docket No. 66) is ALLOWED insofar as it seeksthe rulings of law stated in Part III.C.1.
(3) Opposition of Third-Party Defendant, Caliber One IndemnityCompany to Motion for Summary Judgment of Third-Party Plaintiff,Massachusetts Turnpike Authority and Cross-Motion of Caliber OneIndemnity Company for Summary Judgment against MassachusettsTurnpike Authority (Docket No. 73) is DENIED.
(4) Motion to Amend Caption of Opposition of Third-PartyDefendant, Caliber One Indemnity Company to Motion for SummaryJudgment of Third-Party Plaintiff, Massachusetts TurnpikeAuthority (Docket No. 75) is ALLOWED insofar it seeks to amendthe caption to Docket No. 73.
(5) Defendant TransCore, Inc.'s Opposition to the MassachusettsTurnpike Authority's Motion for Summary Judgment and Cross-Motionfor Summary Judgment (Docket No. 80) is DENIED.
(6) Third-Party Defendant TransCore, Inc.'s Motion to StrikeCertain Exhibits Attached to Third-Party Plaintiff, MassachusettsTurnpike Authority's Opposition to Its Cross-Motion for SummaryJudgment (Docket No. 97) is DENIED as moot.
(7) Joint Motion of Plaintiffs and Defendant MassachusettsTurnpike Authority to Dismiss Massachusetts Turnpike Authority(Docket No. 116) is ALLOWED insofar as the plaintiffs' claimsagainst the MTA are dismissed.