Maimaron v. Com.
| Decision Date | 14 May 2007 |
| Docket Number | No. SJC-09728.,SJC-09728. |
| Citation | 865 N.E.2d 1098,449 Mass. 167 |
| Parties | Mark MAIMARON v. COMMONWEALTH (and a companion case<SMALL><SUP>1</SUP></SMALL>). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Rosemary Connolly, Assistant Attorney General (Doris Helen White, Assistant Attorney General, with her) for the Commonwealth.
Max D. Stern, Boston (Kenneth M. Resnik with him) for Mark Maimaron.
Richard Eric Brody, Boston, for David Oxner.
Present: MARSHALL, C.J., GREANEY, SPINA, COWIN, & CORDY, JJ.
On November 2, 1998, the plaintiff Mark Maimaron (Maimaron) brought an action in the Superior Court under the Massachusetts Tort Claims Act, G.L. c. 258, against State Trooper David Oxner, several other State troopers, and the Commonwealth, seeking to recover damages for injuries he sustained as the result of an alleged illegal seizure and arrest. The incident involved an altercation in 1995, when Oxner was not on duty (underlying action). Maimaron asserted that Oxner had violated his civil rights as protected by Federal and State constitutional law and statutes, 42 U.S.C. § 1983 (2000), and G.L. c. 12, § 11I, and had committed the intentional torts of assault and battery, malicious prosecution, false arrest, and abuse of process, in making the seizure and arrest. In 2001, the Commonwealth settled Maimaron's claims against it and the State police officers other than Oxner. Thereafter, Maimaron and Oxner agreed to participate in binding arbitration, which resulted in an award and judgment, including attorney's fees, in Maimaron's favor. Unable to satisfy the judgment against him, Oxner entered a settlement agreement and assignment of rights with Maimaron in which Oxner assigned his right to Maimaron2 to indemnification (of the judgment in the underlying action) by the Commonwealth pursuant to G.L. c. 258, § 9A.3
Oxner and Maimaron commenced separate actions against the Commonwealth that have been consolidated. In his complaint, Oxner had sought to recover attorney's fees and costs that he incurred defending the underlying action, alleging that the Commonwealth had violated its duty under G.L. c. 258, § 9A, in failing to defend him in that action.4 Maimaron, as assignee, claimed that the Commonwealth had violated its indemnification obligation under G.L. c. 258, § 9A, and sought to collect the amount of the judgment entered against Oxner in the underlying action, as well as interest, and attorney's fees and costs. The parties filed cross motions for summary judgment. A Superior Court judge granted summary judgment in favor of Oxner and Maimaron, and the Commonwealth appealed. We transferred the case here on our motion to determine whether the Commonwealth was obligated under G.L. c. 258, § 9A, to defend Oxner in the underlying action and to indemnify Maimaron (as assignee) in connection with the judgment Maimaron obtained against Oxner in the underlying action.
We conclude that the Commonwealth violated its duty to defend Oxner under G.L. c. 258, § 9A, and, consequently, summary judgment in favor of Oxner was proper on this issue. We also conclude that summary judgment in favor of Maimaron was inappropriate on the issue whether the Commonwealth was obligated under § 9A to indemnify Maimaron (as assignee) for the underlying judgment because triable issues of fact exist concerning the applicability of the exclusions in § 9A, namely whether Oxner's conduct had occurred outside the scope of his official duties, and whether Oxner had acted in a wilful, wanton, or malicious manner. The case is remanded for further proceedings on those issues.
Except where specifically noted, the parties essentially agree on the following facts for purposes of summary judgment. On the evening of November 22, 1995, Oxner and his friend Stephen Roche went to a lounge in Quincy. They were later joined by Oxner's wife and her female friend. Oxner, who was not on duty that evening, had several drinks at the bar.
That same evening, Maimaron, an iron-worker, was a patron at the lounge, and had consumed approximately ten beers. Maimaron met Oxner, whom Maimaron believed was actually a coworker from his work site, although Oxner told Maimaron that he was a State trooper. Maimaron repeatedly confronted Oxner with this inaccurate belief, despite Oxner's repeated denials.
After midnight, Maimaron and Oxner encountered each other in the parking lot outside the lounge. A heated exchange ensued and Oxner demanded to see Maimaron's identification. Maimaron declined, and was turning to leave, when Oxner hit him on the side of his head and grabbed his shoulder.5 Fearing for his safety, Maimaron sprayed mace (which he was licensed to carry) into Oxner's face, and then ran down the street.
Oxner pursued Maimaron on foot, holding out his badge, identifying himself as a police officer, whistling, and telling Maimaron to stop because he was under arrest. Roche joined in the pursuit and caught up with Maimaron. Roche struck Maimaron from behind, knocking him to the ground. Maimaron raised his head and tried to get up, at which point Oxner slammed Maimaron down, hitting his face into the pavement.6
Oxner and a bystander contacted the Quincy police depart ment. Oxner identified himself as an off-duty officer and requested an ambulance for Maimaron, who was bleeding profusely. Roche disappeared into the crowd of spectators.
