NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
16-P-300 Appeals Court
ALEXIS D. COREN-HALL1 vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.
No. 16-P-300.
Suffolk. December 13, 2016. - February 23, 2017.
Present: Milkey, Massing, & Sacks, JJ.
Practice, Civil, Presentment of claim under Massachusetts Tort Claims Act, Interlocutory appeal, Summary judgment. Massachusetts Tort Claims Act. Notice, Claim under Massachusetts Tort Claims Act. Massachusetts Bay Transportation Authority, General manager.
Civil action commenced in the Superior Court Department on May 16, 2012.
The case was heard by Peter M. Lauriat, J., on a motion for summary judgment, and a motion for reconsideration was considered by him.
Amy Bratskeir (Jonathan P. Feltner also present) for the defendant.
1 Nina Hall, Maleek Hall, Daja-Nae Hall-Ivery, and Timothy Pruitt were also plaintiffs on the complaint. The claims of all plaintiffs, except Alexis D. Coren-Hall, were dismissed, in part due to settlements of their claims, before entry of the order at issue in this appeal. Thus the only remaining plaintiff is Alexis D. Coren-Hall. 2
Albert E. Grady for the plaintiff.
SACKS, J. The defendant, Massachusetts Bay Transportation
Authority (MBTA), appeals from a Superior Court order denying
its renewed motion for summary judgment on plaintiff Alexis D.
Coren-Hall's tort claim under the Massachusetts Tort Claims Act,
G. L. c. 258. The MBTA's motion asserted that Coren-Hall had
failed to make presentment of her claim to the MBTA's "executive
officer," as required by G. L. c. 258, § 4. The judge denied
the motion on the ground that, although Coren-Hall had not made
presentment to the MBTA's executive officer, the executive
officer nevertheless had "actual notice" of the claim. We
conclude that the MBTA's motion should have been allowed.2
Background. Coren-Hall alleged that on May 10, 2010, she
was injured when a negligently driven MBTA bus struck a vehicle
that she was in the process of entering. After she filed suit
on May 16, 2012, the MBTA's answer asserted, as an affirmative
defense, that she had failed to make proper presentment of her
claim as required by G. L. c. 258, § 4. In July, 2015, the MBTA
2 In an unpublished memorandum and order issued on January 11, 2017, under our rule 1:28, we reversed the order denying the MBTA's motion. See Coren-Hall v. Massachusetts Bay Transp. Authy., 90 Mass. App. Ct. 1125 (2017). This opinion in general follows the rule 1:28 memorandum and order. We publish this opinion to offer additional guidance to litigants and the trial courts on what has proven to be a recurring issue. 3
filed a renewed motion for summary judgment on that basis.3
Under G. L. c. 258, § 4, a tort claim against a public employer
must be presented to its "executive officer," defined in G. L.
c. 258, § 1, inserted by St. 1978, c. 512, § 15, as its "nominal
chief executive officer or board,"4 within two years after the
cause of action arose. The MBTA's motion asserted that,
although Coren-Hall had timely mailed notice of her claim to the
MBTA "Claims Department," she had never sent such notice to the
executive officer. The judge denied the MBTA's motion, and this
appeal followed.5
Discussion. The parties' joint statement of material facts
established as undisputed that Coren-Hall's then-attorney had
timely sent notice of the claim and subsequent supporting
3 The prior proceedings are not germane to this appeal. 4 Effective June 29, 2012, the Tort Claims Act was amended to define "[e]xecutive officer of a public employer" to mean, in the particular case of the MBTA, "its general manager and rail and transit administrator." G. L. c. 258, § 1, as appearing in St. 2012, c. 132, § 3. As the amendment took effect after the expiration of the two-year presentment period in this case, it is not applicable here. For simplicity we use the term "executive officer" in this decision. 5 The appeal is properly before us under the doctrine of present execution. See Rodriguez v. Somerville, 472 Mass. 1008, 1009-1010 (2015) (city could immediately appeal denial of motion to dismiss tort claim based on defective presentment, because issue concerned city's sovereign immunity from suit under G. L. c. 258). See generally Smith v. Massachusetts Bay Transp. Authy., 462 Mass. 370, 373-374 (2012) (under doctrine of sovereign immunity, MBTA may not be sued absent Commonwealth's consent, as now expressed in G. L. c. 258). 4
materials to the "MBTA Claims Department" in May of 2010 and May
of 2011; the 2011 letter included a request to "turn this notice
letter over to the proper authority for handling." The joint
statement further established that Coren-Hall herself neither
personally communicated with any MBTA personnel (including its
executive officer) within the two-year period after the
accident, nor knew what other communications her attorney might
have had with such MBTA personnel in that period. The MBTA
admitted that in the fall of 2014, after the two-year
presentment period had passed, it had made settlement offers to
Coren-Hall and the remaining plaintiffs other than Pruitt, and
that those plaintiffs, but not Coren-Hall, had accepted the
offers and settled their cases. See note 1, supra.
