USCA1 Opinion

July 6, 1992

____________________

No. 91-2325
GLENDA CAROLE DESENNE,
Plaintiff, Appellant,
v.
JAMESTOWN BOAT YARD, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
__________________________
____________________
Before
Aldrich and Coffin, Senior Circuit Judges,
_____________________
and Young,* District Judge.
______________
____________________

Susan M. Carlin for appellant.

_______________
Amy Beretta with whom A. Lauriston Parks, Hanson, Curran, Park
___________
___________________ ____________________

Whitman, and Standard, Weisberg, Heckerling & Rosow, PC, were on br

_______
__________________________________________
for appellee.
____________________
____________________

____________________
*Of the District Of Massachusetts, sitting by designation.

COFFIN, Senior Circuit Judge.

_____________________

Plaintiff

DeSenne suffered

serious injury when the boat on which she served as a crew member
sank at sea.
Boat

Yard,

She filed this diversity action

Inc. (Jamestown)

making repairs

caused

alleging

her injuries.

that

against Jamestown
its negligence

Prior to

this

in

lawsuit,

plaintiff settled her claims with the vessel's owners and insurer
and

gave a

questions:
Island
reformed

release of all
was

law? and,

her rights.

the release
if

champertous

not, should

so as to convey

the

The

appeal raises two

and

void under

release nevertheless

plaintiff's rights only

necessary to reimburse the boat's

Rhode

be

to the extent

owners and insurers for monies

paid to her?

The district court answered "No"

to both, and so,

after reflection, do we.

The Facts
On November 7,
fierce

1987, the

storm in the Atlantic

Island to the Azores.

crew, suffered
jaw, and toe,

equipment.

both passenger and

her teeth,

wages and property

insurance

owners, the

adjuster,

Beisers, and

one

their

He maintained contact with plaintiff for nearly a year

and a half,
personal

Isle's

An

sank in

Point Judith, Rhode

concussion, injuries to

enduring pain, and the loss of

represented the

insurers.

en route from

Plaintiff, on board as

abrasions, a

including navigation
Amato,

sailing vessel "Isle"

took care of her medical bills, paid for her loss of

property,

agreed

to

pay

for

dental

work

and

for

treatment at a pain management clinic, and finally, on August 16,

1989, obtained a release from her.
-2-

When

plaintiff executed

with a check

for $20,000.

the release,
In addition,

Amato presented
further medical

her

bills

(for dental work and pain management) were guaranteed up to a cap

of $7,500.

Six thousand dollars had been paid for property loss.

The

release, an eclectic

Amato for his standard

and

use, ran to the owners

to the Isle itself.

document with

borrowing from other

a broader

It

forms devised by

and underwriters,

would be difficult to contemplate a

reach.

It began

by reciting

that in

consideration of the sum of $20,000 the releasees were discharged

of all actions, including those under four specific statutes, but

extending to causes of action under all pertinent laws, state and

federal.

It

specified

mental and physical injuries

that

encompassed

"all of my possible

all remedies attributable

her

disabilities

misdiagnosed.
"giving

up every

rights . . .

concluded by
right" to

take all other

or that
stating

they might
that, in

to

assigned "all

[present or

and to

same force

effect as [plaintiff]," and assigned "the express

reassign, release or

have been

claim, file suit

necessary with the

that

addition

. . causes of action

releasees "to make

legal action

"possible laws" had

releasees, plaintiff

to any and all .

future]," empowered

It stated

and that she fully understood

might increase

It

and ailments.

rights" under all

been explained to plaintiff,

to some 46

and

right . . . to

dismiss with prejudice any .

. . causes of

action" connected with the accident.

One week after plaintiff
his

superiors, noting that

executed this release, Amato wrote

plaintiff might be
-3-

the Beisers' and

their insurers'

"best witness in the

Boatyard," and explaining, "in

want

to cause

any

cooperation."
that

will

be a

agreement to

He also

permanent

part

of

her

alter future

suffering "pain

life," and

amount of $7,500

"[t]o make her comfortable

his

side

for subsequent

with a settlement."

noted a significant wage loss as a factor in the $20,000

settlement
which

which might

referred to plaintiff's

pay an additional

medical expenses

approaching settlement, I did not

negative feelings

He then

recovery against Jamestown

amount.

He concluded,

"I had her

execute a Release

covers Jones Act status and assigns all rights of recovery

to underwriters.

As I

understand from the

facts uncovered

to

date, our chances for recovery are excellent."

