> Holle Bevins **Forbes** et al. v. **Alliance for Children** et al. n1\
>  \
> n1 Filis M. Casey, Kimberly Menard, Judith Freedman, Petru Vrincianu
> and Anna Maria Vrincianu.
>
> 97-04860-B
>
> SUPERIOR COURT OF MASSACHUSETTS, AT SUFFOLK
>
> 1998 Mass. Super. LEXIS 713
>
>  \
> December 16, 1998, Decided  \
> December 17, 1998, Filed

**DISPOSITION:**  \[\*1\]  Filis M. Casey\'s motion for summary judgment
ALLOWED.\
\
**JUDGES:** Margaret R. Hinkle Justice of the Superior Court.\
\
**OPINIONBY:** Margaret R. Hinkle\
\
**OPINION:** *MEMORANDUM OF DECISION AND ORDER ON DEFENDANT FILIS M.
CASEY\'S MOTION TO DISMISS*\
 \
This action arises from the international adoption of plaintiffs\' son,
Harris Forbes. Defendant Filis M. Casey (\"Casey\") has moved to dismiss
the complaint under Mass.R.Civ.P. 12(b)(6). Since both parties have
presented matters outside the pleadings, I treat this motion as one for
summary judgment. See Mass.R.Civ.P. 12(b). For the following reasons,
after hearing, Casey\'s motion for summary judgment is *ALLOWED*.\
 \
*Background*\
 \
Plaintiffs Holle Bevins Forbes (\"Holle\") and Allen Forbes (\"Allen\")
are husband and wife. Both plaintiffs are attorneys. Allen is employed
by Mintz, Levin, Ferris, Cohn, Glovsky & Popeo, P.C.; Holle is employed
by Morrison, Mahoney and Miller.\
 \
In 1973, Filis M. Casey founded Alliance for Children, Inc.
(\"Alliance\"), a non-profit corporation operating as an adoption
agency. Casey, an attorney, is currently Executive Director of Alliance
and a member of the Board.\
 \
In autumn 1995, plaintiffs decided they wanted to adopt \[\*2\]  a
child. Holle contacted Alliance, and the plaintiffs soon began meeting
with Judith Freedman (\"Freedman\"), a social worker assigned by
Alliance to conduct a home study. During the plaintiffs\' meetings with
Freedman, they extensively discussed their adoption options and decided
to proceed with an international adoption. During their discussions with
Freedman, plaintiffs communicated their desire to adopt a healthy child
and stated that they were unable to adopt a \"special needs\" child. On
November 27, 1995, the plaintiffs signed a form entitled \"Risks
Involved in International Adoption\" (\"Risks Form\"). On that same
date, the plaintiffs signed a form entitled \"Medical Release Form.\"
Casey authored each of these forms. n2 During plaintiffs\' dealings with
Alliance, Allen had no conversations with Casey concerning Harris.
Holle, to the best of her knowledge, has never spoken with Casey.\
\
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -\
\
\
n2 Casey admits in her deposition testimony that she authored the Risks
Form. For purposes of this motion, defendant assumes that she authored
the Medical Release form as well.\
 \
\
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- \[\*3\] \
 \
Alliance assigned plaintiffs a child, Stefan Podak, later named Harris
Wayne Forbes (\"Harris\"), born on November 28, 1994. Harris had lived
in a Romanian institution all his life. Dr. Aurelia Stela-Babus, the
director of the orphanage in which Harris lived, completed a Fisa de
Adoptie (\"Fisa\") for Harris on December 29, 1995. At that time,
according to Romanian law, the Fisa was the only medical information
form required by the Romanian Adoption Committee to be filled out and
made available to adoption agencies. The medical information contained
in the Fisa was provided to Alliance in accordance with Romanian law.
