OT-Apparent "secret agreement" between Orca Bay/Bertuzzi/Crawford in Moore Lawsuit

Submitted by clarkiefromcanada on February 17th, 2012 at 9:46 AM

It seems that some sort of "secret agreement" was made between Orca Bay, Marc Crawford and Todd Bertuzzi via their lawyers absolving each other of blame and counter suits. Apparently, it  was not disclosed to either the court in Ontario or to Steve Moore's lawyer Tim Danson.

The Superior Court of Ontario has given lawyers defending Todd Bertuzzi, Marc Crawford and the former owners of the Vancouver Canucks seven days to produce a secret agreement they signed that essentially absolves each of them of blame and counter-suits in the multi-million dollar civil claim by former hockey player Steve Moore.

This seems somewhat suspect and the judge appeared to agree...

 

“In my view, the agreement has changed the landscape of the litigation,” Dash wrote in his ruling. Dash also seemed unhappy that the defendants in the case “refused or neglected” to inform Moore’s lawyer, Dansen, on the change in status.

It thinking about why this might have happened...is it possible that such an agreement (if viable) could limit Bertuzzi's and Crawford's personal exposure within the lawsuit/countersuits (or at least give them an idea that they won't then be countersued by Orca Bay - or vice versa) such that they could have an idea what they might have to contribute to any settlement to Steve Moore in terms of compensation. Any MGoLawyers want to weigh in and clarify the implications of this material?

http://slam.canoe.ca/Slam/Hockey/NHL/2012/02/16/19391606.html

Comments

clarkiefromcanada

February 17th, 2012 at 12:07 PM ^

Moore can choose to go or not to go in that instance. In the league there are players with many roles and a well understood norm is that you ask a guy if he wants to go and then the guy either accepts and fights or skates away. You then have the right to call him 'gutless' or a 'coward' both on the ice and in the media. You also have the right to engage their enforcer on your next shift. 

This norm of "old time hockey" is what allows the Phil Kessel's, Henrik Zetteberg's and Pat Kane's of the world to do what they do without fear of imminent death on the ice (see: Flyers, Philadelphia "Broad Street Bullies" era)

If a guy (particularly a non-fighter) refuses to go you call him several unprintable names then skate off confident in the notion that on your next shift you absolutely will get to fight somebody. "Old time hockey".

Also, fighting doesn't happen here in bantam or midget (well, not unless you want a serious OHA suspension/reprimand and your coaches to enjoy a few meetings). Once you get to juniors it is open season (but with the unstated norms as above).

Bertuzzi knew about this, he's from Sudbury fergodsakes.

 

TheDirtyD

February 17th, 2012 at 2:48 PM ^

 

Sure Moore didnt wanna go but he never said a word to him he never even looked at him instead he did the dumb thing and turned away.

I’ve taken off my helmet gloves and squared up with kids who wanted to fight in midgets and never got a suspension. Most refs will change the write up so we don’t get suspended. I wasn’t even allowed to fight by my coach but I enjoyed it. I got my face beat down more than my fair share but hey its part of the game if you don’t like it go play basketball where you get in trouble for almost touching someone. 

justingoblue

February 17th, 2012 at 2:52 PM ^

I would love to know where in the world you've dropped your helmet and gloves in midget hockey and not gotten a roughing major (fighting) plus the three games.

If, in fact, that did happen, those referees are very lucky there were no scouts at your games; they'd be out of USA Hockey very quickly.

Hair Raid Offense

February 17th, 2012 at 10:33 AM ^

I still despise Bertuzzi even to this day. He's one of the reasons I'm not as big of a Red Wings fan these days.

His suspension was the equivalent of a slap on the wrist, meanwhile Moore can never play again.

The Wonderful 135

February 17th, 2012 at 10:34 AM ^

This secret agreement, I can only assume, is to indemnify each of the defendants from each other. 

So when Moore got hurt, he sued Bertuzzi as the one who actually committed the act, but he also sued Crawford (the coach) and the owners of the cannucks (as Bertuzzi's employer).  This is much like going after UPS when their driver backs over your bike, for example.  The owner has responsibility for his workers, as does apparently a coach.