In his deposition
the

testimony, Amato stated that he felt that

release was solely to protect the Beisers and their insurers

against suit by plaintiff.

wages,

loss of

personal

The money paid plaintiff was for lost

property, pain

and medical

expenses.

Although he did not say so to plaintiff, he felt that she had not
waived any claims against Jamestown.
had read the release but described

He could not say

her as someone who "would not

sign a five-page document without reading it."

testimony

before

the

suggested that she read

court,

said

that she

that,

Plaintiff, in her

although

the release and then "walked

did not read it, being "a very trusting person."

Amato

had

away," she

She asked Amato

if signing the document would prevent her from suing Jamestown at

some future
release,

date.

she was

Amato

said, "No."

"contemplating

As

of the

looking into"

date of

filing a

the

claim

-4-

against

Jamestown, but

because

it would

be

felt that
a "joint

she would

suit"

not need

managed by

the

a lawyer

Beisers'

insurance company.
Nine
filed

months earlier, on November

suit

personal

against
injuries

Jamestown for
suffered

17, 1988, the Beisers had

the

during

loss

the

of

the Isle

sinking

and

and

rescue.

Jamestown cross-claimed for money allegedly owed for repair work.

Nine
trial

months after
began

testified.

and

the release
plaintiff

was executed,
in

the

instant

on May
case,

17, 1990,

DeSenne,

On May 23, 1990, the action was settled and dismissed

with prejudice.

Under the settlement agreement, Jamestown agreed

to pay the Beisers $300,000 and the Beisers were to pay Jamestown
$10,472.32, each party giving the other releases of all claims.
Legality of the Assignment
Jamestown moved to dismiss

the instant action by reason

of

plaintiff's assignment to the Beisers and the latters' release of

all claims

as part of the settlement of May 23, 1990.

Plaintiff

opposed dismissal on
Beisers

the ground

was contrary

assignment of
The district

that the release

to Rhode

personal injury
court, after

Island public

she gave

the

policy forbidding

causes of action

as champertous.

reviewing the pertinent

Rhode Island

cases, ruled:
The assignments were made in furtherance of settlement
and were not "the purchasing of personal-injury claims
by intermeddling volunteers for their own profit." As
there is no danger of champerty or maintenance, I see
no reason to allow Ms. DeSenne to evade the clear
agreement she
entered into
and thus
upset the
settlement the parties have agreed upon.
-5-

Memorandum and Order, April 24, 1991, at 6 (citation omitted).

We

are

in

full agreement.

The

doctrine

relied on

by

plaintiff stems from general language in Tyler v. Superior Court,

_____
______________
30

R.I.

107,

maintenance.1
whether rich

73

A.

467

(1909)

The court feared "the power

or poor, to

also

"there

are no

evils

of

of litigious persons,

if they were

and suffering, and prosecute

as assignees." 30 R.I. at 109, 73

observed that

the

harass and annoy others,

allowed to purchase claims for pain

them in courts

addressing

A. at 468.

It

counterbalancing reasons

in

favor

of such

purchases,

business. .

. ."

Id.
__

apprehended

evil

absent,

facilitating

growing

In the case
but

settlements in

the

out

of the

convenience

before us, not

practical

multi-party

of

only is the

requirements

litigation

of

provide

weighty counterbalance.
As Justice

Kelleher remarked

in Hospital Service Corp. of

__________________________

R.I. v.
____

Pennsylvania Ins. Co., 101

_____________________

(1967),

"We have come a long way since the ruling in Tyler . . .

_____

."

Like the district

R.I. 708, 227 A.2d

105, 110

court, we find a recent dispositive case,

Etheridge v. Atlantic Mutual Ins. Co., 480 A.2d 1341 (R.I. 1984).
_________
________________________
In

that

case

plaintiff

had been

injured

in

motorboating

accident.

The tortfeasors

were insured by two companies.

One,

Atlantic,

was a primary insurer, with a policy limit of $50,000.

____________________
1

The district court,

quoting Black's Law Dictionary (4th ed.

_______________________
1968), defined maintenance
as "maintaining, supporting, or
promoting the litigation of another" and champerty as a "bargain
by a stranger with a party to a suit, by which such third person
undertakes to carry on the litigation at his own cost and risk,
in consideration of receiving, if successful, a part of the
proceeds or subject sought to be recovered."
-6-

Aetna, an umbrella carrier, covered losses in excess of $300,000,

and was made a

third party defendant by Atlantic.

Aetna settled

with the plaintiff, engaging in a structured settlement, agreeing

to pay plaintiff $10,000
educational benefits.
half
other

of any

a year for life, with

Plaintiff agreed to pay Aetna $50,000 plus

additional judgment

party.

