Rosario v. Waterhouse

• Decision Date: 27 September 2019
• Docket Number: Civil No. 1:19-cv-10532-LTS
• Parties: VICTOR ROSARIO, Plaintiff, v. Lowell Police Officers HAROLD G. WATERHOUSE, JOHN GIUILFOYLE, GARRETT SHEEHAN, JOHN R. NEWELL, GEORGE H. GENTLE, JOSEPH M. McGARRY, LARRY B. McGLASSON, WILFRED DOW, JOHN R. MYERS, and UNKNOWN OFFICERS OF THE LOWELL POLICE DEPARTMENT; Lowell Fire Fighter WILLIAM M. GILLIGAN and UNKNOWN MEMBERS OF THE LOWELL FIRE DEPARTMENT; Massachusetts State Police Officer DAVID A. COONAN, and UNKNOWN OFFICERS OF THE MASSACHUSETTS STATE POLICE; and the CITY OF LOWELL, Defendants.
• Court: U.S. District Court — District of Massachusetts

VICTOR ROSARIO, Plaintiff, v. Lowell Police Officers HAROLD G. WATERHOUSE, JOHN GIUILFOYLE,GARRETT SHEEHAN, JOHN R. NEWELL, GEORGE H. GENTLE,JOSEPH M. McGARRY, LARRY B. McGLASSON, WILFRED DOW,JOHN R. MYERS, and UNKNOWN OFFICERS OF THE LOWELL POLICE DEPARTMENT;Lowell Fire Fighter WILLIAM M. GILLIGANand UNKNOWN MEMBERS OF THE LOWELL FIRE DEPARTMENT;Massachusetts State Police Officer DAVID A. COONAN,and UNKNOWN OFFICERS OF THE MASSACHUSETTS STATE POLICE;and the CITY OF LOWELL, Defendants.

Civil No. 1:19-cv-10532-LTS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

September 27, 2019

ORDER ON MOTION REGARDING DECEASED DEFENDANTS (DOC. NO. 39)

SOROKIN, J.

Now before the Court is Plaintiff Victor Rosario's Motion Regarding Deceased Defendants. Doc. No. 39. After a hearing on the motion, post-argument submissions from the parties, and careful consideration by the Court, Rosario's motion is DENIED.

I. BACKGROUND¹

In 1983, Rosario was convicted of arson and eight counts of second-degree murder following an investigation into a fire that occurred on Decatur Street in Lowell, Massachusetts.As a result, Rosario was incarcerated for 32 years. In 2017, Rosario's motion for a new trial, originally granted by Middlesex County Superior Court, was affirmed by the Supreme Judicial Court of Massachusetts. Commonwealth v. Rosario, 74 N.E.3d 599 (Mass. 2017). Thereafter, the Middlesex District Attorney's office declined to proceed with a new trial. Upon his release from prison, Rosario brought several 42 U.S.C. § 1983 and state tort law claims against Lowell police officers and supervisors, Lowell Fire Department officials and fire fighters, Massachusetts State Police officers and supervisors, and the City of Lowell alleging that unconstitutional interrogation techniques and fabricated evidence resulted in his allegedly wrongful conviction.

After filing his complaint, however, Rosario learned that five defendants—William M. Gilligan, John R. Newell, Joseph M. McGarry, Larry B. McGlasson, and John R. Myers ("Deceased Defendants")—are deceased. Subsequently, Rosario filed the instant motion requesting the Court's permission to proceed against the Deceased Defendants, either by: (1) appointing Lowell City Clerk Michael Geary "as personal representative to defend the suit on behalf of each of the Deceased Defendants" under Federal Rule of Civil Procedure 25; or (2) serving Defendant City of Lowell as the true party in interest pursuant to a provision of the Massachusetts Uniform Probate Code, Mass. Gen. Laws ch. 190B, § 3-803(d)(2). Doc. No. 40 at 3-4.

II. DISCUSSION

The Court considers, in turn, Rosario's two proposals for proceeding against the Deceased Defendants.

A. Rule 25

Federal Rule of Civil Procedure 25 provides that if "a party dies and [a] claim is not extinguished," a court "may order substitution of [a] proper party," including a decedent'ssuccessor or representative. Fed. R. Civ. P. 25(a)(1). Federal courts have consistently held that Rule 25(a)(1) "only applies to parties—that is, defendants that have been served with a complaint and then died after service." Deleon-Reyes v. Guevara, No. 18-CV-01028, 2019 WL 1200348, at *1 (N.D. Ill. Mar. 14, 2019) (emphasis in original); see also Moul v. Pace, 261 F. Supp. 616, 618 (D. Md. 1966) ("Rule 25(a)(1) does not apply in this case because the defendant Pace was deceased at the time the suit was filed."). As none of the Deceased Defendants were parties to this suit at the time of their deaths, Rule 25 is inapposite.²

B. Massachusetts Uniform Probate Code Section 3-803(d)(2)

The parties also dispute whether Rosario may proceed by naming the Deceased Defendants as parties but serving process on the City of Lowell, a process that Rosario argues is sanctioned by state law. Under Massachusetts probate law, a litigant generally may not bring an action against the personal representative of an estate "unless such action is commenced within 1 year after the date of the death of the deceased." Mass. Gen. Laws ch. 190B, § 3-803(a). However, subsection (d)(2) creates an exception to that general rule:

Nothing in this section affects or prevents . . . an action for personal injury or death, if commenced more than 1 year after the date of death of the decedent, brought against the personal representative; provided further, that the action is commenced not later than 3 years after the cause of action accrues; and provided further, that a judgment recovered in that action shall only be satisfied from the proceeds of a policy of liability bond or liability insurance, if any, and not from the general assets of the estate; and provided further, that if a personal representative has not been appointed, then an action otherwise allowed pursuant to this chapter may be maintained without such appointment, and shall be maintained naming the decedent as the defendant; and provided further, that in that event any service of process that may be necessary shall be made upon the entity providing the insurance or bond.