The judge, in denying the MBTA's summary judgment motion,
noted that Coren-Hall did "not dispute that she presented her
claim to the Claims Department, and not the executive officer of
the MBTA as required by the statute." Nevertheless, the judge
reasoned, "the MBTA was only able to extend settlement offers
upon conducting an investigation of the plaintiffs' claims and
receiving approval from those officials with the authority to
negotiate a settlement," and accordingly, it was "apparent that
the designated executive officer of the MBTA had actual notice
of Ms. Coren-Hall's claim." The judge relied on the recognized
"actual notice" exception, under which "the presentment 5
requirement will be deemed fulfilled if the plaintiff can show
that, despite defective presentment, the designated executive
officer had actual notice of the written claim." Bellanti v.
Boston Pub. Health Commn., 70 Mass. App. Ct. 401, 407 (2007),
citing Lopez v. Lynn Hous. Authy., 440 Mass. 1029, 1030 (2003).
This was error.
"[T]he actual notice exception is narrow." Bellanti, supra
at 407. "Under our precedents, notice to the executive officer
will not be inferred or imputed from the fact that others with
responsibility for investigation and settlement of the dispute
received the plaintiff's presentment letter and were in contact
with the plaintiff." Id. at 408, citing Garcia v. Essex County
Sheriff's Dept., 65 Mass. App. Ct. 104, 108 (2005). See Holahan
v. Medford, 394 Mass. 186, 189 (1985).
In Garcia, presentment was improperly made to a sheriff's
chief fiscal officer, rather than the sheriff himself as
executive officer. 65 Mass. App. Ct. at 105, 108. Within the
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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
16-P-300 Appeals Court
ALEXIS D. COREN-HALL1 vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.
No. 16-P-300.
Suffolk. December 13, 2016. - February 23, 2017.
Present: Milkey, Massing, & Sacks, JJ.
Practice, Civil, Presentment of claim under Massachusetts Tort Claims Act, Interlocutory appeal, Summary judgment. Massachusetts Tort Claims Act. Notice, Claim under Massachusetts Tort Claims Act. Massachusetts Bay Transportation Authority, General manager.
Civil action commenced in the Superior Court Department on May 16, 2012.
The case was heard by Peter M. Lauriat, J., on a motion for summary judgment, and a motion for reconsideration was considered by him.
Amy Bratskeir (Jonathan P. Feltner also present) for the defendant.
1 Nina Hall, Maleek Hall, Daja-Nae Hall-Ivery, and Timothy Pruitt were also plaintiffs on the complaint. The claims of all plaintiffs, except Alexis D. Coren-Hall, were dismissed, in part due to settlements of their claims, before entry of the order at issue in this appeal. Thus the only remaining plaintiff is Alexis D. Coren-Hall. 2
Albert E. Grady for the plaintiff.
SACKS, J. The defendant, Massachusetts Bay Transportation
Authority (MBTA), appeals from a Superior Court order denying
its renewed motion for summary judgment on plaintiff Alexis D.