In these situations, the company (team/coach) almost always goes after the wrongdoer (Bertuzzi) to recover any money coughed up in the judgment.  However, this agreement appears to have limited whether they can all go after each other.  The effect is that certain parties are protected that shouldn't be, and defendants that should be fighting only for themselves (and against each other) are now fighting together.

This also means that each of the defendants' interests are now in line with each other, which can be good and bad.  Good because it will likely result in a quicker settlement, but bad because Moore won't be able to have a judgment pinned on any single entity.  The agreement may also include some sort of share-of-the-penalty clause, which dictates who pay what percentage of the final amount. 

In any case, the judge is going to want to know exactly what they agreed so he can determine how it will affect Moore's rights.

HighKnees

February 17th, 2012 at 1:10 PM ^

See my post below.  I can't imagine any way that this agreement could affect Moore's rights.  Presumably, Moore has a claim against:

1.  Bertuzzi, for clocking him [this is a "tort", not a dessert, but a fancy way of saying a wrong perpetrated against you by someone with whom you do not have a contractual relationship]

2.  Owners of the Canucks, because owners are responsible for the torts of their employees when committed within the scope of their employment  [i.e., if Bertuzzi hit Moore in the parking lot, he's not acting as a hockey player for the Canucks but just as a dude on the street, during the game he is perhaps acting as a hockey player for the Canucks]

3.  Crawford, for . . . beats me.  Crawford doesn't employ Bertuzzi so there's not the same kind of liability as in #2.  Maybe there's a theory that Crawford ordered the hit [in which case he's liable for battery] or encouraged the hit [negligence?]

Any how, to the extent any one of these folks is liable, Moore can collect the full amount of the damages he is owed.  If multiple are liable, then there is likely what we refer to as "joint and several liability", in which Moore can go after any one he wants for the full amount or part of the amount.  [So if the judgment is 3 dollars, he can get 3+0+0, 2+1+0, or 1+1+1].  Now in the joint and several liabiltiy situation, the defendants can later sort out amongst themselves who should have paid.  So, say Bertuzzi thinks Crawford is 100% at fault for ordering the hit, but Moore collected the judgment from Bertuzzi.  Bertuzzi can go after Crawford and try to collect what he paid.  I'm assuming this is what the agreement was about.  But this is speculation -- the article is quite vague and omits a lot of detail (perhaps legitimately - sounds like the agreement is still secret).

HighKnees

February 17th, 2012 at 1:01 PM ^

It's not clear to me that this is an indemnification agreement.  The article mentions that the parties to the agreement won't sue eachother, but doesn't say that one party agreed to cover a damages award against another.  Really, there's too much left out of the article to definitively say what the agreement is.

But regardless, the agreement shouldn't affect Moore.  Moore has various theories of liability against each of the three defendants.  If he wins, he collects, regardless of what the defendants agreed upon among themselves. 

I also don't understand this statement:

bad because Moore won't be able to have a judgment pinned on any single entity

Why is that so?  If Bertuzzi is liable for the full amount of Moore's damages, he has to pay it.  Maybe Crawford agreed to cover a portion of that money, but that's between Crawford and Bertuzzi, and has nothing to do with Moore.

The only relevance that I see here is that the defendants kept an agreement secret from the court and their opponent.  In the U.S., that's a no-no, but that's because we require disclosure of possibly relevant information and not because the information necessarily affects the substance of the litigation.   

jg2112

February 17th, 2012 at 10:55 AM ^

Todd Bertuzzi is a terrible human being for having done this. I agree with the other poster - I love the Red Wings but cannot cheer for Todd Bertuzzi. Anyone who jumps someone from behind like that is a 100% coward.

As for the legal agreement, it's a standard procedure in some injury lawsuits but it's normally disclosed to the court. That's the only issue.

Hardware Sushi

February 17th, 2012 at 11:03 AM ^

Terrible human? Jeesh.