The Fisa was the only medical information provided to Alliance before
Harris\' adoption, and consequently, the only medical information
provided the plaintiffs before Harris\' adoption.\
 \
Harris\' adoption decree was issued by a Romanian Court on February 16,
1996. This decree, in essence, terminated Harris\' biological parents\'
rights, freeing him for adoption, pending final court approval a short
time later. On that same date, Holle signed a document entitled
\"Placement Agreement.\" Casey authored this document. n3\
 \
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -\
\
\
n3 Like the Medical Release Form, for purposes of this motion, defendant
assumes she authored the Placement Agreement.\
 \
\
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- \[\*4\] \
 \
The plaintiffs first met Harris on March 4, 1996 in Romania when Harris
was 15 months old. At this meeting Harris was unable to sit up, could
not hold his head up and was flaccid. He made no sound, did not cry and
made no eye contact. The back of his head was flat and bald. The
plaintiffs returned to Massachusetts with Harris and finalized the
adoption by order of the Suffolk County Probate Court on January 13,
1997.\
 \
Harris will be four years old in November. He has received intensive
therapy, including physical therapy, occupational therapy and speech
therapy since July 1996. He recently learned to walk. He has not yet
spoken, nor can he feed or dress himself. He has been diagnosed with
Pervasive Development Disorder. n4 He has also been diagnosed with
giardia, tuberculosis, lazy eye and a hearing disorder.\
\
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -\
\
\
n4 Plaintiffs do not define this disorder or any of the subsequently
mentioned medical conditions.\
 \
\
 \
\
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
-Plaintiffs\' theories of liability are intentional misrepresentation,
negligent misrepresentation \[\*5\]  and negligence against Casey n5 and
the other individual defendants. Plaintiffs also allege intentional
misrepresentation, negligent misrepresentation, breach of contract and
violations of G.L.c. 93A against Alliance. More specifically, plaintiffs
allege that Alliance and the individual defendants intentionally and
negligently misrepresented the neurological, developmental and/or
medical condition of Harris, as well as the risks of adopting an
institutionalized Romanian child. They also allege that Casey was
negligent in (1) providing written materials for prospective adoptive
parents; (2) obtaining and providing medical information to them; and
(3) in failing to provide appropriate supervision, control, education
and training at Alliance regarding development of adoptive children and
disclosure of information to prospective adoptive parents.\
\
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -\
\
\
n5 In the 13th Cause of Action, Holle alleges negligent
misrepresentation against Casey; in the 18th Cause of Action, Allen
makes the same claim. The 23rd and 28th Causes of Action plead
intentional misrepresentation, and the 33rd and 34th Causes of Action
plead negligence.\
 \
\
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- \[\*6\] \
 \
*Discussion*\
 \
Summary judgment is warranted where there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter
of law. *Community Nat\'l Bank v. Dawes*, 369 Mass. 550, 553, 340 N.E.2d
877 (1976); *Cassesso v. Comm\'r of Correction*, 390 Mass. 419, 422, 456
N.E.2d 1123 (1983); Mass.R.Civ.P. 56(c). The moving party bears the
burden of affirmatively demonstrating the absence of a triable issue and
entitlement to judgment as a matter of law. *Pederson v. Time, Inc.*,
404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). Establishing the absence of
a triable issue requires the nonmoving party to respond by alleging
specific facts demonstrating the existence of a genuine issue of
material fact. *Pederson*, 404 Mass. at 17. The nonmoving party cannot
defeat the motion for summary judgment by resting on its \"pleadings,
and mere assertions of disputed facts . . .\" *La Londe v. Eissner*, 405
Mass. 207, 209, 539 N.E.2d 538 (1989). The moving party is entitled to
summary judgment if it demonstrates . . . that the party opposing the
motion has no reasonable expectation of proving an essential element of
that \[\*7\]  party\'s case. *Kourouvacilis v. General Motors Corp.*,
410 Mass. 706, 716, 575 N.E.2d 734 (1991).\
 \
*I. Misrepresentation Claims*\
 \
Casey argues that plaintiffs\' misrepresentations claims are not pled
with particularity and that plaintiffs have no reasonable expectation of
proving essential elements of these claims. Plaintiffs contend that
their claims have been sufficiently pled and that they have set forth
all essential elements of valid misrepresentation claims.\
 \
*1. Failure to Plead with Particularity*\
 \
I reject the claim that the fraud count is insufficiently pled. Although
the first amended complaint is no model of pleading, in light of the
notice pleading requirement, I rule that it sets forth a
misrepresentation claim against Casey. See paragraph 26.\
 \
*2. Essential Elements of Plaintiffs\' Misrepresentation Claims*\
 \
It is settled law that traditional tort principles apply to the
relationship between adoption agencies and potential adoptive parents
during the adoption process. See *Mohr v. Commonwealth*, 421 Mass. 147,
163, 653 N.E.2d 1104 (1995). To recover for intentional
misrepresentation, plaintiffs must show that \[\*8\]  the defendant made
a false representation of material fact with knowledge of its falsity to
induce the plaintiff to act thereon, and that the plaintiffs relied on
such representation as true and acted upon it to their detriment.
