Editor's note: This article was updated to include comments from Foxborough Board of Selectmen chair James DeVellis on Jan. 30, 2013 at 12:11 p.m.
Facing a class action lawsuit for allegedly holding people “unlawfully” in protective custody during Gillette Stadium events, the town reached out to its largest business partner for assistance.
Foxborough, through attorney John Davis of Pierce, Davis & Perritano, LLP, reached out to the Kraft Group in November to ask if the company would be indemnifying the town in the Weldner/Dutton lawsuit against Foxborough Police Chief Edward O’Leary and the town of Foxborough.
“The town has an indemnification policy in place provided by the Kraft Group that protects the town during stadium events," Foxborough Board of Selectmen chair James DeVellis said. "It has been used in the past to hold the town harmless and is standard protocol in this type of situation where a stadium is on public land and serviced by town staff such as police and fire personnel."
The Kraft Group informed the town in a letter addressed to Davis on Dec. 27 that it would not be indemnifying the town in the class action lawsuit because, according to the indemnification agreement between the town and NPS (Gillette Stadium), the Kraft Group is not required to indemnify the town in a lawsuit with claims involving “negligence, gross negligence or willful misconduct.”
The Weldner/Dutton lawsuit alleges negligence on behalf of the town and Chief O’Leary, which, according to Kraft Group attorney James Cobery’s letter to the town, removes the company from legal obligation to defend or indemnify the town.
“NPS’ understanding of its duties under the so-called License Conditions or Stadium Lease in this case differs from the positions of the town expressed in your letter,” Cobery stated in a letter to Davis. “Among other things, since the claims asserted in the [Weldner/Dutton] lawsuit against the town are, given their prima facie elements, by their nature claims of ‘negligence, gross negligence or willful misconduct,’ the exculpatory provisions of the indemnification clauses at issue obviate any duty of NPS to defend or to indemnify the town.”
DeVellis disagrees, citing the town has not yet received any information that would suggest or prove Foxborough police acted in negligence during stadium events.
"There has been nothing presented to our board that indicates the Foxborough police have acted in a manner to nullify the current insurance coverage and the lawsuit was just filed so there has been no judgment supporting this position,” DeVellis said.
Asked to elaborate on the Kraft Group's response to the town, DeVellis said he could not comment on any specifics.
"A lawsuit is in process and I cannot speak to the merits of the lawsuit or the merits of the Kraft Group making their decision that the current indemnification agreement is not valid in this specific case," DeVellis said. "Our insurance counsel is in dialogue with the Kraft Group counsel.”
The town and the Kraft Group have used the same indemnification agreement for every Gillette Stadium concert since 2005, including the event where the Weldner/Dutton lawsuit originated from – last summer’s Bruce Springsteen concert.
The indemnification agreement for the Aug. 18, 2012 concert was agreed upon and signed by all members of Foxborough’s Board of Selectmen on June 12, 2012 and reads as follows:
“The licensee (Kraft Group) shall indemnify, defend and save the town and each of its officers, agents, servants and employees (collectively, the ‘Town Parties’) harmless from and against any and all claims, liabilities, liens, demands and causes of action (‘claims’) for or on account of any injury to persons, damage to property, fines, penalties, assessments, so-called civil rights claims or any other loss of whatever kind or nature arising out of the grant of the License or the conduct of the event(s), except to the extent such claim was caused by the negligence, gross negligence or willful misconduct of the town parties.
The town shall give the licensee prompt written notice of any such claim and licensee shall defend, or control the defense of, such claim by counsel of its choice, subject to the approval of the town in writing, which approval shall not be unreasonably withheld or delayed.
The licensee shall bear the entire cost of such defense except to the extent that it is finally determined by a court of law or other adjudicatory proceeding that such claim was caused by the negligence, gross negligence or willful misconduct of the town parties.”
While the Kraft Group, citing the negligence exception in the indemnification agreement, denied the town’s request to indemnify them in the Weldner/Dutton lawsuit, the company has offered to provide Foxborough with legal representation to defend the town and Chief O’Leary as well as cover costs of the attorney.
“For the plaintiffs in the Weldner/Dutton case to prevail, they have to prove that [Chief O’Leary] and the town acted negligently or worse,” said Kraft Group spokesman Jeff Cournoyer. “Our agreement with the town does not require us to indemnify the town in that scenario, but because we value our relationship with the town, we offered to defend them in the case.”
The Kraft Group’s offer will not cover damages owed if the town loses the case.
DeVellis declined comment on whether the town will accept the Kraft Group's offer, saying it would be inappropriate to publicly discuss "any legal strategy" but did offer this message to the community:
“The residents should know that our town is insured for lawsuits arising from stadium events through our general insurance provider and we have not missed a step regardless of the opinion of the Kraft Group that their indemnification insurance policy will not cover the current issue," DeVellis said. "The indemnification agreement that has been a standard policy in each and every stadium event for years is now being called into question because of a specific lawsuit. I cannot comment on any ongoing lawsuit as to merit or strategy but can tell you that our general insurance provider’s counsel is working with the Kraft Group’s counsel.”
The town has since presented the Kraft Group with a new indemnification agreement for three Gillette Stadium concerts this summer to include coverage of potential lawsuits similar to the Weldner/Dutton case in the future.
During the Jan. 15 public hearings for this summer's 10th annual New England Country Music Festival, Taylor Swift and Bon Jovi concerts, selectman Lorraine Brue read a new indemnification agreement into the record and the board voted to make the new indemnification policy a condition in the approval and issuing of the licenses for the three events.
According to the board's conditions of the approved licenses, the Kraft Group has until Feb. 15 to execute and provide the indemnification agreement.
Counsel for both the town and Kraft Group are said to be currently negotiating the terms of this new indemnification agreement.
The Weldner/Dutton class action lawsuit was originally filed on Sept. 24, 2012. Two additional concertgoers joined the lawsuit in November to challenge the town’s policy of holding people in protective custody during Gillette Stadium events.
According to the Law Offices of Howard Friedman, the suit alleges over a thousand people were held in protective custody unlawfully because they were intoxicated but not incapacitated. The suit seeks money damages for violations of the class members’ constitutional rights, as well as an end to the policy. The lawsuit, filed in the United States District Court in Boston, is called Paul Weldner et al., v. Edward O’Leary, et al., C.A. No. 12-11771-DPW.