-: SJC-12781.
Katherine Drake v. Town of Leicester.
Mr. Vukmirovitz: Sorry.
Good morning, Your Honors.
-: Tom, one moment. -: Oh, I'm sorry.
Justice Gants: All right, Mr. Vukmirovitz,
you may proceed.
-: Thank you, Your Honor, I apologize.
Good morning, Your Honors.
My name is Tom Vukmirovitz, and I represent Katherine Drake,
the appellant, in this case.
At issue here is what constitutes a timely presentment
under the Mass. Torts Claims Act.
The lower court ruled in allowing a motion
to dismiss the complaint, that it is only upon receipt
by the public agency.
And I respectfully contend that that ruling is incorrect.
Your Honor, the facts of this case are just very undisputed,
and certainly, looking at it from the complaint's
perspective, the injury occurred on January 19th, 2016.
A presentment letter was mailed on January 19th, 2018,
regarding Ms. Drake's damages,
which arose from a slip and fall
on accumulated snow and ice at a high school
where she was picking up her grandchild.
She fractured her knee and wrist,
and contended that her injuries were caused
by the negligent maintenance of the property.
On January 22nd, 2018, the notice was received by the town.
February seventh, the claim was denied,
and suit was filed March 26th.
Under 2584, the cause of action arose on January 19th, 2016.
And under that statute, had to be presented
through the form of a presentment letter
two years after the date from which
that cause of action arose.
The lower court construed that the facts of this case
amounted to a constructive notice
that was rejected by the Weaver case.
And also used a dictionary definition of presentment.
And that's on the appendix, page 46 of her opinion.
What she did not do, however,
is look at the analogous Federal Torts Claims Act.
Which, courts in this jurisdiction, including this court,
have held that the Mass. Torts Claims Act
is closely modeled after the Federal Torts Claims Act.
In the Federal Torts Claims Act,
there is a precise definition of how presentment is made.
And the CFRs use the word received.
When the public agency receives the notice,
then a presentment is effectuated.
In the Mass. Torts Claims Act,
there's no definition of presentment
in the definition section.
And all the cases that I found only--
-: Does the federal statute use the word presented, as well?
Mr. Vukmirovits: I believe presentment is,
and the CFRs use the word receive.
And I believe under the Torts Claims Act,
I believe it's presented, too.
-: Well, that's different.
Received and presented are, I mean,
aren't necessarily the same word.
Does the federal statute use the word presentment,
or presented?
I'm just curious.
-: I don't think it does.
But if it does, does it use the word receive?
-: The CFRs clearly use receive.
I attached that in the appendix.
It's in--
Justice Gants: CFR does, but the statute does not.
-: Right.
And the CFR's how you present the claim.
And I think, I'm not sure the reasoning behind that,
but I presume because of the Federal Agencies
are much larger.
It would be harder to prove receipt,
when you're talking about a national agency, versus--
Justice Lenk: Do we model ours on the Feds?
-: Yes, there's case law that in the Vassis case,
and the Gavin case, I believe,
make reference to the fact
that the Mass. Torts Claims Act is closely modeled
after the Federal--
Justice Lenk: Yes, but does it help you
to have it in your receipt?
-: Well, no, because there's a clear definition
under the Federal Torts Claims Act
that it has to be received.
-: But it doesn't use presentment.
You said.
Presentment is the word that we're looking at,
and that's not in the Federal Tort Claim Statute.
So how do we make the--
-: Because if the legislature wanted to
use the word received, it could've done so.
It could've included in the definition section.
It clearly could have defined and described
how a claim is made.
-: So it's only sort of modeled on the federal act?
Mr. Vukmirovtiz: Excuse me?
-: It's only sort of modeled on the federal act.
Mr. Vukmirovits: Well, the case law says
closely modeled, so.
-: Well, I mean, I know that.
But I'm saying, I don't understand how it helps you,
other than to show the difference.
-: Because if the legislature wanted to hold that
the claim is presented upon, only upon receipt
of the agency.
-: But you're saying they would've done it expressly?
They would've done it expressly--
-: Yes, that they would've used that word,
if that's what they meant.