*Barrett Assocs., Inc. v. Aronson*, 346 Mass. 150, 152, 190 N.E.2d 867
(1963). In order to recover for negligent misrepresentation, plaintiff
must show that the defendant supplied false information for the guidance
for others, resulting in pecuniary loss to those others, caused by their
justifiable reliance upon the information, if defendant fails to
exercise reasonable care or competence in obtaining or communicating the
information. Restatement (Second) Torts § 552(1) (1977); *Fox v. F&J
Gattozzi Corp.*, 41 Mass.App.Ct. 581, 587, 672 N.E.2d 547 (1996).\
 \
Defendant argues that since Casey had no communication with either
plaintiff, there is no actual representation upon which any
misrepresentation claim may be based. Plaintiffs, on the other hand,
contend that since Casey authored the Risks Form, Medical Release Form
and Placement Agreement, any statements contained therein are
representations which provide sufficient basis for their claims.
 \[\*9\]  Plaintiffs are correct on this issue. While Casey did not know
plaintiffs when she authored the relevant forms, if the forms contain
misrepresentations, lack of direct communication between plaintiffs and
Casey does not preclude plaintiffs\' claims.\
 \
Casey next argues that the statements upon which plaintiffs rely are not
statements of fact. Whether a statement is a representation of fact
depends upon the nature of the representation, the meaning of its
language as applied to the subject-matter and as interpreted by the
surrounding circumstances. See *Stubbs v. Johnson*, 127 Mass. 219, 220
(1879). A representation which is merely a matter of opinion, estimate
or judgment does not support a claim of misrepresentation. *Powell v.
Rasmussen*, 355 Mass. 117, 118, 243 N.E.2d 167 (1969). False statements
of belief are also insufficient to support a claim of misrepresentation.
*Harris v. Delco Prods., Inc.*, 305 Mass. 362, 365, 25 N.E.2d 740
(1940). Likewise, statements of conditions to exist in the future or
statements that are promissory in nature are insufficient. *Id.*\
 \
Here, plaintiffs\' misrepresentation claims against Casey are
based \[\*10\]  on five written statements authored by Casey for
Alliance\'s use in its dealings with prospective adoptive parents. The
first two statements appear in the so-called Risks Form, signed by the
plaintiffs on November 27, 1995, at the beginning of their dealings with
Alliance and before the plaintiffs were assigned Harris. The third
statement is in the Medical Release Form, signed by the plaintiffs on
that same date. The fourth and fifth statements are in the Placement
Agreement signed by Holle on February 16, 1996, after plaintiffs were
assigned Harris. I will address each statement in turn.\
 \
The Risks Form states in relevant part: \"It is our intention to inform
our families as completely as possible of all aspects of the adoption
process.\" Page 1, para. 1. This, the first sentence of the Risks Form,
precedes the statement \"we are not trying to discourage you from
international adoption, however, we want to inform you of the risks. We
want you to understand the realities, assess your ability to handle
them, and encourage you to ask your social worker for assistance.\" The
form then relates in detail the numerous uncertainties, frustrations,
difficulties, and Alliance\'s lack of control \[\*11\]  over many
aspects of the international adoption process.\
 \
The language \"inform . . . as completely as possible\" necessarily
implies that there are aspects of international adoption about which it
is not possible to inform plaintiffs at the outset of the adoption
process. Consequently, I find and rule that the nature of this
statement, the language used and its context demonstrate that the
statement is not a representation of fact, but rather an introductory
policy statement. n6 Therefore, this statement is insufficient to
support a claim of misrepresentation.\
\
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -\
\
\
n6 Plaintiffs do not allege, nor could they, that this statement should
be interpreted as a statement of present intention of future conduct and
therefore, a statement of fact. See *Feldman v. Witmark*, 254 Mass. 480,
481, 150 N.E. 329 (1926); *Barrett*, 346 Mass. at 152. First, the
statement does not guarantee any specific future act by Alliance.
