Ware v. Com.

• Decision Date: 14 January 1991
• Citation: 409 Mass. 89,564 N.E.2d 998
• Parties: Donna M. WARE v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 998

564 N.E.2d 998

409 Mass. 89

Donna M. WARE v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts,

Hampshire.

Argued Dec. 5, 1990.

Decided Jan. 14, 1991.

Peter Sacks, Asst. Atty. Gen., for Com.

George B. Scully, Holyoke, for plaintiff, submitted a brief.

Before LIACOS, C.J., and ABRAMS, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

In a tort action against the Commonwealth, the plaintiff, Donna M. Ware, was awarded $52,000 for her injuries. On motion by the plaintiff, a Superior Court judge amended the judgment to include $471.79 in costs. The Commonwealth, claiming a violation of the doctrine of sovereign immunity, appealed the award of costs to the Appeals Court, which affirmed the judgment. Ware v. Commonwealth, 28 Mass.App.Ct. 738, 555 N.E.2d 895 (1990). We granted the Commonwealth's application for further appellate review. We vacate that part of the judgment which allowed the recovery of costs.

General Laws c. 261, § 1 (1988 ed.), provides that, "[i]n civil actions the prevailing party shall recover his costs, except as otherwise provided." For the purposes of this case, G.L. c. 261, § 1, must be read in conjunction with Mass.R.Civ.P. 54(d), as amended, 382 Mass. 821 (1980). The rule states that "costs against the Commonwealth, its officers, and agencies shall be imposed only to the extent permitted by law." This court has held that rule 54(d) "requires that an award of costs against the Commonwealth be based on specific affirmative authority." Broadhurst v. Director of the Div. of Employment Sec., 373 Mass. 720, 722, 369 N.E.2d 1018 (1977). See M.C. v. Commissioner of Correction, 399 Mass. 909, 912, 507 N.E.2d 253 (1987). This requirement arises directly out of the "general rule [of law] ... that the Commonwealth 'cannot be impleaded in its own courts except with its consent, and, when that consent is granted, it can be impleaded only in the manner and to the extent expressed ... [by] statute.' " Broadhurst v. Director of the Div. of Employment Sec., supra 373 Mass. at 722, 369 N.E.2d 1018, quoting General Elec. Co. v. Commonwealth, 329 Mass. 661, 664, 110 N.E.2d 101 (1953).

The plaintiff in the present case sued the Commonwealth under the Massachusetts Tort Claims Act, G.L. c. 258, §§ 1-13 (1988 ed.). The Appeals Court concluded that G.L. c. 258 provided affirmative legislative authority for the imposition of costs against the Commonwealth. The Appeals Court relied on G.L. c. 258, § 2, which states, in pertinent part, that "[p]ublic employers shall be liable for ... personal injury ... caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances, except that public employers shall not be liable to levy of execution on any real and personal property to satisfy judgment, and shall not be liable for interest prior to judgment or for punitive damages or for any amount in excess of one hundred thousand dollars" (emphasis supplied). The Appeals Court, applying the "familiar maxim of statutory construction that a 'statutory expression of one thing is an implied exclusion of other things omitted from the statute,' " concluded that the recovery of costs against the Commonwealth was allowed by implication under G.L. c. 258 because costs were not included in the statute's express prohibitions of recovery. Ware v. Commonwealth, supra 28 Mass.App.Ct. at 739-740, 555 N.E.2d 895, quoting Harborview Residents' Comm., Inc. v. Quincy Hous. Auth., 368 Mass. 425, 432, 332 N.E.2d 891 (1975). While we acknowledge that the reasoning of the Appeals Court in this case enjoys some appeal, we do not believe that the language of this statute can be interpreted properly as granting specific legislative authority for the recovery of costs against the Commonwealth.

"The rules of construction governing statutory waivers of sovereign immunity are stringent." Woodbridge v. Worcester State Hosp., 384 Mass. 38, 42, 423 N.E.2d 782 (1981). See C & M Constr. Co. v. Commonwealth, 396 Mass. 390, 392, 486 N.E.2d 54 (1985). "Consent to suit must be expressed by the terms of a statute, or appear by necessary implication from them." Id. at 392, 486 N.E.2d 54, quoting Woodbridge v. Worcester State Hosp., supra 384 Mass. at 42, 423 N.E.2d 782. The relevant statute in the present case, G.L. c. 258, contains no express provisions for the recovery of costs against the Commonwealth. Furthermore, the terms of G.L. c. 258, which allow a plaintiff to recover damages for personal injury from the Commonwealth, do not necessarily imply that the costs of litigating such a case must also be recoverable. This court has recognized that a recovery of damages for liability from the Commonwealth does not necessarily involve a recovery of costs. In Broadhurst v. Director of the Div. of Employment Sec., supra 373 Mass. at 725 n. 8, 369 N.E.2d 1018, we stated that "the assessment of costs against the Commonwealth [is] a matter we deem 'ancillary' to the underlying concern of liability for damages" (emphasis in original). Therefore, the fact that the Legislature provided for the recovery of damages from the Commonwealth in G.L. c. 258 does not lead necessarily to the conclusion that the statute allows for the recovery of costs as well.

In addition, we note that the Legislature already has expressly provided for the recovery of costs against the Commonwealth to an extent which appears to be incompatible with the position suggested by the plaintiff. In G.L. c. 261, § 14 (1988 ed.), the Legislature...