NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-594
LUZ HARVEY & another1
vs.
ELIAS ASSED (and a consolidated case2).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case involves service of process on a foreign national
residing in Brazil who, while visiting Massachusetts and
exercising his privilege to utilize the roads of the
Commonwealth in a rental car, caused injury to the occupant of
another car and then left the jurisdiction without providing his
true address or taking any responsibility for his actions. As
set forth below, we vacate so much of a final judgment dated
April 19, 2022, that dismissed all claims against the defendant.
The plaintiffs' appeal from the denial of a third motion for
reconsideration and to reinstate is dismissed as moot.
1. Facts. a. Underlying events. On November 24, 2017,
the defendant, Elias Assed, was driving a Jeep Grand Cherokee
1 Michael Harvey. 2 The consolidated case involves the same parties. rented from Enterprise Rent-A-Car on Route 16 in Medford. The
car was owned by EAN Holdings, LLC. The complaint alleges that
the defendant drove unlawfully through a red light smashing into
the car being operated by plaintiff Luz Harvey. The car Luz
Harvey was operating was owned by her husband, plaintiff Michael
Harvey.
A "Motor Vehicle CRASH Report" signed by Trooper
Christopher Sullo of the Massachusetts State police quoted the
defendant as saying that he was traveling west on Route 16 "and
did not realize the traffic light was red." According to the
report, he stated that he "ran the red light and subsequently
came in contact with" plaintiff Harvey's vehicle.
This was consistent with the statement of a third-party
witness, also conveyed in the CRASH report, who "stated she
observed [the defendant's vehicle] run the red light traveling
west on Rt. 16 causing the accident with [Luz's vehicle]." The
CRASH report, in a section denominated "operator information,"
stated that the defendant had an address of 100 Rivers Edge Dr.,
Apt. 439 in Medford (Medford address). Trooper Sullo cited the
defendant for failure to stop for a red light; this citation,
too, contained the Medford address.
The CRASH report stated that plaintiff Luz Harvey was
"transported by Medford EMS to Lawrence Memorial Hospital with
non-life threatening injuries to her back and legs."
2 The defendant had purchased insurance coverage in
conjunction with his automobile rental. The insurance carrier
was Rental Insurance Services, Inc. (RIS). On January 3, 2018,
an attorney for the plaintiffs notified RIS by letter that Luz
Harvey intended to make a claim against the bodily injury
portion of the policy. In the same correspondence, counsel
requested, pursuant to G. L. c. 175, § 112C, the disclosure of
the policy limits within thirty days from the date of the
letter. RIS responded in a timely manner, disclosing a policy
limit of one million dollars.
b. This litigation. On November 23, 2020, the plaintiffs'
counsel filed the complaint in this action against the defendant
and EAN, alleging, inter alia, negligence causing bodily injury,
expenses for medical care and lost wages, as well as loss of
consortium. In the plaintiffs' statement of damages, documented
expenses including those for the hospital, the doctor,
chiropractic treatment, physical therapy, and lost wages totaled
$228,797.
i. First attempt at service and first motion to dismiss.
On February 9, 2021, a Middlesex County deputy sheriff served
process (i.e., the summons and complaint) on the defendant by
leaving it at the Medford address. The plaintiffs filed the
return of service on February 22, 2021.
3 On March 5, 2021, counsel for the defendant entered a
"special appearance for the limited purpose of jurisdiction, and
service of process." The appearance he filed noted that, "[i]n
entering his special appearance, the Defendant does not waive
personal jurisdiction, or service of process defenses."
On April 23, 2021, counsel for the defendant filed a motion
to dismiss for, inter alia, insufficient service of process
under Mass. R. Civ. P. 12 (b) (5), 365 Mass. 754 (1974). The
defendant attached two affidavits, each of which was captioned
with the name and docket number of this case. The first, signed
by the defendant, stated, "I am in my 70's [sic] and am a
lifelong resident of Rio de Janeiro, Brazil;" "I have never
resided at 100 River Edge Drive, Apartment 439, Medford Mass.