Second, plaintiffs do not allege an essential element of this type of
representation, nor could they based on the undisputed facts, that
Casey, from the outset, had no intention of \"informing families as
completely as possible.\" See *McEvoy Travel Bureau, Inc. v. Norton
Co.*, 408 Mass. 704, 708-09, 563 N.E.2d 188 (1990).\
 \
\
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- \[\*12\] \
 \
Plaintiffs also rely for their misrepresentation claim on another
provision in the Risks Form: \"Although you can expect a reasonably
healthy child, he/she may have temporary, correctable health problems,
such as: . . . 3. Possible developmental delays due to lack of one on
one stimulation.\" Risks Form, p. 2, para. 2. In support of their claim
that this statement is a statement of fact, they point out that one of
Alliance\'s employees had adopted a Romanian child, who was still
experiencing developmental delays in 1995, approximately four years
after his adoption. Plaintiffs\' contention fails.\
 \
Plaintiffs try to re-write this statement into a guarantee by Casey
about the nature of developmental delays. In the context of the inherent
risks in the international adoption process and all the cautionary
language in the Risks Form, this interpretation fails. The Risks Form
was presented to plaintiffs near the outset of the adoption process. The
form includes an extensive list of difficulties and frustrations in the
process and specifically states that the difficulties and frustrations
are not limited to those enumerated. At the end of the form, plaintiffs
acknowledged that they had \[\*13\]  read the form and that they felt
they could handle the listed possible risks \"or other eventualities
which may occur.\" (Risks Form, p. 3, para. 1.) They also acknowledged
that they were \"fully aware that there \[might\] be additional risks
besides the risks herein described\" (*id.* at para. 2), and they
acknowledged that Alliance and its representatives could not \"guarantee
the future medical condition of the child\" (*id.* at para. 4).\
 \
Plaintiffs also rely on the following provision in the Medical Release
Form: \"I/we the undersigned hereby acknowledge that \[Alliance\] will
make every effort to offer for adoptive placement a child who is
healthy, medically, psysiologically \[sic\], emotionally, and
psychologically.\" Paragraph 1. This, the first sentence of the Medical
Release Form, precedes the statement: \"However, not withstanding
\[sic\] the best efforts of this agency and its agents, a child may have
conditions which were undiagnosed or undetected.\" In context, the
statement encompasses the inherent uncertainties of the international
adoption process and necessarily implies that aspects of a child\'s
health may be unknown, even to Alliance. In signing the form,
plaintiffs \[\*14\]  acknowledged their awareness of the inherent
uncertainties regarding a prospective adoptee\'s health (\"medically,
psysiologically \[sic\], emotionally and psychologically\"). n7
Consequently, I find and rule that this statement is insufficient to
support a claim of misrepresentation because it is not a statement of
fact.\
\
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -\
\
\
n7 This statement, like the first statement in the Risks Form, cannot be
interpreted as a statement of present intention to do a future act. The
language \"every effort\" does not specify future conduct.\
 \
\
 \
\
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
-Plaintiffs also base their claim upon a representation in the Placement
Agreement: \"The undersigned adoptive Parents agree: . . . 2. that the
Alliance has provided them with all information available to it
concerning such child sufficient to enable them to make a decision of
whether to accept the child for purposes of adoption.\" Page 1, para. 4.
While the statement was authored by Casey, this statement in context is
merely an acknowledgement by plaintiffs that they had the information
they believed \[\*15\]  they needed to decide whether to accept Harris.