How about we start off by identifying that this was a 'heat of the moment' action rather than a premeditated action and then readjust our scale for terrible human beings. 

I guess you've never had an untintended negative outcome when you reacted in the heat of the moment. 95% of hockey fans wouldn't even know Moore's name if he had gotten a concussion rather than breaking his neck.

jg2112

February 17th, 2012 at 11:24 AM ^

It wasn't "heat of the moment." Bertuzzi was retaliating for an incident that happened in a game three weeks before the injury, and his entire team was instigating fights with Moore all game long. There's no way a "heat of passion" argument would ever fly in the courtroom based on an incident that happened 3 weeks prior. No way.

If you think that kind of activity is cool, good for you. It's deplorable and it's only accepted activity in the juniors and in the NHL. Not college hockey, not high school hockey, not international hockey. Only the juniors and the NHL.

APBlue

February 17th, 2012 at 10:58 AM ^

No lawyer here, but this makes me wonder why the owners would agree to not file suit against Bertuzzi to make up for any damages they have to pay Moore.  

The only reason I can come up with is if Crawford did actually give Bertuzzi instructions to go after Steve Moore.  If he's acting on orders from his coach (management), wouldn't the owners then share liability?  

Like I said, I'm not a lawyer.  I'm just curious.  

yzerman19

February 17th, 2012 at 11:18 AM ^

you can all go around and around on this issue just like we did in law school - consent v. criminal act.  informed consent.  nobody can consent to a crimnial act.  etc etc etc.  there are cases that go both ways and the arguments on each side are compelling.  that is why we need lawyers.  yay.

 

TheGhostofYost

February 17th, 2012 at 11:30 AM ^

A nice move by Bertuzzi's lawyer.  The Canucks really didn't want to pay under Crawford's insurance policy, Crawford didn't want to pay out of pocket for damages that exceeded his insurance coverage of ten million, and Bertuzzi wanted to have some protection from the canucks that he otherwise would not have had due to the fact that his actions were criminal.  So in essence -

-Bertuzzi is at least partially covered by Canucks

-Crawford is out of the counter claim by Bertuzzi

-Canucks don't have to pay for Crawford

Everybody wins!  Except of course for Moore.  And the public. That three-way cage match would have been fun to watch.

Yeoman

February 17th, 2012 at 3:26 PM ^

that seems to be to Moore's advantage. Bertuzzi is now at least partially covered by the Canucks, a party with (I would guess) rather deeper pockets.

I'd be interested to know if the Canucks' insurer was party to this agreement. I would expect them to attempt to deny coverage for damages resulting from Bertuzzi's actions on the grounds that they were criminal; an agreement by the Canucks to cover wouldn't be binding on the insurer and I wouldn't expect the club to be willing to self-insure their liability here.

TheGhostofYost

February 17th, 2012 at 3:44 PM ^

I know they can't shed it.  What I'm saying is that if Bertuzzi gets hit hard and the Canucks only cover it partially, Moore obviously will be unable to collect.  This small advantage he might get from the Canucks covering is outweighed imo by losing what would have come out in the cross claims

Wohlverine

February 17th, 2012 at 1:03 PM ^

IMHO, Bertuzzi is not a bad person, nor is he a criminal. I spent 17 years playing hockey, and the last four seasons of my career were in junior leagues throughout the US and Canada(I rode the bench, I'm not trying to brag here). I DO NOT condone what Bert did by any means. It was ruthless and definitely warranted punishment...however, when you let anger get the best of you on the ice, you will likely do something stupid that you would not do if you were level-headed. In one of my games, the opposing team's star-player (Mike Santee) grabbed my stick and wouldn't let go. I asked him to fight while he was holding my stick parallel with his chest, and he would not drop his gloves or let go of my stick, so I cross-checked him in the neck, knocking him out of the game, and got jumped by their goalie and started a line brawl. It was a dirty, dirty play. Maybe nowhere near Bert's dumb move, but when you're angry, you stop using rationale and that is when stuff like this happens.