Everest National Insurance Company v. Berkeley Place Restaurant Limited Partnership (Lawyers Weekly No. 12-155-16)

No. 2011-1470
This action was commenced by Everest National Insurance Company as subrogee of three
persons: Timothy J. Barletta (“Timothy”), Barletta Engineering Corporation (“Barletta Corp.”)
and Osprey Equipment Corporation (“Osprey”). The action is one for contribution under G.L. c.
231B, § 1(d ). Everest, as insurer for all three persons, paid a settlement amount to a state trooper
who was seriously injured in a car accident when he was struck from behind by a car driven by
Timothy. Everest asserted in this case that defendant, Berkeley Place Restaurant Limited
Partnership, d/b/a Grill 23 (“Grill 23″), is jointly liable to the state trooper as a result of
negligently serving Timothy alcohol in the hours before the accident. Following a jury verdict in
favor of Everest that determined that Grill 23 is liable as a joint tortfeasor and that the settlement
reached by Everest with the state trooper and his wife was reasonable, the parties address two
issues: (1) how many tortfeasors bear responsibility for a pro rata share of the settlement, and (2)
what amount is Everest entitled to receive as contribution from Grill 23? Both questions involve
application of the contribution statute. For the first question, the court must determine whether
“if equity requires, the collective liability of some as a group shall constitute a single share.” G.L.
c. 231B, § 2(b). The second question is whether, under G.L. c. 231B, §1, Everest may obtain
contribution for more than a pro rata share of what it paid in settlement?
On Saturday night, September 27, 2008, Timothy attended a private birthday party at the
Grill 23 restaurant in Boston. The person being celebrated was Timothy’s sister-in-law, Laura
Barletta, and the person throwing the party was her husband, Timothy’s brother, Vincent
Barletta. Approximately 40 people attended the party and the guests were, generally, friends and
family of Laura Barletta. The party was held in a function room, separate from the rest of the
There was evidence before the jury sufficient to show that at the party Timothy was
served alcohol after it had been recognized by the Grill 23 manager on duty that Timothy was
visibly intoxicated. Timothy left the party with his girlfriend, got into a motor vehicle, and drove
west on the Mass Pike. Several minutes later, Timothy, while operating under the influence of
alcohol, smashed into the rear of a state police vehicle parked on the edge of the Pike to assist a
stopped car. State Trooper Christopher Martin was inside the state police vehicle. As a result of
the collision, Trooper Martin suffered serious personal injuries. Subsequently, Timothy pleaded
guilty to the criminal charge of operating under the influence of alcohol.
On September 18, 2009, Trooper Martin and his wife commenced a lawsuit against
Timothy, Barletta Corp. and Osprey. The lawsuit alleged the negligence of Timothy as the driver.
The lawsuit also alleged that the vehicle Timothy was driving at the time of the accident was
“owned, controlled and maintained by” Barletta Corp. “and/or” Osprey. Therefore, “as owner(s)
of the vehicle, [the companies] were responsible for the negligent operation, ownership, control
and maintenance of the motor vehicle.” Complaint, ¶s 12 and 15.1
On May 3, 2010, the lawsuit commenced by Trooper Martin and his wife was settled. In
connection with the settlement, a Settlement Agreement and Release (the “Release”) was
executed. Exhibit 3. Pursuant to the Release, Everest and Travelers Insurance Company, as
liability insurers of all three of Timothy, Barletta Corp. and Osprey, agreed to pay a total of
$ 3,750,000, present value, to the Martins as part of a structured settlement to be paid over twenty
years. In return, the Martins released Timothy, Barletta Corp. and Osprey from any and all claims
arising out of the accident.2
The evidence at the trial of this case established that at the time of the accident, Timothy
was employed by Barletta Corp. Barletta Corp. was a family business. The president of Barletta
Corp. was Vincent Barletta.
