46 N.E.3d 102
Mass. App. Ct.2016Background
- In 2008–09 Massachusetts and federal agencies responded to an Asian longhorned beetle (ALH) infestation by marking and removing “host” hardwood trees: red paint for trees showing infestation, blue for at-risk host trees. DCR developed informal protocols and required written property-owner permission to cut marked trees, though it reserved the right to seek court orders when owners refused.
- DCR contracted with Mayer Tree Service, which subcontracted to Marquis; contract specifications prohibited entering private property without written permission and required protecting trees designated to remain.
- On Feb. 10–11, 2009, a USDA field inspector (Franciosi) mistakenly believed owner George Evans had given written permission and directed Marquis to cut 21 Norway maples on Evans’s property; Evans had not signed any permission form and later received notice and an apology from APHIS acknowledging the mistake.
- Evans sued Mayer, Marquis, and their insurer under G. L. c. 242, § 7 (trespass to trees/treble damages), and other claims; defendants moved for summary judgment, which the Superior Court granted, concluding Marquis had license because it acted under governmental authority.
- The Appeals Court vacated the summary judgment, holding material factual disputes remain about whether DCR’s permission protocol limited its statutory authority (and thus whether the agency’s field instruction conferred actual legal “license”), and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Marquis had "license" under G. L. c. 242, § 7 to cut Evans's trees | Evans: trees were cut without written permission required by DCR protocols, so no license; cutting was a mistake | Marquis: acted under direction of government official implementing a legislatively authorized eradication program, so had license or at least reasonable belief of authority | Vacated summary judgment — factual dispute whether DCR's consent protocol limited agency authority and whether field instructions were legally valid; cannot decide on current record |
| Whether mistake by government actor can confer actual legal license to a private contractor | Evans: a mistaken instruction does not create legal authorization; agency may be bound by its written protocols | Defendants: reliance on government directions gives at least good reason to believe authority (reduces damages to single-damage) | Court: mistaken instructions may give good reason to believe authority (affecting damages) but cannot supply actual legal license if instructions were invalid; issue unresolved on summary judgment |
| Whether Mayer (prime contractor) is derivatively liable for Marquis's acts | Evans: Mayer retained control and is liable as principal for subcontractor torts | Mayer: it did not direct the specific cutting and argues it should not be derivatively liable as a matter of law | Court: declined to decide Mayer's derivative-liability argument on current record; further proceedings needed |
| Whether insurer Farm Family faces c.93A / c.176D liability for failing to settle | Evans: insurer failed to make reasonable settlement when liability was clear | Farm Family: liability was not reasonably clear given disputed legal issues | Court: insurer liability claim is premature because insured liability was not reasonably clear at time pleaded |
Key Cases Cited
- Moskow v. Smith, 318 Mass. 76 (recognizing statute applies absent license even when cutter reasonably believed authority)
- Miller v. Schoene, 276 U.S. 272 (State may destroy private trees to abate public pestilence)
- Mugler v. Kansas, 123 U.S. 623 (government may destroy private property to abate nuisance subject to constitutional limits)
- Glavin v. Eckman, 71 Mass. App. Ct. 313 (treble damages and application of G. L. c. 242, § 7 beyond mere appropriation)
- Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671 (insurer-settlement-duty framework; when liability is "reasonably clear")