ALAN PINSHAW vs. METROPOLITAN DISTRICT COMMISSION.

ABRAMS, J. Through an assignment of rights, the plaintiff, Alan Pinshaw, seeks to enforce Metropolitan District Commission (MDC) Officer Frederick Monk's rights to indemnification under G. L. c. 92, Section 63B, added by St. 1948, c. 653, [Note 1] and G. L. c. 258, Section 9A, added by St. 1982, c. 345. [Note 2] Both parties

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moved for summary judgment on a statement of agreed facts and supporting documents. The Superior Court judge granted the defendant's motion for summary judgment. We granted direct appellate review. We reverse and remand for further proceedings.

We summarize the agreed facts. On August 28, 1978, the plaintiff stopped his car on Brookline Avenue, near Fenway Park, to ask directions from Monk, who was on duty in uniform directing traffic. Monk ordered the plaintiff to move on. The plaintiff found Monk's manner uncivil and threatening. After parking, the plaintiff walked back to speak to Monk, who now ordered the plaintiff to leave the intersection. The plaintiff again found Monk's manner inappropriate. Later that evening, the plaintiff telephoned the MDC to complain about Monk's actions. The plaintiff followed up the complaint with a letter to Monk's direct superior, Captain Kenneth Elliott. Elliott notified his supervisor, Deputy Superintendent John McDonough, of the complaint, and McDonough sent the plaintiff a letter stating that Elliott would investigate the matter.

Elliott advised Monk of the civilian complaint and requested a report on the incident. Monk responded by seeking a criminal complaint against the plaintiff in the Roxbury District Court for failing to comply with an order to move his car on request of an MDC officer, a violation of MDC Rule 7. According to

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Monk, he did not bring charges earlier because he did not know the plaintiff's name. McDonough and Elliott suspended their investigation when they learned that Monk obtained a criminal complaint. [Note 3] They "believed that the merits of the incident would be settled in the Roxbury District Court." The District Court judge found the plaintiff guilty and imposed a fine. On appeal, a Superior Court judge dismissed the complaint. Despite the dismissal, the MDC never reopened its investigation on Monk's conduct and never disciplined him. Following the District Court trial, McDonough and Elliott felt "the matter was resolved."

The plaintiff subsequently filed a civil rights action against Monk [Note 4] in Federal court pursuant to 42 U.S.C. Section 1983 (1982). The plaintiff alleged that Monk initiated the criminal prosecution against him in retaliation for the complaint he filed with the MDC, and that the prosecution violated his right to petition the government for redress of grievances. After jury trial, the plaintiff was awarded $3,500 in compensatory damages. He later was awarded $5,356.17 in attorney's fees. Punitive damages were sought, but the jury did not award them.

While the civil rights action was pending, Monk filed a bankruptcy petition. The plaintiff filed an adversary complaint in the bankruptcy proceeding, and the parties resolved the dispute by entering an agreement for judgment that the civil rights judgment was nondischargeable under 11 U.S.C. Section 523 (a)(6) (1982). [Note 5] After the agreement for judgment in bankruptcy, Monk assigned all his entitlement to indemnification from the MDC and the Commonwealth resulting from the civil rights case to the plaintiff.

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After the civil rights trial, and pursuant to the assignment from Monk, the plaintiff requested indemnification from the MDC. The commissioner denied the request, because, in his opinion, Monk had acted beyond the scope of his employment when he prosecuted the plaintiff. The plaintiff then filed the present action in the Superior Court. The Superior Court judge granted summary judgment for the MDC. The judge concluded that, based on the agreed facts, Monk had acted outside the scope of his employment and therefore was not entitled to indemnification under either G. L. c. 92, Section 63B, or c. 258, Section 9A.

On appeal, the plaintiff asserts that, as a matter of law, he is entitled to indemnification. Alternatively, he argues that his entitlement to indemnification depends upon resolution of genuine issues of material fact, and that the judge therefore erred in granting the defendant's motion for summary judgment. We agree that summary judgment was inappropriate.

1. The statutory framework. The plaintiff seeks indemnification under two statutes, G. L. c. 92, Section 63B, and c. 258, Section 9A. The parties dispute which statute applies. The plaintiff argues that Section 9A, which became effective after the award of compensatory damages in his Federal civil rights case (but before the award of attorney's fees), cannot be applied retroactively to deny him rights he had under Section 63B. [Note 6] The defendant contends that the requirements of the statutes are cumulative or, in the alternative, that Section 9A governs entitlement to indemnification in this case. We conclude that Section 9A governs.

