37 Mass. App. Ct. 580 | Mass. App. Ct. | 1994
Alleging that Malcolm Jackson, the conservator of the property of Alice Williams, acted negligently in failing to heat her property, causing severe water damage to her home and its contents, Quincy Mutual Fire Insurance Company (Quincy) brought this action against Jackson and against Western Surety Company (Western), the surety on Jackson’s bond. Western moved to dismiss the count against it for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. This is an appeal by Quincy from the allowance of Western’s motion to dismiss.
1. Action in the Superior Court. The bond of a conservator is payable to a judge of the Probate Court on certain conditions. G. L. c. 205, § 1. The conditions of the bond here relevant are contained in G. L. c. 205, § 1, par. 6, cl. 2: “To manage and dispose of all such property according to law and for the best interests of the ward, and faithfully to perform his trust in relation to such property . . . .” An action on the bond is the proper way to obtain redress for improper conduct of a conservator. G. L. c. 205, § 29
There are two routes to an action on a fiduciary bond. Section 7A of G. L. c. 205 permits a direct action by a petition in equity in the Probate Court “by any party interested in his own name.” An alternate route, which “shall be brought in the [Sjuperior [Cjourt” under § 30 of G. L. c. 205, is more complicated. To understand the procedure, a close examination of the statutory provisions set forth in G. L. c. 205 is required.
Under certain conditions, set forth in three sections, §§ 20-22,
Although authorization was not here obtained,
We consider this a case where, on request, it would be appropriate for the Superior Court judge to ask the Chief Administrative Justice to transfer the case, or the judge, or both, to the Probate Court to determine whether authorization should be granted or whether to allow the case to proceed in accordance with § 7A, where authorization by a judge is not required.
2. Failure to state a claim. Western claims that Jackson did not breach the condition of his bond and, moreover, the ward did not suffer loss because Quincy paid for the damage suffered. The action against Jackson alleges that he negligently managed the property, causing damage. Such an allegation seems to fall within G. L. c. 205, § 1, par. 6, cited earlier. On this pleading, we cannot say that “it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Nader v. Citron, 372 Mass. 96, 98 (1977), quoting from Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Western’s claim that Quincy cannot recover is unpersuasive. Western contends that Quincy stands in the shoes of the ward, and by reason of Quincy’s payment the ward has suffered no loss. Thus, Jackson’s obligation was met by securing or maintaining homeowner’s insurance. As pointed out by Quincy, this argument would seem to preempt any subrogation efforts by an insurer against a conservator. Again, on the basis of Nader v. Citron, supra at 98, 104, we cannot state that the plaintiff can prove no set of facts in support of its claim.
As we indicated earlier, because the appeal is interlocutory, it is dismissed.
So ordered.
The judge did not give the reason for his dismissal of the count against Western.
Section 29 provides that actions on the bonds payable by conservators “may be put in suit by order of the probate court for the benefit of any person interested, and the proceedings in such action shall be conducted in like manner as is provided relative to actions on bonds given by executors or administrators.”
These sections permit action without authorization of a probate judge where the fiduciary neglects upon demand to pay amounts for which there is a judgment or decree: § 20 (actions by creditors), § 21 (actions by creditors of insolvent estates), and § 22 (actions by next of kin). Quincy relies on § 20 to permit its action without authorization, but that section by its terms applies only to creditors who have recovered judgment, see Long v. Copeland, supra at 333, and Quincy has not recovered a judgment. We need not consider, therefore, whether Quincy is a creditor.
Western’s motion to dismiss — no answer to the complaint having been filed, see Mass.R.Civ.P. 12(b), 365 Mass. 755 (1974) — did indicate that authorization had not been obtained.
Since there appears to have been no final judgment, the judge, of course, may change his order dismissing the count. Peterson v. Hopson, 306 Mass. 597, 601 (1940).