-: That assumes the CFR was done before
the Mass Tort Claims Act.
Do we know whether or not the CFR was written before then?
Mr. Vukmirovitz: I don't know, Your Honor.
-: So, the mailbox rule, however, I guess,
was well known at the time
that the Tort Claims Act was enacted
with regard to civil matters.
-: But the one, all of the cases that I found,
Your Honor, just talk about the date of the injury,
and then just go forward two years later,
and that's when the claim has to be presented by.
There's no instructive language in any case.
The only case as cited by the defense
is the Superior Court for Debt Case,
which involved I think a rape claim
on September 25th or 26th.
And there was three separate notices
that were sent on two years later, to the date.
On September 26th, 2017.
And then there was an issue of fact
as to when those three letters were received.
Either the 27th, the 28th, or early October.
And that's why summary judgment was denied.
But in that case, even in that case,
the court held that there's a statute of limitation
analysis to be employed.
And the statute of limitation is it's not to avoid
running the statute.
You just have to file it in time.
You don't have to serve the complaint in time.
And also, the underlying of the reasoning
of the lower court completely ignores the fact
if you use this definition of presentment,
that it has to be there on that day,
the office was closed that day.
So--
Justice Lenk: And it was received
on the next business day, was it?
-: I believe on the next business day, yes.
-: You make that point below?
-: It was received on January 22nd.
It was mailed on the 19th.
The 19th, I believe, was a Friday.
-: And that day was, the offices were closed?
-: The offices were closed that day, yeah.
Justice Lenk: You couldn't have presented it,
even if you went by, even if you went in person,
you couldn't have presented it that day.
-: No, no.
And even if it was mailed the day before,
or two days before.
-: And it got there that day.
So it got there the first, it got there Monday.
In other words, it was received on the Monday?
Mr. Vukmirovitz: I don't know--
-: Factually.
-: Yeah, it was received the next,
I think the next available business day.
It might've been Martin Luther King holiday at that point.
But the office was closed that day.
And so, if there is a determination in a holding
that presentment is made only upon receipt,
then I'm not sure how results can be consistent.
I mean, it doesn't account for delays in mailing.
It doesn't account for weather emergencies,
or anything like that.
So for that reason, in statutory interpretation
and construction, I contend that presentment,
as intended by the legislature,
is complete upon the mailing.
And that's consistent
with the interpretation of the statute.
I believe the Weaver case talks about
that there's strict compliance necessary
for compliance with the Torts Claims Act.
But there's specific mention that the only time
that the statute is strictly construed
is in terms of sending the notice
to the proper agency.
It's never been applied in terms of a timeliness issue.
It's only sending it to the right executive officer.
And in the Weaver case, there was a timely compliance
with the initial letter, but it was sent to the wrong agency
or department.
Then by the time the right letter was sent,
it was after the two years had passed.
And that's why, in that case, there was a notation
in the decision, that although this is a harsh result,
this is the way the statute is construed.
But in that case itself, I believe in the Balante case,
the Vassis Case, the Gavin case,
references the fact that there's a liberal interpretation
and construction of the statute.
-: So you're making the argument that it should be a rule
that says it should be complete on mailing?
Rather than on receipt.
But you're also saying that here factually,
you should win because the office was closed on the day
that it was due?
Otherwise due, and receipt was on the next business day.
Are you saying you have, you know, one,
that the theory should be different
than what the judge basically did.
But it's also as a matter of fact,
you should also win on the fact because it was closed?
Mr. Vukmirovits: Yes.
If the statute--
-: Requires receipt.
If it requires receipt, then you win on that one, too.
-: If it requires receipt on that date--
-: Well, on a date that it's closed,
you couldn't possibly do that.
-: Right, right.
That's why my argument is that it doesn't seem
to make sense if you adopt that analysis.
Justice Gants: Okay, thank you, sir.
-: May I just close on one note?
In the Weaver case, there is specific language
in that case that, where the issue is
whether or not there was prejudice needed to be shown.
Because in that case, the claimant was trying
to get around the fact that it wasn't done in time.
And there's language in there that says that
had this legislature intended to require
showing a prejudice, they would've included that
in the language, and similarly here.