When Quincy police officers arrived, Oxner told them that he had been assaulted by Maimaron with mace and that an "unknown white male" helped subdue Maimaron by tackling him.
Maimaron suffered extensive injuries, including multiple facial fractures, broken teeth and a detached palate. His jaws were wired shut for six weeks, and he underwent extensive rehabilitation and the implantation of titanium plates in his face. Maimaron sustained long-lasting injuries, including permanent change in his appearance, persistent vertigo and headaches, as well as emotional and psychological distress.
Oxner subsequently filed charges against Maimaron for assault and battery by means of a deadly weapon, as well as for assault and battery on a police officer.
The United States Attorney's office conducted an investigation into the altercation and, on August 6, 1996, entered into a plea agreement with Oxner and the office of the Attorney General. Pursuant to the agreement, on September 4, 1996, Oxner pleaded guilty to assault and battery of Maimaron and to filing a false written report by a public officer, for which he was sentenced to unsupervised probation for one year.
In January, 1997, a trial board of the State police determined that Oxner had violated several State police administrative rules and regulations. The board suspended him without pay for four months, and required that he complete ethics training. On January 3, 1997, the Norfolk County district attorney's office entered a nolle prosequi on the criminal complaint Oxner had filed against Maimaron.
In response to Maimaron's underlying action, Oxner sought defense and indemnification from the Commonwealth during the course of litigation, but the Commonwealth repeatedly declined his requests. After the Commonwealth had settled with Maimaron, Maimaron and Oxner voluntarily entered into binding arbitration. The Commonwealth was notified in writing by Oxner's attorney that the arbitration proceedings were about to begin, and Oxner again demanded that the Commonwealth assume his defense. The Commonwealth responded in writing that it "decline[d] to provide . . . indemnification and/or defense of . . . Oxner [and did not] foresee . . . changing its stance on the issue." The Commonwealth did not participate in the arbitration.
In his award, the arbitrator concluded that Oxner had violated Maimaron's civil rights by committing the torts of assault and battery and false arrest. The arbitrator determined that Maimaron was entitled to damages from Oxner in the amount of $363,682. In addition, the arbitrator found the following: at all times during, and after, his confrontation with Maimaron, Oxner was acting within the scope of his employment as a State police officer; Oxner was acting under color of State law throughout the altercation and arrest because, under State police rules and regulations, a State police officer is subject to recall twenty-four hours a day and is instructed to take immediate enforcement action for violations of law observed, and Oxner was following State police regulations in attempting to arrest Maimaron for perceived criminal actions; Oxner violated Maimaron's rights under the Fourth Amendment to the United States Constitution during the assault and battery and subsequent false arrest; Oxner never intended to injure Maimaron during the arrest; and Oxner did not act in a "malicious or wanton" manner.7 On July 9, 2002, a Superior Court judge entered judgment for Maimaron in the amount of $363,682, and included an award for attorney's fees and costs in the amount of $69,243.52.
In connection with the instant action, the Superior Court judge who ruled on the parties' cross motions for summary judgment (in favor of Oxner and Maimaron) concluded that, because the Commonwealth had violated its mandatory duty to defend Oxner against Maimaron's claim in the underlying action, the Commonwealth was bound by the arbitrator's findings and was precluded from arguing that Oxner was not acting within the scope of his official duties or that his conduct was wilful, wanton, or malicious. Judgment entered awarding damages to Maimaron in the amount of $363,682, due to the acts of Oxner; attorney's fees (for litigating the underlying action) to Maimaron in the amount of $69,243.52; attorney's fees (for litigating the instant action) to Maimaron in the amount of $29,951.88; and attorney's fees (for litigating the underlying and instant actions) to Oxner in the amount of $84,879. The judgment was amended on February 24, 2005, to add a provision for "interest as provided by law"...
To continue reading
Request your trial
-
Noonan v. Staples, Inc.
...conduct was willful involves looking into his state of mind, a question ordinarily reserved for the jury. See Maimaron v. Commonwealth, 449 Mass. 167, 865 N.E.2d 1098, 1109 (2007). Again, however, our task here—and the jury's, if this claim were to survive summary judgment—is not to determi......
- Mass. Eye and Ear Infirmary v. Qlt Phototherap.
-
In re Gianasmidis
...refusal to grant preaward interest on the basis that it would undermine the very purpose of arbitration); Maimaron v. Commonwealth, 449 Mass. 167, 181 n.12, 865 N.E.2d 1098 (2007) ("[Litigant] is not entitled to preaward interest because the issue of such interest was not submitted to arbit......
-
Doe v. Fournier, C.A. No. 11–cv–30155–MAP.
...Tort Claims Act is different from the analysis of acting under color of state law under § 1983. See Maimaron v. Commonwealth, 449 Mass. 167, 178, 865 N.E.2d 1098 (2007) (“[T]he two concepts—acting within the scope of employment and acting under color of State law—do not involve precisely pa......