42 Mass. App. Ct. 628 | Mass. App. Ct. | 1997
On July 24, 1989, the plaintiff was injured in an automobile accident he claims was caused by the negligence of an employee of the defendant city. The presentment letter required by G. L. c. 258, § 4, was timely sent on December 10, 1990, and a complaint was filed in the Central District Court of Worcester. The complaint was dismissed on October 13, 1992, because, as provided in G. L. c. 258, § 3, the Superior Court has exclusive jurisdiction of tort actions brought against a public employer. Less than three months after that dismissal but now more than three years after the cause of action had accrued, the plaintiff brought his action in the Superior Court. The defendants successfully moved for summary judgment on the basis that the complaint was
As provided in G. L. c. 258, § 4, as inserted by St. 1978, c. 512, § 15, “[n]o civil action shall be brought more than three years after the date upon which such cause of action accrued.” The general tolling statute, G. L. c. 260, § 32, as amended by St. 1973, c. 1114, § 340, provides, in pertinent part: “If an action duly commenced within the time limited in this chapter is dismissed ... for any matter of form . . . the plaintiff or any person claiming under him may commence a new action for the same cause within one year after the dismissal or other determination of the original action . . . .” The dismissal in the instant case was for a “matter of form,” see Loomer v. Dionne, 338 Mass. 348, 351-352 (1959), and the defendants commendably make no argument to the contrary. Instead, they argue that, by its own terms, § 32 applies only to actions commenced under c. 260, and, because this action was brought under c. 258, the tolling provision is inapplicable.
There is nothing in the language of § 32 that restricts its application to c. 260. Rather, § 32 speaks to “an action duly commenced within the time limited in this chapter” (emphasis supplied), which, as set out in § 2A of c. 260, is three years.
Nor is there anything in c. 258, § 4, that precludes the application of c. 260, § 32, to the present action. In Hernandez v. Boston, 394 Mass. 45 (1985), the court held that the general tolling provision for minors and incapacitated persons set out in c. 260, § 7, was applicable to tort claims made under c. 258. The court reasoned that had the Legislature intended the limitation period set out in c. 258 to be applied without regard to c. 260, § 7, it would have expressly said so, as it did with medical malpractice actions. See G. L. c. 231, § 60D. We think this reasoning in respect to § 7 is equally applicable to § 32. See O’Brien v. Massachusetts Bay Transp. Authy., 405 Mass. 439, 441-442 (1989); Jomides v. Massachusetts Bay Transp. Authy., 21 Mass. App. Ct. 592 (1986).
Further, there is nothing in G. L. c. 260, § 19, that sup
We conclude that, where the Legislature has not expressly provided that the limitations period in c. 258, § 4, was to be applied without regard to the tolling provision set out in c. 260, § 32, and where the complaint was filed within one year of the District Court dismissal, it was error to grant the defendants’ motion for summary judgment. The judgment is reversed, and the matter remanded to the Superior Court for further proceedings.
So ordered.
In granting the defendants’ motion for summary judgment, the Superior Court judge relied upon Ciampa v. Beverly Airport Commit., 38 Mass. App. Ct. 974, 975 (1995), where we stated, relying on Weaver v. Commonwealth,