65 Mass. App. Ct. 104 | Mass. App. Ct. | 2005
At issue in this appeal is the frequently litigated location of the boundary between a sufficient and an insufficient presentment of a claim under the Massachusetts Tort Claims Act (MTCA), G. L. c. 258, § 4. We conclude, as did the motion judge in the Superior Court, that presentment was insufficient and that the action was properly dismissed.
Facts. On February 1, 2002, Manuel Garcia was injured in a motor vehicle accident while in the custody of the Essex County sheriff’s department (ECSD) as he was being transported in a prisoner van that slid off the road in bad weather.
“I am presently in the process of investigating this matter and reviewing the file previously forwarded to Ms. Desmond by [Garcia’s counsel] regarding the alleged incident and your Ghent’s alleged injuries. Once I have had the opportunity to fully investigate this matter and review this claim documentation, I will get back to you with a response to your demand.”
A follow-up correspondence dated November 15, 2002 (signed by the same ECSD attorney on ECSD letterhead), informed Garcia that ECSD would be “willing to pay” his medical bills, “which total $4,546,” in exchange for a “comprehensive release” from him. The ECSD lawyer who signed the letter stated therein: “I have investigated this matter and reviewed the medical documentation which you previously forwarded to the Department.”
Settlement negotiations went no further. On August 25, 2003, Garcia commenced an action against ECSD in Superior Court, seeking damages for his injuries. In filing its answer, dated September 26, 2003, ECSD denied any negligence on its part and asserted various affirmative defenses, including that Garcia’s claim was barred by his failure to make adequate presentment in accordance with G. L. c. 258, § 4.
In a subsequent motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), docketed on June 30, 2004, ECSD refined its presentment defense, arguing that presentment was legally inadequate because Garcia did not disclose facts as to the incident, allege any theory of liability, or make known
Discussion. Prior to filing a civil tort suit against a public employer, G. L. c. 258, § 4, requires that a plaintiff “shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose.”
Person to whom notice is sent. As a general rule, a party must present its claim directly to the executive officer of the public employer. See, e.g., Weaver v. Commonwealth, 387 Mass. at 47-48. The purpose of this rule is to provide notice to the highest ranking official with the ability to fully investigate, “arbitrate, compromise or settle” such claim, Holahan v. Medford, 394 Mass. 186, 189 (1985), quoting from G. L. c. 258, § 5, in order to ensure that the interests of the Commonwealth are protected. Weaver v. Commonwealth, 387 Mass. at 48. See Lodge v. District Attorney for the Suffolk Dist., 21 Mass. App. Ct. 277, 283 (1985). An exception to the general rule exists where the record shows that the proper person had actual notice of the claim. See Lopez v. Lynn Hous. Authy., 440 Mass. 1029, 1030-
In this case, it is agreed that Sheriff Frank Cousins was the executive officer and was thus the appropriate person to notify.
The mere use of official letterhead is not sufficient to indicate that Sheriff Cousins had actual notice of the claim. Contrast Lopez v. Lynn Hous. Authy., 440 Mass. at 1030-1031 (actual notice where the executive officer personally responded to the presentment); Carifio v. Watertown, 27 Mass. App. Ct. 571, 572 (1989) (sufficient communication where a copy of the presentment letter was sent by certified mail to the executive officer and that officer also received a copy of the reply).
Garcia’s agency argument that the attorney who responded to the claim did so in a representative capacity sufficient to demonstrate notice to Sheriff Cousins is also without merit. “[T]he Legislature did not intend presentment to a public employer’s attorney to suffice under G. L. c. 258, § 4, unless it specifically so indicated.” Holahan v. Medford, 394 Mass. at 189. There is no such statutory indication here. See ibid. (declining to hold that presentment to the city solicitor is equivalent to presentment to the city manager, and stating that “[t]he city solicitor, though he or she may advise the city manager, does
Content of notice. The statute does not state what must be included in the presentment letter. See Martin v. Commonwealth, 53 Mass. App. Ct. at 529 (“the requisite sufficiency of content in a presentment is easier to outline than to apply”). In Gilmore v. Commonwealth, 417 Mass. at 723, the Supreme Judicial Court observed that a “presentment letter should be precise in identifying the legal basis of a plaintiff’s claim” and should not be “so obscure that educated public officials should find themselves baffled or misled with respect to [the plaintiffs] assertion of a claim . . . which constitutes a proper subject for suit within G. L. c. 258.” See Martin v. Commonwealth, supra (discussing “the Gilmore test”); Rodriguez v. Cambridge Hous. Authy., 59 Mass. App. Ct. at 134.
Here, the only allegation found in the presentment letters
Garcia’s letters lend themselves to confusion regarding the basis for the claim: the form of the initial notice resembles an automobile insurance personal injury protection (PIP) claim where no allegation of fault need be made. In such cases the response of an insurer is to focus on the medical and wage issues. Also, the defendant’s duty to provide medical care to Garcia, who was in the defendant’s custody, is a constitutional duty, see Jackson v. Commissioner of Correction, 39 Mass. App. Ct. 566, 569 (1995), not the kind of duty covered by the MTCA. Therefore, even taken together, the letters fail to identify precisely the legal basis for the claim and are thus inadequate to fulfil the statutory purpose of the presentment requirement. Contrast Martin v. Commonwealth, 53 Mass. App.
