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16-P-300                                            Appeals Court

  ALEXIS D. COREN-HALL1    vs. MASSACHUSETTS BAY TRANSPORTATION
                             AUTHORITY.


                            No. 16-P-300.

        Suffolk.    December 13, 2016. - February 23, 2017.

              Present:   Milkey, Massing, & Sacks, JJ.


Practice, Civil, Presentment of claim under Massachusetts Tort
     Claims Act, Interlocutory appeal, Summary judgment.
     Massachusetts Tort Claims Act. Notice, Claim under
     Massachusetts Tort Claims Act. Massachusetts Bay
     Transportation Authority, General manager.



     Civil action commenced in the Superior Court Department on
May 16, 2012.

     The case was heard by Peter M. Lauriat, J., on a motion for
summary judgment, and a motion for reconsideration was
considered by him.


     Amy Bratskeir (Jonathan P. Feltner also present) for the
defendant.

    1
       Nina Hall, Maleek Hall, Daja-Nae Hall-Ivery, and Timothy
Pruitt were also plaintiffs on the complaint. The claims of all
plaintiffs, except Alexis D. Coren-Hall, were dismissed, in part
due to settlements of their claims, before entry of the order at
issue in this appeal. Thus the only remaining plaintiff is
Alexis D. Coren-Hall.
                                                                     2


     Albert E. Grady for the plaintiff.


     SACKS, J.   The defendant, Massachusetts Bay Transportation

Authority (MBTA), appeals from a Superior Court order denying

its renewed motion for summary judgment on plaintiff Alexis D.

Coren-Hall's tort claim under the Massachusetts Tort Claims Act,

G. L. c. 258.    The MBTA's motion asserted that Coren-Hall had

failed to make presentment of her claim to the MBTA's "executive

officer," as required by G. L. c. 258, § 4.    The judge denied

the motion on the ground that, although Coren-Hall had not made

presentment to the MBTA's executive officer, the executive

officer nevertheless had "actual notice" of the claim.   We

conclude that the MBTA's motion should have been allowed.2

     Background.    Coren-Hall alleged that on May 10, 2010, she

was injured when a negligently driven MBTA bus struck a vehicle

that she was in the process of entering.    After she filed suit

on May 16, 2012, the MBTA's answer asserted, as an affirmative

defense, that she had failed to make proper presentment of her

claim as required by G. L. c. 258, § 4.    In July, 2015, the MBTA




     2
       In an unpublished memorandum and order issued on January
11, 2017, under our rule 1:28, we reversed the order denying the
MBTA's motion. See Coren-Hall v. Massachusetts Bay Transp.
Authy., 90 Mass. App. Ct. 1125 (2017). This opinion in general
follows the rule 1:28 memorandum and order. We publish this
opinion to offer additional guidance to litigants and the trial
courts on what has proven to be a recurring issue.
                                                                      3


filed a renewed motion for summary judgment on that basis.3

Under G. L. c. 258, § 4, a tort claim against a public employer

must be presented to its "executive officer," defined in G. L.

c. 258, § 1, inserted by St. 1978, c. 512, § 15, as its "nominal

chief executive officer or board,"4 within two years after the

cause of action arose.     The MBTA's motion asserted that,

although Coren-Hall had timely mailed notice of her claim to the

MBTA "Claims Department," she had never sent such notice to the

executive officer.     The judge denied the MBTA's motion, and this

appeal followed.5

     Discussion.     The parties' joint statement of material facts

established as undisputed that Coren-Hall's then-attorney had

timely sent notice of the claim and subsequent supporting


     3
         The prior proceedings are not germane to this appeal.
     4
       Effective June 29, 2012, the Tort Claims Act was amended
to define "[e]xecutive officer of a public employer" to mean, in
the particular case of the MBTA, "its general manager and rail
and transit administrator." G. L. c. 258, § 1, as appearing in
St. 2012, c. 132, § 3. As the amendment took effect after the
expiration of the two-year presentment period in this case, it
is not applicable here. For simplicity we use the term
"executive officer" in this decision.
     5
       The appeal is properly before us under the doctrine of
present execution. See Rodriguez v. Somerville, 472 Mass. 1008,
1009-1010 (2015) (city could immediately appeal denial of motion
to dismiss tort claim based on defective presentment, because
issue concerned city's sovereign immunity from suit under G. L.
c. 258). See generally Smith v. Massachusetts Bay Transp.
Authy., 462 Mass. 370, 373-374 (2012) (under doctrine of
sovereign immunity, MBTA may not be sued absent Commonwealth's
consent, as now expressed in G. L. c. 258).
                                                                   4


materials to the "MBTA Claims Department" in May of 2010 and May

of 2011; the 2011 letter included a request to "turn this notice

letter over to the proper authority for handling."     The joint

statement further established that Coren-Hall herself neither

personally communicated with any MBTA personnel (including its

executive officer) within the two-year period after the

accident, nor knew what other communications her attorney might

have had with such MBTA personnel in that period.    The MBTA

admitted that in the fall of 2014, after the two-year

presentment period had passed, it had made settlement offers to

Coren-Hall and the remaining plaintiffs other than Pruitt, and

that those plaintiffs, but not Coren-Hall, had accepted the

offers and settled their cases.   See note 1, supra.

