Estate of Gavin v. Tewksbury State Hospital

Grasso, J.

Does the “claimant” in a presentment that asserts a claim for wrongful death under the Massachusetts Tort Claims Act, G. L. c. 258, § 4, inserted by St. 1978, c. 512, § 4 (Act), permissibly include someone who is not a duly appointed executor or administrator? We conclude that it does not. This is an appeal from the dismissal of a wrongful death action against Tewksbury State Hospital and the Commonwealth under the Act. A judge of the Superior Court dismissed the complaint on the pleadings, concluding that the plaintiff lacked the legal capacity to make a valid presentment. We affirm.

1. Background. Steven J. Gavin died on August 11, 2008, from a bacterial infection allegedly due to the improper reinsertion of a feeding tube and improper monitoring by physicians and staff at Tewksbury State Hospital. At the time of his death, Gavin left two teenage children as his heirs at law and next of kin. Gavin also left a will naming his father, James Thomas Gavin (Thomas), and his mother, Mary Gavin (Mary), as coexecutors of his estate.

On July 21, 2010, an attorney sent a presentment letter to the chief executive officer of the hospital, and to the Attorney General, demanding relief under the Act on behalf of “the Estate of Steven Gavin and his individual children.” The presentment letter set forth in detail the basis of the claim of wrongful death. At the time of the presentment, no Probate and Family Court filings had occurred, and no executor or administrator of Gavin’s estate had been appointed.

On August 30, 2010, Maureen McGee, general counsel of the Executive Office of Health and Human Services, replied to the presentment letter, confirming that the office had received it from the Attorney General² and would be reviewing the claim to determine whether a settlement offer was warranted. On March 24, 2011, after the statutory six-month waiting period expired, the “Estate of Steven Gavin,” as named plaintiff, commenced suit under the Act alleging wrongful death. At the time of filing suit, no Probate and Family Court filings had yet been undertaken, and no executor or administrator (or temporary executor or administrator) of Gavin’s estate had been appointed.

On May 4, 2011, the defendants moved to dismiss the complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), asserting two grounds, each of which derived from the failure of appointment of a legal representative authorized to institute a wrongful death action. The defendants asserted that (1) there was no duly appointed personal representative of the estate empowered to bring suit, and (2) the presentment pursuant to G. L. c. 258, § 4, was deficient for the same reason. The plaintiff promptly opposed the motion and made some preliminary attempts to address the fact that there was no duly appointed personal representative empowered to bring the wrongful death action. On May 10, 2011, Thomas and Mary were appointed temporary coexecutors of Gavin’s estate. As well, on May 13, 2011, the plaintiff moved to amend the complaint, bringing it in the name of “James T. Gavin and Mary Gavin, as Coexecutors of the Estate of Steven Gavin.”³

After hearing on July 19, 2011, the motion judge allowed the defendants’ motion to dismiss and denied the plaintiff’s motion to amend. The judge reasoned that the plaintiff’s presentment was deficient because it was not that of a “claimant,” an executor or administrator with the capacity to commence suit or settle the wrongful death claim. We agree. The failure of an authorized claimant to make a presentment within the two-year period prescribed by G. L. c. 258, § 4, was a fundamental obstacle to suit under the Act.

Even beyond that impediment, an independent justification existed for dismissal of the action as it stood before the Superior Court judge: the complaint for wrongful death was not brought by the duly authorized executor or administrator on behalf of the heirs at law and next of kin. See MacDonald v. Moore, 358 Mass. 801, 801 (1970) (no action may be brought under wrongful death statute, G. L. c. 229, § 2, “unless it is brought by the decedent’s executor or administrator”). Only an executor appointed under G. L. c. 192, § 4, may bring a wrongful death action, not a temporary executor appointed pursuant to G. L. c. 192, § 14. See Marco v. Green, 415 Mass. 732, 736-737 (1993) (G. L. c. 192, § 14, limits ability of temporary executor to bring legal action and only executor appointed under G. L. c. 192, § 4, may bring wrongful death action). Thus, even had the presentment been proper, on the record before the motion judge, the suit itself was properly dismissed because it was not commenced or maintained by a party with the legal authority to do so.⁴

2. Discussion. General Laws c. 258 establishes a special procedure for claimants to bring tort claims against governmental entities that previously were barred by sovereign immunity. See Audette v. Commonwealth, 63 Mass. App. Ct. 727, 734-735 (2005) (Act abolished general sovereign immunity while retaining Commonwealth’s immunity for certain stated types of actions). As pertinent here, G. L. c. 258, § 4, inserted by St. 1978, c. 512, § 4, provides:

“A civil action shall not be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing . . . within two years after the date upon which the cause of action arose, and such claim shall have been finally denied by such executive officer in writing .... The failure of the executive officer to deny such claim in writing within six months after the date upon which it is presented, or the failure to reach final arbitration, settlement, or compromise of such claim according to the provisions of section five, shall be deemed a final denial of such claim. No civil action shall be brought more than three years after the date upon which such cause of action accrued.” (Emphasis supplied.)