The

some medical and

obtained from Atlantic

tortfeasors assigned

to Aetna

or any

any proceeds

recovered from Atlantic or another party.

As appellee points out, it is clear that Aetna theoretically

could

have

Plaintiff's
been

recovered

more

recovery from

enough so

than

it

paid

Atlantic and

that its

out

to

plaintiff.

third parties

required payment

to Aetna

may have

might have

exceeded Aetna's payments, particularly if plaintiff did not long

survive; and the tortfeasors' claims, assigned to Aetna, also may

have

produced a

return

for Aetna

greater

than its

payments.

Notwithstanding these possibilities, the Rhode Island court ruled

that

there was "no element

this agreement."

of wagering or

480 A.2d at 1346.

It referred to the frequent

situation

where an

victim of

a technical dispute between insurers . .

1345.

insured person

gambling involved in

finds himself

"the helpless
. ."

Id. at
__

The court reasoned:

Under such circumstances, a company that pays the loss
and absolves the insured from liability, except for the
right to proceed against
the other carrier, has
performed a function that furthers rather than impedes
public policy.
Such agreements ought not to be
rendered void or impeded by the simplistic maxim that
the common-law assignments of personal injury claims
were unenforceable.

Id.
__
-7-

The
Aetna

Beisers' insurers

in precisely

the position

of

in Etheridge and the agreement at issue here furthered the

_________

same public policy.

those

were

The insurers did not

the

Etheridge
_________

purchasing

personal

court

declared

injury

meet the definition of

to

claims,

be

prohibited

i.e.,

from

"intermeddling

volunteers for their own profit," id.

__
The

court in Etheridge deemed

_________

against assignment

of personal

which

meaning,"

it

has

appropriate

no

device" for

preserving a right to
precisely

it absurd to

injury claims in
id.,
__

and

facilitating payment

case.

settling with

in

"obstruct

an

of a

claim while

That

is, again,

The Beisers

insurers knew

that,

Jamestown was

not involved, there remained

in a future suit

in

in this

a "context

thereby

pursue contribution. Id.

__

the situation

apply the rule

plaintiff,

so

and their
long

as

the possibility that

by plaintiff against Jamestown, they

faced the

possibility

of a Jamestown claim for contribution.

not idle speculation

is revealed in the following

That this is

commentary of

Professors Prosser and Keeton:

The effect of a settlement with the plaintiff by
the contribution defendant, who has received a release
or a covenant not to sue, has perhaps given more
difficulty than any other problem.
The usual holding
has been that the defendant so relieved of liability is
not released from contribution.
There has been much
dissatisfaction with this because it becomes impossible
for a defendant to settle the case, take a release, and
close the file, since the potentialliability
for
contribution is still open.
W. Keeton,

Prosser and Keeton on Torts

____________________________

50, at

340 (5th

ed.

1984) (footnote omitted).

-8-

It
one

is true that Rhode

settling

tortfeasor

another tortfeasor if
before

such

other

Island has a
from

statute which relieves

liability

a release
tortfeasor

for

is given by
has

contribution
the injured

obtained

the

to

party

right

to

contribution and if the release "provides for a reduction, to the

___
extent
injured

of the pro rata share

person's

damages

of the released tortfeasor, of the

recoverable

against

all

the

other

tortfeasors."
was

R.I. Gen. Laws

less attractive to the

10-6-8.

But this device clearly

Beisers and their

insurers than the

all-purpose release they secured.

This, then, was the
the

Beisers

against

situation.
Jamestown,

Undoubtedly her testimony

During the suit

brought by

the

testified.

plaintiff

related in substantial part to her own

losses and injuries, for which she had received compensation from
the

Beisers

and

their

insurers.

The

Beisers

possessed

plaintiff's release, giving them specific authority to release or

dismiss

with prejudice all causes

sinking of the Isle.

settling with the
additional
$300,000.

Jamestown therefore was in a

Beisers, to foreclose

lawsuits
Now,

of action arising

--

over

and,
two

position, by

the possibility of

accordingly,

years

out of the

later,

made
plaintiff

any

payment

of

seeks

to

unscramble what has not only been scrambled but digested.

It
filing

may be that plaintiff

claims

Jamestown,
Nor

contemporaneously

but there is no

is this a

would have been

case where an

against

better served by
the

issue of overreaching
assignee paid for
-9-

Beisers

and

in this case.

only a discrete

segment

of

assignment

putative

of

covering all

all

the

therefore

claims; here,

facets of her

and suffering.
that

plaintiff's

And

claims

plaintiff

Beisers or

their insurers

hold

the district

an

payments

including pain

record to indicate

received
court

received

received

losses and injuries,

there is nothing in this

that

and

a windfall.

did

not

We

err in

its

original ruling, dismissing plaintiff's suit.

