ALEXANDER MIROPOLSKY & Another v. WILLIAM CAMPBELL & Another; LAWRENCE BUCCI & Another, Third-Party

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-401

ALEXANDER MIROPOLSKY & another1

vs.

WILLIAM CAMPBELL & another2; LAWRENCE BUCCI & another,3 third-
party defendants.4

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Alexander and Larissa Miropolsky

(Miropolskys), appeal from so much of a Superior Court judgment

that denied their posttrial petition for attorney's fees. The

Miropolskys requested fees pursuant to a contractual

indemnification provision contained within a "Declaration of

Reservation of Easements and Roadways and Common Driveways"

1 Larissa Miropolsky.

2 Lindsey Campbell.

3 Pamela Bucci.

4The Buccis were the plaintiffs in a related action that
was consolidated with the present action for trial in the
Superior Court. The Buccis, however, are not parties to the
present appeal.
(declaration). On appeal, the Miropolskys contend that they are

entitled to attorney's fees in connection with their breach of

easement claim against the defendants, William and Lindsey

Campbell (Campbells). Because we conclude that the

indemnification provision was not intended to apply to direct

claims, we affirm.

Background. This appeal arises from a dispute regarding a

declaration for the Hummingbird Lane Subdivision (subdivision).

The Miropolskys are the owners and full-time residents of a

house in the subdivision now known as 1 Hummingbird Lane

(Miropolsky property). The subdivision includes two other

homes, one on Lot 3 owned by the Campbells, and the other on Lot

2 owned by the Buccis (collectively, the "Remaining Land"). The

Campbells are the developers of the subdivision and in January

2018, they submitted an application to the Westford planning

board for approval of a definitive subdivision plan to construct

the subdivision.

The Miropolsky property is a parcel subject to the

declaration, created by the original owners of the property on

which the subdivision was being built.5 The declaration created

a fifty-foot-wide access and utility easement running across the

5 Neither the Miropolskys nor the Campbells were involved in
the creation of the declaration.

2
Miropolsky property, called the "Access Easement Area."6 Among

other things, the declaration grants a right of way to access

the subdivision.

Paragraph 2 of the declaration is entitled

"Indemnification" and obligates the Campbells and the Buccis, as

owners of the Remaining Land, to:

"[R]estore any land of the servient estate disturbed in the
exercise of rights granted hereunder promptly and in a
reasonable fashion consistent with the surrounding land and
free of refuse. Improvements to the Access Easement Area
shall be completed within twelve (12) months of the initial
initiation of construction within the Access Easement Area
and shall be performed in a good and workmanlike manner so
as to minimize all disturbance to the use and enjoyment of
the [Miropolsky property]; and if vehicle access or egress
to and from the [Miropolsky property] has to be temporarily
interrupted for construction purposes, the occupants of the
[Miropolsky property] shall be provided with at least seven
(7) days written notice and such temporary interruptions
shall be limited to a combined period not to exceed 48
hours."

Within that same paragraph, the declaration contains an

indemnification provision, which provides that

"The owner or owners of the Remaining Land hereby agrees to
defend, indemnify and hold harmless the owner of the
[Miropolsky property] for all costs, losses, expenses and
attorney's fees associated with any claim of damage to
personal property, injury or death to persons resulting
from the exercise of the easements granted herein and for
entry upon and activities performed within the Access
Easement Area."

6 The "Access Easement Area" is defined in the easement as a
"Proposed 50' Wide Access & Utility Easement" depicted on an
August 2014 "Plan of Land-ANR, 17 & 19 Lawson Road, Westford."

3
In early August 2018, the Campbells began construction on

the subdivision. The work included improvements and alterations

to the Access Easement Area, the roadway through the area,

stormwater drainage, and other excavation site work. The work

was not completed until July 2021, after the twelve-month

requirement delineated in paragraph 2 of the declaration.

