Preview
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COMMONWEALTH OF MASSACHUSETTS a
ESSEX, SS. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 1877CV0169D
DAVID PIERCE,
Plaintiff
vy.
UDR CRANE BROOK LLC '
d/b/a 14 NORTH, ‘
Defendant/Third-Party Plaintiff \
ve
ANDREW SCOTT SAYER,
Third-Party Defendant
Og VE? SAY ON
THIRD-PARTY DEFENDANT ANDREW SCOTT SAYER’S
OPPOSITION TO THIRD-PARTY PLAINTIFF’S CROSS-MOTION
FOR PARTIAL SUMMARY JUDGMENT
’ ‘The Plaintiff, David Pierce (“Pierce”), in this personal injury case alleges that he was
bitten by a dog while Pierce was working in an apartment building owned by the Defendant,
UDR Crane Brook LLC, d/b/a 14 North (“UDR”)! and rented to the Third-Party Deferfdant,
Andrew Scott Sayer (“Sayer”). Pierce alleges that UDR was negligent and is liable for his
injuries because UDR “knew or should have known” that a dangerous animal was on its
premises but allowed it to remain. UDR’s negligence, claims Pierce, caused his injury.™' Pierce
Ex. A, Complaint, {ff4-S. A copy of the Plaintiff's Complaint is attached hereto Exhibit A.
21d. at 46. |
3 Id. at 99 8-9.
‘Pierce initially claimed that his injury was caused by Sayer’s negligence. That personal i injury
claim was settled for $100,000, See Transcript of Deposition of David Pierce at 118-119.
Excerpts of that transcript are attached hereto as Exhibit B. Pierce is not asserting a claim\
did not sue Sayer in this action because, pre-suit, Sayer’s insurer exhausted its insurance
coverage for Sayer, $100,0000, in exchange for a general release.>
Notwithstanding the fact that the liability limits of Sayer’s insurance policy has been
exhausted, UDR has asserted third-party claims against Sayer, alleging that Sayer is liable to
UDR under two theories: Breach of Contract and Common Law Indemnification. UDR cannot
prevail on either theory.
UDR’s breach of contract claim against Sayer is barred by statute and public policy as
well as the subject lease. This is the case because UDR’s breach of contract claim against Sayer
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is a clear attempt by UDR to have Sayer indemnify UDR with respect to Pierce’s negligence
claim against UDR. As discussed below, M.G.L. c. 186, §15 expressly prohibits the inelusion or
so ca . |
enforcement of a lease provision however phrased the effect of which is to require a tenant to
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UDR’s pending Cross-Motion for Partial Summary Judgment must fail for the}additional
indemnify a landlord for the landlord’s negligence.
reason that there are material issues of material fact as to whether Sayer breached the pontract.
Additionally, the language of the contract expressly excludes an indemnity obligation, such as
the damages being sought by the instant breach of contract claim. The lease, furthermore, does
not provide for the damages sought in this case. Thus, there is a disputed issue of material fact
as to whether UDR incurred any damages under the contract. Accordingly, UDR’s Cross-
Motion for Partial Summary Judgment should be denied.
against UDR under the Dog Bite Statute, presumably because UDR was neither the owner nor
keeper of the subject canine.
> Ex. L, Deposition of Pierce, at pp. 116-120; Ex. M, Homesite Policy Declarations Page.
6 Third-Party Complaint, at {] 4-6. A copy of UDR Crane Brook LLC d/b/a 14 North’s Third-
Party Complaint Against Andrew Scott Sayer is attached hereto as Exhibit C. jUNDISPUTED MATERIAL FACTS
1. UDR and Sayer entered into a lease (“the Lease”) that ran from April 6, 2015
through April 3, 2016.7
2. The Lease was for an apartment located at 4114 Crane Brook Way! Peabody,
MA that was to be occupied by Sayer.’
3. The twenty-page Lease consists of six pages, plus another fourteen| pages of
addendums.?
4. UDR obtained the Lease from the National Apartment Association, Inc."
5. On April 25, 2015 Pierce, a Comcast employee, was performing work at
Sayer’s apartment."
6. Pierce was allegedly bitten by a dog while in Sayer’s apartment. '? |
7. Pierce filed this legal action against UDR, alleging that UDR was egligent
and that its negligence was the proximate cause of his injury.'3
8. In this action, UDR seeks indemnification from Sayer with respect lo Pierce’s
claims against UDR.'4
TId. at p. 1.
8 Third-Party Complaint, at [5; Lease, page 1.
° Id. at para. | et seq.
'° Exhibit E, Third-Party Plaintiff, UDR Crane Brook LLC, d/b/a 14 North’s Responses to Third-
Party Defendant, Andrew Scott Sayer’s First Set of Interrogatories, Answer No. 12.
"! Pierce’s Complaint, at [936 & 38.
? Id. at 99 42-43. \
'3 Pierce’s Complaint, at [8 & 9. '
4 Third-Party Complaint, at 416-22/ 'DISCUSSION
I. SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted where there are no genuine issues as to any material
fact and where the moving party is entitled to judgment as a matter of law. Cassesso v.
f
Commissioner of Correction, 390 Mass. 419, 422 (1983); Community National Bank v. Dawes,
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369 Mass. 550, 553 (1976); See also Mass. R. Civ. P. 56(c). The moving party bears the burden
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of affirmatively demonstrating the absence of a triable issue, "and [further] that the moving party
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is entitled to summary judgment as a matter of law." Pederson v. Time, Inc., 404 Mass. 14, 16-
17 (1989).
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U1. SUMMARY JUDGMENT IN FAVOR OF UDR WITH RESPECT TO ITS
BREACH OF CONTRACT CLAIM MUST BE DENIED BECAUSE THIS
CLAIM AND THE DAMAGES SOUGHT BY UDR — DEFENSE COSTS
AND INDEMNITY OBLIGATIONS ARISING FROM A NEGLIGENCE
CLAIM ASSERTED AGAINST UDR BY PIERCE - ARE BARRED BY
STATUTE AND PUBLIC POLICY. :
With respect to UDR’s third-party claims against Sayer, UDR is attempting todo
precisely what the Legislature has deemed void for public policy — require a residential tenant to
indemnify a landlord for the landlord’s alleged negligence. This state of affairs is made worse
by the fact that Sayer’s insurer has already exhausted its liability coverage by paying Pierce
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$100,000 pre-suit. UDR’s claims against Sayer are barred and UDR’s cross-motion for
summary judgment should be denied.
It cannot be disputed that Pierce is alleging that UDR was negligent.'> Thus, the
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litigation costs and expense for which UDR seeks reimbursement from Sayer were incurred by
'S Ex. A, Complaint, at 96-9.UDR while defending itself against allegations made by Pierce that UDR was negligent
. In
UDR’s Cross-Motion for Partial Summary Judgment, in fact, UDR articulates — but does not
proffer evidence of ~ its alleged damages in the context of the breach of contract clai
“reimbursement and responsibility of UDR Crane Brook’s attorney fees
and/or litigation costs/expenses stemming from the [dog bite]
[i]ncident.”!
In so many words, UDR wants Sayer to indemnify UDR for any costs or expenses arising from
Pierce’s negligence claim against UDR. UDR, furthermore, bases its contract claims| upon the
terms of the Lease. M.G.L. c. 186, §15, however, states that:
“Any provision of a lease or other rental agreement relating to real property
whereby a lessee or tenant enters into a covenant, agreement or contract, by the
use of any words whatsoever, the effect of which is to indemnify the lessor or
landlord or hold the lessor or landlord harmless, or preclude or exonerate the
lessor or landlord from any or all liability to the lessee or tenant, or to any other
person, for any injury, loss, damage or liability arising from any omission, fault,
negligence or other misconduct of the lessor or landlord on or about the leased or
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rented premises or on or about any elevators, stairways, hallways or other
appurtenance used in connection therewith, shall be deemed to be against public
policy and void.”
M.G.L. ¢. 186, §15 (emphasis added).
Pierce, in fact, alleges in his Complaint that his injuries were the result of UDR’s
“negligent actions, supervision, maintenance, inspection, warning, instruction, enforcing and/or
failure to act.”!” UDR is clearly trying to make Sayer indemnify UDR for UDR’s owd alleged
negligence. UDR cannot skirt the statutory prohibition by merely avoiding the word
“{ndemnify” in this breach of contract claim. (In fact, UDR also asserted a claim for “(Common
Law Indemnity” against Sayer, but did not seek partial summary judgment as to such claim —
likely realizing that such claim is an even more obvious attempt to outflank the statute.)