    The judge, in denying the MBTA's summary judgment motion,

noted that Coren-Hall did "not dispute that she presented her

claim to the Claims Department, and not the executive officer of

the MBTA as required by the statute."   Nevertheless, the judge

reasoned, "the MBTA was only able to extend settlement offers

upon conducting an investigation of the plaintiffs' claims and

receiving approval from those officials with the authority to

negotiate a settlement," and accordingly, it was "apparent that

the designated executive officer of the MBTA had actual notice

of Ms. Coren-Hall's claim."   The judge relied on the recognized

"actual notice" exception, under which "the presentment
                                                                      5


requirement will be deemed fulfilled if the plaintiff can show

that, despite defective presentment, the designated executive

officer had actual notice of the written claim."        Bellanti v.

Boston Pub. Health Commn., 70 Mass. App. Ct. 401, 407 (2007),

citing Lopez v. Lynn Hous. Authy., 440 Mass. 1029, 1030 (2003).

This was error.

    "[T]he actual notice exception is narrow."       Bellanti, supra

at 407.   "Under our precedents, notice to the executive officer

will not be inferred or imputed from the fact that others with

responsibility for investigation and settlement of the dispute

received the plaintiff's presentment letter and were in contact

with the plaintiff."     Id. at 408, citing Garcia v. Essex County

Sheriff's Dept., 65 Mass. App. Ct. 104, 108 (2005).       See Holahan

v. Medford, 394 Mass. 186, 189 (1985).

    In Garcia, presentment was improperly made to a sheriff's

chief fiscal officer, rather than the sheriff himself as

executive officer.     65 Mass. App. Ct. at 105, 108.    Within the

two-year presentment period, the sheriff's in-house counsel

investigated the claim and made a written settlement offer, on

sheriff's department letterhead.     Id. at 106.   After the

claimant refused the offer and filed suit, the sheriff

successfully moved to dismiss for failure to make proper

presentment.   Id. at 106-107.    On appeal, this court rejected

the claimant's "actual notice" argument -- that in all of the
                                                                    6


circumstances, the sheriff "must have been made aware of the

claim" -- and affirmed the dismissal.   Id. at 108-109, 111.

     Under Garcia, a subordinate's settlement offer within the

presentment period is an insufficient basis to conclude that the

executive officer "must have" known of the claim.   It follows

that the settlement offer in this case, made by unidentified

MBTA personnel after the two-year presentment period had passed,

falls even further short of a basis to conclude that the MBTA's

executive officer had "actual notice" of the claim within the

presentment period.6   The statute is "strict," requiring that

presentment be "made to the proper executive officer . . . in a

timely fashion."   Martin v. Commonwealth, 53 Mass. App. Ct. 526,

529 (2002).   Accord Garcia, 65 Mass. App. Ct. at 107.

Therefore, the judge erred in ruling that the "actual notice"

exception applied to Coren-Hall's improper presentment.7


     6
       In contrast, in Lopez v. Lynn Hous. Authy., supra, despite
presentment improperly having been "addressed generically" to
the housing authority, the executive officer himself, within the
two-year presentment period, informed the claimant in writing
that the claim had been investigated and denied. This left no
doubt that the executive officer had received timely "actual
notice" of the claim. 440 Mass. at 1030-1031.
     7
       Coren-Hall also argues that we should recognize an
"equitable tolling" exception to the presentment requirement,
similar to the exception to the Federal Tort Claims Act's
deadlines for presentment and for filing suit. See United
States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015). We decline to
consider the argument, because, inter alia, Coren-Hall has not
identified any conduct on the part of the MBTA that hindered her
ability to make proper presentment. Contrast id. at 1629
                                                                      7


    "We recognize that this is a harsh result, particularly

where it may have made no practical difference to the [MBTA]

that [the executive officer], himself, was not notified of the

plaintiff's claim."   Bellanti, 70 Mass. App. Ct. at 408.    "In

the context of presentment, however, it has been held that '[i]t

is irrelevant that the defendant may not have suffered any

prejudice by reason of the lack of actual notice.' . . .     We are

not in a position to change that rule."   Id. at 409, citing

Robinson v. Commonwealth, 32 Mass. App. Ct. 6, 10 (1992).

Therefore, we are constrained to conclude that the judge erred

in denying the MBTA's motion.

    Conclusion.   For the foregoing reasons, on January 11,

2017, we determined that the MBTA was entitled to summary

judgment in its favor.




(Federal court delay in issuing ruling caused claimant to miss
deadline for filing suit); id. at 1630 (another claimant alleged
that Federal agency had concealed essential information, causing
her to miss presentment deadline).