Although not jurisdictional, proper presentment is a condition precedent to bringing suit under the Act. See Vasys v. Metropolitan Dist. Commn., 387 Mass. 51, 52, 56 (1982). While it is tempting to view the presentment requirements as mere technicalities, presentment serves important public purposes, including ensuring that the responsible public official receives timely notice so that he can (1) investigate to determine whether a claim is valid, (2) settle valid claims expeditiously and preclude payment of inflated or nonmeritorious claims, and (3) take steps to ensure that similar claims will not be brought in the future. Lodge v. District Attorney for the Suffolk Dist., 21 Mass. App. Ct. 277, 283 (1985). Establishing presentment as a mandatory prerequisite to suit reflects a legislative choice to permit the public employer to investigate any claim in full and to negotiate, arbitrate, compromise, or settle any such claim as it sees fit. See Weaver v. Commonwealth, 387 Mass. 43, 47-48 (1982); Holahan v. Medford, 394 Mass. 186, 189 (1985). “The presentment requirement envisions arbitration, compromise, or settlement of claims. See G. L. c. 258, § 5.” Pickett v. Commonwealth, 33 Mass. App. Ct. 645, 647 (1992). To further these purposes, the presentment requirement is strictly enforced without need for the public employer to show prejudice from a defective presentment. See Weaver v. Commonwealth, supra at 49; Martin v. Commonwealth, 53 Mass. App. Ct. 526, 528-529 (2002); Bellanti v. Boston Pub. Health Commn., 70 Mass. App. Ct. 401, 406 (2007).

The parties do not dispute that Gavin’s death on August 11, 2008, triggered commencement of the two-year presentment period, and that proper presentment must have occurred by August 11, 2010. Nor do the parties dispute that the July 21, 2010, letter from the attorney was timely, see Weaver v. Commonwealth, supra at 45; was directed to the appropriate executive officer of the public employer, see Lodge v. District Attorney for the Suffolk Dist., supra at 279-281; and was sufficiently detailed to identify the legal basis of the claimed wrong, see Gilmore v. Commonwealth, 417 Mass. 718, 723 (1994); Martin v. Commonwealth, supra at 528-529. The sole disputed issue is whether the presentment was that of a “claimant” within the meaning of the Act. We agree with the motion judge that it was not.

Unlike other terms in G. L. c. 258, § 4, “claimant” is not defined in the Act. See G. L. c. 258, § 1. “When the words of a statute are clear, they are to be given their ordinary and natural meanings. If the meanings are unclear, the statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated. In addition, a statute should be read as a whole to produce an internal consistency.” Adoption of Marlene, 443 Mass. 494, 497-498 (2005) (quotations and citations omitted).

With these principles in mind, we conclude that a “claimant” under the Act must be someone with the legal capacity to make the “claim.” The power to negotiate, arbitrate, compromise, or settle the claim derives from the power to maintain it in the first instance. See Marco v. Green, 415 Mass. at 735 n.9. In most cases, the “claimant” will be the person injured, acting personally or through an attorney. Consequently, the public employer will know with whom it must deal to further the statutory purposes of presentment. The situation differs when the “claimant” is deceased.⁵ Such is especially true when, as here, the claim is for wrongful death. The wrongful death statute, G. L. c. 229, § 2, sets forth with specificity the procedural requirements that control such an action. See Gaudette v. Webb, 362 Mass. 60, 71 (1972) (wrongful death statute establishes procedural requirements for recovery of damages, including that action be brought by personal representative on behalf of designated categories of beneficiaries).⁶ The statute prescribes that damages for wrongful death or injuries causing death “shall be recovered in an action of tort by the executor or administrator of the deceased.” G. L. c. 229, § 2, inserted by St. 1958, c. 238, § 1. Interpreting this requirement, the court has held that “[n]o action . . . can be maintained for death . . . unless it is brought by the decedent’s executor or administrator.” MacDonald v. Moore, 358 Mass. at 801. See Matsuyama v. Birnbaum, 452 Mass. 1, 24 n.39 (2008) (affirming holding of Gaudette v. Webb, supra at 71, regarding requirements of statute, including who may bring action). See also Marco v. Green, supra at 735-736. The plaintiff’s suggestion that the term “claimant” encompasses an attorney with a good faith basis to bring a claim mistakenly conflates an attorney’s authority to assert a claim on behalf of a client with whether the client has the capacity to make the claim in the first instance. Had the Legislature intended such authority, it could have so provided. Rather, the Act’s framework manifests the Legislature’s considered judgment that the “claimant” should have the requisite legal capacity at all stages of the proceedings. See G. L. c. 258, §§ 3 (initiation of civil action), 4 (presentment), 5 (settlement), 7 (same), & 11 (judgment for costs of frivolous actions). Were it otherwise, the public employer would be at risk of expending limited public resources investigating, negotiating, and compromising a claim that could not be brought to finality or that placed it at risk of repeated defense against the same claim. See Marco v. Green, supra. Accordingly, we hold that where the claim under the Act is for wrongful death, the claimant for purposes of the G. L. c. 258, § 4, presentment must be the duly appointed executor or administrator of the deceased.