'6 Memorandum in Support of UDR’s Cross-Motion for Partial Summary Judgment, at p. 8.
" Exhibit A, Complaint 98 at 2.Through the expedient of calling what is clearly a contractual indemnification claim a breach of
contract claim, UDR seeks to circumvent the clear intent of the Legislature and numerous
appellate holdings. The Legislature clearly anticipated that a landlord would try to creatively
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circumvent the statute and expressly included the clarifying phrase: “by the use of any words
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whatsoever, the effect of which is to indemnify the lessor or landlord”. It cannot be seriously
disputed that, through its breach of contract third-party claim against Sayer, UDR is utying to
enforce the Lease such that Sayer would be obliged to indemnify UDR for Pierce’s claim. For
this reason alone, UDR’s Motion for Summary Judgment should be denied as this claim is barred
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by statute and public policy.
IU. UDR’S CROSS-MOTION FOR SUMMARY JUDGMENT SHOULD BE
DENIED AS THE TERMS OF THE LEASE EXPRESSLY STATE THAT
SAYER CANNOT BE REQUIRED TO INDEMNIFY UDR FOR UDR’S
OWN NEGLIGENCE.
UDR’s breach of contract claim is barred not only by statute, but also by the Plaintiff
language of the Lease itself. In the final paragraph of the Lease, just above Sayer’s signature, the
Lease states:
“In no event shall any of the provisions of this Lease indemnify, release or
otherwise excuse us from liability arisen out of any mistake, fault, or negligence
or other misconduct of the landlord.”!®
“[W]hen the language of a contract is clear, it alone determines the contract’s meaning...”
James B. Nutter & Co. v. Estate of Murphy, 478 Mass. 664, 669 (2018) quoting Balles v.
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Babcock Power, Inc. 476 Mass. 565, 571 (2017). This provision of the Lease clearly states that
the damages being sought by UDR against Sayer with respect to the breach of coi claim ~
attorney’s fees incurred in defending against the Pierce negligence claim and any judgment
8 Exhibit D, Lease at 6. 'obtained by Pierce — are expressly not recoverable under the Lease. Ironically, UDR’s breach of
contract claim against Sayer is a breach of this Lease provision.
UDR will likely ask the Court to ignore this language as superfluous or surplusage. To
the extent that this language is ambiguous or contradicted by other language in the Lease, such
contradiction or ambiguity should be construed against UDR. Contractual language is
ambiguous “if it is susceptible of more than one meaning and reasonably intelligent persons
would differ as to which meaning is the proper one.” Nutter at 669, quoting Citation! Insurance
Co. v. Gomez, 426 Mass. 379, 381 (1998). When the language is ambiguous, it is construed
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against the drafter, “if the circumstances surrounding its use...do not indicate the intended
meaning of the language.” Nutter at 669, quoting Merrimack Valley National Bank v! Baird,
372 Mass. 721, 724 (1977). “The author of the ambiguous term is held to any reasonable
interpretation attributed to that term which is relied on by the other party.” Id. Court}s construe
a contract as a whole so as “to give reasonable effect to each of its provisions.” Nase at 669,
quoting J. A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 795 (1986).
UDR, a commercial landlord, proffered the Lease, which expressly states that Sayer shall
not be called upon to indemnify UDR “from liability arisen out of any mistake, fault, or
negligence or other misconduct of [UDR].” The only reasonably interpretation that cquld be
attributed to this provision is that UDR has no right under the Lease to seek indemnifitation from
Sayer where, as is the case in the instant action, UDR is alleged to have been negligent. UDR
cannot claim it suffered any compensable damage or injury where the contract itself birs UDR
from seeking the relief it now claims. For this additiona] reason, UDR’s Cross-Motion for
Partial Summary Judgment should be denied.IV. UDR’s CROSS-MOTION FOR SUMMARY JUDGMENT SHOULD BE
DENIED BECAUSE THERE IS A DISPUTED ISSUE OF MATERIAL
FACT 4S TO WHETHER SAYER BREACHED THE AGREEMENT.
In UDR’s Cross-Motion for Summary Judgment, UDR cites two provisions which were
allegedly breached by Sayer resulting in a default. The first was paragraph 25, which/states:
25, ANIMALS. No animals... are allowed unless we've so authorized|in writing.
If we allow an animal, you must sign a separate animal addendum, which may
require additional rents, fees or other charges. You must remove an illegal animal
within 24 hours of notice from us, or you will be considered in default of this
Lease Contract...! |
The plain text of the Lease states that a default will not be deemed to have occurred unless the
offending animal is not removed from the premises within 24 hours of notice to Sayer. UDR,
furthermore, has not proferred any evidence that UDR told Sayer to remove the animal or that
Sayer failed to remove the animal within 24 hours of any such notice or, more importantly, that
the incident with Pierce occurred at a point in time after UDR had told Sayer to remove the
animal. In fact, the summary judgment record reflects that the dog was removed from the
premises the same day as the Pierce dog-bite incident.”
Thus, under the plain terms of the Lease, the mere presence of the dog on the premises
did not constitute a breach of the lease or a default. This only makes sense as, given the
proliferation of service animals and the likelihood that a neighbor, passerby or person in need of
assistance will appear unexpectedly at the premises with an animal, the momentary appearance
of an animal at the premises could not be intended by either UDR or Sayer to be the basis of an
'9 Exhibit D, Lease, J 25 at 3.
20 Exhibit L, Sayer Deposition, at pp. 48-49.immediate default. Thus, the existence of a 24-hour safe harbor for the presence of a dog is
apparent from the plain language of the Lease.
To the extent that UDR spins a different interpretation, it would be unavailing! UDR
proffered the Lease. The Lease has all of the qualities of a contract of adhesion and any any
ambiguity in the langauge of the Lease is to be construed adversely to the drafter/proponent -
UDR. Furthermore, as discussed below, the contractually-prescribed remedies in the Loe
drafted Lease demonstrate that UDR’s concerns (and harm it was trying to prevent) with respect
to animals on the premises was not third-party liability, but property damage caused by the
presence of animals. Please note the provision references, among other animals, birds and fish —
not generally known for their dangerous propensities. With this context, it clear that UDR
intended to provide tenants with a 24 hour safe-harbor for animals on the premises before a
default was deemed to occur — and that Sayer did not breach the Lease by the mere presence of
the dog.
The other alleged breach or default of the lease involved paragraph 30 of the lease, the
provision relating to “incorrect or false answers in the rental application”. UDR’s rental
application asks: “Will you or any occupant have an animal?” Sayer checked the bo: . “No.” He
signed the application on March 12, 2015.*! At the time Sayer completed the application, his
response was accurate. Sayer did not have a dog and had not owned a dog for many years as of
the date he signed the application.”? There is no evidence that Sayer intended or Planted on
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having a dog in the apartment when he completed the application. To the contrary, the summary
judgment record reflects that: (1) Sayer never owned the dog that allegedly bit Pierce and (2) the
21 Exhibit G, Rental Application.
2 Exhibit H, Sayer Dep. at pp. 30-31. |only reason there was a dog in the apartment on April 25, 2015 was because the owner of the dog
had an “emergency” in the form of a sick child that had to go to the hospital and the dog’s owner
needed somebody to dog-sit the animal.” Clearly, neither that child’s illness nor the child’s need
to go the hospital nor the request to dog-sit the animal was contemplated by Sayer when he
signed the Lease application. There is no evidence that Sayer planned to have a dog.as of the
date the application was signed. Quite simply, there is no evidence that Sayer breached
paragraph 30 of the lease and, in fact, there is evidence demonstrating that Sayer did not breach
this provision. Thus, there is, at least, a disputed issue of material fact as to whether Sayer
breached the Lease and, for this additional reason, UDR’s Cross-Motion for Partial Summary
Judgment should be denied.
V. UDR’s CROSS-MOTION SHOULD BE DENIED BECAUSE THE LEASE
DOES NOT PROVIDE FOR THE REMEDIES SOUGHT BY UDR-~
SPECIFICALLY, INDEMNIFICATION FOR A PERSONAL INJURY
CLAIM.
