Pinshaw v. Metropolitan District Commission

• Decision Date: 30 June 1988
• Citation: 524 N.E.2d 1351,402 Mass. 687
• Parties: ALAN PINSHAW vs. METROPOLITAN DISTRICT COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

402 Mass. 687

524 N.E.2d 1351

ALAN PINSHAW vs. METROPOLITAN DISTRICT COMMISSION.

Supreme Judicial Court of Massachusetts, Suffolk.

January 6, 1988.

June 30, 1988.

COPYRIGHT MATERIAL OMITTED

Present: HENNESSEY, C.J., WILKINS, LIACOS, ABRAMS, LYNCH, & O'CONNOR, JJ.

Howard Friedman for the plaintiff.

Despena Fillios Billings, Assistant Attorney General, for the defendant.

ABRAMS, J.

Through an assignment of rights, the plaintiff, Alan Pinshaw, seeks to enforce Metropolitan District Commission (MDC) Officer Frederick Monk's rights to indemnification under G.L.c. 92, § 63B, added by St. 1948, c. 653,¹ and G.L.c. 258, § 9A, added by St. 1982, c. 345.² Both parties moved for summary judgment on a statement of agreed facts and supporting documents. The Superior Court judge granted the defendant's motion for summary judgment. We granted direct appellate review. We reverse and remand for further proceedings.

We summarize the agreed facts. On August 28, 1978, the plaintiff stopped his car on Brookline Avenue, near Fenway Park, to ask directions from Monk, who was on duty in uniform directing traffic. Monk ordered the plaintiff to move on. The plaintiff found Monk's manner uncivil and threatening. After parking, the plaintiff walked back to speak to Monk, who now ordered the plaintiff to leave the intersection. The plaintiff again found Monk's manner inappropriate. Later that evening, the plaintiff telephoned the MDC to complain about Monk's actions. The plaintiff followed up the complaint with a letter to Monk's direct superior, Captain Kenneth Elliott. Elliott notified his supervisor, Deputy Superintendent John McDonough, of the complaint, and McDonough sent the plaintiff a letter stating that Elliott would investigate the matter.

Elliott advised Monk of the civilian complaint and requested a report on the incident. Monk responded by seeking a criminal complaint against the plaintiff in the Roxbury District Court for failing to comply with an order to move his car on request of an MDC officer, a violation of MDC Rule 7. According to Monk, he did not bring charges earlier because he did not know the plaintiff's name. McDonough and Elliott suspended their investigation when they learned that Monk obtained a criminal complaint.³ They "believed that the merits of the incident would be settled in the Roxbury District Court." The District Court judge found the plaintiff guilty and imposed a fine. On appeal, a Superior Court judge dismissed the complaint. Despite the dismissal, the MDC never reopened its investigation on Monk's conduct and never disciplined him. Following the District Court trial, McDonough and Elliott felt "the matter was resolved."

The plaintiff subsequently filed a civil rights action against Monk⁴ in Federal court pursuant to 42 U.S.C. § 1983 (1982). The plaintiff alleged that Monk initiated the criminal prosecution against him in retaliation for the complaint he filed with the MDC, and that the prosecution violated his right to petition the government for redress of grievances. After jury trial, the plaintiff was awarded $3,500 in compensatory damages. He later was awarded $5,356.17 in attorney's fees. Punitive damages were sought, but the jury did not award them.

While the civil rights action was pending, Monk filed a bankruptcy petition. The plaintiff filed an adversary complaint in the bankruptcy proceeding, and the parties resolved the dispute by entering an agreement for judgment that the civil rights judgment was nondischargeable under 11 U.S.C. § 523 (a)(6) (1982).⁵ After the agreement for judgment in bankruptcy, Monk assigned all his entitlement to indemnification from the MDC and the Commonwealth resulting from the civil rights case to the plaintiff.

After the civil rights trial, and pursuant to the assignment from Monk, the plaintiff requested indemnification from the MDC. The commissioner denied the request, because, in his opinion, Monk had acted beyond the scope of his employment when he prosecuted the plaintiff. The plaintiff then filed the present action in the Superior Court. The Superior Court judge granted summary judgment for the MDC. The judge concluded that, based on the agreed facts, Monk had acted outside the scope of his employment and therefore was not entitled to indemnification under either G.L.c. 92, § 63B, or c. 258, § 9A.