Coren-Hall's tort claim under the Massachusetts Tort Claims Act,
G. L. c. 258. The MBTA's motion asserted that Coren-Hall had
failed to make presentment of her claim to the MBTA's "executive
officer," as required by G. L. c. 258, § 4. The judge denied
the motion on the ground that, although Coren-Hall had not made
presentment to the MBTA's executive officer, the executive
officer nevertheless had "actual notice" of the claim. We
conclude that the MBTA's motion should have been allowed.2
Background. Coren-Hall alleged that on May 10, 2010, she
was injured when a negligently driven MBTA bus struck a vehicle
that she was in the process of entering. After she filed suit
on May 16, 2012, the MBTA's answer asserted, as an affirmative
defense, that she had failed to make proper presentment of her
claim as required by G. L. c. 258, § 4. In July, 2015, the MBTA
2 In an unpublished memorandum and order issued on January 11, 2017, under our rule 1:28, we reversed the order denying the MBTA's motion. See Coren-Hall v. Massachusetts Bay Transp. Authy., 90 Mass. App. Ct. 1125 (2017). This opinion in general follows the rule 1:28 memorandum and order. We publish this opinion to offer additional guidance to litigants and the trial courts on what has proven to be a recurring issue. 3
filed a renewed motion for summary judgment on that basis.3
Under G. L. c. 258, § 4, a tort claim against a public employer
must be presented to its "executive officer," defined in G. L.
c. 258, § 1, inserted by St. 1978, c. 512, § 15, as its "nominal
chief executive officer or board,"4 within two years after the
cause of action arose. The MBTA's motion asserted that,
although Coren-Hall had timely mailed notice of her claim to the
MBTA "Claims Department," she had never sent such notice to the
executive officer. The judge denied the MBTA's motion, and this
appeal followed.5
Discussion. The parties' joint statement of material facts
established as undisputed that Coren-Hall's then-attorney had
timely sent notice of the claim and subsequent supporting
3 The prior proceedings are not germane to this appeal. 4 Effective June 29, 2012, the Tort Claims Act was amended to define "[e]xecutive officer of a public employer" to mean, in the particular case of the MBTA, "its general manager and rail and transit administrator." G. L. c. 258, § 1, as appearing in St. 2012, c. 132, § 3. As the amendment took effect after the expiration of the two-year presentment period in this case, it is not applicable here. For simplicity we use the term "executive officer" in this decision. 5 The appeal is properly before us under the doctrine of present execution. See Rodriguez v. Somerville, 472 Mass. 1008, 1009-1010 (2015) (city could immediately appeal denial of motion to dismiss tort claim based on defective presentment, because issue concerned city's sovereign immunity from suit under G. L. c. 258). See generally Smith v. Massachusetts Bay Transp. Authy., 462 Mass. 370, 373-374 (2012) (under doctrine of sovereign immunity, MBTA may not be sued absent Commonwealth's consent, as now expressed in G. L. c. 258). 4
materials to the "MBTA Claims Department" in May of 2010 and May
of 2011; the 2011 letter included a request to "turn this notice
letter over to the proper authority for handling." The joint
statement further established that Coren-Hall herself neither
personally communicated with any MBTA personnel (including its
executive officer) within the two-year period after the
accident, nor knew what other communications her attorney might
have had with such MBTA personnel in that period. The MBTA
admitted that in the fall of 2014, after the two-year
presentment period had passed, it had made settlement offers to
Coren-Hall and the remaining plaintiffs other than Pruitt, and
that those plaintiffs, but not Coren-Hall, had accepted the
offers and settled their cases. See note 1, supra.
The judge, in denying the MBTA's summary judgment motion,
noted that Coren-Hall did "not dispute that she presented her
claim to the Claims Department, and not the executive officer of
the MBTA as required by the statute." Nevertheless, the judge
reasoned, "the MBTA was only able to extend settlement offers
upon conducting an investigation of the plaintiffs' claims and
receiving approval from those officials with the authority to
negotiate a settlement," and accordingly, it was "apparent that
the designated executive officer of the MBTA had actual notice
of Ms. Coren-Hall's claim." The judge relied on the recognized
"actual notice" exception, under which "the presentment 5
requirement will be deemed fulfilled if the plaintiff can show
that, despite defective presentment, the designated executive
officer had actual notice of the written claim." Bellanti v.
