WEBVTT

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<v ->SJC-12781.</v>

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Katherine Drake v. Town of Leicester.

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<v Mr. Vukmirovitz>Sorry.</v>

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Good morning, Your Honors.

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<v ->Tom, one moment.</v>
<v ->Oh, I'm sorry.</v>

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<v Justice Gants>All right, Mr. Vukmirovitz,</v>

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you may proceed.

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<v ->Thank you, Your Honor, I apologize.</v>

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Good morning, Your Honors.

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My name is Tom Vukmirovitz, and I represent Katherine Drake,

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the appellant, in this case.

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At issue here is what constitutes a timely presentment

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under the Mass. Torts Claims Act.

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The lower court ruled in allowing a motion

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to dismiss the complaint, that it is only upon receipt

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by the public agency.

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And I respectfully contend that that ruling is incorrect.

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Your Honor, the facts of this case are just very undisputed,

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and certainly, looking at it from the complaint's

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perspective, the injury occurred on January 19th, 2016.

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A presentment letter was mailed on January 19th, 2018,

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regarding Ms. Drake's damages,

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which arose from a slip and fall

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on accumulated snow and ice at a high school

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where she was picking up her grandchild.

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She fractured her knee and wrist,

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and contended that her injuries were caused

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by the negligent maintenance of the property.

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On January 22nd, 2018, the notice was received by the town.

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February seventh, the claim was denied,

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and suit was filed March 26th.

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Under 2584, the cause of action arose on January 19th, 2016.

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And under that statute, had to be presented

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through the form of a presentment letter

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two years after the date from which

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that cause of action arose.

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The lower court construed that the facts of this case

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amounted to a constructive notice

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that was rejected by the Weaver case.

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And also used a dictionary definition of presentment.

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And that's on the appendix, page 46 of her opinion.

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What she did not do, however,

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is look at the analogous Federal Torts Claims Act.

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Which, courts in this jurisdiction, including this court,

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have held that the Mass. Torts Claims Act

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is closely modeled after the Federal Torts Claims Act.

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In the Federal Torts Claims Act,

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there is a precise definition of how presentment is made.

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And the CFRs use the word received.

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When the public agency receives the notice,

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then a presentment is effectuated.

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In the Mass. Torts Claims Act,

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there's no definition of presentment

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in the definition section.

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And all the cases that I found only--

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<v ->Does the federal statute use the word presented, as well?</v>

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<v Mr. Vukmirovits>I believe presentment is,</v>

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and the CFRs use the word receive.

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And I believe under the Torts Claims Act,

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I believe it's presented, too.

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<v ->Well, that's different.</v>

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Received and presented are, I mean,

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aren't necessarily the same word.

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Does the federal statute use the word presentment,

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or presented?

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I'm just curious.

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<v ->I don't think it does.</v>

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But if it does, does it use the word receive?

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<v ->The CFRs clearly use receive.</v>

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I attached that in the appendix.

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It's in--

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<v Justice Gants>CFR does, but the statute does not.</v>

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<v ->Right.</v>

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And the CFR's how you present the claim.

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And I think, I'm not sure the reasoning behind that,

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but I presume because of the Federal Agencies

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are much larger.

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It would be harder to prove receipt,

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when you're talking about a national agency, versus--

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<v Justice Lenk>Do we model ours on the Feds?</v>

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<v ->Yes, there's case law that in the Vassis case,</v>

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and the Gavin case, I believe,

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make reference to the fact

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that the Mass. Torts Claims Act is closely modeled

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after the Federal--

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<v Justice Lenk>Yes, but does it help you</v>

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to have it in your receipt?

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<v ->Well, no, because there's a clear definition</v>

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under the Federal Torts Claims Act

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that it has to be received.

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<v ->But it doesn't use presentment.</v>

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You said.

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Presentment is the word that we're looking at,

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and that's not in the Federal Tort Claim Statute.

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So how do we make the--

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<v ->Because if the legislature wanted to</v>

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use the word received, it could've done so.

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It could've included in the definition section.

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It clearly could have defined and described

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how a claim is made.

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<v ->So it's only sort of modeled on the federal act?</v>

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<v Mr. Vukmirovtiz>Excuse me?</v>

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<v ->It's only sort of modeled on the federal act.</v>

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<v Mr. Vukmirovits>Well, the case law says</v>

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closely modeled, so.