A party to a contract, “may not insist upon extraordinary or unforeseen elements of
damage, but only upon such as flow according to common understanding as the natural and
probable consequences of the breach and such as may be presumed to have been in the
contemplation of the parties at the time the contract was made,” Bucholz v. Green Bros. Co., 272
Mass. 49, 51 (1930). In its Answers to Interrogatories, UDR concedes that its remedy with
respect to the breach of contract claim is limited to “damages as provided within the terms of the
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signed contract.”** But, in the instant action, UDR seeks much more in the way of soho than
what was provided for in the Lease or which the parties contemplated.
Although UDR relies on three separate sections of the twenty-page Lease, none of them
create a contractual right to the remedy UDR seeks — and that M.G.L. c. 186, §15 fortis The
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Lease does not contain language regarding third-party claims or liability. Rather, it addresses
property damage caused by a dog. The language is, in fact, quite specific:
25. ANIMALS. No animals... are allowed unless we’ve so authorized in
writing. If we allow an animal, you must sign a separate animal addendum,
which may require additional rents, fees or other charges. You must remove an
illegal animal within 24 hours of notice from us, or you will be considered in
default of this Lease Contract... :
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If you or any guest or occupant violates animal restrictions (with or without your
knowledge), you'll be subject to charges, damages, eviction, and other remedies
provided in this Lease Contract. If an animal has been in the apartment at any
time during your term of occupancy (with or without our consent), we'll charge
you for defleaing, deodorizing, and shampooing. Initial and daily animal-
violation charges and animal-removal charges are liquidated damages for our
time, inconvenience, and overhead (except for attorney’s fees and litigation costs)
in enforcing animal restrictions and rules. We may remove an unauthorized
animal by following the procedures of paragraph 30 [emphasis added 6
The drafter of the Lease was quite explicit and exclusively concerned about shifting the
costs of animal-related property damage to the tenant. The attorney’s fees and litigation costs,
furthermore, are clearly a reference to eviction-related fees and costs. A reasonable consumer
would not read these provisions and believe they were exposed to indemnifying UDRIf UDR is
sued for personal injury alleging negligence by UDR. '
Third-Party Plaintiff, UDR Crane Brook LLC, d/b/a 14 North’s Responses to Third- -Party
Defendant, Andrew Scott Sayer’s First Set of Interrogatories, Answer No. 3 at 3 (last paragraph).
A copy of these Answers to Interrogatories is attached hereto as Exhibit E. i
26 Exhibit D, Lease, at 25 at 3. :|
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The only possible way that this language might extend to a personal injury claim filed by
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someone whom was allegedly bitten by a tenant’s dog is the phrase “other remedies.”7”
However, this phrase must be taken in context. Ferguson v. Host Int’l, 53 Mass. Appl Ct. 96,
104 (2001). Other remedies” follows the terms “charges, damages [and] eviction.” “Charges” is
defined in the following sentence as “defleaing, deodorizing, and shampooing” — clearly
referencing property damage. In this context, “other remedies” would reasonably be construed
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as only addressing property damage done by a pet, such as where a pet damaged carpeting or
woodwork. In isolation, “other remedies” could mean anything UDR wants it to mean.
Contract law, however, prohibits this luxury: “the usual and familiar rule of construction applies
which treats a general, an all-encompassing word at the end of a list of specific items as taking
on the character of those specific items...where general words follow specific words in an
enumeration describing the legal subject, the general words are construed to embrace only
objects similar in nature to those objects enumerated the preceding specific words.” id. at 103-
104 (string cite omitted). ,
The Lease expands on the phrase “Other remedies” eight full paragraphs after its mention
in the section entitled “ANIMALS,” in a section entitled “Responsibilities of Owner and
Resident,” Paragraph No. 30 is entitled “(DEFAULT BY RESIDENT.”* Paragraph No. 30
actually consists of five paragraphs, each has its own title. UDR relies on the following:
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“Other Remedies. We may report unpaid amounts to credit agencies. | If you
default and move out early, you will pay us any amounts stated to be rental
discounts in paragraph 10, concessions provided in any concession addendum
attached to this lease, in addition to any other sums due, Upon your default, we
have all legal remedies, including, but not limited to, Lease Contract termination,
pursuant to of an eviction, and reimbursement for any and all attorney’s fees
and/or litigation costs/expenses. Late charges are liquidated damages for our
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2714.
28 Exhibit D, Lease, {] 30 at 4.time, inconvenience, and overhead in collecting late rent (but are not for
attorney’s fees and litigation costs). Any and all amounts which remain unpaid
for thirty (30) days from the date due shall bear interest at 18% per year, unless it
exceeds the maximum rate permitted by law, in which event interest shall accrue
at the highest amount permitted by law. You shall be responsible for any and all
attorney’s fees, expenses, or other costs incurred by the Landlord to enforce any
provision of this Lease whether related to your conduct, or the conductlof your
household member(s), guest(s) and/or invitee(s) (emphasis added).
UDR’s reliance on this section is misplaced. First, UDR ignores the definition of default
set forth in the paragraph entitled “ANIMALS.” There, default is defined as failure to remove
an animal within twenty-four hours of notice from UDR. UDR never gave that notice! and so
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there was no default.2? Also, as discussed above, Mr. Sayer did not provide false or incorrect
information in the application. Thus, there was no default under the Lease and, as a result, no
“Other Remedies” under the Lease are available to UDR in this matter. |
Reliance on “Other Remedies” paragraph is also misplaced because, again, context is
key. At the beginning of the paragraph, the Lease states, “If you default and move out early...”
It continues to reference “unpaid amounts,” rental discounts, collecting late rent, and “all
amounts which remain unpaid.” The only logical interpretations of this paragraph is that it
pertains only to tenants that move out early and/or tenants who owe rent, late charges or other
payments due under the Lease. There is nothing contained in this paragraph that even! hints that
it pertains to a legal action filed by a third-party injured on the property.
29 In its Answers to Plaintiff's Interrogatories, UDR states that it was never informed that Sayer
had an animal. See Defendant UDR Crane Brook LLC d/b/a 14 North’s Answers to Plaintiffs
First Set of Interrogatories, Answer No. 11 at 5, a copy of which is attached hereto as Exhibit F.
Thus, while there is not an explicit admission that UDR did not ask Sayer to remove the dog,
there is no other possible conclusion. |Indeed, the first paragraph of the five, entitled “Default by Resident” lists eight ways in
which a tenant could be in default.>° First mentioned is “you don’t pay rent or amounts that you
owe when due.” Buried in the middle of the paragraph is reason number four for being in
default: “[Y]ou give incorrect or false answers in a rental application.” Between the first
paragraph that lists ways that one can breach the lease and the section entitled “Other Remedies”
are two other paragraphs. One is entitled “Eviction” and the other “Holdover.”?! In context, it is
unreasonable to expect a tenant to consider that incorrectly completing an application form (or
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having an animal for less than 24 hours) could result, somehow, in being responsible for a
judgment rendered against UDR (or defense costs) for a personal injury allegedly caused by a
dog. This interpretation of the Lease is so far-fetched as to be difficult to cogently express.
Additionally, in the final section of the Lease Addendum, Section XV, entitled,
“Community Policies, Rules and Regulations”, there is an entry that states: “Unauthorized pet
3332,
violation $75.”** Thus, under this provision of Lease, the most UDR could collect against Sayer
— even assuming a default is proven - is $75. Nowhere in its Cross-Motion for Partial Summary
Judgment does UDR attempt to harmonize this provision with the “Other Remedies” or other
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Lease provisions it seeks to enforce. UDR has clipped and parsed provisions from the confusing
and poorly-drafted Lease and sought to interpret them in a way that is inconsistent with their
plain meaning. The only provision that directly references damages available to UDR for a “pet
violation” is, thus, totally ignored. How could a reasonable tenant read the Lease — particularly
the $75 pet violation reference — and be expected to understand that he or she would be liable for
a third-party claim brought against UDR? Again, ambiguities in a contract are construed against
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* Exhibit D, Lease, J] 30 at 4.
yg.
» Exhibit D, Lease, Community Policies, Rules and Regulations Addendum, 1 XV at 2.
