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Where (1) a university contracted with a company to provide a shuttle service to the university’s campus, (2) a shuttle bus crash left one passenger dead and several others gravely injured, and (3) the shuttle bus’s insurance carrier brought an interpleader action, the insurer’s motion to dismiss crossclaims filed by the interpleader defendants should be denied to the extent that the defendants are seeking to hold the university vicariously liable under a theory of apparent authority but allowed as to negligence claims against employees of the university.
“On November 19, 2022, a shuttle bus owned by Joseph’s Transportation, Inc. (Joseph’s Transportation) and operated by Jean Michel Fenelon (Fenelon) crashed. One passenger, Vanessa Mark (Mark), was killed and several others were gravely injured. At the time of the accident, Brandeis University (Brandeis) had contracted with Joseph’s Transportation to provide a shuttle service between Boston/Cambridge and the university’s campus.
“In January 2023, one of those injured in the accident, Jose Lopez (Lopez), filed an action (2384CV0028) against Joseph’s Transportation and Fenelon. Thereafter, in June 2023, Commerce Insurance Company (‘Commerce’), which purportedly insured the bus involved in the accident under a commercial automobile insurance policy, initiated an interpleader action (2384CV01359) against Brandeis, Joseph’s Transportation, Fenelon, and multiple actual and potential claimants under the policy including, Lopez, the Mark estate, and others injured in the accident. Several of these claimants (Interpleader Defendants) (together with Lopez, Claimants) have asserted cross claims against Brandeis. Lopez’s and Commerce’s actions have since been consolidated.
“The matters are now before me on: (1) Brandeis’s motions to dismiss the crossclaims against it brought by Interpleader Defendants Joseph Spinello (Spinello), Joshua Aldwinckle-Povey (Aldwinckle-Povey), and Mitchell Brady (Brady); and (2) motions to amend brought by Claimants (including Lopez, Spinello and Aldwinckle Povey), which seek to add as parties to their various complaints Michael Bonacurso (Bonacurso) and the Bonacurso Insurance Agency, Inc. (Bonacurso Agency) (together, Bonacurso Defendants); Brandeis; and / or several Brandeis employees — Samuel Solomon (Solomon), John Storti (Storti), Courtney Sampson (Sampson), Mark Jay (Jay), and Mark Rushton (Rushton) (together, Brandeis Employees). The Bonacurso Defendants do not oppose the motions to amend. The same, however, is not true for Brandeis and the Brandeis Employees, who oppose on futility grounds. …
“Brandeis has moved to dismiss the crossclaims against it filed by Interpleader Defendants Spinello, Aldwinckle-Povey, and Brady, and Claimants have moved to amend their Complaints to add the Bonacurso Defendants, Brandeis, and/or the Brandeis Employees as parties. Brandeis and the Brandeis Employees oppose the motions to amend on futility grounds. …
“… I conclude that Claimants have put forward sufficient allegations to support their negligence claims against Brandeis to the extent they seek to hold Brandeis vicariously liable under a theory of apparent authority. However, they have failed to put forward sufficient allegations to support the negligence claims against the Brandeis Employees. …
“In their Complaints, the Claimants seek to hold Brandeis liable for negligence under two theories. First, they allege that Brandeis is directly liable because the university failed properly to vet Joseph’s Transportation before contracting with it and thereafter failed to monitor the company’s activities and employees. Second, the Claimants assert that Brandeis is vicariously liable for the actions of Fenelon and Joseph’s Transportation because it had an actual or apparent agency relationship with Joseph’s Transportation. As explained below, I conclude that Claimants have failed to put forward sufficient allegations to support a claim based on direct liability. However, the allegations are sufficient to support a claim for vicarious liability based on apparent authority. …
“Under their first theory of liability, Claimants seek to hold Brandeis liable for failure to vet and monitor Joseph’s Transportation. ‘As a general rule, a party has no duty to control another person’s conduct to prevent that person from causing harm to a third person.’ Adams v. Congress Auto Ins. Agency, Inc., 90 Mass. App. Ct. 761, 765 (2016). … Thus, to hold Brandeis directly liable, Claimants must look to an exception to this general rule. Here, they rely on two such exceptions: (1) the negligent hiring and retention doctrine and (2) the special relationship doctrine. Claimants are unable to maintain a claim under either doctrine. …