In September of 2019, the Miropolskys filed an action in

the Superior Court to enforce their rights under the

declaration. Following a three-week trial the jury found in

favor of the Miropolskys on their breach of easement claim, and

against the Campbells on their breach of easement counterclaim.7

On October 6, 2022, the Miropolskys filed a posttrial

petition for attorney's fees and costs with the Superior Court.

On October 19, 2022, the judge denied the Miropolskys' petition

because "the indemnification clause does not apply to first

party claims like this one." Judgment entered on October 21,

2022, and the Miropolskys timely appealed.

7 The Miropolskys and Campbells brought additional claims at
trial. At oral argument, however, the Miropolskys clarified
that the only claims relevant to this appeal are the breach of
easement claim brought by the Miropolskys, and the breach of
easement counterclaim brought by the Campbells (insofar as the
Miropolskys claim that they were forced to pay added attorney's
fees to defend against that counterclaim).

4
Discussion. The Miropolskys contend that the judge erred

in denying their petition because the indemnification provision

was intended to apply to direct claims. We disagree.

"Our traditional and usual approach to the award of

attorney's fees for litigation has been to follow the 'American

Rule': in the absence of statute, or court rule, we do not

allow successful litigants to recover their attorney's fees and

expenses." John T. Callahan & Sons, Inc. v. Worcester Ins. Co.,

453 Mass. 447, 449 (2009). "The parties, however, may construct

their agreement to provide for the payment of attorney's fees

through clear and unambiguous language." K.G.M. Custom Homes,

Inc. v. Prosky, 468 Mass. 247, 258 (2014).

The interpretation of an indemnity clause is a question of

law for the court. See Post v. Belmont Country Club, Inc., 60

Mass. App. Ct. 645, 647 (2004). Under Massachusetts law,

indemnity clauses "are not read with any bias in favor of the

indemnitor and against the indemnitee; rather, such provisions

are to be fairly and reasonably construed to ascertain the

intention of the parties and to effectuate the purpose sought to

be accomplished." Urban Inv. & Dev. Co. v. Turner Constr. Co.,

35 Mass. App. Ct. 100, 107 (1993). Massachusetts indemnity

clauses are not necessarily limited to third-party claims. See

Caldwell Tanks, Inc. v. Haley & Ward, Inc., 471 F.3d 210, 216

5
(1st Cir. 2006). Rather, we interpret each indemnity contract

on its own terms, "with the conclusion in a particular case

turning on the particular language used against the background

of other indicia of the parties' intention." Shea v. Bay State

Gas Co., 383 Mass. 218, 222-223 (1981), quoting United States v.

Seckinger, 397 U.S. 203, 213 n.17 (1970).

Here, the language of the indemnification provision cannot

be "fairly and reasonably construed" to include indemnification

for attorney's fees in an action between the parties. Whittle

v. Pagani Bros. Constr. Co., 383 Mass. 796, 798 (1981). The

Miropolskys rely on language in the indemnification provision

stating that the owner agrees to "defend, indemnify and hold

harmless the owner of the [Miropolsky property] for all costs,

losses, expenses and attorney's fees." They place special

emphasis on "all costs" as proof that the parties' intent was to

apply the indemnification provision to a direct claim. However,

viewing the declaration as a whole, we conclude that the

indemnification provision was not intended to apply to a direct

claim. This is so for various reasons.

We first note that although paragraph 2 is not a model of

clarity, we are still required to determine the drafters' intent

from the provision and the declaration itself. Shea, 383 Mass.

