Mottola v. Cirello , 2002 R.I. LEXIS 18 ( 2002 )

OPINION

GOLDBERG, Justice.

This case came before the Supreme Court on December 12, 2001, on petitions for writ of certiorari by both parties to review sua sponte orders of the Superior Court. These orders directed defense counsel, in connection with the substitution of the state as the party defendant pursuant to G.L. 1956 § 9-31-12(b), to withdraw his appearance and further ordered the Attorney General to enter an appearance on behalf of the State of Rhode Island. We also granted certiorari on behalf of the plaintiff to review a sua sponte order that declared that plaintiff was no longer entitled to prejudgment interest on any damage award, and that the award was subject to the statutory cap on damages enjoyed by the state pursuant to § 9-31-1. We affirm in part and reverse in part.

Facts and Travel

On June 18, 1997, Rudolph Mottolla (plaintiff or Mottolla) was operating a motor vehicle and, while stopped, was struck from behind by a vehicle operated by Mark E. Cirello (Cirello or employee), who, at the time of the collision, was employed by the State of Rhode Island (the state), a co-defendant in this case. The plaintiff filed a personal injury action on June 10, 1998, alleging negligence by both the employee and the state as respondeat superior. Prior to the collision, the state had entered into a contract of insurance with Royal Sun & Alliance Insurance Company (Royal or insurer) that provided for liability coverage for the state’s fleet vehicles, including the vehicle involved in this collision. Included in the contract of insurance is a provision requiring the state to cooperate in the defense of any claims and accord the carrier discretion to investigate and settle claims as it sees fit.

The record discloses that when served with the complaint, the Attorney General forwarded the claim to Royal for defense and coverage. Royal proceeded to retain the firm of Higgins, Cavanagh & Cooney (Higgins or defense counsel) to answer and defend the suit. Higgins answered the complaint on behalf of both Cirello and the state and subsequently moved, pursuant to § 9 — 31—12(b), to dismiss the claim against Cirello and to substitute the state as the party defendant. The trial justice granted the motion, dismissed Mottola’s claim against the employee, and ordered the substitution of the state as the party defendant. However, she also declared sua sponte, that plaintiff was no longer entitled to statutory interest on any potential judgment and that the statutory cap on damages pursuant to § 9-31-1 applied to any judgment plaintiff may recover. Finally, the trial justice ordered that “the Attorney General * * *[shall] enter his appearance forthwith [and that] [e]ounsel for the defendant shall withdraw simultaneously.” This Court granted certiorari in order to review these interlocutory rulings.

Standard of Review

“Questions of * * * statutory interpretation are reviewed de novo by this Court.” Webster v. Perrotta, 774 A.2d 68, 75 (R.I.2001) (citing Rhode Island Depositors Economic Protection Corp. v. Bowen Court Associates, 768 A.2d 1005, 1007 (R.I. 2001)). “In matters of statutory interpretation our ultimate goal is to give effect to the purpose of the act as intended by the Legislature.” Webster, 774 A.2d at 75 (citing Matter of Falstaff Brewing Corp. Re: Narragansett Brewery Fire, 637 A.2d 1047, 1050 (R.I.1994)). Further, “when the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings.” Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.1996).

“Of course, it is equally well established that, when confronted with statutory provisions that are unclear or ambiguous, this Court, as final arbiter of questions of statutory construction, will examine statutes in their entirety, and will ‘glean the intent and purpose of the Legislature “from a consideration of the entire statute, keeping in mind [the] nature, object, language and arrangement” of the provisions to be construed.’ In re Advisory to the Governor, 668 A.2d 1246, 1248 (R.I.1996) (quoting Algiere v. Fox, 122 R.I. 55, 58, 404 A.2d 72, 74 (1979)). This analysis, however, is unnecessary in the face of the unambiguous statutory language.” State v. DiCicco, 707 A.2d 251, 253 n. 1 (R.I.1998).

Motion to Dismiss

The trial justice, relying upon § 9-31-12(b), granted Cirello’s motions to dismiss the claim against him and to substitute the state as the party defendant. Section 9-31-12 provides:

“Indemnification — Reservation of obligation — Certification.—(a) The state reserves the right to determine whether or not it will indemnify any employees defended pursuant to §§ 9-31-8 — 9-31-11, if a judgment is rendered against the employee.

