JOAN A. WETHERELL vs. BOSTON MUTUAL LIFE INSURANCE COMPANY & another. [Note 1]

SMITH, J. The plaintiff, the widow of one Eugene L. Wetherell (Eugene), a Commonwealth employee, brought this action in the Superior Court in Berkshire County against the Commonwealth of Massachusetts, acting through its Group Insurance Commission (GIC), and the Boston Mutual Life Insurance Company (Boston Mutual). She alleged that Boston Mutual had failed to pay the amounts that she claims are due her on life insurance policies written by that company and administered on behalf of the Commonwealth by GIC. The defendants claim that no money is owed because Eugene's insurance policies expired about three and one-half months prior to his death. A trial was held in Berkshire County, and the jury returned a verdict in favor of the plaintiff against both defendants. They have raised several issues on appeal. We find no error and affirm the judgment.

1. Lack of jurisdiction of the Superior Court in Berkshire County. The complaint was filed by the plaintiff on July 11, 1978, in the Superior Court in Berkshire County. In her complaint the plaintiff sought to recover $8,000 from either Boston Mutual or the Commonwealth. At the time of the filing of the complaint, the relevant statute, G. L. c. 258, Section 2, as in effect prior to St. 1978, c. 512, Section 15, required that if the amount claimed exceeded $2,000 in actions against the

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Commonwealth, the complaint had to be brought in Suffolk County. If an action was brought in a county other than Suffolk, the action had to be dismissed. Putnam Furniture Bldg., Inc. v. Commonwealth, 323 Mass. 179, 185-186 (1948). GIC filed a motion to dismiss the complaint, contending that the Superior Court in Berkshire County lacked jurisdiction in Berkshire County because of the statutory requirement. It appeals from the denial of that motion. There was no error.

In 1978, the Legislature enacted a new G. L. c. 258 (the Act). St. 1978, c. 512, Section 15. The Act expressly provides that all civil actions against the Commonwealth may be brought in Suffolk County or in the county wherein the claimant resides. That provision, however, became effective on July 20, 1978, some nine days after the filing of this action. [Note 2] Thus, we must consider if St. 1978, c. 512, Section 15, has retrospective effect enabling the plaintiff to maintain her action in Berkshire County.

Generally, statutes are prospective in their operation unless a contrary intent is manifested by the Legislature. Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3 (1914). Goes v. Feldman, 8 Mass. App. Ct. 84, 87 (1979). However, remedial legislation that is concerned with practice, procedure and evidence but which does not affect substantive rights is treated as operating retroactively and is applied to pending actions or causes of action. [Note 3] City Council of Waltham v. Vinciullo,

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364 Mass. 624, 626 (1974). Goes v. Feldman, supra at 88. Cranberry Realty & Mortgage Co. v. Ackerley Communications, Inc., 17 Mass. App. Ct. 255, 258 (1983). No new substantive rights were conferred on the plaintiff in the instant case by the enactment of St. 1978, c. 512, Section 15. Prior to 1978, a party had the right to bring a contract claim against the Commonwealth. First Natl. Ins. Co. of America v. Commonwealth, 376 Mass. 248, 250-251 (1978). Massachusetts Elec. Co. v. Athol One, Inc., 391 Mass. 685, 687 (1984). Monadnock Display Fireworks, Inc. v. Andover, 388 Mass. 153, 156 (1983). The revision of G. L. c. 258 in 1978, to permit the bringing of tort claims against the Commonwealth, did not, in any respect, affect or change those substantive rights already available to parties filing contract actions against the Commonwealth. [Note 4]

The change in G. L. c. 258 in 1978 whereby a person with a claim against the Commonwealth was given the option of bringing his action either in Suffolk County or in the county where he resides relates to practice and procedure. It is a change involving jurisdiction. [Note 5] Alpert v. Commonwealth, 357 Mass. 306, 318 (1970). Our decision in Goes v. Feldman, supra at 88, 89, governs the issue presented here. In Goes we

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held that a statute conferring jurisdiction on the Housing Court of Hampden County to consider certain claims under G. L. c. 93A should be applied retroactively so as to confer jurisdiction where a case was heard and decided prior to the effective date of the statute. Here, the plaintiff filed the action in Berkshire County nine days before the statutory change became effective and four and one-half years before the trial was held. As in Goes, we think, in the circumstances of this case, "it seems dogmatic and formalistic to insist that where jurisdiction is absent at the inception of litigation, it cannot subsequently be conferred because the litigation was a nullity ab initio. We are not prepared thus `to sacrifice good sense to a syllogism'. Holmes, The Common Law 36 (1881)". 8 Mass. App. Ct. at 90-91. Therefore, we hold that the Superior Court in Berkshire County had jurisdiction to decide the case, and there was no error in the denial of GIC's motion to dismiss.