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<v ->Well, I mean, I know that.</v>

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But I'm saying, I don't understand how it helps you,

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other than to show the difference.

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<v ->Because if the legislature wanted to hold that</v>

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the claim is presented upon, only upon receipt

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of the agency.

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<v ->But you're saying they would've done it expressly?</v>

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They would've done it expressly--

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<v ->Yes, that they would've used that word,</v>

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if that's what they meant.

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<v ->That assumes the CFR was done before</v>

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the Mass Tort Claims Act.

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Do we know whether or not the CFR was written before then?

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<v Mr. Vukmirovitz>I don't know, Your Honor.</v>

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<v ->So, the mailbox rule, however, I guess,</v>

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was well known at the time

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that the Tort Claims Act was enacted

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with regard to civil matters.

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<v ->But the one, all of the cases that I found,</v>

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Your Honor, just talk about the date of the injury,

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and then just go forward two years later,

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and that's when the claim has to be presented by.

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There's no instructive language in any case.

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The only case as cited by the defense

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is the Superior Court for Debt Case,

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which involved I think a rape claim

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on September 25th or 26th.

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And there was three separate notices

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that were sent on two years later, to the date.

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On September 26th, 2017.

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And then there was an issue of fact

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as to when those three letters were received.

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Either the 27th, the 28th, or early October.

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And that's why summary judgment was denied.

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But in that case, even in that case,

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the court held that there's a statute of limitation

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analysis to be employed.

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And the statute of limitation is it's not to avoid

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running the statute.

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You just have to file it in time.

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You don't have to serve the complaint in time.

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And also, the underlying of the reasoning

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of the lower court completely ignores the fact

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if you use this definition of presentment,

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that it has to be there on that day,

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the office was closed that day.

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So--

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<v Justice Lenk>And it was received</v>

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on the next business day, was it?

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<v ->I believe on the next business day, yes.</v>

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<v ->You make that point below?</v>

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<v ->It was received on January 22nd.</v>

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It was mailed on the 19th.

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The 19th, I believe, was a Friday.

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<v ->And that day was, the offices were closed?</v>

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<v ->The offices were closed that day, yeah.</v>

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<v Justice Lenk>You couldn't have presented it,</v>

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even if you went by, even if you went in person,

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you couldn't have presented it that day.

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<v ->No, no.</v>

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And even if it was mailed the day before,

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or two days before.

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<v ->And it got there that day.</v>

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So it got there the first, it got there Monday.

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In other words, it was received on the Monday?

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<v Mr. Vukmirovitz>I don't know--</v>

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<v ->Factually.</v>

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<v ->Yeah, it was received the next,</v>

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I think the next available business day.

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It might've been Martin Luther King holiday at that point.

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But the office was closed that day.

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And so, if there is a determination in a holding

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that presentment is made only upon receipt,

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then I'm not sure how results can be consistent.

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I mean, it doesn't account for delays in mailing.

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It doesn't account for weather emergencies,

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or anything like that.

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So for that reason, in statutory interpretation

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and construction, I contend that presentment,

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as intended by the legislature,

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is complete upon the mailing.

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And that's consistent

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with the interpretation of the statute.

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I believe the Weaver case talks about

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that there's strict compliance necessary

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for compliance with the Torts Claims Act.

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But there's specific mention that the only time

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that the statute is strictly construed

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is in terms of sending the notice

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to the proper agency.

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It's never been applied in terms of a timeliness issue.

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It's only sending it to the right executive officer.

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And in the Weaver case, there was a timely compliance

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with the initial letter, but it was sent to the wrong agency

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or department.

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Then by the time the right letter was sent,

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it was after the two years had passed.

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And that's why, in that case, there was a notation

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in the decision, that although this is a harsh result,

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this is the way the statute is construed.

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But in that case itself, I believe in the Balante case,

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the Vassis Case, the Gavin case,

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references the fact that there's a liberal interpretation

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and construction of the statute.

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<v ->So you're making the argument that it should be a rule</v>

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that says it should be complete on mailing?

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Rather than on receipt.

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But you're also saying that here factually,

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you should win because the office was closed on the day

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that it was due?

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Otherwise due, and receipt was on the next business day.

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Are you saying you have, you know, one,

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that the theory should be different

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than what the judge basically did.

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But it's also as a matter of fact,

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you should also win on the fact because it was closed?

