Smith v. Mass. Bay Transp. Auth.

• Decision Date: 31 May 2012
• Docket Number: SJC–11032.
• Parties: Timothy SMITH v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

462 Mass. 370

968 N.E.2d 884

Timothy SMITH

v.MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

SJC–11032.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 6, 2012.

Decided May 31, 2012.

John P. Knight (Jonathan P. Feltner & Thomas T. Worboys with him), Boston, for the defendant.

Michael E. Mone (Catherine A. Ryan with him), Boston, for the plaintiff.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

Effective November 1, 2009, amendments to the Massachusetts Tort Claims Act, G.L. c. 258, §§ 1–14, and the Massachusetts Bay Transportation Authority's (MBTA's) enabling statute, G.L. c. 161A (collectively, 2009 amendments), made the MBTA a “public employer” covered by the Tort Claims Act. See G.L. c. 258, § 1, as amended through St.2009, c. 25, § 123; G.L. c. 161A, § 38, as amended by St.2009, c. 25, §§ 112, 113; St.2009, c. 25, § 185, as amended by St.2009, c. 26, § 60. This case presents the question whether the 2009 amendments apply retroactively, allowing the MBTA the protections of public employer status against a plaintiff whose claims accrued prior to November 1, 2009. We conclude that the 2009 amendments do not so apply. Accordingly, the plaintiff is not precluded from recovering prejudgment interest and costs or postjudgment interest against the MBTA that accrued prior to November 1, 2009.

1. Background. On July 15, 2005, the plaintiff was involved in a motor vehicle accident with a bus operated by an MBTA employee. The plaintiff filed suit on October 26, 2005, against the MBTA and the bus driver. On September 28, 2009, a jury determined that the accident resulted from the employee's negligence, and they awarded the plaintiff $661,784 in damages. On September 30, 2009, or about a month prior to the amendment's effective date, judgment entered for the plaintiff in “the sum of $661,784.00 with interest thereon ... and [the plaintiff's] costs ” (emphasis supplied). See G.L. c. 231, § 6B (in any tort action “there shall be added ... to the amount of damages [twelve per cent annual] interest thereon ... from the date of commencement of the action”).

A month later, on November 1, 2009, the MBTA became a “public employer” under the Tort Claims Act. St.2009, c. 25, § 123. St.2009, c. 26, § 60. Public employers are immune from the award of interest and costs, Onofrio v. Department of Mental Health, 411 Mass. 657, 658–660, 584 N.E.2d 619 (1992), and on September 23, 2010, while an appeal from the judgment was pending before the Appeals Court, the MBTA filed a motion seeking relief from so much of the judgment as required it to pay interest and costs. See Mass. R. Civ. P. 60(b)(6), 365 Mass. 828 (1974). The trial judge denied the motion, determining that the MBTA's new status as a public employer applied only with respect to claims accruing after November 1, 2009. In a memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed,¹Smith v. Massachusetts Bay Transp. Auth., 79 Mass.App.Ct. 1123, 2011 WL 2175977 (2011), and we granted the MBTA's application for further appellate review.

2. Discussion. a. Interest and costs accruing prior to November 1, 2009. Whether a statute is to be applied to events occurring prior to the date on which it took effect is in the first instance a question of legislative intent. Fontaine v. Ebtec Corp., 415 Mass. 309, 318, 613 N.E.2d 881 (1993). However, where, as here, the Legislature has not spoken directly on the issue of retroactivity, we have presumed that “legislation commonly looks to the future, not to the past.” Federal Nat'l Mtge. Ass'n v. Nunez, 460 Mass. 511, 516, 952 N.E.2d 923 (2011)( Nunez ), quoting Fleet Nat'l Bank v. Commissioner of Revenue, 448 Mass. 441, 448–449, 862 N.E.2d 22 (2007)( Fleet Nat'l Bank ). We have therefore asked “whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense of ‘affecting substantive rights, liabilities, or duties [on the basis of] conduct arising before [its] enactment,’ and, if so, [we] apply the presumption that such a retroactive effect was not intended by the Legislature.” Nunez, supra at 517, 952 N.E.2d 923, quoting Fernandez–Vargas v. Gonzales, 548 U.S. 30, 37–38, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). This presumption may be rebutted only by an “unequivocally clear” showing of contrary legislative intent. See Fleet Nat'l Bank, supra at 449, 862 N.E.2d 22, quoting Sentry Fed. Sav. Bank v. Co-Operative Cent. Bank, 406 Mass. 412, 414, 548 N.E.2d 854 (1990).

