Opinion
No. 11–P–2073.
2013-06-28
Dorothy GLENN, executrix, v. Amanda CHALMERS & another.
Clickner v. Lowell, 422 Mass. 539, 544 (1996). The first factor is dispositive. The plaintiff misconstrues the law by attempting to hold Chalmers's failure to disclose her employment against the Commonwealth. Chalmers's actions are not relevant in determining whether the Commonwealth should be estopped from making an argument. As the plaintiff concedes, there is no record evidence that the Commonwealth concealed Chalmers's public employment or even misled the decedent in any way. Therefore, we cannot say that the Commonwealth should “be estopped from asserting a position when it never represented by conduct or by words that it would do otherwise.” Id. at 545.
By the Court (TRAINOR, GRAINGER & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a judgment in the Superior Court dismissing her complaint.
She makes three arguments: (1) that the discovery rule should apply; (2) that the presentment period should be equitably tolled; and (3) that the Commonwealth should be estopped from raising untimely presentment as a defense. Passing on whether these arguments are waived for failure to raise them below, we affirm.
She also appeals from the denial of her motion for new trial and the assessment of costs in favor of Amanda Chalmers.
Background. On October 19, 2006, Amanda Chalmers, an employee of the Department of Mental Retardation (department),
rear-ended a car in which Maria Glenn (decedent) was a passenger. After a relatively brief period, settlement negotiations broke down between the decedent and Chalmers's insurer, and the decedent filed suit against Chalmers. On September 24, 2008, i.e., six days after filing her answer, Chalmers filed an amended answer in which she asserted for the first time a defense of immunity as a public employee acting within the scope of her duties. On November 26, 2008, the decedent sent a presentment letter to the Attorney General and to the Secretary of the Executive Office of Health and Human Services, who directs the executive office in which the department falls. The decedent then amended her complaint to include the Commonwealth as a defendant. The Commonwealth moved to dismiss based on untimely presentment, and the motion was allowed. The decedent and Chalmers proceeded to trial to determine whether Chalmers was in the scope of her employment at the time of the accident. A jury returned a special verdict concluding that she was, and judgment accordingly entered in Chalmers's favor. See G.L. c. 258, § 2. The plaintiff, as executrix of the decedent's estate, now appeals.
Near the end of the events in this case, the Department of Mental Retardation was renamed the Department of Developmental Services. See St.2008, c. 451, § 28.
Standard of review. The motion judge dismissed the complaint against the Commonwealth under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). It appears, however, that he considered factual matters outside the pleadings, so the motion should have been treated as a motion for summary judgment.
See Mass.R.Civ.P. 12(b). Accordingly, we review as though the judge granted summary judgment for the Commonwealth. Cousineau v. Laramee, 388 Mass. 859, 860 n. 2 (1983). We determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
Neither party argues that the motion judge exceeded his scope in addressing matters outside the pleadings, so we do not consider the issue here. See Cousineau v. Laramee, 388 Mass. 859, 860 n. 2 (1983).
Discussion. The car accident between Chalmers and the decedent occurred on October 19, 2006, so the presentment period expired on October 19, 2008. See G.L. c. 258, § 4. The decedent did not mail her presentment letter until November 26, 2008, more than five weeks after the deadline. Unless the discovery rule, equitable tolling, or estoppel applies, the plaintiff's claim must fail. See Weaver v. Commonwealth, 387 Mass. 43, 47 (1982) (presentment must be “made in strict compliance with the statute”).
1. Discovery rule. “Under th[e] discovery rule, the statute of limitations ... does not start to run ‘until a plaintiff has first, an awareness of [her] injuries and, second, an awareness that the defendant caused [her] injuries.’ “ Koe v. Mercer, 450 Mass. 97, 101 (2007), quoting from Doe v. Creighton, 439 Mass. 281, 283 (2003). The plaintiff argues that the claim did not fully accrue until the decedent became aware that Chalmers was a public employee, and so the presentment period did not begin until that date. We disagree. In Krasnow v. Allen, 29 Mass.App.Ct. 562, 570 (1990), we held that the discovery rule does not apply where a defendant's public employment status “was not inherently unknowable” during the presentment period.
In Krasnow, supra at 569–570, the plaintiff did not learn that his wife's doctor was a public employee until the presentment period had expired, yet we concluded that his claim accrued once he had knowledge both of the harm and of the physician's causal involvement. At that moment, “the claim against [the doctor]'s public employer ... was not inherently unknowable. The plaintiff's knowledge was sufficient to stimulate further inquiry on his part about the claim.” Id. at 570.
Here, we need not decide whether Chalmers's public employment was “knowable” because it is clear from the record that the decedent had actual knowledge of Chalmers's employment during the presentment period. Chalmers asserted immunity as a public employee in her amended answer,
which was served on September 24, 2008, more than three weeks before the presentment deadline.
As her fourteenth defense, Chalmers asserted: “[T]he Defendant says that at the time of the alleged accident, the Defendant was a public employee in the scope of her employment with Commonwealth of Massachusetts and is not liable to the Plaintiff under the provisions of [G.L.] c. 258, § 2.”
