Opinion
22-P-49
11-08-2022
KIMBERLY A. AMARAL v. CITY OF FALL RIVER & another. [1]
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The complaint in this matter alleges that plaintiff Amaral suffered serious personal injury following a collision between her motor vehicle and an ambulance, owned by the City of Fall River (city), operated by Cynthia Rodriguez within the course and scope of her employment. The case was dismissed by a judge of the Superior Court who allowed the defendant city's motion for judgment on the pleadings on the grounds that Amaral failed to comply with the pre-suit presentment requirement of the Massachusetts Tort Claims Act, G. L. c. 258, §§ 1. Under the first paragraph of G. L. c. 258, § 4, prior to suing a public employer presentment of the claim must be made in writing "to the executive officer of such public employer within two years after the date upon which the cause of action arose." The Legislature, however, in 1988 amended the statute to add a paragraph providing that, "Notwithstanding the provisions of the preceding paragraph," under which presentment must be made to the mayor, "in the case of a city or town, presentment of a claim pursuant to this section shall be deemed sufficient if presented to any of the following: mayor, . . . corporation counsel, city solicitor."
In this case, the presentment letter was sent within three months of the collision at issue by fax to "City of Fall River -- Law Department," which the city itself describes in its briefing before us and on its website as its "Office of Corporation Counsel." The salutation on the presentment letter was "Dear Sir/Ma'am."
See Department Law, https://www.fallriverma.org/department/law/.
This letter was sent twenty-one months prior to the deadline for sending a presentment letter. Subsequent to its being sent, counsel for the plaintiff received correspondence from someone named Brooke Wilson, Glatfelter Claims Management Inc., indicating that she was "handling [the claim] on behalf of American Alternative Insurance Corporation, the automobile carrier for the City of Fall River." Ms. Wilson and counsel for Amaral engaged in lengthy settlement negotiations. Suit, however, ultimately was filed almost two years later, following which the city filed its motion to dismiss on the ground that the presentment letter was inadequate.
The presentment was clearly timely, and, although the statute does not specify what content must be included in such a letter, the letter was certainly adequate to put the city on notice and to provide the city with "the opportunity to investigate and settle claims and to prevent future claims." Estate of Gavin v. Tewksbury State Hosp., 468 Mass. 123, 132 (2014), quoting Shapiro v. Worcester, 464 Mass. 261, 268 (2013). We conclude, addressing what is fundamentally at issue here, that a letter addressed to the office of an official to whom presentment may be made, with the salutation "Dear Sir or Madam," is adequate to meet the presentment requirement in the statute. Although there is no case squarely stating this, it appears from the case law that letters addressed to the office of the relevant official have been used to meet the presentment requirement. See, e.g., Estate of Gavin, supra at 125 ("the estate's counsel sent a presentment letter pursuant to § 4 to the office of the Attorney General").
In light of our conclusion that the presentment letter thus was sufficient to meet the requirements of the statute, we need not address the plaintiff's alternative arguments: that having engaged in many, many months of settlement discussions with the plaintiff prior to the deadline for presentment without raising presentment as an obstacle, the city is estopped from seeking dismissal on grounds of failure of presentment, and that, if not, the plaintiff is entitled to discovery in order to determine whether the city's corporation counsel received actual notice of the presentment letter after its delivery to his office. See Lopez v. Lynn Hous. Auth., 440 Mass. 1029, 1031 (2003) .
The city's request for an award of its appellate attorney's fees is denied. The judgment is reversed and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
The panelists are listed in order of seniority.