at 222-223. As stated above, the indemnification provision

6
states, in relevant part, that the owner or owners of the

"Remaining Land" agree to "indemnify and hold harmless the owner

of the [Miropolsky Property] for all costs, losses, expenses and

attorney's fees associated with any claim of damage to personal

property . . . resulting from the exercise of the easements

granted herein and for entry upon and activities performed

within the Access Easement Area." This language, fairly read,

suggests that the indemnification provision was intended to

apply to third parties who enter on and perform activities

within the easement area, rather than to those who are parties

to the declaration. By contrast, the overbroad interpretation

proffered by the Miropolskys could lead to illogical or unsound

results. For example, assume that the "owner or owners of the

Remaining Land" (i.e., the Campbells) entered the Access

Easement Area and suffered injury due to some hidden hazardous

condition created by the Miropolskys, then sued the Miropolskys

and won an award of damages. Under the Miropolskys'

interpretation of the indemnification provision, the Campbells

would be obligated to indemnify the Miropolskys against that

award, plus the attorney's fees incurred by the Miropolskys in

their unsuccessful defense. In other words, the injured

Campbells would be left uncompensated and indeed worse off

financially than before their "successful" lawsuit. We cannot

7
conclude that is what the grantor intended without more specific

language in the indemnification provision. In Post, 60 Mass.

App. Ct. at 646, for example, club members agreed to use golf

carts entirely at their own risk and be responsible for any

injury, "including without limitation, injury to him/herself and

damage to the cart, and . . . to indemnify the Club against all

loss, claims or expenses resulting from use of said cart." Id.

Plainly, this language encompassed damages for a member's

wrongful death arising from his own use of the cart. Here, if

the grantor intended the indemnification provision to apply to

direct claims as the Miropolskys argue, then even if the

Miropolskys had lost the underlying claim for damages against

the Campbells (instead of succeeding and receiving a jury award

of $12,450, as they did), the Campbells would nonetheless be

obligated to pay the Miropolskys' attorney's fees. Of course,

it is possible to agree to indemnify another contracting party

for that party's fees incurred in an unsuccessful attempt to

enforce an agreement. See, e.g., Carter v. Warren Five Cents

Sav. Bank, 409 Mass. 73, 80 (1991). Such a result, however,

would require much clearer language and, in any event, is not

contemplated by the language of the indemnification provision at

issue here.

8
Our conclusion is bolstered by other portions of the

declaration. See Murray v. Edes Mfg. Co., 309 Mass. 395, 401

(1941) ("The contract is to be construed as a whole"). In

particular, paragraph 9 of the declaration states, in relevant

part, that the Miropolskys have "the usual legal and equitable

remedies . . . to recover damages." Had the parties intended to

provide for fee shifting in the event of a breach of covenant,

the subject of fee shifting would most appropriately be included

in paragraph 9, which includes the right to "recover damages" in

the construction of the development. See Sea Breeze Estates,

LLC v. Jarema, 94 Mass. App. Ct. 210, 220 (2018) (construing

separate indemnity and direct-claim provisions and limiting

indemnification to third-party claims). Moreover, paragraph 9

makes the restrictive covenants within the declaration

enforceable by the "Subject Lots" owners, making the twelve-

month requirement enforceable. While there may be some

persuasiveness to the Miropolskys' claim that the

indemnification clause includes "all claims" and thus, was meant

to include direct claims, that argument is undermined by the

separate provision controlling direct claims. See Carter, 409

Mass. at 80. Indeed, the explicit language of paragraph 9

providing for "usual legal and equitable remedies" suggests that

9
the parties did not intend to circumvent the American Rule.8

Accordingly, we agree with the judge that the attorney's fee

reference in the indemnification provision does not encompass

attorney's fees incurred in connection with direct-party

litigation.9

Judgment affirmed.

By the Court (Vuono, Neyman &
Sacks, JJ.10),

Clerk

Entered: June 11, 2026.

8 The Mirpolskys argue that the indemnification provision
was "vitally important to [them], because if something goes
wrong . . . that language protects us" as proof that their
intent was for the provision to apply to direct claims.
However, we interpret easements based on the presumed intent of
the grantor in light of the attendant circumstances, not based
on those with a subsequent interest. See Patterson v. Paul, 448
Mass. 658, 665 (2007).

9 Because we hold that paragraph 2 was not intended to apply
to direct claims among the parties, we do not reach any issues
regarding the amount or calculation of attorney's fees. The
Miropolskys' request for appellate attorney's fees is denied.

10 The panelists are listed in order of seniority.

10