McCoy v. Town of Kingston

• Decision Date: 02 May 2007
• Docket Number: No. 06-P-396.,06-P-396.
• Citation: 864 N.E.2d 1251,68 Mass. App. Ct. 819
• Parties: Charles F. McCOY, Jr. v. TOWN OF KINGSTON.
• Court: Appeals Court of Massachusetts

864 N.E.2d 1251

68 Mass. App. Ct. 819

Charles F. McCOY, Jr. v. TOWN OF KINGSTON.

No. 06-P-396.

Appeals Court of Massachusetts, Plymouth.

Argued November 14, 2006.

Decided May 2, 2007.

John T. Landry, III, for the plaintiff.

Gregg J. Corbo, Boston, for the defendant.

Present: DOERFER, KATZMANN, & VUONO, JJ.

KATZMANN, J.

Charles F. McCoy, Jr., an elected tax collector for the town of Kingston (town), filed suit against the town in the Superior Court seeking declaratory relief and indemnification for legal fees incurred in a dispute with a Kingston taxpayer. On cross motions for summary judgment, the judge determined that McCoy was not entitled to indemnification due to (1) the inapplicability of G.L. c. 258, § 13, to the dispute; and (2) his failure to seek the selectmen's prior approval before incurring private counsel fees, as required by a 1994 town policy. On appeal, McCoy argues that both of the judge's determinations were erroneous. Because McCoy failed to seek prior approval under the town policy, we affirm the judgment.

Background. We set out the material facts of the case, which are not in dispute and present only questions of law on summary judgment. See Annese Elec. Servs., Inc. v. Newton, 431 Mass. 763, 764 & n. 2, 730 N.E.2d 290 (2000). On May 10, 1980, the town accepted the provisions of G.L. c. 258, § 13. That section of the Massachusetts Tort Claims Act provides:

"Any city or town [accepting this section] shall indemnify and save harmless municipal officers, elected or appointed from personal financial loss and expense including reasonable legal fees and costs, if any, in an amount not to exceed one million dollars, arising out of any claim, demand, suit or judgment by reason of any act or omission, except an intentional violation of civil rights of any person, if the official at the time of such act or omission was acting within the scope of his official duties or employment."

G.L. c. 258, § 13, as amended by St.1982, c. 176, § 1. After a vote in November, 1994, the town selectmen notified all town officials of the town's policy not to pay special counsel unless the selectmen approved the appointment of such counsel prior to any costs being incurred (the 1994 town policy).

At all times material to this case, McCoy was the duly elected tax collector for the town. In April, 1998, in connection with his attempts to collect excise taxes, a dispute arose between McCoy and Liddell Brothers, Inc. (Liddell). Liddell wrote a letter complaint dated May 1, 1998, to the town selectmen about the dispute with McCoy.¹ The letter stated in part, "Please review the circumstances of this matter and advise me as to my alternatives. Should this matter not be solved, I will be forced to seek relief through our attorneys." On May 20, 1998, Liddell's counsel wrote to McCoy directly, as tax collector, about the dispute, stating in part:

"Please be advised that unless this matter is resolved within one (1) week from the date hereof, my client has instructed me to present and bring all available claims against all responsible parties, both individually and in their official capacity, seeking damages, including any damage to reputation."

Without prior approval of the town selectmen, McCoy retained a law firm as private counsel, initially paying a retainer of $2,500.

On May 28, 1998, Liddell's counsel wrote to McCoy's counsel, stating in pertinent part:

"[P]lease be advised that if this matter is not resolved forthwith, my client has instructed me to commence an action in the Massachusetts State Court seeking both Declaratory Relief and a Writ of Mandamus, as well as an action in the Federal District Court for your client's blatant violations of my client's Constitutional rights secured by the Fifth, Ninth and Fourteenth Amendments, pursuant to 42 U.S.C. 1983. In addition, my client will undoubtedly seek damages for your client's intentional conduct in violation of Massachusetts General Laws Chapter 12 § 11, and for intentional infliction of emotional distress, tortious interference with contractual relations and tortious interference with advantageous relations. In all, these actions will seek all available compensatory and punitive damages from your client, plus reimbursement for any and all attorney's fees and costs, which have resulted directly or consequentially from Mr. McCoy's conduct. (As a courtesy, I refer you to the matter of Larry Slot, et als., v. Town of Kingston, et als., U.S. District Court, C.A. No. 90-11826, a decision with which I am sure Mr. McCoy is familiar.)