On that very same day, the decedent's attorney billed her for one hour for reviewing Chalmers's amended answer.
The plaintiff still argues that, while the decedent may have known that Chalmers was a Commonwealth employee, she did not know which agency Chalmers worked for and thus could not present her claim to the proper executive officer under G.L. c. 258, § 4.
That fact is beside the point, however, because the decedent could have fulfilled the requirements of the statute by presenting her claim to the Attorney General alone. See G.L. c. 258, § 4, second par., as appearing in St.1989, c. 161 (“[P]resentment of a claim pursuant to this section shall be deemed sufficient if presented to the attorney general”); Daveiga v. Boston Pub. Health Commn., 449 Mass. 434, 436–437 (2007) (“The act requires that this presentment be made on the ‘executive officer’ of the entity sued.... However, it provides also that ... in the case of the Commonwealth or its constituent agencies, presentment may be made to the Attorney General”). Accordingly, we will not apply the discovery rule to the facts of this case.
Chalmers did not inform the decedent that she was an employee of the department until November 18, 2008.
2. Equitable tolling. The plaintiff next argues that the presentment period should be equitably tolled because Chalmers concealed her employer's identity. We are aware of no Massachusetts case that has applied equitable tolling to the presentment requirements under G.L. c. 258, § 4. Nevertheless, the plaintiff cites to a line of Federal cases that have applied equitable tolling to the presentment requirements under the Federal Tort Claims Act (FTCA) and urges us to create a Massachusetts analogue. See Vining v. Commonwealth, 63 Mass.App.Ct. 690, 693 (2005) (noting Federal decisions interpreting the FTCA are helpful in construing G.L. c. 258). We decline to do so on the facts of this case.
The Federal cases that have extended equitable tolling to presentment have done so only where the plaintiff has exercised due diligence in seeking the identity of the defendant, but still was unsuccessful. See, e.g., Santos ex rel. Beato v. United States, 559 F.3d 189, 197–203 (3d Cir.2009). Contrast Norman v. United States, 467 F.3d 773, 776 (D.C.Cir.2006). After reviewing the record, it appears unlikely that the plaintiff could meet this stringent requirement. Rather than acknowledge that the decedent should have attempted to uncover Chalmers's employer, the plaintiff would prefer to shift the burden onto Chalmers and her insurer for failing to disclose her employer. But “[i]t is the plaintiff who must exercise due diligence, not the defendant or the defendant's insurance company.” Id. at 777.
3. Estoppel. The plaintiff also argues that the Commonwealth should be estopped from asserting untimely presentment as a defense based on Chalmers's failure to disclose her public employer. Estoppel is a three-factor test, and all three factors must be present:
“(1.) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made. (2.) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made. (3.) Detriment to such person as a consequence of the act or omission.”
Clickner v. Lowell, 422 Mass. 539, 544 (1996). The first factor is dispositive. The plaintiff misconstrues the law by attempting to hold Chalmers's failure to disclose her employment against the Commonwealth. Chalmers's actions are not relevant in determining whether the Commonwealth should be estopped from making an argument. As the plaintiff concedes, there is no record evidence that the Commonwealth concealed Chalmers's public employment or even misled the decedent in any way. Therefore, we cannot say that the Commonwealth should “be estopped from asserting a position when it never represented by conduct or by words that it would do otherwise.” Id. at 545.
4. Costs. Finally, the plaintiff argues that the trial judge abused her discretion in awarding costs to Chalmers. After trial, Chalmers moved for attorney's fees and costs under G.L. c. 231, § 6F, inserted by St.1976, c. 233, § 1, which requires a showing that the claims were “wholly insubstantial, frivolous and not advanced in good faith.” That motion was denied. The judge, however, did allow Chalmers's motion for costs under Mass.R.Civ.P. 54(d), as appearing in 382 Mass. 821 (1980),
which provides that “costs shall be allowed as of course to the prevailing party unless the court otherwise directs.” See G.L. c. 261, §§ 1, 13. The costs were not awarded at the judge's discretion. Rather, unless the judge exercises her discretion otherwise, rule 54(d) mandates that costs be awarded to the prevailing party. There was no abuse of discretion. We also allow Chalmers's request for attorney's fees and costs in defending the portion of this appeal that addressed the award of costs below.
The docket incorrectly states that this motion was filed pursuant to G.L. c. 231, § 6F. It is clear from the filing itself that Chalmers moved under Mass.R.Civ.P. 54(d), and the judge's order assessing $1,515.53 in costs reflects that it was a rule 54 motion.
Chalmers may file an application for fees and costs, with appropriate supporting documentation, with this court within fourteen days of the date of the rescript. See Fabre v. Walton, 441 Mass. 9, 10–11 (2004). The plaintiff shall have fourteen days thereafter to respond. Ibid.
Judgment affirmed.
Orders denying motion for new trial and allowing motion for costs affirmed.