On appeal, the plaintiff asserts that, as a matter of law, he is entitled to indemnification. Alternatively, he argues that his entitlement to indemnification depends upon resolution of genuine issues of material fact, and that the judge therefore erred in granting the defendant's motion for summary judgment. We agree that summary judgment was inappropriate.

1. The statutory framework. The plaintiff seeks indemnification under two statutes, G.L.c. 92, § 63B, and c. 258, § 9A. The parties dispute which statute applies. The plaintiff argues that § 9A, which became effective after the award of compensatory damages in his Federal civil rights case (but before the award of attorney's fees), cannot be applied retroactively to deny him rights he had under § 63B.⁶ The defendant contends that the requirements of the statutes are cumulative or, in the alternative, that § 9A governs entitlement to indemnification in this case. We conclude that § 9A governs.

General Laws c. 92, § 63B, was enacted in 1948. The statute provides indemnification for MDC officers in two situations: where an officer suffers financial loss from his own injury in the line of duty, see Montague v. Commissioner of the Metropolitan Dist. Comm'n, 9 Mass. App. Ct. 62 (1980), and where an officer must pay damages for harm to a third person caused "while acting as a police officer." The statute draws no distinction between negligent and intentional harm caused by an officer.

In 1978, the Massachusetts Tort Claims Act, G.L.c. 258, effectively repealed § 63B as to negligent harm caused by MDC officers. The tort claims act expressly provides that public employers, including the MDC, are directly liable for negligent harm caused by public employees acting within the scope of their employment. G.L.c. 258, § 2, first par.

We conclude that § 9A of c. 258, added by St. 1982, c. 345, likewise supplants § 63B in cases involving intentional torts and civil rights violations. Section 9A deals expressly with intentional torts and civil rights violations. It defines specific prerequisites for indemnification in such cases; it covers all police officers employed directly by the Commonwealth; and it provides for the officers' legal representation. In short, it provides a specific, comprehensive system for indemnification of certain police officers in civil rights and intentional tort cases.⁷

The differences between § 63B and § 9A are as follows. Under § 63B, the MDC indemnified the officer; under § 9A, the Commonwealth is directly responsible for indemnification.⁸ Under § 63B, the MDC determined the amount of indemnification "subject to appropriation" and approval by the Attorney General; under § 9A the Commonwealth must provide full indemnification subject to a one million dollar limit (not relevant in this case). Section 63B provided indemnification for acts done "while acting as a police officer"; § 9A covers acts "within the scope of the official duties of the officer."⁹ Finally, under § 63B the MDC could exercise discretion to determine an officer's entitlement to indemnification, see Montague v. Commissioner of the Metropolitan Dist. Comm'n, supra at 64; under § 9A, if indemnification is disputed, the officer's entitlement is determined in the Superior Court.¹⁰ "Where two statutes are inconsistent and mutually repugnant, the later statute governs." Mirageas v. Massachusetts Bay Transp. Auth., 391 Mass. 815, 819 (1984).¹¹

2. Summary judgment. We will affirm an order for summary judgment, "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). See, e.g., Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Godbout v. Cousens, 396 Mass. 254, 257 (1985). Because there are at least two issues of material fact unresolved, summary judgment was not appropriate for either party.

The first factual issue is whether Monk's violation of the plaintiff's civil rights (the criminal prosecution) "occurred within the scope of Monk's official duties." G.L.c. 258, § 9A. We have not had occasion to consider "the scope of ... official duties" under § 9A. However, under the parallel provision in § 9 (indemnification of other public employees), we apply common law respondeat superior principles. Howard v. Burlington, 399 Mass. 585, 589-590 (1987). We conclude that the same principles apply under § 9A.

"The general respondeat superior test involving intentional torts considers whether the act was within the course of employment, and in furtherance of the employer's work." Howard v. Burlington, supra at 590, and cases cited. In determining the scope of employment, the finder of fact must consider whether the conduct complained of is of the kind the employee is hired to perform, whether it occurs within authorized time and space limits, and whether "it is motivated, at least in part, by a purpose to serve the employer." Wang Labs., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859 (1986). See Restatement (Second) of Agency § 228 (1958). Monk's conduct clearly was of the kind he was hired to perform. See note 3, supra. The issue is Monk's motivation.

If an employee "acts from purely personal motives ... in no way connected with the employer's interests, he is considered in the ordinary case to have departed from his employment, and the master is not liable." W. Prosser & W. Keeton, Torts 506 (5th ed. 1984). See Miller v. Federated Dept. Stores, Inc.,...