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<v Mr. Vukmirovits>Yes.</v>

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If the statute--

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<v ->Requires receipt.</v>

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If it requires receipt, then you win on that one, too.

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<v ->If it requires receipt on that date--</v>

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<v ->Well, on a date that it's closed,</v>

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you couldn't possibly do that.

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<v ->Right, right.</v>

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That's why my argument is that it doesn't seem

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to make sense if you adopt that analysis.

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<v Justice Gants>Okay, thank you, sir.</v>

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<v ->May I just close on one note?</v>

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In the Weaver case, there is specific language

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in that case that, where the issue is

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whether or not there was prejudice needed to be shown.

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Because in that case, the claimant was trying

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to get around the fact that it wasn't done in time.

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And there's language in there that says that

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had this legislature intended to require

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showing a prejudice, they would've included that

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in the language, and similarly here.

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If the legislator intended that presentment

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is made only upon receipt, then it certainly would've

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included that in the language.

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<v Justice Lenk>Do you know why</v>

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the office was closed that day?

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<v ->Do I know why it was closed that day?</v>

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<v ->Yeah, was it a legal holiday?</v>

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<v ->They're not, no it's not open.</v>

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It's not on the record, but I called to find out,

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and there's certain days of the week

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that it's not open.

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<v Justice Lenk>Uh-huh.</v>

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<v ->So there's certain, in small towns,</v>

256
00:10:58.474 --> 00:11:01.256
unlike a larger city, these--

257
00:11:01.256 --> 00:11:02.267
<v Justice Lenk>They're not open every day.</v>

258
00:11:02.267 --> 00:11:04.350
<v ->They're not open every day, right.</v>

259
00:11:04.350 --> 00:11:05.398
<v Justice Gants>Okay, thank you.</v>

260
00:11:05.398 --> 00:11:07.010
<v Mr. Vukmirovitz>Thank you.</v>

261
00:11:07.010 --> 00:11:07.843
<v ->Ms. Garland.</v>

262
00:11:12.690 --> 00:11:14.430
<v ->Good morning, Your Honors.</v>

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00:11:14.430 --> 00:11:15.940
Chief Justice and Associate Justices,

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00:11:15.940 --> 00:11:18.640
may it please the court, Melina Garland for the appellee,

265
00:11:18.640 --> 00:11:19.653
Town of Leicester.

266
00:11:23.790 --> 00:11:28.790
Even if we accept Ms. Drake's argument that,

267
00:11:30.370 --> 00:11:32.330
even if we accept the facts in her complaint

268
00:11:32.330 --> 00:11:35.480
as she's pled them, it's quite clear

269
00:11:35.480 --> 00:11:36.820
that no one at the Town of Leicester

270
00:11:36.820 --> 00:11:40.130
had notice of her claim within two years,

271
00:11:40.130 --> 00:11:41.943
as the statute requires.

272
00:11:42.960 --> 00:11:44.940
And it is our position, of course,

273
00:11:44.940 --> 00:11:47.700
that her suit was properly dismissed

274
00:11:47.700 --> 00:11:49.600
because she failed to present her claim

275
00:11:49.600 --> 00:11:51.550
to the appropriate officer of the town

276
00:11:51.550 --> 00:11:53.700
within the two years set forth in section four

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00:11:53.700 --> 00:11:55.250
of the Tort Claims Act.

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00:11:55.250 --> 00:11:58.143
<v ->So how should we read in writing to the,</v>

279
00:11:59.135 --> 00:12:02.020
have first presented his claim in writing

280
00:12:02.020 --> 00:12:04.770
to the executive officer of such public employer.

281
00:12:04.770 --> 00:12:06.130
How should we define that?

282
00:12:10.314 --> 00:12:12.640
<v ->Our position is that it should be read</v>

283
00:12:12.640 --> 00:12:16.130
to say that the presentment must be received

284
00:12:16.130 --> 00:12:17.670
by the end of the two year period.

285
00:12:17.670 --> 00:12:19.173
<v Justice Gants>Received by whom?</v>

286
00:12:20.020 --> 00:12:21.810
<v ->By the appropriate officer.</v>

287
00:12:21.810 --> 00:12:24.000
<v ->So, who's the appropriate officer</v>

288
00:12:24.000 --> 00:12:25.733
in the Town of Leicester?