Osprey was a wholly-owned subsidiary of Barletta Corp. Osprey owned the vehicles and
equipment used by Barletta Corp. Certain employees of Barletta Corp., including Timothy, were
provided with cars owned by Osprey. Pursuant to company policy, employees provided with
company cars were allowed to utilize the cars for personal use as well as for company business.
There was no restriction on the use of a company car. Vincent Barletta had no direct involvement
1 The Complaint also alleged that “[u]pon information and belief, at all relevant times
hereto, Timothy Barletta was acting in furtherance of his companies’ business.” Complaint ¶ 7.
Neither party in this lawsuit asserts that Timothy was acting in furtherance of the companies’
business on the night of the accident. The Complaint was not marked as an exhibit to be
submitted to the jury. Instead, the Complaint has been provided to the court by Grill 23, without
objection, for the purpose of its argument regarding how the court should exercise its equitable
discretion under G.L. c. 231B, § 2(b).
2 The Release also released any and all claims against Grill 23 arising from the accident,
and all claims against the insurers under G.L. c. 93A.
in supervising the use of company cars. On the night of the accident, Timothy was driving a car
owned by Osprey and provided to him by his employer.
Vincent Barletta testified that, at the birthday party, he had very little contact with
Timothy. He did not see Timothy show any signs of intoxication. To the extent he did observe
Timothy, nothing in his behavior stood out. The testimony from several witnesses confirmed that
Timothy was seated at a table for six to eight people, away from the head table where Vincent
Barletta was seated with his wife. Vincent Barletta had no memory of observing Timothy
consume alcohol. I find Vincent Barletta’s testimony to be credible.
Before the settlement, counsel for Trooper Martin wrote two demand letters to the
insurers. In the first letter (Exhibit 28), counsel stated that “I understand from our conversations
that liability in this matter is admitted (at least for purposes of mediation).” The letter focused
upon the damages suffered by Trooper Martin and requested $ 7,500,000 to settle. The second
letter (Exhibit 29), stated more specifically that “[t]he evidence of clear liability against
[Timothy] Barletta is undisputed.” The rest of the letter focused on damages and the additional
claim that the insurers were acting in violation of G.L. c. 93A and c. 176D by not yet agreeing to
settle. A demand for settlement of $ 11,000,000 was asserted. Neither letter asserted a theory of
liability against Barletta Corp. or Osprey, other than that Timothy was allegedly a “principal” of
those companies.
At trial, Everest called as a witness Robert A. DeLello. Mr. DeLello was counsel on the
Complaint filed for the Martins to commence the lawsuit against Timothy, Barletta Corp. and
Osprey. He continued as counsel to the Martins in connection with the negotiation of the
settlement. As a result of the determination that the question of pro rata shares of tortfeasors is an
issue to be decided based upon principles of equity (see G.L. c. 231B, § 2(b)), Mr. DeLello gave
the following testimony to the court, outside of the hearing of the jury.
Mr. DeLello testified that the theory of the Martins’ case against Barletta Corp. and
Osprey was to hold the companies liable under G.L. c. 231, § 85A; that is, as the owner of the
vehicle Timothy was driving on the night of the accident. Mr. DeLello testified that the police
report listed both companies as the owner of the vehicle. While he acknowledged that if the
litigation had not settled he would have taken discovery regarding possible other theories of
liability of the companies such as negligent entrustment or negligent maintenance, his intent was
to hold the companies vicariously liable as the owner(s) of the vehicle. In fact, the Martins’ case
settled before any discovery was taken.
Pro Rata Shares
General Laws c. 231B, § 2 provides as follows:
In determining the pro rata shares of tortfeasors in the entire liability (a)
their relative degrees of fault shall not be considered; (b) if equity
requires, the collective liability of some as a group shall constitute a
single share; and ( c) principles of equity applicable to contribution
generally shall apply.
Accordingly, I must decide, using principles of equity, whether Timothy, Barletta Corp. and
Osprey constitute three tortfeasors and, if they do, whether they should be grouped into a single
share. The consequences of that determination are significant to the parties. If Timothy, Barletta
Corp. and Osprey constitute a single share then the pro rata apportionment is 50% for Everest’s
insureds and 50% for Grill 23. Grill 23 argues that Everest’s share is on behalf of three
tortfeasors so that Grill 23’s liability for contribution is 25% (as one tortfeasor among four).
