Case Law Update: Massachusetts Governmental Immunity
The Massachusetts appellate courts have recently decided two cases that present very different views of the notice requirement that applies to claims against governmental agencies in the Commonwealth. In one case, the Supreme Judicial Court took a very reasonable and practical view of the requirement, while just two weeks earlier, the Appeals Court applied a more restrictive reading that surprised many lawyers and created a new trap for the unwary. Lawyers and potential claimants should be aware of both cases.
As most lawyers know, a personal injury claim against the Commonwealth of Massachusetts or one of its municipal entities must be presented to the appropriate authority within two years. The purpose behind the notice requirement is to allow the governmental agency an opportunity to evaluate and, if appropriate, settle, the claim before suit is filed. In practice, it is almost unheard of to have a government agency present a settlement offer before suit. Indeed, these agencies have very little incentive to settle claims, as they are not subject to pre-judgment interest, they are defended by staff attorneys already on the payroll–thus avoiding additional legal fees–and their liability is capped at $100,000.
Instead of evaluating and settling claims, as contemplated by the statute, many government agencies habitually allow the six-month notice period to elapse without bothering to respond, and then try to defeat the claim by raising technical defects in the notice. Thus, General Laws, Chapter 258, Section 4, which establishes the notice requirements, has been the subject of significant litigation over the years as the parties and the courts have tried to decide when minor defects in the statutory requirements might be overlooked.
The Supreme Judicial Court cast a vote for common sense in Shapiro v. Worcester, 464 Mass. 261 (January 30, 2013), holding that the notice requirement would not be applied retroactively to bar claims for nuisance for which presentment was not required at the time the cases were filed. The plaintiffs in Shapiro had brought private nuisance claims against the City of Worcester for damage to their properties resulting from the discharge of raw sewage from city sewers onto their land. In accordance with the SJC decision in Morrissey v. New England Deaconess, 458 Mass. 580 (2010), these claims were subject to the limitations and requirements of Chapter 258–however, the Shapiros’ claims had been filed in 2008, before Morrissey was decided. The SJC, quite sensibly, ruled that the requirement of notice would not be applied retroactively to preclude claims that were proper when filed. The Court noted that, to hold otherwise, would “only invalidate otherwise viable claims,” and would do nothing to effectuate the purpose of Chapter 258.
Just twelve days earlier, however, the Appeals Court issued a decision that surprised many practitioners, holding that a claim was barred if not presented to the government by a properly appointed executor, even though the notice was otherwise adequate and correct in all respects and even though the executor was soon thereafter appointed by the probate court. In Gavin v. Tewksbury State Hospital, 83 Mass. App. 139 (January 18, 2013), the court held that the required notice must be given by a properly appointed party with authority to bring the claim, even though the presentment clearly identified the decedent’s daughters, who would be the statutory beneficiaries of the claim.
Gavin creates a trap for the unwary, as it is inconsistent with the longstanding practice that a complaint filed by an estate will not be dismissed for lack of a proper party, but instead, the appointment of a personal representative for the estate will relate back to the filing. See, Mellinger v. West Springfield, 401 Mass. 188 (1987). Lawyers who are familiar with this “relation back” law would rightly expect that the same principle would apply to the presentment requirement. This is particularly true because, for purposes of the government’s evaluation of the claim and the potential damages, the relevant parties are the statutory beneficiaries–in Gavin, the decedent’s daughters–and not the personal representative, who is simply a conduit for the recovery. These points and others are thoughtfully made by Appeals Court Associate Justice Peter W. Agnes, Jr., in his dissent.
Gavin elevates form over function, and would seem to be inconsistent with the SJC’s unwillingness to “invalidate otherwise viable claims,” as expressed in Shapiro. Although Shapiro did not involve a defect in the actual presentment, the Court’s view perhaps signals a more practical view of the notice requirement and its underlying purpose than was applied in Gavin. The plaintiff in Gavin has filed an application for further appellate review, which will give the SJC an opportunity to clarify this issue.