Because Casey had no contact with the plaintiffs, she had no actual
knowledge of what information the plaintiffs had. Moreover, the decision
as to whether the information was sufficient rested with plaintiffs, not
Casey. Consequently, I find and rule that this statement does not
support plaintiffs\' misrepresentation claims.\
 \
Finally, plaintiffs base their misrepresentation claim upon another
statement in the Placement Agreement: \"The Alliance agrees: . . . 3.
that it will provide the undersigned Adoptive Parents with such
additional information relevant to the child\'s history and to the
child\'s future growth and development to the extent it becomes
available to the Alliance prior to legalization.\" Page 2, para. 3. This
statement can only be interpreted as promissory in nature and is thus
insufficient to support a claim of misrepresentation. See *Harris*, 305
Mass. at 365.\
 \
Thus, Casey is entitled to summary judgment on plaintiffs\' intentional
and negligent misrepresentation claims.\
 \
*II. Negligence Claims*\
 \
Defendant argues that plaintiffs\' negligence claims against Casey are
barred because plaintiffs,  \[\*16\]  both experienced attorneys, agreed
in writing to hold Alliance and its employees harmless. Plaintiffs claim
that the hold harmless provisions in the releases cannot be enforced by
the court because Casey did not intend that the releases would relieve
the defendants of liability for negligence, because enforcement of the
provisions would run afoul of public policy, and because Alliance
allegedly breached its contractual obligations to the plaintiffs. n8\
 \
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -\
\
\
n8 Plaintiffs, in their response to defendant\'s reply brief, also
assert that the releases were procured by misrepresentation and are
therefore unenforceable. While fraud is grounds to invalidate a release,
*Cormier v. Central Massachusetts Chapter of the National Safety
Council*, 416 Mass. 286, 288, 620 N.E.2d 784 (1993), plaintiffs fail to
set forth specific facts to support such a claim. See *Lee v. Allied
Sports Assocs.*, 349 Mass. 544, 551, 209 N.E.2d 329 (1965).\
 \
\
 \
\
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -Casey
bears the burden of proving that a release legally binds plaintiffs.
 \[\*17\]  *Belli v. Forsyth*, 301 Mass. 203, 206, 16 N.E.2d 656 (1938)
Thereafter, plaintiff has the burden of proving the existence of facts
showing that the release should not be enforced. *Barletta v. New York,
New Haven & Hartford R.R.*, 297 Mass. 275, 278, 8 N.E.2d 800 (1937). It
is settled law that a defendant is entitled to summary judgment where
the plaintiff\'s claims are barred by a valid release. See *Cormier*,
416 Mass. at 286-87. It is also well settled that an unambiguous
agreement must be enforced according to its terms, *Schwanbeck v.
Federal-Mogul Corp.*, 412 Mass. 703, 706, 592 N.E.2d 1289 (1992), and
that construction of such an agreement presents a question of law.
*Hiller v. Submarine Signal Co.*, 325 Mass. 546, 549-50, 91 N.E.2d 667
(1950). Absent fraud or duress the release at issue here is valid,
*Lee*, 349 Mass. at 550-51, although any doubts about the interpretation
of the release must be resolved in the plaintiff\'s favor. *Cormier*,
416 Mass. at 288.\
 \
The Risks Form states in relevant part:\
 \
In consideration of \[Alliance\] undertaking to assist us in
seeking \[\*18\]  to adopt a child from another country, we agree to
indemnify and hold harmless \[Alliance\], its Directors, Officers,
representatives, and employees, from any problems or liability. We
understand that \[Alliance\] nor any of its representatives can
guarantee the future medical condition of this child. Therefore, the
Adoptive Parents agree not to hold \[Alliance\] or any of its
representatives responsible for any medical conditions which might
develop or be discovered in the future.\
 \
We have read and understand, and acknowledge the risks, nevertheless, it
is our desire to go forward with the adoption process.\
 \
This was signed by plaintiffs on November 27, 1995, which was also when
they signed the Medical Release Form, which states in relevant part:\
 \
We do hereby release, indemnify and hold harmless \[Alliance\], its
directors, officers, representatives, and employees should a child be
diagnosed as being HIV, having or suffered from AIDS or AIDS related
complex, from Hepatitis B, or any presently undiagnosed and untested
medical condition or illness regardless of its severity.\
 \
We agree to hold \[Alliance\] harmless for any illness the child may
have or acquire and the \[\*19\]  consequences of such illness or for