The parties take disparate positions with respect to which party bears the burden of proof
on this issue. While it is clear that Everest bears the burden to prove that Grill 23 was a
tortfeasor, and that the settlement Everest reached with the Martins was reasonable, the parties
cite no authority with respect to which party has the burden to prove how the court should
exercise its equitable authority under § 2(b). Grill 23 says that Everest must prove a negative; i.e.,
that Barletta Corp. and Osprey were not directly liable for their own active negligence. Logic
suggests, on the other hand, that if Grill 23 wishes the court to find that the corporations are
liable as direct tortfeasors (and not merely liable vicariously as the owner(s) of the vehicle), then
Grill 23 should prove their liability. For purposes of my conclusion based on the evidence in this
case, I assume that Everest bears the burden of proof..
The first question is whether there was sufficient evidence to conclude that Barletta Corp.
and Osprey were tortfeasors. As described above, Mr. DeLello testified that the theory of the
action he commenced on behalf of the Martins against the two corporations was that the
corporations were vicariously liable under G.L. c. 231, § 85A. Under that statute, an evidentiary
presumption is imposed to make the owner of a vehicle liable. “[E]vidence of a [owner’s] ownership of a motor vehicle shifts the burden of persuasion to the [owner] to show that the
driver was not a person for whose conduct the [owner] was legally responsible.” Thompson v.
Auto Credit Rehabilitation Corp., 56 Mass. App. Ct. 1, 5 (2002). The statute “is a rule of
evidence that makes no change in the substantive law of negligence.” Id. The substantive law is
that the driver’s actions may be imputed to the owner if, at the time of the accident, the owner
had the authority and means to control the driver’s conduct. Id. “Like the responsibility of a
principal for the negligence of his agent, or a master for that of his servant, the liability of the
registered owner is not joint and several, but derivative.” Gangl v. Ford Motor Credit Co., 37
Mass. App. Ct. 561, 563 (1994). In sum, absent evidence in rebuttal, § 85A makes an owner
vicariously liable for the conduct of the driver. As a practical matter, the statute provides a good
faith basis for a plaintiff to sue the owner of a vehicle involved in an accident caused by the
driver of the vehicle.
Consequently, Grill 23’s argument that the existence of the Martin’s Complaint against
Barletta Corp. and Osprey demonstrates that the corporations were tortfeasors is rejected. The
fact that the corporations were sued was, according to Mr. DeLello, based on vicarious liability.
A party held vicariously liable is not a party who is “jointly liable in tort” as required by G.L. c.
231B, § 1 to be classified as a tortfeasor. Lastly, Mr. DeLello’s testimony that he would have,
absent settlement, pursued discovery to determine if there was a basis to hold the corporations
directly liable as tortfeasors proves nothing.3 He did not conduct discovery and he offered no
evidence to support a claim that the corporations were directly liable.
At the trial of this action there was no evidence, offered by either side, to support a
conclusion that Barletta Corp. or Osprey were directly negligent for their own conduct. Grill 23
argues that Vincent Barletta, as president of Barletta Corp., the parent company of Osprey,
should have stopped Timothy from operating a company vehicle that evening. I am not
persuaded. As described above, there was insufficient evidence to suggest negligence by Vincent
Barletta, and therefore insufficient evidence to find that Barletta Corp. and/or Osprey were
3 Similarly, the fact that the corporations were included as released parties in the
settlement Release does not help Grill 23. Having been named as defendants in the Martin
lawsuit, a lawyer would be guilty of malpractice if he or she did not name the defendants as
parties to be released.
Under § 2(b), the court may apply equitable principles to “group” tortfeasors into a single
share. I could find little authoritative guidance regarding the exercise of that equitable authority.