289
00:12:26.570 --> 00:12:29.390
<v ->The statute defines that to include, I believe,</v>

290
00:12:29.390 --> 00:12:33.710
the town clerk, as well as, I believe,

291
00:12:33.710 --> 00:12:35.230
the board of selectmen.

292
00:12:35.230 --> 00:12:38.577
<v ->So what if it's sent to the town clerk,</v>

293
00:12:38.577 --> 00:12:41.850
and the town clerk is on vacation for two weeks,

294
00:12:41.850 --> 00:12:42.743
what happens?

295
00:12:43.960 --> 00:12:45.750
<v ->I think it would be a reasonable interpretation</v>

296
00:12:45.750 --> 00:12:48.350
to say that if it's received in the town clerk's office

297
00:12:48.350 --> 00:12:49.690
by the end of the two year period,

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00:12:49.690 --> 00:12:51.910
even if the town clerk, him or herself,

299
00:12:51.910 --> 00:12:54.053
is absent, that would be sufficient.

300
00:12:55.400 --> 00:12:57.580
<v Justice Gants>There's no notice to the town clerk.</v>

301
00:12:57.580 --> 00:12:58.493
He's not there.

302
00:12:59.900 --> 00:13:01.563
<v Ms. Garland>That's a fair point, Your Honor.</v>

303
00:13:02.410 --> 00:13:06.343
<v ->So how is that different from the mailbox rule?</v>

304
00:13:07.300 --> 00:13:09.230
<v ->I think the difference is that,</v>

305
00:13:09.230 --> 00:13:11.190
while the plaintiff, or the claimant,

306
00:13:11.190 --> 00:13:13.940
cannot control whether the town clerk is present

307
00:13:13.940 --> 00:13:16.030
in his or her office on any given day,

308
00:13:16.030 --> 00:13:18.470
the plaintiff does have control over

309
00:13:18.470 --> 00:13:23.470
whether and when her presentment is in the office.

310
00:13:24.101 --> 00:13:24.934
<v ->How?</v>

311
00:13:25.790 --> 00:13:27.810
How does she have control over that?

312
00:13:27.810 --> 00:13:31.330
Just in terms of, I mean, once you put something

313
00:13:31.330 --> 00:13:33.420
in the mailbox, you have no control

314
00:13:33.420 --> 00:13:36.313
over when it's gonna get to where it's going.

315
00:13:37.390 --> 00:13:39.430
<v ->And that's unfortunately true for everyone.</v>

316
00:13:39.430 --> 00:13:40.920
And I'm sure we've all had experiences

317
00:13:40.920 --> 00:13:43.730
where we've mailed a letter, and it's arrived someplace,

318
00:13:43.730 --> 00:13:46.220
perhaps very close, more than a week later,

319
00:13:46.220 --> 00:13:48.450
more than a month later, or it's been returned

320
00:13:48.450 --> 00:13:51.370
for some reason, whether it's wrong address,

321
00:13:51.370 --> 00:13:52.860
or a lack of postage.

322
00:13:52.860 --> 00:13:57.800
But the history of the Tort Claims Act and the 41 years

323
00:13:57.800 --> 00:14:00.050
of case law interpreting it have made clear

324
00:14:00.050 --> 00:14:01.270
that the burden is on the plaintiff

325
00:14:01.270 --> 00:14:05.250
to comply with the three main components of presentment,

326
00:14:05.250 --> 00:14:08.040
which is in writing, to the appropriate officer,

327
00:14:08.040 --> 00:14:09.450
within the two year period.

328
00:14:09.450 --> 00:14:11.628
<v Justice Lowy>Is that why they give you two years?</v>

329
00:14:11.628 --> 00:14:12.461
<v ->Right.</v>

330
00:14:13.780 --> 00:14:15.480
<v ->I'm not sure why they chose a two year period,</v>

331
00:14:15.480 --> 00:14:16.658
Your Honor, but--

332
00:14:16.658 --> 00:14:18.080
<v Justice Lowy>But it's not the next day, so.</v>

333
00:14:18.080 --> 00:14:21.070
<v ->Yeah, you're not, you have time to get this done</v>

334
00:14:21.070 --> 00:14:23.070
if you're conscientious.

335
00:14:23.070 --> 00:14:25.450
And it's never been, I mean, when you have

336
00:14:25.450 --> 00:14:28.440
to do the chief executive, the mayor's office,

337
00:14:28.440 --> 00:14:30.200
you don't need the mayor to read it.