the child\'s death resulting from any such illness. Furthermore, we
understand that neither \[Alliance\] nor any representative can
guarantee the future medical condition of this child. Therefore, we
agree not to hold \[Alliance\] or any of its representatives responsible
for any medical conditions presently undiagnosed or untested which might
develop or be discovered in the future.\
 \
On February 16, 1996, Holle signed the Placement Agreement which states
in relevant part:\
 \
Upon completion of the above obligations of \[Alliance\], we agree to
indemnify and hold harmless \[Alliance\] and release its directors,
officers, representatives and employees from all liability and damages
arising out of, or associated with, the placement of the child in the
home of the Adoptive Parents. Furthermore, we understand that neither
\[Alliance\] nor any of its representatives can guarantee the present or
future medical condition of the child. Therefore, we agree not to hold
\[Alliance\] or any of its representatives responsible for any medical
conditions which might develop, or be discovered in the future.\
 \
Thus, early in the adoption process, in clear,  \[\*20\]  unambiguous
language, plaintiffs agreed that they read, understood and acknowledged
the risks of international adoption and agreed to indemnify and hold
harmless Casey as Director of Alliance. In the Risks Form plaintiffs
agreed to hold Casey harmless from \"*any* problems or liability\" and
\"*any* medical conditions which might develop or be discovered in the
future.\" In the Medical Release Form plaintiffs agreed to hold Casey
harmless should a child suffer from \"*any* illness the child may have
or acquire\" and \"*any* presently undiagnosed and untested medical
condition or illness regardless of its severity.\" In the Placement
Agreement, when plaintiffs were assigned Harris, plaintiffs agreed not
to hold Casey responsible for \"*any* medical conditions which might
develop or be discovered in the future.\" Plaintiffs also agreed to
release Casey from \"*all* liability *arising out of* or *associated
with*\" the placement of Harris. (Emphasis added.)\
 \
This release language was neither in small print nor concealed within a
lengthy form. As stated previously, plaintiffs are practicing attorneys
who therefore know better than most the significance of the releases
they executed.  \[\*21\]  Each release contains comprehensive language
regarding claims based upon Harris\' medical conditions and/or
illnesses. These releases are comprehensive in scope, covering present
and future conditions and known and undiscovered conditions. Therefore,
I find and rule that all negligence claims based on Harris\' medical
conditions or illnesses are barred by the releases.\
 \
In addition, both the Risks Form and the Placement Agreement contain
broad unambiguous, release provisions relieving Casey from liability for
negligence claims predicated on anything other than Harris\' medical
condition. Plaintiffs agreed in the Risks Form to indemnify and hold
harmless Casey from \"*any* problems or liability.\" In the Placement
Agreement plaintiffs agreed to indemnify, release and hold harmless
Casey from \"*all* liability and damages *arising out of or associated
with*, the placement of\" Harris. Therefore, insofar as plaintiffs\'
negligence claims are predicated on Casey\'s provision of adoption
services, supervision, training, control and education, these claims are
also barred by the release provisions.\
 \
Plaintiffs argue that the release provisions are unenforceable because
Casey stated \[\*22\]  in her deposition testimony that she did not
intend the release contained in the Risks Form to relieve Alliance from
liability for negligence. n9 Plaintiffs principally rely on the
following testimony in support of their position.\
\
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -\
\
\
n9 Casey\'s intent as to the Medical Release Form and the Placement
Agreement are not part of the record.\
 \
\
 \
\
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -Q: Did
you in writing this language intend that \[Alliance\] would not be
liable even if its representatives were negligent in performing adoption
services?\
 \
Ms. Wilson: Objection. You may answer.\
 \
A: That was not my intent.\
 \
Q: What did you intend in writing this document to express in the event
that one or more of the representatives of \[Alliance\] were negligent
in performing adoption services?\
 \
Ms. Wilson: Objection. You may answer.\
 \
A: That was not addressed in this document.\
 \
Q: In writing this document did you intend that \[Alliance\] would be