Reformation of the Release
After dismissal of her action
Civ.

P. 59(e) to reconsider

legality

of

insurance

the

the ruling, again

assignment,

agent Amato

had

plaintiff moved under Fed. R.

but adding

induced her

referring to the

the

allegation

to execute

through

false representations.

The district

hearing

solely to

and arguments

issue.

After observing that

inexplicably
plaintiff

had

hear evidence

not been

had not been misled,

seek legal advice.

at

the

hearing

The
in

mistake, to have the

up to

the amount the

earlier,

in the hearing

it concluded

having been advised

plaintiff

sought,

argument made

based

The court

"[i]f there is any merit to this argument it is

that

by Amato to

release reformed to assign her

Beisers had paid.

concerning that

court also rejected a new

which

the release

court granted

the matters raised

raised

that

on mutual

claims only

ruled that,

not addressed by

the present action, since the Beisers are not the defendants."
In
judgment

reviewing the
motion

discretion.

district court's

under Rule

United States v.
_____________

59(e), we

decision on
look

this post-

only for

abuse of

Land at 5 Bell Rock Rd.,

_______________________

896 F.2d

-10-

605, 611 (1st Cir. 1990).

Clearly there was no abuse.

The court

leaned over backward in granting a hearing on an issue that could

have

been

raised

earlier.

When

this

issue evaporated,

it

patiently considered the contention that both plaintiff and Amato

had

intended

that

the

Jamestown.

Even though

that

sought

Amato

protection,

it

release not

foreclose

the written evidence

to

secure

credited

both

for

his

her

strongly suggests

client

plaintiff

from suing

and

all
Amato

possible
with

so

intending.
What plaintiff seeks is most singular.
she wishes to
Were

restructure a

this to be allowed,

client

to the

maximum, and

door both to

avoid and to
Beisers

contract she entered

an insurance adjuster

didn't mean what I drafted."

open the

then come
In this

claim for

and their insurers which

any

persuasive authority

A.

could serve his

and

say, "I

case, such testimony would

had paid heavily

contribution against

they in turn

foreclosed by a substantial settlement.

into with

into court

a lawsuit Jamestown

a substantial

In a suit against B,

to

the

thought they had

Plaintiff has not cited

allowing contracts

to be

reformed in

this

manner.

Motor Co.,
_________

Such

625 F.

Cleveland v.
_________

authorities as
Supp. 943,

948-49 (D.R.I.

Harley-Davidson
_______________
1986),

City of
________

Cleveland Electric Illuminating Co., 538

____________________________________

1287, 1289 (N.D. Ohio,

Mass.

McInnis v.
_______

800, 803,

575

E.D. 1980), and Cram v.

____
N.E.2d

substantive question of how

single tortfeasor

747

(1991),

F. Supp.

Northbridge, 410
___________

all

deal

with

the

to interpret a release secured

that purports

"to acquit her

by a

and `all

other

persons, firms or corporations,'" McInnis, 625 F. Supp. at

_______

948.2

-11-

We have found no instances of contract reformation in the absence

of one party to the contract.

Plaintiff argues in her brief, "Boat Yard was not a party to

the

Release in question, nor an intended beneficiary, nor has it

changed its

position in

reformation

is in order."

of

the facts and

every

reason to

$300,000,

did

reliance on

believe that
on

Release.

Therefore,

This reveals both an unrealistic view

a simplistic

rely

the

view of the

law.

Jamestown, in

the comprehensiveness

For

there is

making payment
of

the

of

release

obtained from the Beisers.

so easily
reformed

"in order"

when the party

is not present.

Contracts
_________

598,

reformation

solely

And reformation of contracts

at

588;
within

against whom

is not

it is

being

See generally 3 A. Corbin, Corbin on

______________
_________
614,

615 (1960)

context of

(discussion

litigation

between

of

the

parties to a document).
We see no abuse of discretion.
AFFIRMED.
________

____________________
2

Judge Selya in

McInnis noted three possible constructions of

_______
such a broad discharge: (1) that a party is barred from
proceeding against all tortfeasors, whether or not identified;
(2) that a party is barred only from proceeding against others
either named in the release or identifiable from the face of the
document; and (3) that the discharge releases those persons,
named or not, whom the parties intended to release. 625 F. Supp.
at 948-49.
-12-