14the drafter. Nutter at 669. The Lease, as interpreted by UDR, is riddled with ambiguities and
inconsistencies. UDR’s tortured analysis of the many sections of the Lease fails by virtue of this
one short, unambiguous sentence. |
However, rather than yielding to the common-sense interpretation, UDR next points to a
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clause pertaining to insurance. In its Cross-Motion, UDR recites the following:
4, Required Policy. You are required to purchase and maintain personal
liability insurance covering you, your occupants and guests, for personal injury
and property damage any of you cause to third parties (including damage to our
property), in a minimum policy coverage amount of $100,000.00, from a carrier
with an AM Best rating of A-VII or better, licensed to do business in
Massachusetts. The carrier is required to provide notice to us within 30 days of
any cancellation, non-renewal, or material change to your coverage. We retain
the right to hold you responsible for any loss in excess of your insurance
coverage.
Here, for the first time, is a reference to personal injury. Missing, however, is!any
requirement that UDR be included in the required policy as an additional insured. If UDR was
really expecting Sayer to provide UDR with protection from a third-party personal injury claim,
UDR could have and should have required Sayer to name UDR as an additional insured. This is
the legal and customary way that a landlord secures protection from a tenant from third-party
claims. Contrary to the assertions of UDR, the fact that this provision was in the Lease and did
not require Sayer to name UDR as an additional insured suggests that UDR did not expect Sayer
to provide any protection or relief to UDR for any third-party claims. Therefore, UDR’s theory
3 Exhibit C, UDR Crane Brook LLC d/b/a 14 North's Third-Party Complaint Against Andrew
Scott Sayer, Exhibit A, | 9 at 3; See also Exhibit D, Lease, § 8 at 1. Insurance is addressed again
in the Lease in “Lease Addendum Liability Insurance Required of Resident” and “Rider | to
Lease Addendum Liability Insurance Required of Resident.”
of liability based on this section of its Lease is counterintuitive.UDR, in fact, implicitly admits that its Lease is ambiguous with respect to the letiet being
sought in this case. Sayer asks, in his Interrogatory No. 5: “Please identify and describe the
damages contemplated by a violation of the “animal restrictions” as that term is used ih the
lease.”** UDR’s response, or lack thereof, is telling. UDR, who drafted the Lease®®, and who
has filed this action on the basis of a breach of the Lease, refuses to answer the question,
describing the interrogatory as vague, ambiguous, seeking information protected by the attorney-
ctient privilege and so on.*® If the drafter of the Lease cannot explain what is meant by a
“violation of animal restrictions” it certainly cannot succeed in a claim alleging that a tenant
breached the agreement. |
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Similarly, UDR is unable to explain the meaning of “animal removal charges.” In its
Interrogatory Answer No. 6, it reiterates its objections and does not provide an explanation of the
meaning of the term in its own contract.>’ Also telling is that UDR declines to provide a history
of its actions when (if ever) a tenant was found to be in violation of the “animal restrictions
clause, laying ground for the Plaintiff’s claim against it that UDR turned a blind eye td the
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animals living on its premises.*® More to Sayer’s point, the Lease contains language that even
pi ry" Pp guagi
its author cannot define, nor will UDR describe how that lease has been enforced in similar
situations.
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* Exhibit E, Third-Party Plaintiff, UDR Crane Brook LLC, d/b/a 14 North’s Responses to Third-
Party Defendant, Andrew Scott Sayer’s First Set of Interrogatories, Answer No. 5 at 5.
* The Lease was written by the National Apartment Association but adopted by UDR! as its own.
See Exhibit E, Answer No. 12 at 7-8. This is no different than any other business that, hires an
attorney to draft a contract on its behalf.
* Exhibit E, Third-Party Plaintiff, UDR Crane Brook LLC, d/b/a 14 North’s Responses to Third-
Party Defendant, Andrew Scott Sayer’s First Set of Interrogatories, Answer No. 5 at 5.
371d., Answer No. 6 at 5.
38 Id., Answer No. 7 at 6.|
A party to a contract, “may not insist upon extraordinary or unforeseen elements of
damage, but only upon such as flow according to common understanding as the natural and
probable consequences of the breach and such as may be presumed to have been in thé
contemplation of the parties at the time the contract was made” Bucholz, 272 at 51. In the
instant case, UDR seeks damages not contemplated by the Lease. The lease states that it does
not excuse UDR from liability arising out of its own negligence. It states that the penalty for an
unauthorized pet is $75.00. The Lease does not envision tenant liability for third-party claims.
The Lease does not even require UDR to be named as an additional insured on Sayer’s policy.
Finally, the Lease is ambiguous to the point that UDR is unable to explain the meaning of key
portions of the Lease. For all of these reasons, UDR’s breach of contract claim must fail.
VI. UDR’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
SHOULD BE DENIED FOR THE ADDITIONAL REASON THAT UDR
HAS FAILED TO PROFFER ANY EVIDENCE OF DAMAGES. '
In UDR’s cross-motion for summary judgment, UDR asserts that it has incurred
damages, but doesn’t actually proffer any evidence. Unless a party merely seeks nominal
damages, the plaintiff in a breach of contract claim must prove the existence of special damages.
Gray v. Tobin, 252 Mass. 238 (1925). UDR has presented no evidence that UDR - as opposed
to UDR’s insurer — has incurred any attorney’s fees or other monetary damages. The existence
of damages cannot be assumed given that it is just as likely that an insurer is providing a defense
to UDR as it is that UDR is funding its own defense — particularly in light of the lack of any
admissible evidence of damages. UDR’s insurer, of course, could not be deemed a third-party
beneficiary under the Lease. For this additional reason, UDR’s Cross-Motion should be denied.VII. UDR’s CROSS-MOTION FOR SUMMARY JUDGMENT SHOULD BE
DENIED FOR THE ADDITIONAL REASON THAT UDR HAS FAILED
TO MITIGATE ITS ALLEGED DAMAGES.
A party to a contract has the obligation of avoiding or mitigating damages to the extent
possible by taking such steps which do not involve undue risk, expense or inconvenience. The
nonbreaching party is held to the standard of reasonable conduct in preventing loss. Thus, the
plaintiff in a contract action cannot recover damages which were foreseeable by him, and which
could have been avoided by him by the expenditure of reasonable effort. Gillentine v. McKeand,
J
}
426 F.2d 717 (1™ Cir. 1970). In the instant case, it is apparent that Pierce has no evidence that
UDR knew that there was a dog in the subject premises and/or that UDR knew or should have
known that the dog had dangerous propensities. At Pierce’s deposition, the following exchange
occurred:
Attorney Coakley: What evidence do you have that UDR knew that there was a
dog staying in Mr. Sayer’s premises?
Pierce: I don’t have any.
Attorney Coakley: And so I guess it is fair to say then, you don’t know of any
evidence that UDR was aware that there was a dangerous animal in Mr. Sayer’s
premises? |
'
Pierce: No. ‘
Attorney Coakley: And also I guess it’s fair to say that you never made any
report or complaint to UDR about Bermuda before the —
Pierce: That’s the first and only time I met the dog.
Attorney Coakley: Are you aware of anybody else making any types of
complaints to UDR about [the dog]?
I
Pierce: No*?
39 Exhibit B, Pierce Deposition, at pp. 171-72.Pierce, therefore, has no evidence of negligence against UDR. UDR should be!moving
against Pierce — not Sayer — for summary judgment. But UDR has never pursued a Rule 12 or
Rule 56 Motion as to Pierce. It has, in fact, unnecessarily expanded the case by adding Sayer as
a third-party defendant and deposing Sayer and his wife after undisputed evidence supporting a
Rule 56 Motion with respect to the Pierce v. Sayer case was in the record. Even now, UDR
seeks to further unnecessarily expand and continue the case by adding Sayer’s wife as a
defendant, despite having no evidence of her negligence. Thus, a material issue of fact exists as
to whether UDR has mitigated its damages and summary judgment should be dismissed.
For all the reasons enumerated above -- including that UDR’s third-party claims clearly
run afoul of the M.G.L. c. 186, §15 - UDR’s Cross-Motion for Partial Summary Judgment should
be denied.
CONCLUSION
1
For all the reasons set forth above, UDR’s Cross-Motion for Partial Summary Judgment
as to Count One of its Third-Party Complaint should be denied.