responsible for legally responsible for the negligence of any of its
employees or other representatives?  \[\*23\] \
 \
Ms. Wilson: Objection. You may answer.\
 \
A: In writing this document, it was my intention to inform families of
what risks were possible and to have them understand that we could not
be responsible for medical conditions in the future. That was my
intent.\
 \
Q: Did you think about what would occur if \[Alliance\] or its
representatives were negligent in failing, for example, to disclose
certain medical information or risk information?\
 \
Ms. Wilson: Objection. You may answer.\
 \
A: I knew that \[the\] Alliance disclosed all information that we had in
every case, and so that was not the intention in this document to
address that.\
 \
Q: Did you think that \[the\] Alliance would be legally responsible in
the event that it failed negligently failed to disclose that type of
information or risks about which \[the\] Alliance knew?\
 \
Ms. Wilson: Objection. You may answer.\
 \
A: I believe that if we did not disclose information that we had that we
would have responsibility for that, yes.\
 \
(Casey Dep., pp. 66-68.)\
 \
Defendant is correct that these deposition statements constitute
inadmissible parol evidence where, as here, a release is clear and
unambiguous. A release \[\*24\]  unequivocal in its terms cannot be
explained by parol evidence. *Tupper v. Hancock*, 319 Mass. 105, 108, 64
N.E.2d 441 (1946); *White Construction Co., Inc. v. Commonwealth*, 11
Mass.App.Ct. 640, 644, 418 N.E.2d 357 (1981). However, plaintiffs
contend that mutual mistake, lack of integration and ambiguity render
this parol evidence admissible in the present case, citing, among other
cases, *Polaroid Corp. v. Travelers Indem. Co.*, 414 Mass. 747, 756, 610
N.E.2d 912 (1993) (parol evidence rule does not bar extrinsic evidence
of intent where mutual mistake alleged); *Regina Grape Products Co. v.
Supreme Wine Co.*, 357 Mass. 631, 634, 260 N.E.2d 219 (1970) (where only
partial integration, parol evidence admissible); and *Coleman Bros.
Corp. v. Commonwealth*, 307 Mass. 205, 209, 29 N.E.2d 832 (1940) (parol
evidence admissible where terms of agreement ambiguous).\
 \
Plaintiffs claim mutual mistake on the ground that they assumed that the
releases at issue here would not absolve Alliance of negligence.
Plaintiffs also argue that the written documents are not integrated
because the Risks Form refers to oral discussions,  \[\*25\]  and claim
that the releases are ambiguous because they do not contain the word
\"negligence.\" Even assuming these contentions are meritorious, this
would not alter the result reached here. Plaintiffs\' arguments ignore
that they executed not only the Risks Form, but also two other documents
which contain hold harmless provisions.\
 \
Plaintiffs also contend that enforcing the release clauses violates
public policy. Plaintiffs rely on regulations promulgated by the Office
for Children, 102 C.M.R. § 5.00, *et seq., Mohr v. Commonwealth*, 421
Mass. 147, 653 N.E.2d 1104 (1995), and G.L.c. 119A, § 1. Defendant
contends that plaintiffs are seeking to legislate by judicial decree,
that enforcing the releases violates no established public policy, and
that public policy is well-served by allowing sophisticated individuals
like plaintiffs and adoption agencies like Alliance to allocate the
inherent risks of international adoption in order to facilitate such
adoptions.\
 \
\"Courts do not go out of their way to discover some illegal element in
a contract or to impose hardship upon the parties beyond that which is
necessary \[\*26\]  to uphold the policy of the law.\" *Beacon Hill
Civic Assn. v. Ristorante Toscano, Inc.*, 422 Mass. 318, 320-21, 662
N.E.2d 1015 (1996), quoting *Nussenbaum v. Chambers & Chambers, Inc.*,
322 Mass. 419, 422, 77 N.E.2d 780 (1948). \" \'Public policy\' refers to
a court\'s conviction, grounded in legislation and precedent, that
denying enforcement of a contractual term is necessary to protect some
aspect of public welfare.\" *Beacon Hill Civic Association*, 422 Mass.
at 321. It is well-settled that the allocation of risk by agreement is
not contrary to public policy. n10 *Minassian v. Ogden Suffolk Downs,
Inc.*, 400 Mass. 490, 493, 509 N.E.2d 1190 (1987).\
\
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -\
\
\
n10 Exculpatory contract provisions have been upheld in the context of
wrongful adoption suits resulting from international adoptions in two
cases. See *Regensburger v. China Adoption Consultants, Ltd.*, 138 F.3d
1201 (7th Cir. 1998); *Ferenc v. World Child, Inc.*, 977 F. Supp. 56
(D.D.C. 1997), aff\'d., 335 U.S. App. D.C. 318, 172 F.3d 919, (D.C.Cir.