The authority apparently applies to the situation where an alleged tortfeasor is only vicariously
liable. See Comment to § 2, Uniform Contribution Among Tortfeasors Act (1955 Revised
Act)(“[I]t invokes the rule of equity which requires class liability, including the common liability
arising from vicarious relationships, to be treated as a single share”). Of course, if a company is
held liable based solely on vicarious liability, the company is not a tortfeasor at all and cannot be
held liable for contribution. Elias v. Unisys Corporation, 410 Mass. 479, 481 (1991)(vicarious
liability arises only by operation of law; it is derivative of the wrongful act of the agent; employer
is not, therefore, a joint tortfeasor under c. 231B). Nevertheless, the Comment makes clear that
vicariously liable parties should be grouped with the actual tortfeasor as a single share.4
In this case, I find that the evidence compels the conclusion that Barletta Corp. and
Osprey were not negligent actors. As a result, as a matter of equity, I group Timothy Barletta,
Barletta Corp. and Osprey as representing a single share of the entire liability for the accident
based upon the negligence of Timothy.
Everest’s Right to Contribution
In order to obtain contribution, the settling tortfeasor must have “agreed while action is
pending against him to discharge the common liability and has within one year after the
4 The Comment also suggests that it is appropriate to “group” tortfeasors into a single
share where, for example, there is allocation of liability between several actors (such as owners
of a building), on the one hand, and a tortfeasor having no connection with the actors, on the
other hand.
agreement paid the liability and commenced his action for contribution.” G.L. c. 231B, § 3(d)(2).
The Release (Exhibit 3) indicates that the “Insurers” agreed to pay the Martins in a
structured settlement over twenty years amounts having a present value of $ 3,750,000. “Insurers”
is defined as both Everest and Travelers Insurance Company.
Grill 23 does not challenge the calculation of the present value of what the Insurers
agreed to pay. The agreement to pay the amounts with a present value of $ 3,750,000 triggers the
Insurers right to contribution. LeBlanc v. Logan Hilton Joint Venture, 78 Mass. App. Ct. 699,
711 (2011)(“To preserve a right to contribution against codefendants, that provision [§ 3(d)] requires a settling party either to make payment discharging the common liability of all
defendants, or to agree to make such a payment, and then to pursue the claim for contribution
within a year after the payment”). It was the agreement to pay amounts with a present value of
$ 3,750,000 to the Martins that was put in evidence before the jury, by agreement, for the jury to
determine whether the settlement was “reasonable” under G.L. c. 231B, § 1(c).
Grill 23 does challenge, however, whether Everest may obtain contribution for the
portion of the $ 3,750,000 that was paid by Travelers, not Everest. According to Everest, its
portion of the present value payment, as the excess carrier for the liability of Timothy, Barletta
Corp. and Osprey, was $ 2,787,000. Travelers’ portion was $ 963,000. Grill 23 agrees with that
description of the Insurers respective shares. Bench Memorandum Regarding Legal Framework,
submitted by Grill 23, p.2 (September 13, 2016).
It is readily apparent that Travelers is not a party to this action. Everest presented no
evidence to support an argument that it is an assignee or otherwise the holder of Travelers’ right
of contribution. Indeed, at this late date, Travelers has waived any claim for contribution.
The statute, G.L. c. 231B, §1(d), could not be more clear that the right of contribution
runs “to the extent of the amount it has paid in excess of the tortfeasor’s pro rata share of the
common liability.” (Emphasis added). The “it” in that phrase refers to the insurer seeking
contribution. Here, Everest is the only insurer with a claim. Everest paid $ 2,787,000, 50% of
which is in excess because it proved that Grill 23 was jointly liable and that the amount paid in
settlement was reasonable. As a result, Grill 23 is liable to Everest for 50% of $ 2,787,000, or
$ 1,393,500.
Based on the verdict returned by the jury, and my findings described herein regarding pro
rata share and the amount recoverable by Everest, judgment shall enter in favor of Everest
against Grill 23 in the amount of $ 1,393,500, plus prejudgment interest.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
Date: November 7, 2016

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