CERTIFICATE OF SERVICE THIRD-PARTY DEFENDANT,
ANDREW SCOTT SAYER
Thereby certify that on this day a true copy
of Within document was served upon the | By his Attorney, 1
torney of reach by mail. ; I
( ) o l
< . /Jotin P. Coakley, BBO#558685'
jcoaKley@murphyriley.com |
olle Bevins Forbes, BBO #554338
peep: ¥/ i | 19
hbevinsforbes@murphyriley.com
MURPHY & RILEY,P.C. i
125 High Street, Suite 2311
Boston, MA 02110 |
(617) 423-3700
Preview
id COMMONWEALTH OF MASSACHUSETTS a ESSEX, SS. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 1877CV0169D DAVID PIERCE, Plaintiff vy. UDR CRANE BROOK LLC ' d/b/a 14 NORTH, ‘ Defendant/Third-Party Plaintiff \ ve ANDREW SCOTT SAYER, Third-Party Defendant Og VE? SAY ON THIRD-PARTY DEFENDANT ANDREW SCOTT SAYER’S OPPOSITION TO THIRD-PARTY PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT ’ ‘The Plaintiff, David Pierce (“Pierce”), in this personal injury case alleges that he was bitten by a dog while Pierce was working in an apartment building owned by the Defendant, UDR Crane Brook LLC, d/b/a 14 North (“UDR”)! and rented to the Third-Party Deferfdant, Andrew Scott Sayer (“Sayer”). Pierce alleges that UDR was negligent and is liable for his injuries because UDR “knew or should have known” that a dangerous animal was on its premises but allowed it to remain. UDR’s negligence, claims Pierce, caused his injury.™' Pierce Ex. A, Complaint, {ff4-S. A copy of the Plaintiff's Complaint is attached hereto Exhibit A. 21d. at 46. | 3 Id. at 99 8-9. ‘Pierce initially claimed that his injury was caused by Sayer’s negligence. That personal i injury claim was settled for $100,000, See Transcript of Deposition of David Pierce at 118-119. Excerpts of that transcript are attached hereto as Exhibit B. Pierce is not asserting a claim\ did not sue Sayer in this action because, pre-suit, Sayer’s insurer exhausted its insurance coverage for Sayer, $100,0000, in exchange for a general release.> Notwithstanding the fact that the liability limits of Sayer’s insurance policy has been exhausted, UDR has asserted third-party claims against Sayer, alleging that Sayer is liable to UDR under two theories: Breach of Contract and Common Law Indemnification. UDR cannot prevail on either theory. UDR’s breach of contract claim against Sayer is barred by statute and public policy as well as the subject lease. This is the case because UDR’s breach of contract claim against Sayer I, is a clear attempt by UDR to have Sayer indemnify UDR with respect to Pierce’s negligence claim against UDR. As discussed below, M.G.L. c. 186, §15 expressly prohibits the inelusion or so ca . | enforcement of a lease provision however phrased the effect of which is to require a tenant to : | UDR’s pending Cross-Motion for Partial Summary Judgment must fail for the}additional indemnify a landlord for the landlord’s negligence. reason that there are material issues of material fact as to whether Sayer breached the pontract. Additionally, the language of the contract expressly excludes an indemnity obligation, such as the damages being sought by the instant breach of contract claim. The lease, furthermore, does not provide for the damages sought in this case. Thus, there is a disputed issue of material fact as to whether UDR incurred any damages under the contract. Accordingly, UDR’s Cross- Motion for Partial Summary Judgment should be denied. against UDR under the Dog Bite Statute, presumably because UDR was neither the owner nor keeper of the subject canine. > Ex. L, Deposition of Pierce, at pp. 116-120; Ex. M, Homesite Policy Declarations Page. 6 Third-Party Complaint, at {] 4-6. A copy of UDR Crane Brook LLC d/b/a 14 North’s Third- Party Complaint Against Andrew Scott Sayer is attached hereto as Exhibit C. jUNDISPUTED MATERIAL FACTS 1. UDR and Sayer entered into a lease (“the Lease”) that ran from April 6, 2015 through April 3, 2016.7 2. The Lease was for an apartment located at 4114 Crane Brook Way! Peabody, MA that was to be occupied by Sayer.’ 3. The twenty-page Lease consists of six pages, plus another fourteen| pages of addendums.? 4. UDR obtained the Lease from the National Apartment Association, Inc." 5. On April 25, 2015 Pierce, a Comcast employee, was performing work at Sayer’s apartment." 6. Pierce was allegedly bitten by a dog while in Sayer’s apartment. '? | 7. Pierce filed this legal action against UDR, alleging that UDR was egligent and that its negligence was the proximate cause of his injury.'3 8. In this action, UDR seeks indemnification from Sayer with respect lo Pierce’s claims against UDR.'4 TId. at p. 1. 8 Third-Party Complaint, at [5; Lease, page 1. ° Id. at para. | et seq. '° Exhibit E, Third-Party Plaintiff, UDR Crane Brook LLC, d/b/a 14 North’s Responses to Third- Party Defendant, Andrew Scott Sayer’s First Set of Interrogatories, Answer No. 12. "! Pierce’s Complaint, at [936 & 38. ? Id. at 99 42-43. \ '3 Pierce’s Complaint, at [8 & 9. ' 4 Third-Party Complaint, at 416-22/ 'DISCUSSION I. SUMMARY JUDGMENT STANDARD Summary judgment shall be granted where there are no genuine issues as to any material fact and where the moving party is entitled to judgment as a matter of law. Cassesso v. f Commissioner of Correction, 390 Mass. 419, 422 (1983); Community National Bank v. Dawes, T 369 Mass. 550, 553 (1976); See also Mass. R. Civ. P. 56(c). The moving party bears the burden \ of affirmatively demonstrating the absence of a triable issue, "and [further] that the moving party t is entitled to summary judgment as a matter of law." Pederson v. Time, Inc., 404 Mass. 14, 16- 17 (1989). I U1. SUMMARY JUDGMENT IN FAVOR OF UDR WITH RESPECT TO ITS BREACH OF CONTRACT CLAIM MUST BE DENIED BECAUSE THIS CLAIM AND THE DAMAGES SOUGHT BY UDR — DEFENSE COSTS AND INDEMNITY OBLIGATIONS ARISING FROM A NEGLIGENCE CLAIM ASSERTED AGAINST UDR BY PIERCE - ARE BARRED BY STATUTE AND PUBLIC POLICY. : With respect to UDR’s third-party claims against Sayer, UDR is attempting todo precisely what the Legislature has deemed void for public policy — require a residential tenant to indemnify a landlord for the landlord’s alleged negligence. This state of affairs is made worse by the fact that Sayer’s insurer has already exhausted its liability coverage by paying Pierce ' $100,000 pre-suit. UDR’s claims against Sayer are barred and UDR’s cross-motion for summary judgment should be denied. It cannot be disputed that Pierce is alleging that UDR was negligent.'> Thus, the | litigation costs and expense for which UDR seeks reimbursement from Sayer were incurred by 'S Ex. A, Complaint, at 96-9.UDR while defending itself against allegations made by Pierce that UDR was negligent . In UDR’s Cross-Motion for Partial Summary Judgment, in fact, UDR articulates — but does not proffer evidence of ~ its alleged damages in the context of the breach of contract clai “reimbursement and responsibility of UDR Crane Brook’s attorney fees and/or litigation costs/expenses stemming from the [dog bite] [i]ncident.”! In so many words, UDR wants Sayer to indemnify UDR for any costs or expenses arising from Pierce’s negligence claim against UDR. UDR, furthermore, bases its contract claims| upon the terms of the Lease. M.G.L. c. 186, §15, however, states that: “Any provision of a lease or other rental agreement relating to real property whereby a lessee or tenant enters into a covenant, agreement or contract, by the use of any words whatsoever, the effect of which is to indemnify the lessor or landlord or hold the lessor or landlord harmless, or preclude or exonerate the lessor or landlord from any or all liability to the lessee or tenant, or to any other person, for any injury, loss, damage or liability arising from any omission, fault, negligence or other misconduct of the lessor or landlord on or about the leased or ' rented premises or on or about any elevators, stairways, hallways or other appurtenance used in connection therewith, shall be deemed to be against public policy and void.” M.G.L. ¢. 186, §15 (emphasis added). Pierce, in fact, alleges in his Complaint that his injuries were the result of UDR’s “negligent actions, supervision, maintenance, inspection, warning, instruction, enforcing and/or failure to act.”