In Angelo v. USA Triathlon, 2014 U.S. Dist. LEXIS 131759 (D. Mass. Sep. 19, 2014), a young man died while participating in the swim portion of a triathlon organized by defendant. His estate administrator and wife sued in Massachusetts superior court for decedent's wrongful death and conscious pain and suffering before death, and for negligent infliction of emotional distress upon the wife. Defendant removed the case to the United States District Court for the District of Massachusetts based on diversity of citizenship, and asserted counterclaims for indemnity based on decedent's execution of two separate indemnity agreements prior to his participation in the triathlon. Defendant then moved for partial summary judgment on its counterclaims.
Approximately one year before the triathlon, decedent agreed to a "Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement" when he renewed his membership in the defendant organization. The agreement broadly provided that decedent released, waived, covenanted not to sue and would indemnify and hold harmless the defendant (and a number of other entities) with respect to any claims that may arise out of, result from or relate to decedent's participation in events sponsored by defendant. Decedent further agreed to indemnify, defend and hold defendant harmless if the decedent, or anyone else acting on his behalf, nevertheless brought a claim against defendant. He signed a virtually identical agreement when he registered for the triathlon at issue several months before competing. Only decedent, as the race participant, signed the forms.
Plaintiffs argued defendant's motion should be denied because the indemnity agreements (1) could not function to release claims by individuals other than decedent for wrongful death or negligent infliction of emotional distress, and (2) were in any event unenforceable insofar as they purported to exempt defendant from liability for its own grossly negligent conduct. Regarding the first argument, plaintiffs contended the indemnity agreements were at least ambiguous as to whether they bound only the decedent and his estate, or also others such as his wife. The court disagreed, holding "the indemnity agreements clearly were intended to indemnify losses arising from an action for wrongful death as a claim 'aris[ing] out of' the decedent's participation in the triathlon," and that language was also broad enough to reach plaintiff's claim for negligent infliction of emotional distress. However, any recovery on the emotional distress claim would belong to the wife individually, not decedent's estate, and any recovery on the wrongful death claim would also not belong to the estate but rather would be held in trust for the benefit of decedent's statutory wrongful death beneficiaries. Accordingly, while defendant was entitled to indemnity from decedent's estate on these two claims, it was not entitled to recover indemnity from the wife's share of any recovery on these claims. Plaintiff's claim for decedent's conscious pain and suffering was different in that it was brought on behalf of the estate and any recovery would become its asset. For that reason, defendant was entitled to recover indemnity from any proceeds of that claim, and indeed decedent actually released the claim by the terms of the indemnity agreement.
To the extent plaintiff's wrongful death and conscious pain and suffering claims were based on defendant's alleged gross negligence, however, the court held the indemnity agreement would be unenforceable. The court noted it had found no controlling authority from the Massachusetts Supreme Judicial Court ("SJC") regarding whether an indemnity agreement is enforceable to protect a party from liability for its own gross negligence. However, the Massachusetts Appeals Court has refused to enforce release provisions to bar a claim for gross negligence, and other Massachusetts federal court judges have predicted the SJC would likewise refuse to enforce an indemnity agreement in that context.
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