Id. § 3-803(d)(2).

At the threshold, the Court's consideration of section 3-803 is guided by canons of statutory interpretation routinely employed by Massachusetts courts. Under Massachusetts law,

a 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.

Hanlon v. Rollins, 190 N.E. 606, 608 (Mass. 1934). A court "must ascertain the intent of a statute from all its parts and from the subject matter to which it relates and must interpret the statute so as to render the legislation effective, consonant with sound reason and common sense." The Harvard Crimson, Inc. v. President & Fellows of Harvard C., 840 N.E.2d 518, 522 (Mass. 2006). Thus, the Court engages in its inquiry "by looking at the words of the statute—but not in isolation from the statute's purpose or divorced from reason and common sense." DiGiacomo v. Metro. Prop. & Cas. Ins. Co., 847 N.E.2d 1107, 1111 (Mass. App. Ct. 2006).

As with all statutes, the Court recognizes that section 3-803 was not enacted in a vacuum. See Boswell v. Zephyr Lines, Inc., 606 N.E.2d 1336, 1341 (Mass. 1993) (noting that Massachusetts courts "attempt to construe [statutes] in harmony with other related statutes and rules so as to give rise to a consistent body of law"). The statute truncates the ordinary three-year statute of limitations generally applicable to tort actions in Massachusetts, Mass. Gen. Laws ch. 260, § 2A, instead imposing a one-year limit on suits brought against decedents running from "the date of death of the decedent." Mass. Gen. Laws ch. 190B, § 3-803(a). However, subsection (d)(2) restores the typical three-year statute of limitations for litigants bringing "anaction for personal injury" against a decedent. Id. § 3-803(d)(2).³ Presently, the parties dispute whether Rosario has satisfied the several necessary conditions for invoking subsection (d)(2), as well as whether the relief he seeks may be awarded under the statute.

1. "Personal Injury" Under Subsection (d)(2)

The parties dispute whether the instant lawsuit is an action within the scope of subsection (d)(2). Given that Massachusetts courts consistently embrace a broad understanding of personal injury claims, the Court concludes that Rosario's claims constitute "an action for personal injury" within the meaning of subsection (d)(2). See, e.g., Pomeroy v. Ashburnham Westminster Reg'l Sch. Dist., 410 F. Supp. 2d 7, 12-13 (D. Mass. 2006) (holding that an action under 42 U.S.C. § 1983 alleging a deprivation of procedural due process should be treated as a claim for personal injury under Massachusetts law); Litif v. United States, 682 F. Supp. 2d 60, 83 (D. Mass. 2010), aff'd, 670 F.3d 39 (1st Cir. 2012) (holding that "[d]amages to the person need not be physical" under Massachusetts law); Harrison v. Loyal Protective Life Ins. Co., 396 N.E.2d987, 989 (Mass. 1979) (rejecting a "narrow construction of 'damage to the person'"). Thus, Rosario's action falls within the ambit of subsection (d)(2).

2. The City's Indemnification Obligation is a "Liability Bond" Policy

Rosario's entitlement to the relief under subsection (d)(2) also turns on whether his personal injury claims are covered by "a policy of liability bond or liability insurance." Id. § 3-803(d)(2). Rosario argues that because recovery for alleged harm caused by the Deceased Defendants, if available, "will be funded only by [the City]'s indemnification," Doc. No. 40 at 4, such recovery will be pursuant to "a policy of liability bond or liability insurance." The Court recognizes, and the City does not contest, that the City is generally obligated to indemnify municipal officers acting within the scope of their employment. Mass. Gen. Laws ch. 258, §13. However, the City argues that "[n]o reasonable reading of [subsection (d)(2)] can result in a conclusion that it is intended to apply ... to the City based on its indemnification obligations." Doc. No. 45 at 15.

Contrary to the City's objection, the City's statutory indemnification obligation is a "policy of liability bond" for purposes of subsection (d)(2). The term "liability bond" is not defined in the statute itself; thus, the Court presumes that the legislature intended "to use the term in its ordinary sense." Casey v. Mass. Elec. Co., 467 N.E.2d 1358, 1362 (Mass. 1984). At its most elementary, a bond is simply a "written promise to pay money or do some act if certain circumstances occur." Black's Law Dictionary 200 (Bryan A. Garner ed., 9th ed. 2009). A "liability bond" is a "bond intended to protect the assured from a loss arising from some event specified in the bond." Id. at 201. Critically, in determining whether the City's indemnification obligation is a liability...