!” UDR is clearly trying to make Sayer indemnify UDR for UDR’s owd alleged negligence. UDR cannot skirt the statutory prohibition by merely avoiding the word “{ndemnify” in this breach of contract claim. (In fact, UDR also asserted a claim for “(Common Law Indemnity” against Sayer, but did not seek partial summary judgment as to such claim — likely realizing that such claim is an even more obvious attempt to outflank the statute.) '6 Memorandum in Support of UDR’s Cross-Motion for Partial Summary Judgment, at p. 8. " Exhibit A, Complaint 98 at 2.Through the expedient of calling what is clearly a contractual indemnification claim a breach of contract claim, UDR seeks to circumvent the clear intent of the Legislature and numerous appellate holdings. The Legislature clearly anticipated that a landlord would try to creatively | circumvent the statute and expressly included the clarifying phrase: “by the use of any words t whatsoever, the effect of which is to indemnify the lessor or landlord”. It cannot be seriously disputed that, through its breach of contract third-party claim against Sayer, UDR is utying to enforce the Lease such that Sayer would be obliged to indemnify UDR for Pierce’s claim. For this reason alone, UDR’s Motion for Summary Judgment should be denied as this claim is barred | by statute and public policy. IU. UDR’S CROSS-MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED AS THE TERMS OF THE LEASE EXPRESSLY STATE THAT SAYER CANNOT BE REQUIRED TO INDEMNIFY UDR FOR UDR’S OWN NEGLIGENCE. UDR’s breach of contract claim is barred not only by statute, but also by the Plaintiff language of the Lease itself. In the final paragraph of the Lease, just above Sayer’s signature, the Lease states: “In no event shall any of the provisions of this Lease indemnify, release or otherwise excuse us from liability arisen out of any mistake, fault, or negligence or other misconduct of the landlord.”!® “[W]hen the language of a contract is clear, it alone determines the contract’s meaning...” James B. Nutter & Co. v. Estate of Murphy, 478 Mass. 664, 669 (2018) quoting Balles v. I Babcock Power, Inc. 476 Mass. 565, 571 (2017). This provision of the Lease clearly states that the damages being sought by UDR against Sayer with respect to the breach of coi claim ~ attorney’s fees incurred in defending against the Pierce negligence claim and any judgment 8 Exhibit D, Lease at 6. 'obtained by Pierce — are expressly not recoverable under the Lease. Ironically, UDR’s breach of contract claim against Sayer is a breach of this Lease provision. UDR will likely ask the Court to ignore this language as superfluous or surplusage. To the extent that this language is ambiguous or contradicted by other language in the Lease, such contradiction or ambiguity should be construed against UDR. Contractual language is ambiguous “if it is susceptible of more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one.” Nutter at 669, quoting Citation! Insurance Co. v. Gomez, 426 Mass. 379, 381 (1998). When the language is ambiguous, it is construed | against the drafter, “if the circumstances surrounding its use...do not indicate the intended meaning of the language.” Nutter at 669, quoting Merrimack Valley National Bank v! Baird, 372 Mass. 721, 724 (1977). “The author of the ambiguous term is held to any reasonable interpretation attributed to that term which is relied on by the other party.” Id. Court}s construe a contract as a whole so as “to give reasonable effect to each of its provisions.” Nase at 669, quoting J. A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 795 (1986). UDR, a commercial landlord, proffered the Lease, which expressly states that Sayer shall not be called upon to indemnify UDR “from liability arisen out of any mistake, fault, or negligence or other misconduct of [UDR].” The only reasonably interpretation that cquld be attributed to this provision is that UDR has no right under the Lease to seek indemnifitation from Sayer where, as is the case in the instant action, UDR is alleged to have been negligent. UDR cannot claim it suffered any compensable damage or injury where the contract itself birs UDR from seeking the relief it now claims. For this additiona] reason, UDR’s Cross-Motion for Partial Summary Judgment should be denied.IV. UDR’s CROSS-MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE THERE IS A DISPUTED ISSUE OF MATERIAL FACT 4S TO WHETHER SAYER BREACHED THE AGREEMENT. In UDR’s Cross-Motion for Summary Judgment, UDR cites two provisions which were allegedly breached by Sayer resulting in a default. The first was paragraph 25, which/states: 25, ANIMALS. No animals... are allowed unless we've so authorized|in writing. If we allow an animal, you must sign a separate animal addendum, which may require additional rents, fees or other charges. You must remove an illegal animal within 24 hours of notice from us, or you will be considered in default of this Lease Contract...! | The plain text of the Lease states that a default will not be deemed to have occurred unless the offending animal is not removed from the premises within 24 hours of notice to Sayer. UDR, furthermore, has not proferred any evidence that UDR told Sayer to remove the animal or that Sayer failed to remove the animal within 24 hours of any such notice or, more importantly, that the incident with Pierce occurred at a point in time after UDR had told Sayer to remove the animal. In fact, the summary judgment record reflects that the dog was removed from the premises the same day as the Pierce dog-bite incident.” Thus, under the plain terms of the Lease, the mere presence of the dog on the premises did not constitute a breach of the lease or a default. This only makes sense as, given the proliferation of service animals and the likelihood that a neighbor, passerby or person in need of assistance will appear unexpectedly at the premises with an animal, the momentary appearance of an animal at the premises could not be intended by either UDR or Sayer to be the basis of an '9 Exhibit D, Lease, J 25 at 3. 20 Exhibit L, Sayer Deposition, at pp. 48-49.immediate default. Thus, the existence of a 24-hour safe harbor for the presence of a dog is apparent from the plain language of the Lease. To the extent that UDR spins a different interpretation, it would be unavailing! UDR proffered the Lease. The Lease has all of the qualities of a contract of adhesion and any any ambiguity in the langauge of the Lease is to be construed adversely to the drafter/proponent - UDR. Furthermore, as discussed below, the contractually-prescribed remedies in the Loe drafted Lease demonstrate that UDR’s concerns (and harm it was trying to prevent) with respect to animals on the premises was not third-party liability, but property damage caused by the presence of animals. Please note the provision references, among other animals, birds and fish — not generally known for their dangerous propensities. With this context, it clear that UDR intended to provide tenants with a 24 hour safe-harbor for animals on the premises before a default was deemed to occur — and that Sayer did not breach the Lease by the mere presence of the dog. The other alleged breach or default of the lease involved paragraph 30 of the lease, the provision relating to “incorrect or false answers in the rental application”. UDR’s rental application asks: “Will you or any occupant have an animal?” Sayer checked the bo: . “No.” He signed the application on March 12, 2015.*! At the time Sayer completed the application, his response was accurate. Sayer did not have a dog and had not owned a dog for many years as of the date he signed the application.”? There is no evidence that Sayer intended or Planted on | having a dog in the apartment when he completed the application. To the contrary, the summary judgment record reflects that: (1) Sayer never owned the dog that allegedly bit Pierce and (2) the 21 Exhibit G, Rental Application. 2 Exhibit H, Sayer Dep. at pp. 30-31. |only reason there was a dog in the apartment on April 25, 2015 was because the owner of the dog had an “emergency” in the form of a sick child that had to go to the hospital and the dog’s owner needed somebody to dog-sit the animal.” Clearly, neither that child’s illness nor the child’s need to go the hospital nor the request to dog-sit the animal was contemplated by Sayer when he signed the Lease application. There is no evidence that Sayer planned to have a dog.as of the date the application was signed. Quite simply, there is no evidence that Sayer breached paragraph 30 of the lease and, in fact, there is evidence demonstrating that Sayer did not breach this provision. Thus, there is, at least, a disputed issue of material fact as to whether Sayer breached the Lease and, for this additional reason, UDR’s Cross-Motion for Partial Summary Judgment should be denied. V. UDR’s CROSS-MOTION SHOULD BE DENIED BECAUSE THE LEASE DOES NOT PROVIDE FOR THE REMEDIES SOUGHT BY UDR-~ SPECIFICALLY, INDEMNIFICATION FOR A PERSONAL INJURY CLAIM. A party to a contract, “may not insist upon extraordinary or unforeseen elements of damage, but only upon such as flow according to common understanding as the natural and probable consequences of the breach and such as may be presumed to have been in the contemplation of the parties at the time the contract was made,” Bucholz v. Green Bros. Co., 272 Mass. 49, 51 (1930). In its Answers to Interrogatories, UDR concedes that its remedy with respect to the breach of contract claim is limited to “damages as provided within the terms of the Big ' Iq. :| | 1 | signed contract.”