338
00:14:30.200 --> 00:14:31.590
It's the office, right?

339
00:14:31.590 --> 00:14:36.520
And the people who work for him or her.

340
00:14:36.520 --> 00:14:39.980
I mean, we've never interpreted that language narrowly,

341
00:14:39.980 --> 00:14:40.930
have we?

342
00:14:40.930 --> 00:14:42.270
<v ->I don't believe so, no, Your Honor.</v>

343
00:14:42.270 --> 00:14:43.460
And I think that's correct.

344
00:14:43.460 --> 00:14:48.460
<v ->So I think if you put it in the mail a week before,</v>

345
00:14:48.520 --> 00:14:52.440
and it gets rerouted, and it ends up there two days late,

346
00:14:52.440 --> 00:14:54.620
I think that's a really, I'm not sure that's

347
00:14:54.620 --> 00:14:55.580
even a hard case.

348
00:14:55.580 --> 00:14:57.110
Maybe that gets excused.

349
00:14:57.110 --> 00:14:59.530
But that's not what happened here.

350
00:14:59.530 --> 00:15:02.173
<v ->But what do you do with the fact that it was closed?</v>

351
00:15:03.184 --> 00:15:05.780
<v ->As my brother said, this is not in the record,</v>

352
00:15:05.780 --> 00:15:08.230
but the town hall in Leicester is never open on Fridays.

353
00:15:08.230 --> 00:15:10.500
And I would submit that a two year period

354
00:15:10.500 --> 00:15:11.490
is a very generous period of time--

355
00:15:11.490 --> 00:15:13.710
<v ->But it's two years, it's two full years.</v>

356
00:15:13.710 --> 00:15:14.543
<v Ms. Garland>Two full years.</v>

357
00:15:14.543 --> 00:15:17.513
<v ->And that means that one day of it is not counted for.</v>

358
00:15:18.360 --> 00:15:19.280
Right?

359
00:15:19.280 --> 00:15:20.113
<v ->I'm sorry?</v>

360
00:15:20.113 --> 00:15:22.523
<v ->The last day they didn't get, because it was closed.</v>

361
00:15:25.170 --> 00:15:26.180
In the two years, right?

362
00:15:26.180 --> 00:15:29.670
So it's 365 days times two, or you know, whatever.

363
00:15:29.670 --> 00:15:33.090
But the last day is something they're entitled to, right?

364
00:15:33.090 --> 00:15:35.010
And they didn't get it because your office was closed.

365
00:15:35.010 --> 00:15:36.670
So why doesn't it count that it got there

366
00:15:36.670 --> 00:15:37.920
on the next business day?

367
00:15:39.080 --> 00:15:42.670
<v ->I would submit that the statute doesn't provide for that.</v>

368
00:15:42.670 --> 00:15:44.490
The rules of civil procedure, for instance,

369
00:15:44.490 --> 00:15:48.160
specifically provide that where a deadline falls

370
00:15:48.160 --> 00:15:51.410
on a weekend or a holiday, the deadline is moved,

371
00:15:51.410 --> 00:15:53.890
automatically, to the next business day.

372
00:15:53.890 --> 00:15:56.020
But the Tort Claims Act does not provide that.

373
00:15:56.020 --> 00:15:58.240
Section four does not say that.

374
00:15:58.240 --> 00:16:00.840
And if the legislature had intended to extend the period

375
00:16:00.840 --> 00:16:02.510
in that way, they certainly could've done so,

376
00:16:02.510 --> 00:16:05.860
just as they could have modeled that portion of it

377
00:16:05.860 --> 00:16:08.350
after rule three, of the Rules of Civil Procedure.

378
00:16:08.350 --> 00:16:09.920
And said that you could present the claim

379
00:16:09.920 --> 00:16:12.640
merely by putting it in the mail, using certified mail.

380
00:16:12.640 --> 00:16:16.490
Rather than having to go to a particular office.

381
00:16:16.490 --> 00:16:18.990
<v Justice Gants>Was January 19th a Friday?</v>

382
00:16:18.990 --> 00:16:19.983
Do we know this?

383
00:16:21.610 --> 00:16:25.600
<v ->January 19th, 2018 was, I believe, a Friday.</v>

384
00:16:25.600 --> 00:16:27.200
<v Justice Gants>So that's how, okay.</v>

385
00:16:27.200 --> 00:16:30.303
So it's a Friday, and the office is closed on Fridays.

