ROBERT H. HOLAHAN, JR. vs. CITY OF MEDFORD.

LIACOS, J. The plaintiff, Robert H. Holahan, Jr., brought suit in the Superior Court in Middlesex County against the city of Medford (city), alleging that he sustained injuries while using a printing press in a class at the Medford public vocational

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high school, and that his injuries were due to the defendant's negligence. He sued under the Massachusetts Tort Claims Act, G. L. c. 258. The defendant filed a motion for summary judgment under Mass. R. Civ. P. 56 (b), 365 Mass. 824 (1974), [Note 1] arguing, inter alia, that Holahan had not complied with the presentment requirement of the statute, G. L. c. 258, Section 4. [Note 2] The judge granted the defendant's motion, and Holahan appealed from that judgment. We transferred the case to this court on our own initiative. We affirm.

Summary judgment is warranted if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). There is no dispute as to the material facts in this case. On May 29, 1980, the plaintiff injured his hand while participating in a class at the Medford vocational high school. On June 19, 1981, counsel for the plaintiff sent a letter to the superintendent of the Medford public schools asserting that the negligence of the school department and of the city was responsible for the plaintiff's injury. The letter

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stated that it was "present[ing]" the plaintiff's claim "in accordance with" G. L. c. 258, Section 4. The superintendent forwarded the plaintiff's letter to the office of the Medford city solicitor. On October 27, 1981, seventeen months after the plaintiff's injury, plaintiff's counsel telephoned the city solicitor's office and asked to speak with the person handling the plaintiff's claim. He spoke with an assistant city solicitor. The assistant city solicitor acknowledged that he had received the June 19, 1981, letter and that he was investigating the claim. They discussed the claim in detail. In response to an inquiry by the plaintiff's counsel about settlement, the assistant city solicitor stated that the city's policy was not to discuss settlement until suit was filed. He further stated that the city would probably allow the six-month period set forth in G. L. c. 258, Section 4, in which the city must deny or settle the claim, to lapse, thereby entitling the plaintiff to file suit. Pursuant to the assistant city solicitor's request, plaintiff's counsel sent copies of the plaintiff's medical reports and hospital bills and records to him. On October 30, 1981, plaintiff's counsel forwarded copies of additional hospital bills. On March 7, 1983, two years and nine months after the date of the plaintiff's injury, plaintiff's counsel filed suit in the Superior Court in Middlesex County.

The plaintiff makes two arguments to support his contention that the judge should not have granted the city's motion for summary judgment. He argues (1) that presentment was proper, or alternatively, (2) that the city should be estopped from asserting the defense of improper presentment.

General Laws c. 258, Section 4, provides in part: "A civil action shall not be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose . . . ." A city is a "public employer" under G. L. c. 258, Section 1. The "executive officer" of a city is defined as "the mayor of a city, or as designated by the charter of the city." Id., as amended by St. 1983, c. 537. Medford has a Plan E charter. See G. L. c. 43, Sections 93-116; Corporation Way Realty Trust v. Building Comm'r of Medford,

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348 Mass. 732 (1965). Under a Plan E charter, the city manager is the executive officer of the city. G. L. c. 43, Section 103. Allen v. Cambridge, 316 Mass. 351, 353 (1944). Thus, the plain meaning of G. L. c. 258, Sections 1 & 4, as they apply to the city of Medford, is that a claimant must present his or her claim to the city manager before he or she may bring suit against the city.