** But, in the instant action, UDR seeks much more in the way of soho than what was provided for in the Lease or which the parties contemplated. Although UDR relies on three separate sections of the twenty-page Lease, none of them create a contractual right to the remedy UDR seeks — and that M.G.L. c. 186, §15 fortis The I Lease does not contain language regarding third-party claims or liability. Rather, it addresses property damage caused by a dog. The language is, in fact, quite specific: 25. ANIMALS. No animals... are allowed unless we’ve so authorized in writing. If we allow an animal, you must sign a separate animal addendum, which may require additional rents, fees or other charges. You must remove an illegal animal within 24 hours of notice from us, or you will be considered in default of this Lease Contract... : | If you or any guest or occupant violates animal restrictions (with or without your knowledge), you'll be subject to charges, damages, eviction, and other remedies provided in this Lease Contract. If an animal has been in the apartment at any time during your term of occupancy (with or without our consent), we'll charge you for defleaing, deodorizing, and shampooing. Initial and daily animal- violation charges and animal-removal charges are liquidated damages for our time, inconvenience, and overhead (except for attorney’s fees and litigation costs) in enforcing animal restrictions and rules. We may remove an unauthorized animal by following the procedures of paragraph 30 [emphasis added 6 The drafter of the Lease was quite explicit and exclusively concerned about shifting the costs of animal-related property damage to the tenant. The attorney’s fees and litigation costs, furthermore, are clearly a reference to eviction-related fees and costs. A reasonable consumer would not read these provisions and believe they were exposed to indemnifying UDRIf UDR is sued for personal injury alleging negligence by UDR. ' Third-Party Plaintiff, UDR Crane Brook LLC, d/b/a 14 North’s Responses to Third- -Party Defendant, Andrew Scott Sayer’s First Set of Interrogatories, Answer No. 3 at 3 (last paragraph). A copy of these Answers to Interrogatories is attached hereto as Exhibit E. i 26 Exhibit D, Lease, at 25 at 3. :| i The only possible way that this language might extend to a personal injury claim filed by I someone whom was allegedly bitten by a tenant’s dog is the phrase “other remedies.”7” However, this phrase must be taken in context. Ferguson v. Host Int’l, 53 Mass. Appl Ct. 96, 104 (2001). Other remedies” follows the terms “charges, damages [and] eviction.” “Charges” is defined in the following sentence as “defleaing, deodorizing, and shampooing” — clearly referencing property damage. In this context, “other remedies” would reasonably be construed i as only addressing property damage done by a pet, such as where a pet damaged carpeting or woodwork. In isolation, “other remedies” could mean anything UDR wants it to mean. Contract law, however, prohibits this luxury: “the usual and familiar rule of construction applies which treats a general, an all-encompassing word at the end of a list of specific items as taking on the character of those specific items...where general words follow specific words in an enumeration describing the legal subject, the general words are construed to embrace only objects similar in nature to those objects enumerated the preceding specific words.” id. at 103- 104 (string cite omitted). , The Lease expands on the phrase “Other remedies” eight full paragraphs after its mention in the section entitled “ANIMALS,” in a section entitled “Responsibilities of Owner and Resident,” Paragraph No. 30 is entitled “(DEFAULT BY RESIDENT.”* Paragraph No. 30 actually consists of five paragraphs, each has its own title. UDR relies on the following: ! “Other Remedies. We may report unpaid amounts to credit agencies. | If you default and move out early, you will pay us any amounts stated to be rental discounts in paragraph 10, concessions provided in any concession addendum attached to this lease, in addition to any other sums due, Upon your default, we have all legal remedies, including, but not limited to, Lease Contract termination, pursuant to of an eviction, and reimbursement for any and all attorney’s fees and/or litigation costs/expenses. Late charges are liquidated damages for our 7 i 2714. 28 Exhibit D, Lease, {] 30 at 4.time, inconvenience, and overhead in collecting late rent (but are not for attorney’s fees and litigation costs). Any and all amounts which remain unpaid for thirty (30) days from the date due shall bear interest at 18% per year, unless it exceeds the maximum rate permitted by law, in which event interest shall accrue at the highest amount permitted by law. You shall be responsible for any and all attorney’s fees, expenses, or other costs incurred by the Landlord to enforce any provision of this Lease whether related to your conduct, or the conductlof your household member(s), guest(s) and/or invitee(s) (emphasis added). UDR’s reliance on this section is misplaced. First, UDR ignores the definition of default set forth in the paragraph entitled “ANIMALS.” There, default is defined as failure to remove an animal within twenty-four hours of notice from UDR. UDR never gave that notice! and so | there was no default.2? Also, as discussed above, Mr. Sayer did not provide false or incorrect information in the application. Thus, there was no default under the Lease and, as a result, no “Other Remedies” under the Lease are available to UDR in this matter. | Reliance on “Other Remedies” paragraph is also misplaced because, again, context is key. At the beginning of the paragraph, the Lease states, “If you default and move out early...” It continues to reference “unpaid amounts,” rental discounts, collecting late rent, and “all amounts which remain unpaid.” The only logical interpretations of this paragraph is that it pertains only to tenants that move out early and/or tenants who owe rent, late charges or other payments due under the Lease. There is nothing contained in this paragraph that even! hints that it pertains to a legal action filed by a third-party injured on the property. 29 In its Answers to Plaintiff's Interrogatories, UDR states that it was never informed that Sayer had an animal. See Defendant UDR Crane Brook LLC d/b/a 14 North’s Answers to Plaintiffs First Set of Interrogatories, Answer No. 11 at 5, a copy of which is attached hereto as Exhibit F. Thus, while there is not an explicit admission that UDR did not ask Sayer to remove the dog, there is no other possible conclusion. |Indeed, the first paragraph of the five, entitled “Default by Resident” lists eight ways in which a tenant could be in default.>° First mentioned is “you don’t pay rent or amounts that you owe when due.” Buried in the middle of the paragraph is reason number four for being in default: “[Y]ou give incorrect or false answers in a rental application.” Between the first paragraph that lists ways that one can breach the lease and the section entitled “Other Remedies” are two other paragraphs. One is entitled “Eviction” and the other “Holdover.”?! In context, it is unreasonable to expect a tenant to consider that incorrectly completing an application form (or 1 having an animal for less than 24 hours) could result, somehow, in being responsible for a judgment rendered against UDR (or defense costs) for a personal injury allegedly caused by a dog. This interpretation of the Lease is so far-fetched as to be difficult to cogently express. Additionally, in the final section of the Lease Addendum, Section XV, entitled, “Community Policies, Rules and Regulations”, there is an entry that states: “Unauthorized pet 3332, violation $75.”** Thus, under this provision of Lease, the most UDR could collect against Sayer — even assuming a default is proven - is $75. Nowhere in its Cross-Motion for Partial Summary Judgment does UDR attempt to harmonize this provision with the “Other Remedies” or other | Lease provisions it seeks to enforce. UDR has clipped and parsed provisions from the confusing and poorly-drafted Lease and sought to interpret them in a way that is inconsistent with their plain meaning. The only provision that directly references damages available to UDR for a “pet violation” is, thus, totally ignored. How could a reasonable tenant read the Lease — particularly the $75 pet violation reference — and be expected to understand that he or she would be liable for a third-party claim brought against UDR? Again, ambiguities in a contract are construed against I * Exhibit D, Lease, J] 30 at 4. yg. » Exhibit D, Lease, Community Policies, Rules and Regulations Addendum, 1 XV at 2. 