2. Right to jury trial. GIC contends that the judge erred in allowing a jury trial. At the time that the complaint was filed, G. L. c. 258 did not permit jury trials in regard to claims against the Commonwealth. General Laws c. 258, Section 2, as amended by St. 1978, c. 512, Section 15, permits jury trials in actions against the Commonwealth. Beurklian v. Allen, 385 Mass. 1009 (1982). Our analysis in part 1 is pertinent to this issue. The allowance of jury trials did not confer any new substantive rights on the plaintiff here. The provision as to jury trials was remedial in nature. Capp Homes v. Duarte, 617 F.2d 900, 903 n.2 (1st Cir. 1980). Any limitation as to the retroactivity of procedural or remedial statutes is not applicable in this case. See City Council of Waltham v. Vinciullo, 364 Mass. at 626-627; Cranberry Realty & Mortgage Co. v. Ackerley Communications, Inc., 17 Mass. App. Ct. at 259. The legislation permitting jury trials became effective four and one half years before a jury was empanelled in this case. Therefore, the case had not gone beyond the procedural stage to which the statute pertains when the legislation became effective. Porter v. Clerk of the Superior Court, 368 Mass. 116, 118 (1975). Goes v. Feldman, 8 Mass. App. Ct. at 88-89.

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3. Denial of motions for a directed verdict. Both defendants appeal from the denial of their separate motions for a directed verdict. On appeal, GIC argues that the plaintiff did not produce sufficient evidence to support a finding against it. The sufficiency of the evidence was not specified as a ground for allowance of the motion at the trial. [Note 6] It is well-settled that "[a] party who advances one theory as the basis for his motion for a directed verdict in the trial court cannot as of right challenge the denial of that motion on a different theory on appeal." Uloth v. City Tank Corp., 376 Mass. 874, 883 (1978). Smith & Zobel, Rules Practice Section 50.09, at 206 (1977). Experienced counsel had ample time at trial to specify those grounds claimed to warrant allowance of the motion. We do not perceive any reason for considering the ground now put forward by GIC.

Boston Mutual argues that the denial of its motion for a directed verdict was error because there was no showing that there was a contractual relationship between Eugene and itself. [Note 7] The testimony and exhibits offered by the plaintiff show that a reasonable inference that there was a contractual relationship between Eugene and Boston Mutual could be drawn in favor of the plaintiff. Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). Power Service Supply, Inc. v. E.W. Wiggins Airways, Inc., 9 Mass. App. Ct. 122, 127 (1980).

4. The judge's instruction on waiver of premium. Both defendants contend that the judge's instruction on the waiver of premium provision contained in the insurance policies was erroneous because it implied that the premium could be waived without complying with certain conditions contained in the policies. Their objection was stated at the conclusion of the

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judge's instructions as follows: "I am objecting to the deceased became totally disabled and entitled to waiver". This objection was inadequate to save the defendants' appellate rights on the issue. Huff v. Holyoke, 386 Mass. 582, 583 n.2 (1982). In any event, the judge carefully and correctly instructed the jury as to the burden of the plaintiff.

5. Procedural aspects as to declaratory relief. The plaintiff's amended complaint contained a count for declaratory relief as to GIC. At trial, GIC raised two claims in regard to that prayer. They were (1) that the plaintiff lacked standing to maintain a request for declaratory judgment under G. L. c. 231A, and (2) that, if the plaintiff had standing, the judge erred in entering a judgment for damages where the complaint sought declaratory relief. The contentions are without merit.

No declaratory relief was given in this case; therefore there is no basis for GIC's argument. The judge was correct in awarding damages against GIC. Before trial GIC assumed all potential liabilities under the policies insuring Eugene. The document setting out the assumption of liability was admitted as an exhibit. The judge, therefore, knew that GIC would pay any judgment returned against Boston Mutual. In any event, the fact that the judgment entered was different from the relief sought does not make the judgment erroneous. Commonwealth v. DeCotis, 366 Mass. 234, 246 (1974). In addition, the complaint contained a prayer for general relief, which would support any relief consistent with the nature of the case. Commonwealth v. DeCotis, supra.

Judgment affirmed.