Here, the claimant was not the duly appointed executor or administrator of Gavin’s estate. In consequence, a condition precedent to suit under the Act was not met. See Vasys v. Metropolitan Dist. Commn., 387 Mass. at 52. The subsequent appointment of an executor or administrator did not, and could not, timely cure that failed presentment. “[T]he relation back principles of Mass.R.Civ.R 15(c) . . . have no application to the presentment requirement of the Act.” Weaver v. Commonwealth, 387 Mass. at 48.⁷

We reject any suggestion that the Commonwealth’s response lulled the plaintiff into a false sense of security that its presentment met statutory requirements. See Bellanti v. Boston Pub. Health Commn., 70 Mass. App. Ct. at 407. The response carried no express or implied promise that the Commonwealth would not challenge the claimant’s legal capacity any more than that it would not challenge the substance of the claim. The Act does not place upon the public employer the duty to investigate the legal capacity of a claimant ab initia. Nor was there anything in the presentment that would have triggered such inquiry. To the contrary, the presentment’s assertion that the attorney represented “the Estate of Steven Gavin and his individual children” suggested that formal steps had been taken to probate the estate and obtain the appointment of the executor or administrator necessary to file a wrongful death claim when no such actions had been undertaken.

The judge did not err in concluding that the presentment was improper because the claimant lacked the legal capacity to make a presentment for wrongful death. Apart from the failure of presentment, the complaint for wrongful death also could not properly be maintained and was subject to dismissal because it had not been brought by the duly authorized executor or administrator on behalf of the heirs at law and next of kin as required by statute. The judgment dismissing the complaint is affirmed.

So ordered.

2 The presentment coordinator in the Attorney General’s office forwarded the presentment to the Executive Office of Health and Human Services on July 29, 2010.

3 As the Commonwealth had not yet filed a responsive pleading, the plaintiff was free to file an amended complaint as matter of right and without leave of court. See Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974). Neither the plaintiff’s opposition nor its motion to amend requested the Superior Court judge to stay action on the Commonwealth’s motion to dismiss pending appointment of coexecutors. Indeed, the amended complaint erroneously identified Thomas and Mary as coexecutors when they were but temporary coexecutors.

4 Although not part of the record before the judge, or before this court, the plaintiff asserts in his reply brief that on July 27, 2011, subsequent to hearing on the Commonwealth’s motion to dismiss, Thomas and Mary were appointed coexecutors of the “Estate of Steven J. Gavin.” No record of that appointment was ever filed or entered on the docket. Nor did the plaintiff ever seek to amend the complaint on that basis prior to dismissal.

5 Where the claim under the Act is for negligence only, such a claim survives the death of the injured party. See G. L. c. 228, § 1(2) (governing the survival of actions). In that circumstance, the “claimant” would be the executor or administrator of the injured party. See Harrison v. Loyal Protective Life Ins. Co., 379 Mass. 212, 219 (1979) (administratrix could proceed with decedent’s tort claim, which survived his death under G. L. c. 228, § 1).

6 The statute authorizes consortium-type damages for the next of kin, see G. L. c. 229, § 2, and conscious suffering damages on behalf of the estate. See G. L. c. 229, § 6. It is well established that the money recovered under § 2 is not generally an asset of the probate estate “but constitutes a statutory trust fund held by the executor or administrator] as trustee for distribution to the statutory beneficiaries.” See Sullivan v. Goulette, 344 Mass. 307, 311 (1962); Bratcher v. Galusha, 417 Mass. 28, 29-31 (1994); Bratcher v. Moriarty, Donoghue & Leja, P.C., 54 Mass. App. Ct. 111, 114 (2002).

7 Similarly, G. L. c. 231, § 51, and Mass.R.Civ.R 17(a), as amended, 454 Mass. 1401 (2009), which allow the substitution of parties or other amendment, do not avail the plaintiff where the failure is to make the required presentment under the Act.