02155;" "I have never owned a Massachusetts driver's license;"
"I have never owned a driver's license from any other state in
the United States;" "I have never owned a car in the United
States;" "I have never had a car registered to me in the United
States;" and "On November 24, 2017, I possessed a Brazilian
license only." The written statement did not state the
defendant's address, or even what country he was in when he
signed it.
The defendant further submitted that, "I have not been
served personally with a copy of the Summons and Complaint in
the above-captioned matter." He also asserted that, "[o]n
4 November 24, 2017, I was visiting my son for a few weeks while
he was temporarily staying at 100 River Edge Drive, Apartment
439, Medford, Mass. 02155 and attending Boston University."
Finally, the defendant said that he had left this jurisdiction
and returned to his home in Brazil the very night the accident
occurred.
The affidavit was undated; it was preprinted with the month
(March) and the year (2021), but the line on which the specific
date is supposed to be entered was left blank. The final
sentence of the affidavit read, "This affidavit has been
translated into Portuguese by my son, Elias Alexandre Assed
Filho and I understand it, on that basis." As described below,
however, we need not and do not decide whether the affidavit was
admissible.
ii. Second attempt at service and second motion to
dismiss. Apparently in light of the defendant's filing, while
the first motion to dismiss was pending, the plaintiffs effected
service of process on the Registry of Motor Vehicles (RMV) on
May 13, 2021; the summons stated that service was made pursuant
to G. L. c. 90, §§ 3A to 3C.
Sections 3A and 3B of G. L. c. 90 provide that, in all
circumstances, by operating a motor vehicle on our roadways, as
the defendant did, a foreign national consents to make the
Registrar his agent for purposes of service of process.
5 Section 3C of G. L. c. 90 spells out how service of process
on the Registrar must be performed:
"Service of process under section three A or three B shall be made by leaving a copy of the process with a fee to be determined annually by the commissioner of administration under the provision of section three B of chapter seven in the hands of the registrar, or in his office, and by giving the defendant notice in either the manner provided in paragraph (1) or in that provided in paragraph (2) hereof."
G. L. c. 90, § 3C.
There is no dispute that the plaintiffs properly served the
Registrar. The only issue raised about this second attempt at
service was whether the defendant was given notice in the manner
provided in paragraph (1) or (2) of G. L. c. 90, § 3C. Those
paragraphs state:
"(1) If the defendant is known by the plaintiff to be the holder of a motor vehicle registration or operator's license issued by another state or country, notice of such service upon the registrar as attorney for the defendant and a copy of the process shall forthwith be sent by registered mail, with return receipt requested, by the plaintiff to the defendant at his address of record in the office from which such registration or license was issued. The plaintiff's affidavit of compliance herewith, and the defendant's return receipt, if received by the plaintiff, shall be filed in the case on or before the return day of the process or within such further time as the court may allow. If the defendant has no motor vehicle registration or license known to the plaintiff, such notice and copy shall be sent in the same manner to the last address of the defendant known to the plaintiff, and affidavit of compliance herewith, and the defendant's return receipt or other proof of actual notice, shall be filed in the case within the time above provided.
"(2) Notice of such service upon the registrar and a copy of the process shall be served upon the defendant, if found within the commonwealth, by a sheriff or deputy sheriff of
6 any county of this commonwealth, or, if found without the commonwealth, by any duly constituted public officer qualified to serve like process in the state or jurisdiction where the defendant is found, and the officer's return showing such service to have been made shall be filed in the case on or before the return day of the process or within such further time as the court may allow."
There is another section of G. L. c. 90 that addresses the
procedure for service on those who have applied for a driver's
license or vehicle registration in the Commonwealth. It
provides that after serving the Registrar, "mailing by the
registrar of a copy of such process to [a defendant] at his last
address as appearing on the registrar's records shall be
sufficient notice to him of such service." G. L. c. 90, § 3D.