“(b) Upon certification by the court in which the tort action against a state employee is pending that (1) the defendant employee was acting within the scope of his or her office or employment when the claim arose, and (2) the claim does not arise out of actual fraud, willful misconduct, or actual malice by the employee, any civil action or proceeding commenced upon the claim under this statute shall be deemed to be an action or proceeding brought against the state under the provisions of this title and all references thereto, and the state shall be substituted as the party defendant.” (Emphasis added.)

The language of this statute is clear and unambiguous, and, upon certification of the predicate facts that the employee-tortfeasor was acting within the scope of his or her employment and that the claim is not fraudulent, malicious or the result of willful misconduct, the suit “shall be deemed to be an action or proceeding brought against the state.” In accordance with our well established principle of statutory construction, the words of the statute shall be given their plain and ordinary meaning. Accent Store Design, Inc., 674 A.2d at 1226. Therefore, once the state stipulated that Cirello was acting within the scope of his employment and that the suit was not improperly motivated, the court appropriately substituted the state as the party defendant. Although this section does not mandate that the action be dismissed against Cirello, a substitution effectively removes the employee from the case. Thus, we are satisfied that a dismissal of the claim against Cirello was appropriate in these circumstances. However, the statute does not address the questions of prejudgment interest or the applicability of a statutory cap on damages.

Finally, we conclude that the hearing justice had no authority to dictate who shall represent the state in this action or in any other litigation. Although we recognize that § 9-31-6 provides that in an action “against the state of Rhode Island, the [Attorney [Gjeneral, or any assistant attorney general authorized by him or her, shall represent the state in the action!,]” we are not satisfied that this statute precludes the state from entering into a contract of insurance that includes a provision that the carrier will provide a defense to claims made pursuant to the policy.

Defense Counsel

The Attorney General of the State of Rhode Island holds a constitutional office with specific and significant responsibilities to the people of Rhode Island. Pursuant to article 9, section 12, of the Rhode Island Constitution, the duties and powers of the Attorney General remained the same under the Constitution as existed at the time the Constitution was adopted, “or as from time to time may be prescribed by law.” This Court has held that the Attorney General is independent from other branches of government, including the judiciary. In re House of Representatives (Special Prosecutor), 575 A.2d 176, 179 (R.I.1990). Further, G.L. 1956 § 42-9-6 provides:

“Except as otherwise in the general laws provided, the attorney general, whenever requested, shall act as the legal advis- or of the individual legislators of the general assembly, of all state boards, divisions, departments, and commissions and the officers thereof, of all commissioners appointed by the general assembly, of all the general officers of the state, and of the director of administration, in all matters pertaining to their official duties, and shall institute and prosecute, whenever necessary, all suits and proceedings which they may be authorized to commence, and shall appear for and defend the above-named individual legislators, boards, divisions, departments, commissions, commissioners, and officers, in all suits and proceedings which may be brought against them in their official capacity.” (Emphasis added.)

Moreover, with respect to tort claims made against a state employee, § 9-31-8 provides that “upon a written request of an employee or former employee of the state,” the Attorney General shall defend any action brought pursuant to the provisions of chapter 31 of title 9. (Emphasis added.) This mandate is not, however, absolute. In § 9-31-9, the General Assembly has recognized that the Attorney General’s participation in a case may create a conflict of interest, the employee may refuse to cooperate in his or her defense, or it may simply not be in the best interest of the state for the Attorney General to defend the action. In the event that the Attorney General, in the exclusive exercise of his or her statutory authority, determines that it is not in the best interest of the state or the employee to undertake the defense, § 9-31-11 requires that the state pay for reasonable counsel fees and that the Attorney General “shall consult in advance with the prospective counsel to establish the parameters within which the state will be liable for attorneys’ fees[.T’