“Here, the Complaints are entirely devoid of substantive allegations regarding Brandeis’s knowledge of any relevant issues with Fenelon or Joseph’s Transportation at any time before the accident. For example, the Complaints contain no facts from which it could reasonably be inferred that Brandeis was aware or should have been aware that Fenelon or Joseph’s Transportation were in violation of the FMCSA regulations, or that Fenelon was working more than one driving job. … Given the conclusory nature of the allegations against Brandeis, the Complaint fails to state a claim based on the negligent hiring and retention doctrine. …
“Here, a claim based on the special relationship between Brandeis and its students fails for essentially the same reasons as a claim based on the negligent hiring and retention doctrine. Claimants have failed to put forward any substantive allegations from which it could reasonably be inferred that Brandeis had the requisite actual knowledge of relevant circumstances either before Joseph’s Transportation was hired or during the Contract’s term which would have made the accident foreseeable and triggered a duty to prevent it. …
“Given the lack of substantive allegations, Claimants seek to hold Brandeis liable under the special relationship doctrine based solely on its contractual relationship with Joseph’s Transportation. This it cannot do. Indeed, to hold otherwise would essentially resurrect in loco parentis liability, a doctrine no longer recognized in the Commonwealth, and in the process upend the normal functioning of universities, which often rely on a variety of vendors to serve its students. … Tellingly, Claimants have failed to cite any authority applying the special relationship doctrine in the context of an injury caused by the employee of a university vendor.
“Ultimately, the Complaints’ allegations are far too conclusory to permit a negligence claim based on either the negligent retention/hiring or special relationship doctrines to proceed. Accordingly, the negligence claims fail to the extent they seek to hold Brandeis directly liable. …
“Here, Claimants argue that the allegations in the Complaints plausibly suggest that Brandeis exercised both actual and apparent authority over Joseph’s Transportation. As explained below, I conclude that while Claimants have failed to put forward sufficient allegations to support that Joseph’s Transportation acted with actual authority, the Complaints sufficiently allege, if just barely, that it did so with apparent authority. …
“… The Complaints allege that Brandeis advertised the shuttle service, shared shuttle bus locations, and provided bus schedules through its mobile application ‘Branda;’ that it routinely surveyed its students, staff, and others for input on how to improve the shuttle services; and that it displayed the Brandeis logo and Brandeis advertising on the buses.
“In arguing that these allegations are insufficient, Brandeis primarily relies on Theos & Sons, Inc. v. Mack Trucks, Inc., 431 Mass. 736 (2000). …
“Theos & Sons, Inc., however, is distinguishable, in no small part based on its procedural posture. Given the allegations here, the reasonableness of the belief that Brandeis consented to Joseph’s Transportation acting on its behalf has been pled. As an initial matter, the assertion of apparent authority rests on more than the use of a logo. It is also based on Brandeis’s mobile application and surveys, both of which allegedly suggested Brandeis’s control of the shuttle service to passengers. Moreover, in Theos & Sons, Inc., it was evident from the circumstances that the plaintiff should have understood that it was dealing with an independent third-party. … Taking all the factual allegations to be true and reading all inferences in Claimants’ favor, as I must, I cannot determine as a matter of law whether the same is true in this case. Indeed, the allegations can be read to plausibly suggest that, because of the logos, application, and surveys, those students and others using the buses reasonably believed Brandeis consented that Joseph’s Transportation act on its behalf.
“… Discovery may prove that there is no basis for an assertion of apparent authority, i.e., that the bus users were or should have been aware that a third-party company separate from Brandeis provided the shuttle service, but the negligence claims survive dismissal to the extent they are based on such authority.”
Commerce Insurance Co. v. Lopez, et al. (and a companion case) (Lawyers Weekly No. 09-096-24) (20 pages) (Squires-Lee, J.) (Suffolk Superior Court) (Civil Action No. 2384CV01359-BLS1) (August 2024).
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