386
00:16:31.410 --> 00:16:32.310
<v ->Yes, Your Honor.</v>

387
00:16:33.690 --> 00:16:35.580
<v ->So if she had tried to walk it there,</v>

388
00:16:35.580 --> 00:16:40.310
and found the door locked,

389
00:16:40.310 --> 00:16:42.010
she just would've been outta luck.

390
00:16:43.310 --> 00:16:44.990
<v ->I suppose she could've put it under the door.</v>

391
00:16:44.990 --> 00:16:47.050
She would still have a problem of proof,

392
00:16:47.050 --> 00:16:49.970
as to receipt in the town hall that day.

393
00:16:49.970 --> 00:16:51.399
And I think--

394
00:16:51.399 --> 00:16:53.010
<v ->Don't wanna do that in a town, do ya'?</v>

395
00:16:53.010 --> 00:16:55.790
You don't wanna put it under the door of the town hall.

396
00:16:55.790 --> 00:16:56.730
<v Ms. Garland>That's not the method</v>

397
00:16:56.730 --> 00:16:58.460
I would choose, certainly.

398
00:16:58.460 --> 00:17:00.240
<v ->So whose burden is it to prove</v>

399
00:17:00.240 --> 00:17:01.093
that it was timely presented?

400
00:17:01.093 --> 00:17:02.880
It's the plaintiff's burden, correct?

401
00:17:02.880 --> 00:17:03.970
<v Ms. Garland>It is, Your Honor.</v>

402
00:17:03.970 --> 00:17:05.640
<v ->So, how is a plaintiff supposed to prove</v>

403
00:17:05.640 --> 00:17:09.300
that it was received without being able

404
00:17:09.300 --> 00:17:11.700
to obtain that information from the town itself?

405
00:17:18.640 --> 00:17:20.960
<v ->Well, one of the ways of doing that is certified mail.</v>

406
00:17:20.960 --> 00:17:25.090
One of the ways of doing that is going in person,

407
00:17:25.090 --> 00:17:27.570
and asking for a receipt that it's been submitted,

408
00:17:27.570 --> 00:17:28.993
or a date-stamped copy.

409
00:17:30.410 --> 00:17:33.820
I think there's several ways of ensuring

410
00:17:33.820 --> 00:17:37.230
that you can later demonstrate that it was timely.

411
00:17:37.230 --> 00:17:39.810
Just as the evidence in this case indicates

412
00:17:39.810 --> 00:17:42.293
that it was received outside of the two year period.

413
00:17:43.800 --> 00:17:46.720
<v ->But if you just mail it, just drop it in the mailbox,</v>

414
00:17:46.720 --> 00:17:50.080
you'd have to get, you'd have to depose

415
00:17:50.080 --> 00:17:52.080
or have some information from the town itself

416
00:17:52.080 --> 00:17:53.840
to be able to allow you to prove that it was,

417
00:17:53.840 --> 00:17:55.720
in fact, received.

418
00:17:55.720 --> 00:17:56.682
<v ->I believe that's correct.</v>

419
00:17:56.682 --> 00:17:58.562
If it were simply first class mail,

420
00:17:58.562 --> 00:18:01.560
there would have to be some testimony

421
00:18:01.560 --> 00:18:03.510
or other evidence from the town,

422
00:18:03.510 --> 00:18:05.740
in order to demonstrate receipt.

423
00:18:05.740 --> 00:18:08.950
<v ->Does the fact that it's closed matter at all?</v>

424
00:18:08.950 --> 00:18:12.223
Because it's mailed on the day it's due.

425
00:18:14.530 --> 00:18:18.070
Which is risky business, even if they were open, right?

426
00:18:18.070 --> 00:18:18.903
<v ->I agree.</v>

427
00:18:20.460 --> 00:18:23.340
Unfortunately, and I think this is probably a lesson

428
00:18:23.340 --> 00:18:25.110
many of us have learned at one time or another,

429
00:18:25.110 --> 00:18:28.570
that when something is left 'til the last minute,

430
00:18:28.570 --> 00:18:31.050
things may not go quite to plan.

431
00:18:31.050 --> 00:18:36.050
And that's why I emphasize that it's the plaintiff's burden

432
00:18:38.500 --> 00:18:41.370
and responsibility to ensure that it's there

433
00:18:41.370 --> 00:18:42.260
ahead of time.