Despite the way the summons was written, after receiving
the summons and complaint, the RMV -- presumably because its
last address for the defendant was the Medford address on the
police report of the accident -– utilized the § 3D procedure,
mailing the summons to "his last address as appearing on the
registrar's records," G. L. c. 90, § 3D, i.e., the Medford
address. On August 23, 2021, the plaintiffs' attorney sent, via
certified mail, return receipt requested, notice of the
complaint to the defendant, again using the only address he had
for him –- the Medford address. It was returned to the
plaintiffs' attorney as undeliverable.
7 On September 29, 2021, the defendant filed a second motion
to dismiss -– the first one still pending -– arguing that this
second attempt at service through the RMV was insufficient.
Again the plaintiffs opposed, arguing that both the first and
the second attempts at service were adequate. The plaintiffs
also filed a motion for extension of time to effect service.
Without holding a hearing, and without ruling on the first
motion to dismiss, the judge on October 21, 2021, ruled on the
second motion to dismiss and the plaintiffs' motion to extend.
The judge said,
"After review, it appears the Plaintiff has properly served process upon the Registry of Motor Vehicles but has not met all the procedural requirements of proper notice, having failed to file an Affidavit of compliance and return receipt or other proof of actual notice. The Plaintiff's [sic] motion to extend (Paper #21) is allowed and Plaintiff may submit its affidavit of compliance and return receipt of mailing on or before November 30, 2021. The Defendant's motion to dismiss (Paper #19) is taken under advisement and held until November 30, 2021, or until the Plaintiff files its supplemental documents, for consideration."
The plaintiffs failed to make any submission by November 30,
2021, and on December 14, 2021, the claims against the defendant
were dismissed, leaving only EAN in the case.
The plaintiffs, however, filed a motion for reconsideration
and to vacate the order of dismissal on January 28, 2022. The
plaintiffs' counsel asserted in an affidavit that until the
dismissal order, he had not received and was not aware of the
October 21, 2021 order.
8 In an order dated February 3, 2022, the judge addressed the
merits of the motion for reconsideration and denied it, saying
"the Court accepts [counsel's] assertion [that he never received the October 21, 2021 order]. However, the motion must still be denied. The Plaintiff's [sic] motion for extension was based on the procedures set forth in G. L. c. 90 § 3C. Based on the affidavits of counsel and the Keeper of Records of the MA Registry of Motor Vehicles, attached to the motion as Exhibit 2, the procedure followed was not pursuant to G. L. c. 90 § 3C but rather pursuant to G. L. c. 90 § 3D, the procedure intended for residents of the Commonwealth. In discussing § 3C and § 3D, the Supreme Judicial Court has differentiated the two procedural sections as follows: 'Section 3C of this chapter, governing service of process upon nonresident motorist places obligation on plaintiff to send copy of process to nonresident; however, [Section 3D], governing service of process upon resident motorist places such burden on registrar of motor vehicles.' Hardy v. Utica Mut. Ins. Co., 369 Mass. 696 (1976). Defendant asserts that he is and has always been a citizen and resident of Brazil. This seems to place him clearly in the category of being a 'non- resident' of MA, requiring compliance with G. L. c. 90 § 3C. As Plaintiff has not established compliance with G. L. c. 90 § 3C, it gives new reasons for the same result: dismissal."
c. Subsequent events. On April 6, 2022, in response to
the plaintiffs' request for production of documents, EAN turned
over to the plaintiffs a document that included an address for
the defendant, as well as his driver's license number with a
notation that its issuing country was Brazil.
On April 20, 2022, the plaintiffs' counsel promptly sent
the process via registered mail to the address in Brazil.
However, the record does not contain proof of delivery (or
notice that the letter could not be delivered).
9 Meanwhile, on April 19, 2022, a stipulation of dismissal
signed by the plaintiffs and EAN was filed and entered on the
docket as part of the final judgment dismissing what remained of
the case. Thus, EAN is no longer a party to this case. The
plaintiffs subsequently filed a timely notice of appeal from
that portion of the April 19, 2022 final judgment that dismissed
the claims against the defendant.
d. Motions to reinstate and consolidation of appeals. On
May 6, 2022, the plaintiffs served a second motion for
reconsideration of the order dismissing the case against the
defendant, to vacate said order, and to reinstate the case,
under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). The
defendant filed a reply to which he attached a new affidavit
from his son claiming that, "My father presented the police
officer with his Brazilian driver's license at the time of the
accident," "[t]he police officer told my father that the license
was not acceptable that [sic] he needed a local address," and "I
explained that my father was just a tourist and that he was only
here for a few days. The police officer asked for a local
address, and I provided him with the address I was temporarily
living at in Massachusetts."