14the drafter. Nutter at 669. The Lease, as interpreted by UDR, is riddled with ambiguities and inconsistencies. UDR’s tortured analysis of the many sections of the Lease fails by virtue of this one short, unambiguous sentence. | However, rather than yielding to the common-sense interpretation, UDR next points to a | clause pertaining to insurance. In its Cross-Motion, UDR recites the following: 4, Required Policy. You are required to purchase and maintain personal liability insurance covering you, your occupants and guests, for personal injury and property damage any of you cause to third parties (including damage to our property), in a minimum policy coverage amount of $100,000.00, from a carrier with an AM Best rating of A-VII or better, licensed to do business in Massachusetts. The carrier is required to provide notice to us within 30 days of any cancellation, non-renewal, or material change to your coverage. We retain the right to hold you responsible for any loss in excess of your insurance coverage. Here, for the first time, is a reference to personal injury. Missing, however, is!any requirement that UDR be included in the required policy as an additional insured. If UDR was really expecting Sayer to provide UDR with protection from a third-party personal injury claim, UDR could have and should have required Sayer to name UDR as an additional insured. This is the legal and customary way that a landlord secures protection from a tenant from third-party claims. Contrary to the assertions of UDR, the fact that this provision was in the Lease and did not require Sayer to name UDR as an additional insured suggests that UDR did not expect Sayer to provide any protection or relief to UDR for any third-party claims. Therefore, UDR’s theory 3 Exhibit C, UDR Crane Brook LLC d/b/a 14 North's Third-Party Complaint Against Andrew Scott Sayer, Exhibit A, | 9 at 3; See also Exhibit D, Lease, § 8 at 1. Insurance is addressed again in the Lease in “Lease Addendum Liability Insurance Required of Resident” and “Rider | to Lease Addendum Liability Insurance Required of Resident.” of liability based on this section of its Lease is counterintuitive.UDR, in fact, implicitly admits that its Lease is ambiguous with respect to the letiet being sought in this case. Sayer asks, in his Interrogatory No. 5: “Please identify and describe the damages contemplated by a violation of the “animal restrictions” as that term is used ih the lease.”** UDR’s response, or lack thereof, is telling. UDR, who drafted the Lease®®, and who has filed this action on the basis of a breach of the Lease, refuses to answer the question, describing the interrogatory as vague, ambiguous, seeking information protected by the attorney- ctient privilege and so on.*® If the drafter of the Lease cannot explain what is meant by a “violation of animal restrictions” it certainly cannot succeed in a claim alleging that a tenant breached the agreement. | ! Similarly, UDR is unable to explain the meaning of “animal removal charges.” In its Interrogatory Answer No. 6, it reiterates its objections and does not provide an explanation of the meaning of the term in its own contract.>’ Also telling is that UDR declines to provide a history of its actions when (if ever) a tenant was found to be in violation of the “animal restrictions clause, laying ground for the Plaintiff’s claim against it that UDR turned a blind eye td the 38 i animals living on its premises.*® More to Sayer’s point, the Lease contains language that even pi ry" Pp guagi its author cannot define, nor will UDR describe how that lease has been enforced in similar situations. | * Exhibit E, Third-Party Plaintiff, UDR Crane Brook LLC, d/b/a 14 North’s Responses to Third- Party Defendant, Andrew Scott Sayer’s First Set of Interrogatories, Answer No. 5 at 5. * The Lease was written by the National Apartment Association but adopted by UDR! as its own. See Exhibit E, Answer No. 12 at 7-8. This is no different than any other business that, hires an attorney to draft a contract on its behalf. * Exhibit E, Third-Party Plaintiff, UDR Crane Brook LLC, d/b/a 14 North’s Responses to Third- Party Defendant, Andrew Scott Sayer’s First Set of Interrogatories, Answer No. 5 at 5. 371d., Answer No. 6 at 5. 38 Id., Answer No. 7 at 6.| A party to a contract, “may not insist upon extraordinary or unforeseen elements of damage, but only upon such as flow according to common understanding as the natural and probable consequences of the breach and such as may be presumed to have been in thé contemplation of the parties at the time the contract was made” Bucholz, 272 at 51. In the instant case, UDR seeks damages not contemplated by the Lease. The lease states that it does not excuse UDR from liability arising out of its own negligence. It states that the penalty for an unauthorized pet is $75.00. The Lease does not envision tenant liability for third-party claims. The Lease does not even require UDR to be named as an additional insured on Sayer’s policy. Finally, the Lease is ambiguous to the point that UDR is unable to explain the meaning of key portions of the Lease. For all of these reasons, UDR’s breach of contract claim must fail. VI. UDR’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT SHOULD BE DENIED FOR THE ADDITIONAL REASON THAT UDR HAS FAILED TO PROFFER ANY EVIDENCE OF DAMAGES. ' In UDR’s cross-motion for summary judgment, UDR asserts that it has incurred damages, but doesn’t actually proffer any evidence. Unless a party merely seeks nominal damages, the plaintiff in a breach of contract claim must prove the existence of special damages. Gray v. Tobin, 252 Mass. 238 (1925). UDR has presented no evidence that UDR - as opposed to UDR’s insurer — has incurred any attorney’s fees or other monetary damages. The existence of damages cannot be assumed given that it is just as likely that an insurer is providing a defense to UDR as it is that UDR is funding its own defense — particularly in light of the lack of any admissible evidence of damages. UDR’s insurer, of course, could not be deemed a third-party beneficiary under the Lease. For this additional reason, UDR’s Cross-Motion should be denied.VII. UDR’s CROSS-MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED FOR THE ADDITIONAL REASON THAT UDR HAS FAILED TO MITIGATE ITS ALLEGED DAMAGES. A party to a contract has the obligation of avoiding or mitigating damages to the extent possible by taking such steps which do not involve undue risk, expense or inconvenience. The nonbreaching party is held to the standard of reasonable conduct in preventing loss. Thus, the plaintiff in a contract action cannot recover damages which were foreseeable by him, and which could have been avoided by him by the expenditure of reasonable effort. Gillentine v. McKeand, J } 426 F.2d 717 (1™ Cir. 1970). In the instant case, it is apparent that Pierce has no evidence that UDR knew that there was a dog in the subject premises and/or that UDR knew or should have known that the dog had dangerous propensities. At Pierce’s deposition, the following exchange occurred: Attorney Coakley: What evidence do you have that UDR knew that there was a dog staying in Mr. Sayer’s premises? Pierce: I don’t have any. Attorney Coakley: And so I guess it is fair to say then, you don’t know of any evidence that UDR was aware that there was a dangerous animal in Mr. Sayer’s premises? | ' Pierce: No. ‘ Attorney Coakley: And also I guess it’s fair to say that you never made any report or complaint to UDR about Bermuda before the — Pierce: That’s the first and only time I met the dog. Attorney Coakley: Are you aware of anybody else making any types of complaints to UDR about [the dog]? I Pierce: No*? 39 Exhibit B, Pierce Deposition, at pp. 171-72.Pierce, therefore, has no evidence of negligence against UDR. UDR should be!moving against Pierce — not Sayer — for summary judgment. But UDR has never pursued a Rule 12 or Rule 56 Motion as to Pierce. It has, in fact, unnecessarily expanded the case by adding Sayer as a third-party defendant and deposing Sayer and his wife after undisputed evidence supporting a Rule 56 Motion with respect to the Pierce v. Sayer case was in the record. Even now, UDR seeks to further unnecessarily expand and continue the case by adding Sayer’s wife as a defendant, despite having no evidence of her negligence. Thus, a material issue of fact exists as to whether UDR has mitigated its damages and summary judgment should be dismissed. For all the reasons enumerated above -- including that UDR’s third-party claims clearly run afoul of the M.G.L. c. 186, §15 - UDR’s Cross-Motion for Partial Summary Judgment should be denied. CONCLUSION 1 For all the reasons set forth above, UDR’s Cross-Motion for Partial Summary Judgment as to Count One of its Third-Party Complaint should be denied. CERTIFICATE OF SERVICE THIRD-PARTY DEFENDANT, ANDREW SCOTT SAYER Thereby certify that on this day a true copy of Within document was served upon the | By his Attorney, 1 torney of reach by mail. ; I ( ) o l < . /Jotin P. Coakley, BBO#558685' jcoaKley@murphyriley.com | olle Bevins Forbes, BBO #554338 peep: ¥/ i | 19 hbevinsforbes@murphyriley.com MURPHY & RILEY,P.C. i 125 High Street, Suite 2311 Boston, MA 02110 | (617) 423-3700