434
00:18:42.260 --> 00:18:44.633
That it's there on that last day.

435
00:18:59.041 --> 00:19:01.210
I just would also like to address my brother counsel's

436
00:19:01.210 --> 00:19:05.530
argument that strict compliance in the history

437
00:19:05.530 --> 00:19:06.780
of jurisprudence on the Tort Claims Act

438
00:19:06.780 --> 00:19:09.680
does not apply to the timeliness requirement.

439
00:19:09.680 --> 00:19:14.430
There are at least three cases where timeliness is included

440
00:19:14.430 --> 00:19:17.658
in the description of things that a plaintiff

441
00:19:17.658 --> 00:19:20.270
or claimant needs to strictly comply with,

442
00:19:20.270 --> 00:19:22.390
including Martin vs. Commonwealth,

443
00:19:22.390 --> 00:19:24.400
Tivnan vs. the Registry of Motor Vehicles,

444
00:19:24.400 --> 00:19:27.813
and Estate of Gavin vs. Tewksbury State Hospital.

445
00:19:30.730 --> 00:19:35.300
And the reasons for that, the reason to support

446
00:19:35.300 --> 00:19:38.730
a bright-line rule, that it must be received,

447
00:19:38.730 --> 00:19:40.200
is that that provides clarity

448
00:19:40.200 --> 00:19:42.770
for both the claimant, and the public employer,

449
00:19:42.770 --> 00:19:45.940
who is working with limited funds

450
00:19:45.940 --> 00:19:47.340
and many financial commitments,

451
00:19:47.340 --> 00:19:48.920
among which they must budget.

452
00:19:48.920 --> 00:19:53.250
One of the purposes of the Tort Claims Act,

453
00:19:53.250 --> 00:19:54.710
and of the presentment requirement

454
00:19:54.710 --> 00:19:58.110
are to give the person, the executive officer

455
00:19:58.110 --> 00:20:00.470
of a public employer, the person with responsibility

456
00:20:00.470 --> 00:20:02.730
for its finances and its operations,

457
00:20:02.730 --> 00:20:06.380
notice of the claim, an opportunity to investigate it,

458
00:20:06.380 --> 00:20:11.053
and to ensure that nonmeritorious claims are not paid.

459
00:20:11.960 --> 00:20:14.070
But also to allow an opportunity to settle

460
00:20:14.070 --> 00:20:17.942
meritorious claims, in order to limit the amount of time

461
00:20:17.942 --> 00:20:22.942
and money that public employers are required

462
00:20:23.210 --> 00:20:25.025
to spend in litigation.

463
00:20:25.025 --> 00:20:30.025
And that bright-line rule will better conserve

464
00:20:30.960 --> 00:20:33.230
those resources and will also avoid situations

465
00:20:33.230 --> 00:20:35.630
where a letter is mailed, even well within

466
00:20:35.630 --> 00:20:38.580
the presentment period, but isn't received for two weeks,

467
00:20:38.580 --> 00:20:40.480
or several months, or even a year,

468
00:20:40.480 --> 00:20:44.303
or is never received for reasons completely unknown.

469
00:20:45.444 --> 00:20:48.850
What Ms. Drake is asking for is that the town be deemed

470
00:20:48.850 --> 00:20:50.620
to have notice as of the date

471
00:20:50.620 --> 00:20:52.070
that she has put it in the mail,

472
00:20:52.070 --> 00:20:53.692
and I don't believe that a fair reading

473
00:20:53.692 --> 00:20:55.800
of section four of the Tort Claims Act

474
00:20:55.800 --> 00:20:58.080
supports that conclusion.

475
00:20:58.080 --> 00:21:00.640
That's, at best, constructive notice,

476
00:21:00.640 --> 00:21:02.343
but it's really no notice at all.

477
00:21:05.460 --> 00:21:06.293
<v Justice Gants>Okay.</v>

478
00:21:06.293 --> 00:21:08.920
<v ->If there are no further questions, I thank you very much.</v>

479
00:21:10.098 --> 00:21:13.809
<v ->All rise.</v>

480
00:21:13.809 --> 00:21:15.923
Hear ye, hear ye, hear ye.

481
00:21:15.923 --> 00:21:19.353
All present have named and further ado before the Honorable.