Policy issues. Citing the cases of Lopez and Carifio, supra, Garcia argues that ECSD should be equitably estopped from contesting the sufficiency of presentment because the ECSD attomey lulled him into believing presentment was not at issue by stating in his letters that he would investigate and by subsequently making an offer of settlement for the claimed medical expenses. However, this is not a case of form over substance. As already noted, supra, the facially deficient presentments in Lopez and Carifio were excused because the record revealed unique factual circumstances showing that the executive officers had actually received and considered the written presentment, thus fulfilling the statutory purpose. That is not the case here. To “lull” a plaintiff into believing that presentment is not an issue, the defendant must affirmatively indicate that the presentment requirement has been met or is waived. See Vasys v. Metropolitan Dist. Commn., 387 Mass. 51, 53 (1982); Holahan v. Medford, 394 Mass. at 191; Moran v. Mashpee, 17 Mass. App. Ct. 679, 681 (1984). The evidence does not support such a conclusion, especially considering that Garcia had plenty of time to correct his presentment because the defendant’s answer placed him on notice of his claim’s deficiency before the time for presentment had run out. Contrast Vasys v. Metropolitan Dist. Commn., supra.
Judgment affirmed.
The content of the first letter is as follows:
“Dear Sir/Madam:
“Please be advised that I represent the above named claimant for injuries sustained in an automobile accident on February 1, 2002, as he was being transported from Lawrence District Court to the Middleton facility.
“Please advise this office of the procedure for payment of medical bills.
“If you have any questions prior to the processing of this claim, please do not hesitate to call this office.”
The second letter states:
“Dear Ms. Desmond:
“A review of your file will show that this firm represents the above named claimant for injuries suffered in an auto accident while being transported by the Essex County Sheriff’s Department.
“At this time, I am enclosing complete medical treatment reports and expenses. My client has reached maximum medical improvement.
“Once you have had an opportunity to review your file, kindly contact Betty Miller to discuss possible settlement of this claim.”
The third letter states:
“Dear Ms. Desmond:
“Complete medical treatment reports and expenses were recently forwarded to your attention relative to the above captioned matter.
“I submit the following evaluation and demand for settlement:
“Manuel Garcia
“4 weeks total disability
“15 weeks partial disability
“6-8 weeks continuing partial disability
“Medical treatment expenses $4,578.00
“Demand $23,400.00
“Once you have had an opportunity to review your file, please call to discuss possible settlement of this claim.”
The signature was that of “Scott B. Sullivan, Esquire” and did not refer to any official title.
The timing of the answer (with its notice of a defense regarding defective presentment) occurred some twenty months after the February 1, 2002, accident and just over four months prior to the end of the two-year period in which a plaintiff must submit an adequate presentment letter, thus leaving more than four months for Garcia to file a corrected presentment letter. See Vasys v. Metropolitan Dist. Commn., 387 Mass. 51, 56 (1982) (observing that if the defendant had raised the issue of defective presentment in its answer, the plaintiff would have cured the defect).
In relevant part, G. L. c. 258, § 4, inserted by St. 1978, c. 512, § 15, provides, “A civil action shall not be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose, and such claim shall have been finally denied by such executive officer in writing and sent by certified or registered mail, or as otherwise provided by this section.”
Compare Baptiste v. Sheriff of Bristol County, 35 Mass. App. Ct. 119, 127 (1993) (presentment required to be made to county commissioners). As of July 1, 1999, the government of Essex County was abolished, and the sheriff became an employee of the Commonwealth. See G. L. c. 34B, §§ 1, 12.
Holahan construed G. L. c. 258, § 4, as in effect prior to 1988, when it was amended to allow presentment to city solicitors. Compare St. 1978, c. 512, § 15, with St. 1988, c. 217.
As in Holahan v. Medford, supra, Carifio construed the requirements of G. L. c. 258, § 4, before its amendment in 1988. See note 8, supra; Carifio v. Watertown, 27 Mass. App. Ct. at 576 & nn.6, 7.
Writings may be tacked together to establish a complete presentment. Carifio v. Watertown, 27 Mass. App. Ct. at 575.
Indeed, other evidence in the record is consistent with the accident occurring without fault. “The bare fact that a motor vehicle is involved in an accident . . . does not ordinarily support a finding that its operator was negligent.” Conley v. Town Taxi, Inc., 298 Mass. 130, 132 (1937). In his presentment letters, Garcia failed to allege facts sufficient to infer negligence on the part of the driver or ECSD. See id. at 131-132 (“it is often impossible to say whether [the driver’s] specific acts or his omissions to act are negligent unless the accompanying circumstances appear”). Contrast McNally v. Union St. Ry. Co., 336 Mass. 760 (1957). Cf. Mlynarchik v. Massachusetts Bay Transp. Authy., 3 Mass. App. Ct. 35, 37 (1975), and cases cited (“mere skidding of a motor vehicle, unexplained, is not evidence of negligence”).