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Garcia v. Essex County Sheriff's Dep't11/10/2005
lowed the motion to dismiss on September 1, 2004, and summary judgment entered for ECSD on September 3, 2004. A timely appeal followed.
Discussion
Prior to filing a civil tort suit against a public employer, G. L. c. 258, § 4, requires that a plaintiff "shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose." "Presentment must be made 'in strict compliance with the statute.'" Gilmore v. Commonwealth, 417 Mass. 718, 721 (1994), quoting from Weaver v. Commonwealth, 387 Mass. 43, 47 (1982). See Rodriguez v. Cambridge Hous. Authy., 59 Mass. App. Ct. 127, 134 n.7 (2003), S.C., 443 Mass. 697 (2005), citing Martin v. Commonwealth, 53 Mass. App. Ct. 526, 529 (2002) (strict compliance refers more to whether the proper party was notified in a timely fashion, than to the adequacy of the content). We address two issues raised on appeal: (1) whether the proper person was sent notice; and (2) the adequacy of the content of the presentment.
Person to whom notice is sent. As a general rule, a party must present its claim directly to the executive officer of the public employer. See, e.g., Weaver v. Commonwealth, 387 Mass. at 47-48. The purpose of this rule is to provide notice to the highest ranking official with the ability to fully investigate, "arbitrate, compromise or settle" such claim, Holahan v. Medford, 394 Mass. 186, 189 (1985), quoting from G. L. c. 258, § 5, in order to ensure that the interests of the Commonwealth are protected. Weaver v. Commonwealth, 387 Mass. at 48. See Lodge v. District Attorney for the Suffolk Dist., 21 Mass. App. Ct. 277, 283 (1985). An exception to the general rule exists where the record shows that the proper person had actual notice of the claim. See Lopez v. Lynn Hous. Authy., 440 Mass. 1029, 1030-1031 (2003) (although presentment letters were not addressed to the appropriate person, the statutory purpose was fulfilled where the executive director had actual notice as demonstrated by his direct response to the claim). Constructive notice of the claim is insufficient. Robinson v. Commonwealth, 32 Mass. App. Ct. 6, 10 (1992).
In this case, it is agreed that Sheriff Frank Cousins was the executive officer and was thus the appropriate person to notify. Garcia contends, however, that the record supports the inference that Sheriff Cousins had notice (and thus presentment was made to the appropriate person) because (1) the letterhead of ECSD had the sheriff's name on it in the upper left corner; and (2) the attorney or administrative person in the ECSD responded to the claim as an agent of Sheriff Cousins with the authority to investigate and settle the dispute. Therefore, Garcia argues, in the course of the investigation, Sheriff Cousins must have been made aware of the claim. We disagree.
The mere use of official letterhead is not sufficient to indicate that Sheriff Cousins had actual notice of the claim. Contrast Lopez v. Lynn Hous. Authy., 440 Mass. at 1030-1031 (actual notice where the executive officer personally responded to the presentment); Carifio v. Watertown, 27 Mass. App. Ct. 571, 572 (1989) (sufficient communication where a copy of the presentment letter was sent by certified mail to the executive officer and that officer also received a copy of the reply).
Garcia's agency argument that the attorney who responded to the claim did so in a representative capacity sufficient to demonstrate notice to Sheriff Cousins is also without merit. " he Legislature did not intend presentment to a public employer's attorney to suffice under G. L. c. 258, § 4, unless it specifically so indicated." Holahan v. Medford, 39
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