On July 11, 2022, a single justice of this court issued an
order to stay appellate proceedings so that the plaintiffs could
litigate their second motion for reconsideration and to
10 reinstate the case. On August 16, 2022, the same Superior Court
judge denied the motion. The plaintiffs filed a timely notice
of appeal from that order.
The plaintiffs' counsel continued to pursue efforts to
provide notice to the defendant pursuant to G. L. c. 90, § 3C.
After significant efforts, counsel enlisted the assistance of
one Maria Bueno, who traveled to Rio de Janeiro, Brazil to
attempt to confirm that the defendant still lived at the Rio de
Janeiro address and to provide the service papers to him. She
was successful in so doing on August 12, 2022. On receipt of
her affidavit, the plaintiffs' counsel filed an affidavit of
compliance with G. L. c. 90, § 3C, which was dated September 22,
2022.
On October 17, 2022, the plaintiffs filed a third motion
for reconsideration of the order dismissing the case against the
defendant, to vacate said order, and to reinstate the case.
That motion was denied on the merits on December 14, 2022, the
judge stating, "The Court adopts the reasoning in Defendant's
opposition, which reflect [sic] the court's prior determination
and rulings, and also based on Plaintiff's [sic] unpersuasive
potential new reasons for relief." The plaintiffs then filed
their third timely notice of appeal.
On December 23, 2022, the stay of appellate proceedings was
vacated. A single justice of this court subsequently allowed
11 the plaintiffs' motion to consolidate the appeal from the final
judgment with the appeal from the denial of the third motion for
reconsideration.
2. Discussion. We have before us two appeals, one from
the final judgment in this case, which brings before us the
interlocutory order dismissing all claims against the defendant,
and the other from the denial of the third motion for
reconsideration and reinstatement. Because we conclude that the
original attempt at service of process was effective, we need
address the merits of only the first appeal.
Rule 4 (d) (1) of the Massachusetts Rules of Civil
Procedure, as amended, 370 Mass. 918 (1976), permits process
(the summons and complaint) to be served "by leaving copies
thereof at [the defendant's] last and usual place of abode." In
this case, the plaintiffs had the deputy sheriff leave the
process at the Medford address.
This was the address given by the defendant to the State
trooper who issued him a citation at the scene of the accident
that forms the basis of this action. The return stated that
process was served "by leaving at the last and usual place of
abode of ELIAS ASSAD [sic], 100 RIVER EDGE DRIVE APT 439
MEDFORD, MA 02155."
The defendant argues, by reference to his signed statement,
that the Medford address was never his address. Even assuming
12 that the purported affidavit was both admissible and accurate,
we conclude that pursuant to rule 4 (d) (1), service at the
Medford address was adequate. The plaintiffs were entitled to
rely on the address information contained in the State trooper's
CRASH report and to serve the defendant at what he represented
was his last and usual place of abode. See Crete v. Audet, 353
Mass. 725, 729 (1968).
The Legislature has long been concerned with protecting
people in the Commonwealth from injury or property damage caused
by nonresident drivers. Initially there was, "to a large
extent, immunity from all legal responsibility on the part of
such nonresident" drivers (quotation and citation omitted).
Pawloski v. Hess, 250 Mass. 22, 26 (1924). The Legislature has
taken many steps to remedy this, while protecting the rights of
putative defendants to due process. Thus, for example, it
enacted G. L. c. 90, §§ 3A and 3B, to allow service of process
on the Registrar for nonresident drivers in-State. See id. at
26-27 (upholding such laws from constitutional challenge).