Here, there is no evidence that prior to when the motion for substitution was filed, Cirello never requested the Attorney General to provide a defense to this claim. Further, the Attorney General was not obligated to undertake the representation of the state as the substituted defendant until Cirello was dismissed from the claim.¹ Thus, pursuant to § 9-31-10, the mandate that the Attorney General shall “assume exclusive control over the representation of the employee or former state employee” arises only where there has been a written request from the employee, and only after the Attorney General has declined to exercise his or her exclusive right to require the state to engage independent counsel. In addition, G.L. 1956 § 28-39-13 and G.L. 1956 § 28-42-41 both authorize the Attorney General to delegate work to private counsel in tort actions. Accordingly, it was an abuse of discretion for the hearing justice to order the Attorney General to do anything in this case. It is not the province of this Court, or the Superior Court, to dictate how the Attorney General elects to carry out the statutory functions of his office. Therefore, the order of the trial justice directing the Attorney General to immediately enter his appearance in this case is vacated.² Moreover, in the context of this case, there is no authority for a justice of the Superior Court to direct defense counsel to withdraw his appearance. Thus, the order mandating that Higgins withdraw as counsel is likewise vacated.

Prejudgment Interest and the Statutory Cap on Damages

Although the applicability of the statutory cap on damages provided for in § 9-31-2 and the availability of prejudgment interest in the context of this case are intriguing questions, these issues were not before the trial justice. We note that neither subsection (a) of § 9-31-12, providing for an indemnification of an employee-tortfeasor “if a judgment is rendered against the employee,” nor subsection (b), permitting the substitution of the state under certain circumstances, addresses the question of the prejudgment interest or the cap on damages. Further, we are mindful that the prohibition against prejudgment interest is a matter of decisional law and not an act of the General Assembly and it is for this Court to address this issue when it is properly before us. See Andrade v. State, 448 A.2d 1293 (R.I.1982) (prejudgment interest unavailable in negligence action against the state). Nonetheless, as inviting as this intellectual exercise may be, these issues were not before the court and it was an abuse of discretion for the hearing justice to make such sweeping orders. Thus, the sua sponte orders relative to damages and the availability of prejudgment interest are vacated.

Conclusion

For the foregoing reasons, we grant the petitions for certiorari in part and deny them in part. The order of the trial justice is affirmed in so far as it dismissed the claim against Cirello. The orders directing the Attorney General to enter his appearance, ordering defense counsel to withdraw its appearance, and the orders relative to the availability of prejudgment interest and the statutory cap on damages are quashed. The papers in this case are remanded to the Superior Court with our decision endorsed thereon.

1 . Although Higgins also represented the state on the issue of the state’s vicarious liability as Cirello's employer, this relationship also arose out of contract with the insurer. Neither the wisdom of that contract nor its provisions were before the hearing justice. Moreover, the manner in which state officials seek to protect the state from adverse personal injury claims and any agreements made relative to a defense of those claims is not the role of the judiciary.

2 . We disagree with the dissent’s position that a sua sponte order, directing the Attorney General to enter his appearance in this case simply because the state was substituted as the party defendant, was appropriate and should be affirmed. The Attorney General was not provided with notice of the motion for substitution, nor was he afforded an opportunity to learn anything about the factual basis underlying this claim before he was ordered to enter his appearance. The fact remains that, although the state has been substituted as the party defendant, the state employee is the tortfeasor, the individual whose conduct is the subject matter of the claim. The state employee tortfeasor is unknown to the Attorney General and his or her presence in the suit as a cooperating witness may pose a significant conflict of interest for the Attorney General. For example, this collision may have resulted in criminal charges against this tortfeasor or the employee may have been previously prosecuted by the Attorney General. Further, there could be multiple joint tortfeasors, some of whom are already represented by the Attorney General. Thus, we are satisfied that the order directing the Attorney General to enter his appearance without proper notice, or an opportunity to review the factual circumstances of this negligence claim, was inappropriate and an abuse of discretion. Although we may hold differently in future cases, aided by an appropriate appellate record, we are not convinced that a sua sponte order issued in the absence of a record, or an opportunity to be heard, is the proper circumstance to address the significant question of the Attorney General’s responsibilities upon the entry of an order substituting the state for the employee tortfeasor.