Sept. 10, 1998).\
 \
\
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- \[\*27\] \
 \
Plaintiffs attempt to draw support for their public policy argument by
directing the court\'s attention to certain regulations promulgated by
the Office for Children. Generally, 102 C.M.R. § 5.04(8) n11 prohibits
an agency licensed by the Office for Children from knowingly and
willfully making false statements to prospective adoptive parents. 102
C.M.R. § 5.10(9) n12 requires disclosure of certain information to
prospective adoptive parents to the extent available. There is no
evidence before me that Casey breached either of the regulations.
Plaintiffs argue that enforcing the release clauses here gives
plaintiffs no remedy for a violation of these obligations. n13 I
disagree. These regulations fail to directly support plaintiffs\'
conclusion that public policy precludes allocation of risk by agreement
between an adoption agency and prospective adoptive parents in the
international adoption context.\
\
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -\
\
\
n11 In 1995-1996, this provision appeared as 102 C.M.R. § 5.07(11).\
\
\
n12 In 1995-1996, this provision appeared as 102 C.M.R. §
5.06(10). \[\*28\] \
 \
\
\
n13 Defendant does not argue here that the releases bar plaintiffs\'
misrepresentation claims.\
 \
\
 \
\
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
-Plaintiffs rely on *Mohr v. Commonwealth*, 421 Mass. 147, 653 N.E.2d
1104 (1995), for additional support for their public policy argument. In
*Mohr*, the Supreme Judicial Court ruled that a cause of action could be
maintained against an adoption agency based upon negligent material
misrepresentations made before adoption concerning the adopted child\'s
history. *Id.* at 159. Plaintiffs argue that *Mohr* sets forth a common
law policy that lack of remedy against an adoption agency will not be
sanctioned. Plaintiffs read *Mohr* too broadly. *Mohr* does not address
the well-settled principle that parties may allocate risk and liability
by contract, where plaintiffs, if without a remedy, are in that position
because of their own knowing and voluntary conduct.\
 \
Plaintiffs\' reliance on G.L.c. 119A, § 1 is also misplaced. Chapter
119A relates to child support enforcement. Section 1 states in relevant
part: \"It is the public policy of the \[\*29\]  commonwealth that
dependent children shall be maintained, as completely as possible, from
the resources of their parents, thereby relieving or avoiding, at least
in part, the burden borne by the citizens of the commonwealth.\" Neither
the statutory provision nor the case law generated by the statutory
provision addresses allocation of risk by agreement in the present
context.\
 \
Finally, plaintiffs argue that the releases are ineffective because,
they claim, Alliance materially breached the agreements. In support of
their contention, plaintiffs reference portions of the Risks Form,
Medical Release Form and the Placement Agreement. The Risks Form and
Medical Release Form, however, provide information to the prospective
adoptive parents and release Alliance from liability. It is the
Placement Agreement which imposes contractual obligations upon Alliance.
From the Placement Agreement, plaintiffs assert that Alliance failed to
\"provide the undersigned Adoptive Parents with such additional
information relevant to the child\'s history and to the child\'s future
growth and development to the extent it becomes available to the
Alliance prior to legalization.\" Placement Agreement, p. 2, para.
 \[\*30\]  3. Based on the undisputed facts, plaintiffs have not
identified any information available to Alliance between the time the
Placement Agreement was signed on February 16, 1996 and the legalization
of Harris\' adoption on January 13, 1997 that Casey failed to disclose
in breach of the contractual provision.\
 \
*ORDER*\
 \
For the foregoing reasons, defendant Filis M. Casey\'s motion for
summary judgment is *ALLOWED*.\
 \
Margaret R. Hinkle\
 \
Justice of the Superior Court\
 \
DATED: December 16, 1998