In the present case, the plaintiff did not present his claim to the city manager. Instead he presented his claim first to the superintendent of the Medford school system, and second to the city solicitor. The plaintiff urges us to hold that presentment to the city solicitor is equivalent to presentment to the city manager. We decline to do so for the following reasons. First, the statute is clear on its face, and its plain meaning is controlling. See Commonwealth v. Vickey, 381 Mass. 762, 767 (1980). Second, the purpose of the presentment requirement is to allow the public employer to investigate any claim in full and to "arbitrate, compromise or settle" any such claim as it sees fit. G. L. c. 258, Section 5, as appearing in St. 1978, c. 512, Section 15. See George v. Saugus, ante 40, 44 (1985), and Weaver v. Commonwealth, 387 Mass. 43, 47-48 (1982). The statute requires presentment to be made to the official with the capacity to negotiate or settle the claim -- the executive officer, in this case the city manager. Id at 48. The city solicitor, though he or she may advise the city manager, does not possess the authority to settle a claim within the meaning of the statute. Third, by analogy to another part of G. L. c. 258, Section 1, we discern that the Legislature did not intend presentment to a public employer's attorney to suffice under G. L. c. 258, Section 4, unless it specifically so indicated. General Laws c. 258, Section 1, provides that the "executive officer" of an executive office of the Commonwealth is the secretary of that office; it also provides that for an agency not within an executive office of the Commonwealth, the "executive officer" is the Attorney General, the Commonwealth's attorney. Thus, the Legislature has specified the particular instances in which a public attorney may function as an executive officer for the purpose of receiving presentment of a claim. See G. L. c. 258, Sections 1, 4. We cannot

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presume, therefore, that the Legislature intended presentment to a public attorney to suffice under G. L. c. 258, Section 4, without the Legislature's having so indicated explicitly.

For these reasons, we cannot accept the plaintiff's argument that presentment to the city solicitor was equivalent to presentment to the city manager. Presentment in this case was not proper. See Weaver v. Commonwealth, 387 Mass. 43, 45-48 (1982) (presentment to Commissioner of the Department of Mental Health and to the administrator of State hospital inadequate when statute required presentment to the Secretary of the Executive Office of Human Services).

The plaintiff next argues that the city should be estopped from defending on the ground of improper presentment. He cites Vasys v. Metropolitan Dist. Comm'n, 387 Mass. 51 (1982), and Moran v. Mashpee, 17 Mass. App. Ct. 679 (1984), in support of his argument that the statements of the assistant city solicitor "lulled" him into believing that presentment was not an issue. In Vasys, the defendant attempted to raise the defense of defective presentment after the defendant had stated, in response to the plaintiff's interrogatories, that presentment had been proper. Vasys, supra at 53. We held that the defendant was barred from raising the issue of improper presentment. Id. at 57. In Moran, the Appeals Court reversed a summary judgment for the defendant because there was a question of fact whether the defendant had agreed with the plaintiff that amendment of the complaint was unnecessary, thereby "intentionally" leading "the plaintiff to believe that it was waiving its presentment defense." Moran, supra at 681.

Neither Vasys nor Moran persuades us that the defendant in the present case should be estopped from defending on the ground of defective presentment. In both Vasys and Moran, it was held that the defendants could be barred from asserting improper presentment by statements they had made in the course of litigation. Both cases were essentially an application of the principle that "a litigant cannot assume inconsistent and contradictory positions" (emphasis supplied). Elfman v. Glaser, 313 Mass. 370, 376 (1943). In the present case, by contrast, the complained-of statements were made before litigation

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had commenced. Additionally, the plaintiff points to no promise to waive the presentment requirement of G. L. c. 258, nor to any affirmative waiver of that defense. Vasys and Moran, therefore, are distinguishable. In general, we are "reluctant to apply principles of estoppel to public entities where to do so would negate requirements of law intended to protect the public interest." Phipps Prods. Corp. v. Massachusetts Bay Transp. Auth., 387 Mass. 687, 693 (1982). This is true even where we "would extend little sympathy to a private citizen who acted similarly in a private transaction." Id. In stating that he reasonably relied on the statements of an assistant city solicitor made before a complaint was filed, the plaintiff fails to state facts sufficient to estop the city from asserting its presentment defense. [Note 3]

We conclude that summary judgment was properly granted for the defendant. Accordingly, the judgment is affirmed.

So ordered.