If the legislator intended that presentment
is made only upon receipt, then it certainly would've
included that in the language.
Justice Lenk: Do you know why
the office was closed that day?
-: Do I know why it was closed that day?
-: Yeah, was it a legal holiday?
-: They're not, no it's not open.
It's not on the record, but I called to find out,
and there's certain days of the week
that it's not open.
Justice Lenk: Uh-huh.
-: So there's certain, in small towns,
unlike a larger city, these--
Justice Lenk: They're not open every day.
-: They're not open every day, right.
Justice Gants: Okay, thank you.
Mr. Vukmirovitz: Thank you.
-: Ms. Garland.
-: Good morning, Your Honors.
Chief Justice and Associate Justices,
may it please the court, Melina Garland for the appellee,
Town of Leicester.
Even if we accept Ms. Drake's argument that,
even if we accept the facts in her complaint
as she's pled them, it's quite clear
that no one at the Town of Leicester
had notice of her claim within two years,
as the statute requires.
And it is our position, of course,
that her suit was properly dismissed
because she failed to present her claim
to the appropriate officer of the town
within the two years set forth in section four
of the Tort Claims Act.
-: So how should we read in writing to the,
have first presented his claim in writing
to the executive officer of such public employer.
How should we define that?
-: Our position is that it should be read
to say that the presentment must be received
by the end of the two year period.
Justice Gants: Received by whom?
-: By the appropriate officer.
-: So, who's the appropriate officer
in the Town of Leicester?
-: The statute defines that to include, I believe,
the town clerk, as well as, I believe,
the board of selectmen.
-: So what if it's sent to the town clerk,
and the town clerk is on vacation for two weeks,
what happens?
-: I think it would be a reasonable interpretation
to say that if it's received in the town clerk's office
by the end of the two year period,
even if the town clerk, him or herself,
is absent, that would be sufficient.
Justice Gants: There's no notice to the town clerk.
He's not there.
Ms. Garland: That's a fair point, Your Honor.
-: So how is that different from the mailbox rule?
-: I think the difference is that,
while the plaintiff, or the claimant,
cannot control whether the town clerk is present
in his or her office on any given day,
the plaintiff does have control over
whether and when her presentment is in the office.
-: How?
How does she have control over that?
Just in terms of, I mean, once you put something
in the mailbox, you have no control
over when it's gonna get to where it's going.
-: And that's unfortunately true for everyone.
And I'm sure we've all had experiences
where we've mailed a letter, and it's arrived someplace,
perhaps very close, more than a week later,
more than a month later, or it's been returned
for some reason, whether it's wrong address,
or a lack of postage.
But the history of the Tort Claims Act and the 41 years
of case law interpreting it have made clear
that the burden is on the plaintiff
to comply with the three main components of presentment,
which is in writing, to the appropriate officer,
within the two year period.
Justice Lowy: Is that why they give you two years?
-: Right.
-: I'm not sure why they chose a two year period,
Your Honor, but--
Justice Lowy: But it's not the next day, so.
-: Yeah, you're not, you have time to get this done
if you're conscientious.
And it's never been, I mean, when you have
to do the chief executive, the mayor's office,
you don't need the mayor to read it.
It's the office, right?
And the people who work for him or her.
I mean, we've never interpreted that language narrowly,
have we?
-: I don't believe so, no, Your Honor.
And I think that's correct.
-: So I think if you put it in the mail a week before,
and it gets rerouted, and it ends up there two days late,
I think that's a really, I'm not sure that's
even a hard case.
Maybe that gets excused.
But that's not what happened here.
-: But what do you do with the fact that it was closed?
-: As my brother said, this is not in the record,
but the town hall in Leicester is never open on Fridays.
And I would submit that a two year period
is a very generous period of time--
-: But it's two years, it's two full years.
Ms. Garland: Two full years.
-: And that means that one day of it is not counted for.
Right?
-: I'm sorry?
-: The last day they didn't get, because it was closed.
In the two years, right?
So it's 365 days times two, or you know, whatever.
But the last day is something they're entitled to, right?
And they didn't get it because your office was closed.