More to the point here, the Legislature also enacted
criminal laws requiring those motor vehicle operators who
collide with other motor vehicles -– as the defendant did in
this case –- to provide their name and residence before leaving
the scene. Under these laws, the defendant was legally
obligated to provide his correct and proper address at the scene
13 of the accident. General Laws c. 90, § 24 (2) (a), says that
"whoever without stopping and making known his name, residence
and the register number of his motor vehicle goes away after
knowingly colliding with or otherwise causing injury to any
other vehicle or property . . . shall be punished." General
Laws c. 90, § 24 (2) (a 1/2) (1), states, in relevant part:
"Whoever operates a motor vehicle upon any way or in any place to which the public has right of access, or upon any way or in any place to which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in the death of any person, shall be punished by imprisonment for not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars."
The "obvious purpose" of such laws "is to enable those in
any way injured by the operation of an automobile upon a public
way to obtain forthwith accurate information as to the person in
charge of the automobile," as such information is "of a nature
which will identify him readily, and make it simple and easy to
find him thereafter" (emphasis added). Commonwealth v.
Horsfall, 213 Mass. 232, 236 (1913) (addressing earlier statute
requiring making one's name and residence known after causing
injury to person or property). Here, the address given at the
scene to the trooper, the Medford address, was, if the
defendant's affidavit is credited, not his residence, nor did it
make it simple and easy to find him thereafter.
14 In Crete, 353 Mass. at 730, a case involving a car
accident, the Supreme Judicial Court held that service was
adequate even though it was sent to an incorrect address and
returned to the sender. The defendant himself had given the
incorrect address in a report of the accident that was
statutorily required under G. L. c. 90, § 26. Id. at 726.
Although the court stopped short of deciding that the defendant
was estopped as a matter of law from denying the address in the
report, id. at 730 n.7, it concluded that "there was sufficient
representation by [the defendant] that his real address was the
Hartford address to which notice was sent, and sufficient
tendency for that representation to mislead [the plaintiff], so
that [the defendant] should not now be heard to argue that [the
plaintiff] did not send notice" to the proper address, id. at
730.
We think the same is true here. Given the laws requiring
provision of one's residence at the scene of an accident, the
defendant's provision only of the Medford address was both a
sufficient representation that that was his residence, and had a
sufficient tendency to mislead, such that he cannot now be heard
to argue that the process was served at the wrong address. The
original attempt at service therefore was sufficient.3
The defendant is incorrect that the plaintiffs had any 3
obligation to contact "Enterprise Rent-A-Car Company (or the
15 To counter this, the defendant would rely on an affidavit
of his son filed after final judgment below, at the time of the
third motion for reconsideration in April 2022, which stated
that the defendant offered his Brazilian license to the trooper,
but that he refused to accept it and required a United States
address. Even if we assume the son's 2022 affidavit is true,
and that the events it described would amount to "making known"
his Brazilian residence, G. L. c. 90, § 24 (2) (a), (a 1/2) (1),
two questions we do not decide, this affidavit was not submitted
with the original motion to dismiss, nor indeed at any time
before final judgment entered. As it was not in the record
before the judge considering the first motion to dismiss, who
had no basis for finding irregular the provision of the Medford
address to the trooper, we may not consider it in the appeal
from the final judgment.
3. Conclusion. Because we conclude the initial attempt at
service was effective, we need not address either the second
attempt, which is also raised in the appeal from the final
title owner, EAN Holdings LLC) to determine the licensure status and home address of Assed" before relying on the address given to the trooper. The defendant was required at the scene of the accident to make known his name and residence in order to "make it simple and easy to find him" after an accident. Horsfall, 213 Mass. at 236. A plaintiff is not required to contact or engage in discovery with other adverse parties or nonparties seeking information that they may or may not have before relying on the defendant's own representation.
16 judgment, nor the appeal from the denial of the subsequent
motion to reinstate.
So much of the final judgment dated April 19, 2022, that
dismissed all claims against the defendant is vacated, and the
case is remanded for reinstatement of those claims. The
plaintiffs' appeal from the denial of the third motion for
So ordered.
By the Court (Rubin, Singh & Hershfang, JJ.4),
Clerk
Entered: June 28, 2024.
4 The panelists are listed in order of seniority.