Boston Pub. Health Commn., 70 Mass. App. Ct. 401, 407 (2007),
citing Lopez v. Lynn Hous. Authy., 440 Mass. 1029, 1030 (2003).
This was error.
"[T]he actual notice exception is narrow." Bellanti, supra
at 407. "Under our precedents, notice to the executive officer
will not be inferred or imputed from the fact that others with
responsibility for investigation and settlement of the dispute
received the plaintiff's presentment letter and were in contact
with the plaintiff." Id. at 408, citing Garcia v. Essex County
Sheriff's Dept., 65 Mass. App. Ct. 104, 108 (2005). See Holahan
v. Medford, 394 Mass. 186, 189 (1985).
In Garcia, presentment was improperly made to a sheriff's
chief fiscal officer, rather than the sheriff himself as
executive officer. 65 Mass. App. Ct. at 105, 108. Within the
two-year presentment period, the sheriff's in-house counsel
investigated the claim and made a written settlement offer, on
sheriff's department letterhead. Id. at 106. After the
claimant refused the offer and filed suit, the sheriff
successfully moved to dismiss for failure to make proper
presentment. Id. at 106-107. On appeal, this court rejected
the claimant's "actual notice" argument -- that in all of the 6
circumstances, the sheriff "must have been made aware of the
claim" -- and affirmed the dismissal. Id. at 108-109, 111.
Under Garcia, a subordinate's settlement offer within the
presentment period is an insufficient basis to conclude that the
executive officer "must have" known of the claim. It follows
that the settlement offer in this case, made by unidentified
MBTA personnel after the two-year presentment period had passed,
falls even further short of a basis to conclude that the MBTA's
executive officer had "actual notice" of the claim within the
presentment period.6 The statute is "strict," requiring that
presentment be "made to the proper executive officer . . . in a
timely fashion." Martin v. Commonwealth, 53 Mass. App. Ct. 526,
529 (2002). Accord Garcia, 65 Mass. App. Ct. at 107.
Therefore, the judge erred in ruling that the "actual notice"
exception applied to Coren-Hall's improper presentment.7
6 In contrast, in Lopez v. Lynn Hous. Authy., supra, despite presentment improperly having been "addressed generically" to the housing authority, the executive officer himself, within the two-year presentment period, informed the claimant in writing that the claim had been investigated and denied. This left no doubt that the executive officer had received timely "actual notice" of the claim. 440 Mass. at 1030-1031. 7 Coren-Hall also argues that we should recognize an "equitable tolling" exception to the presentment requirement, similar to the exception to the Federal Tort Claims Act's deadlines for presentment and for filing suit. See United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015). We decline to consider the argument, because, inter alia, Coren-Hall has not identified any conduct on the part of the MBTA that hindered her ability to make proper presentment. Contrast id. at 1629 7
"We recognize that this is a harsh result, particularly
where it may have made no practical difference to the [MBTA]
that [the executive officer], himself, was not notified of the
plaintiff's claim." Bellanti, 70 Mass. App. Ct. at 408. "In
the context of presentment, however, it has been held that '[i]t
is irrelevant that the defendant may not have suffered any
prejudice by reason of the lack of actual notice.' . . . We are
not in a position to change that rule." Id. at 409, citing
Robinson v. Commonwealth, 32 Mass. App. Ct. 6, 10 (1992).
Therefore, we are constrained to conclude that the judge erred
in denying the MBTA's motion.
Conclusion. For the foregoing reasons, on January 11,
2017, we determined that the MBTA was entitled to summary
judgment in its favor.
(Federal court delay in issuing ruling caused claimant to miss deadline for filing suit); id. at 1630 (another claimant alleged that Federal agency had concealed essential information, causing her to miss presentment deadline).