So why doesn't it count that it got there
on the next business day?
-: I would submit that the statute doesn't provide for that.
The rules of civil procedure, for instance,
specifically provide that where a deadline falls
on a weekend or a holiday, the deadline is moved,
automatically, to the next business day.
But the Tort Claims Act does not provide that.
Section four does not say that.
And if the legislature had intended to extend the period
in that way, they certainly could've done so,
just as they could have modeled that portion of it
after rule three, of the Rules of Civil Procedure.
And said that you could present the claim
merely by putting it in the mail, using certified mail.
Rather than having to go to a particular office.
Justice Gants: Was January 19th a Friday?
Do we know this?
-: January 19th, 2018 was, I believe, a Friday.
Justice Gants: So that's how, okay.
So it's a Friday, and the office is closed on Fridays.
-: Yes, Your Honor.
-: So if she had tried to walk it there,
and found the door locked,
she just would've been outta luck.
-: I suppose she could've put it under the door.
She would still have a problem of proof,
as to receipt in the town hall that day.
And I think--
-: Don't wanna do that in a town, do ya'?
You don't wanna put it under the door of the town hall.
Ms. Garland: That's not the method
I would choose, certainly.
-: So whose burden is it to prove
that it was timely presented?
It's the plaintiff's burden, correct?
Ms. Garland: It is, Your Honor.
-: So, how is a plaintiff supposed to prove
that it was received without being able
to obtain that information from the town itself?
-: Well, one of the ways of doing that is certified mail.
One of the ways of doing that is going in person,
and asking for a receipt that it's been submitted,
or a date-stamped copy.
I think there's several ways of ensuring
that you can later demonstrate that it was timely.
Just as the evidence in this case indicates
that it was received outside of the two year period.
-: But if you just mail it, just drop it in the mailbox,
you'd have to get, you'd have to depose
or have some information from the town itself
to be able to allow you to prove that it was,
in fact, received.
-: I believe that's correct.
If it were simply first class mail,
there would have to be some testimony
or other evidence from the town,
in order to demonstrate receipt.
-: Does the fact that it's closed matter at all?
Because it's mailed on the day it's due.
Which is risky business, even if they were open, right?
-: I agree.
Unfortunately, and I think this is probably a lesson
many of us have learned at one time or another,
that when something is left 'til the last minute,
things may not go quite to plan.
And that's why I emphasize that it's the plaintiff's burden
and responsibility to ensure that it's there
ahead of time.
That it's there on that last day.
I just would also like to address my brother counsel's
argument that strict compliance in the history
of jurisprudence on the Tort Claims Act
does not apply to the timeliness requirement.
There are at least three cases where timeliness is included
in the description of things that a plaintiff
or claimant needs to strictly comply with,
including Martin vs. Commonwealth,
Tivnan vs. the Registry of Motor Vehicles,
and Estate of Gavin vs. Tewksbury State Hospital.
And the reasons for that, the reason to support
a bright-line rule, that it must be received,
is that that provides clarity
for both the claimant, and the public employer,
who is working with limited funds
and many financial commitments,
among which they must budget.
One of the purposes of the Tort Claims Act,
and of the presentment requirement
are to give the person, the executive officer
of a public employer, the person with responsibility
for its finances and its operations,
notice of the claim, an opportunity to investigate it,
and to ensure that nonmeritorious claims are not paid.
But also to allow an opportunity to settle
meritorious claims, in order to limit the amount of time
and money that public employers are required
to spend in litigation.
And that bright-line rule will better conserve
those resources and will also avoid situations
where a letter is mailed, even well within
the presentment period, but isn't received for two weeks,
or several months, or even a year,
or is never received for reasons completely unknown.
What Ms. Drake is asking for is that the town be deemed
to have notice as of the date
that she has put it in the mail,
and I don't believe that a fair reading
of section four of the Tort Claims Act
supports that conclusion.
That's, at best, constructive notice,
but it's really no notice at all.
Justice Gants: Okay.
-: If there are no further questions, I thank you very much.
-: All rise.
Hear ye, hear ye, hear ye.
All present have named and further ado before the Honorable.