As we explain below, the MBTA's “new” status as a public employer results in a comparative diminution of the substantive rights of persons previously injured by the tortious actions of MBTA employees. We discern no clear legislative intent that such accrued rights be diminished retroactively. Thus, we conclude that the 2009 amendments do not preclude the award of interest and costs against the MBTA accruing prior to November 1, 2009.

i. Effect of the 2009 amendments. The protections accorded public employers under the Tort Claims Act reflect the common-law doctrine of sovereign immunity. See Onofrio v. Department of Mental Health, supra at 659, 584 N.E.2d 619. That doctrine holds that, “[i]n general, the Commonwealth or one of its agencies ‘cannot be impleaded in its own courts except with its consent.’ ” Boxford v. Massachusetts Highway Dep't, 458 Mass. 596, 601, 940 N.E.2d 404 (2010), quoting DeRoche v. Massachusetts Comm'n Against Discrimination, 447 Mass. 1, 12, 848 N.E.2d 1197 (2006). In the normal course, only the Legislature can waive immunity, and the Commonwealth “can be impleaded only in the manner and to the extent expressed [by] statute.” Boxford v. Massachusetts Highway Dep't, supra, quoting DeRoche v. Massachusetts Comm'n Against Discrimination, supra. Among other functions, the doctrine “protects the public treasury against [depletion by] money judgments.” New Hampshire Ins. Guar. Ass'n v. Markem Corp., 424 Mass. 344, 351, 676 N.E.2d 809 (1997).

The MBTA is established by statute as a “political subdivision of the [C]ommonwealth.” G.L. c. 161A, § 2. It is funded in part from the Commonwealth's treasury, G.L. c. 161A, § 8, and in part from the budgets of the cities and towns that it serves. G.L. c. 161A, § 9. Under the doctrine of sovereign immunity, therefore, the MBTA is not amenable to suit without the Commonwealth's express consent.

Such consent was first given, on the MBTA's creation, by G.L. c. 161A, § 21, inserted by St.1964, c. 563, § 18. That statute made the MBTA “liable in tort ... in the same manner as though it were a street railway company.” Id. See G.L. c. 161A, § 38 (as codified in 1999). It thereby placed the MBTA on the same footing as any private transport operator, requiring it, among other things, to pay interest and costs in accordance with the law generally applicable to claims in tort. See, e.g., Mirageas v. Massachusetts Bay Transp. Auth., 391 Mass. 815, 819–821, 465 N.E.2d 232 (1984).

Effective November 1, 2009, however, the Legislature annulled the waiver of immunity in G.L. c. 161A, § 38. See St.2009, c. 25, §§ 112–113. It provided instead that the MBTA was to be treated as a “public employer” under the Tort Claims Act. See St.2009, c. 25, § 123. The Tort Claims Act provides that specified “[p]ublic employers,” each of them political subdivisions of the Commonwealth, “shall be liable for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment.” G.L. c. 258, §§ 1, 2.

As previously stated, sovereign consent to suit is effective only “to the extent expressed [by] statute,” Boxford v. Massachusetts Highway Dep't, supra, and the extent of the MBTA's liability under the 2009 amendments is narrower than that available prior to November 1, 2009. Specifically, G.L. c. 258, § 2, provides that public employers “shall not be liable for interest prior to judgment.” Contrast Mirageas v. Massachusetts Bay Transp. Auth., supra at 819–821, 465 N.E.2d 232. We have determined also that the Tort Claims Act does not waive the Commonwealth's immunity from the recovery of postjudgment interest or costs. See Onofrio v. Department of Mental Health, 411 Mass. 657, 658–660, 584 N.E.2d 619 (1992).

ii. Substantive rights. The effect of the 2009 amendments in narrowing the scope of the Commonwealth's consent to suit is substantive within the meaning of our cases on retroactivity.

“[T]he distinction between legislation concerning ‘substantive rights,’ and legislation concerning ‘only procedures and remedies' ” is easy to enunciate, but often “difficult to draw.” Fleet Nat'l Bank, supra at 449, 862 N.E.2d 22, quoting City Council of Waltham v. Vinciullo, 364 Mass. 624, 626–627, 307 N.E.2d 316 (1974). Those statutes we have determined to be merely procedural have fallen broadly into two categories. See id. at 449–450, 862 N.E.2d 22, and cases cited. The first relates to statutes regulating the rules of “practice, procedure or evidence.” See Gray v. Commissioner of Revenue, 422 Mass. 666, 670, 665 N.E.2d 17 (1996), quoting Goodwin Bros. Leasing v. Nousis, 373 Mass. 169, 173, 366 N.E.2d 38 (1977). The second encompasses “remedial” statutes changing the procedure for the enforcement of a preexisting right, or adding to the available means of civil enforcement. See Kagan v. United Vacuum Appliance Corp., 357 Mass. 680, 683–684, 260 N.E.2d 208 (1970). What such statutes have in common is that they do not “in reality materially affect[ ] substantive rights previously acquired.” Wynn v. Assessors of Boston, 281 Mass. 245, 249, 183 N.E. 528 (1932).

In contrast, “legislation limiting or increasing the measure of liability, while arguably remedial in the broad sense of that word, generally is considered to impair the substantive rights of a party who will be adversely affected by the legislation.” ²Rosnov v. Molloy, 460...