"As these actions will be brought against Mr. McCoy both in his official capacity as tax collector, as well as individually I urge you and your client to carefully consider the potential outcomes and your client's likely exposure as a result of his conduct, and to contact me immediately to discuss this matter prior to the initiation of litigation.

"... If I have not heard from you within seven (7) days from the date of this letter I will take any and all necessary steps to protect my client."

The chairman of the town board of selectmen was copied in both the May 20 and May 28 letters.

Subsequently, prior to the filing of any complaint, Liddell and McCoy, individually and as tax collector, entered into a mutual release and settlement agreement. Liddell agreed to pay the full amount of the excise taxes due with interest, a total of $6,099.30. In short, Liddell paid the town just $419.30 more than the original payment which it had tendered on April 10, 1998.

McCoy's counsel billed him $12,170.36.² McCoy submitted a request for indemnification to the town, which, in May, 2000, voted to deny the request. McCoy's counsel brought suit against McCoy to recover legal fees and obtained a judgment against him in the amount of $11,669.92. By complaint filed June 24, 2002, McCoy brought this action against the town seeking declaratory relief and indemnification. On cross motions for summary judgment, the Superior Court judge, relying on general language in Triplett v. Oxford, 439 Mass. 720, 724, 791 N.E.2d 310 (2003) (Triplett) concluded that none of the various communications from Liddell or Liddell's counsel reflected a "claim" or a "demand" under G.L. c. 258, § 13. In addition, the judge concluded that the town properly could impose a supplemental requirement of the selectmen's prior approval before incurring any liability under § 13, and that McCoy's failure to obtain such approval barred his claim.

Discussion. On appeal, McCoy contests both rationales for the decision. We address each argument in turn.

1. Application of G.L. c. 258, § 13. As noted, on May 10, 1980, the town accepted the indemnification provision of the Massachusetts Tort Claims Act, G.L. c. 258, § 13, and is required to indemnify McCoy, as a municipal officer, if he meets the requisite criteria. Thus, at issue is whether McCoy's action for indemnification arises "out of any claim, demand, suit or judgment" against him as set forth by § 13. We conclude that his action does arise out of a "claim."³

The issue is whether McCoy's request for indemnification of attorney's fees arises out of a claim of Liddell against McCoy in his capacity as Kingston tax collector. The town asserts that the judge was correct in concluding that because Liddell never actually filed a civil action against McCoy, McCoy is not entitled to reimbursement for attorney's fees. In support of this proposition, Kingston relies on Triplett, 439 Mass. at 724, 791 N.E.2d 310. In Triplett, the Supreme Judicial Court explained that the word "claim" as it is used throughout c. 258 refers to a civil action for tort damages. Ibid. Here, because the Liddell dispute did not qualify as a civil action for tort damages, the judge determined that it was not a claim under § 13.

We do not agree with the judge's application of Triplett. There, the court was not faced with the issue presented here by the Liddell dispute, which is rooted in tort. Rather, in Triplett, presented with the question whether a criminal indictment or ethics charges constituted a "claim" cognizable for indemnification under § 13, the Supreme Judicial Court examined whether they constituted a "claim" "in any ordinary sense of the word," ibid., and determined that they did not. Cf. Irwin v. Ware, 392 Mass. 745, 772, 467 N.E.2d 1292 (1984) (interpreting the term "claim" as "referring to a demand for all damages arising from a tort"). The Triplett court was not presented with the question whether threatened, imminent filing of a specific suit in tort can constitute a claim for purposes of indemnification under § 13 where a civil action has not yet been instituted.

To answer the question, "we closely examine the statute in light of the standard principles that statutes are to be interpreted in a commonsense way which is consistent with the statutory scheme." Kramer v. Zoning Bd. of Appeals of Somerville, 65 Mass.App.Ct. 186, 191-192, 837 N.E.2d 1147 (2005). Thus,

"we look first to the language of the statute. `[S]tatutory language is the principal source of the insight into legislative purpose.' Local 589, Amalgamated Transit Union v. Massachusetts Bay Transp. Auth., 392 Mass. 407, 415 [467 N.E.2d 87] (1984). . . . When the words of a statute are clear, they are to be given their ordinary and natural meanings .... If the meanings are unclear, the statute must be interpreted `according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.' ... In addition, `a statute should be read as a whole to produce an internal consistency.'"

Adoption of Marlene, 443 Mass. 494, 497-498, 822 N.E.2d 714 (2005). Moreover, "[w]here words in a statute are used in one part of a...