Home BERNARD GRANT vs. ROBERT M. ROSEN, administrator.

13 Mass. App. Ct. 1000

March 26, 1982

This appeal presents the issue whether the city of Springfield, in the circumstances presented here, can be compelled to indemnify the estate of one of its now deceased police officers for a judgment recovered against the estate.

The plaintiff argues that the city's obligation can be found in G. L. c. 41, Section 100, as in effect prior to its amendment by St. 1978, c. 512, Section 9, and G. L. c. 41, Section 100A, as in effect prior to its repeal by St. 1978, c. 512, Section 10. See now G. L. c. 258, the so called Massachusetts Tort Claims Act.

We conclude that the reasoning of the Supreme Judicial Court in Fortin v. Mayor of Chicopee, 325 Mass. 214 , 215-216 (1950), controls the circumstances of this case. The plaintiff "has no claim of right to indemnification from the city under G. L. c. 41, Section 100." MacArthur v. Massachusetts Hosp. Serv., Inc., 343 Mass. 670 , 674 (1962). A grant of indemnification is predicated on the "recommendation of the appointing [authority]." Berube v. Selectmen of Edgartown, 336 Mass. 634 , 638 (1958). The appointing authority has discretion to deny an application for indemnification. Fortin v. Mayor of Chicopee, supra at 215-216. An applicant aggrieved by such denial, or by failure of the appointing authority to take any action, may petition the Superior Court for relief as provided by the statute. See Politano v. Selectmen of Nahant, 12 Mass. App. Ct. 738 , 739-740 (1981). It is apparent on this record that the plaintiff did not avail himself of this provision.

The plaintiff's position is not enhanced by references to G. L. c. 41, Section 100A. Indemnification under that section is permissive and likewise subject to municipal appropriation.

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In view of the conclusions we reach above, it is unnecessary for us to decide whether Mass.R.Civ.P. 69, 365 Mass. 836 (1974), can be used in conjunction with Mass.R.Civ.P. 71, 365 Mass. 837 (1974), to enforce relief against a nonparty municipality. Compare Geehan v. Trawler Arlington, Inc., 371 Mass. 815 , 818 (1977).

Judgment affirmed.