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General Laws c. 92, Section 63B, was enacted in 1948. The statute provides indemnification for MDC officers in two situations: where an officer suffers financial loss from his own injury in the line of duty, see Montague v. Commissioner of the Metropolitan Dist. Comm'n, 9 Mass. App. Ct. 62 (1980), and where an officer must pay damages for harm to a third person caused "while acting as a police officer." The statute draws no distinction between negligent and intentional harm caused by an officer.

In 1978, the Massachusetts Tort Claims Act, G. L. c. 258, effectively repealed Section 63B as to negligent harm caused by MDC officers. The tort claims act expressly provides that public employers, including the MDC, are directly liable for negligent harm caused by public employees acting within the scope of their employment. G. L. c. 258, Section 2, first par.

We conclude that Section 9A of c. 258, added by St. 1982, c. 345, likewise supplants Section 63B in cases involving intentional torts and civil rights violations. Section 9A deals expressly with intentional torts and civil rights violations. It defines specific prerequisites for indemnification in such cases; it covers all police officers employed directly by the Commonwealth; and it provides for the officers' legal representation. In short, it provides a specific, comprehensive system for indemnification of certain police officers in civil rights and intentional tort cases. [Note 7]

The differences between Section 63B and Section 9A are as follows. Under Section 63B, the MDC indemnified the officer; under Section 9A, the Commonwealth is directly responsible for indemnification. [Note 8]

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Under Section 63B, the MDC determined the amount of indemnification "subject to appropriation" and approval by the Attorney General; under Section 9A the Commonwealth must provide full indemnification subject to a one million dollar limit (not relevant in this case). Section 63B provided indemnification for acts done "while acting as a police officer"; Section 9A covers acts "within the scope of the official duties of [the] officer." [Note 9] Finally, under Section 63B the MDC could exercise discretion to determine an officer's entitlement to indemnification, see Montague v. Commissioner of the Metropolitan Dist. Comm'n, supra at 64; under Section 9A, if indemnification is disputed, the officer's entitlement is determined in the Superior Court. [Note 10] "[W]here two statutes are inconsistent and mutually repugnant, the later statute governs." Mirageas v. Massachusetts Bay Transp. Auth., 391 Mass. 815, 819 (1984). [Note 11]

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2. Summary judgment. We will affirm an order for summary judgment, "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). See, e.g., Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Godbout v. Cousens, 396 Mass. 254, 257 (1985). Because there are at least two issues of material fact unresolved, summary judgment was not appropriate for either party.

The first factual issue is whether Monk's violation of the plaintiff's civil rights (the criminal prosecution) "occurred within the scope of [Monk's] official duties." G. L. c. 258, Section 9A. We have not had occasion to consider "the scope of . . . official duties" under Section 9A. However, under the parallel provision in Section 9 (indemnification of other public employees), we apply common law respondeat superior principles. Howard v. Burlington, 399 Mass. 585, 589-590 (1987). We conclude that the same principles apply under Section 9A.

"The general respondeat superior test involving intentional torts considers whether the act was within the course of employment, and in furtherance of the employer's work." Howard v. Burlington, supra at 590, and cases cited. In determining the scope of employment, the finder of fact must consider whether the conduct complained of is of the kind the employee is hired to perform, whether it occurs within authorized time and space limits, and whether "it is motivated, at least in part, by a purpose to serve the employer." Wang Labs., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859 (1986). See Restatement (Second) of Agency Section 228 (1958). Monk's conduct clearly was of the kind he was hired to perform. See note 3, supra. The issue is Monk's motivation.

If an employee "acts from purely personal motives . . . in no way connected with the employer's interests, he is considered

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in the ordinary case to have departed from his employment, and the master is not liable." W. Prosser & W. Keeton, Torts 506 (5th ed. 1984). See Miller v. Federated Dept. Stores, Inc., 364 Mass. 340, 348 (1973). However, "[t]he fact that the predominant motive of the [employee] is to benefit himself does not prevent the act from coming within the scope of employment as long as the act is otherwise within the purview of his authority." Wang Labs., Inc. v. Business Incentives, Inc., supra at 859-860. See Coleman v. Smith, 814 F.2d 1142 (7th Cir. 1987) (intentional false arrest); W. Prosser & W. Keeton, supra at 506-507. "If the act complained of was within the scope of the servant's authority, the master will be liable, although it constituted an abuse or excess of the authority conferred. The master . . . is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority and inflicts an unjustifiable injury on a third person." Kent v. Bradley, 480 S.W.2d 55, 57 (Tex. Civ. App. 1972). See Johnson v. Weinberg, 434 A.2d 404, 408 (D.C. App. 1981). Where a party's state of mind or motive is in issue, summary judgment is disfavored. Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 86 (1984).

The judge concluded that, based on the agreed facts, Monk did not act within the scope of his employment, because he initiated "a private counter-attack or personal vendetta" against the plaintiff, which "no one, including Monk and the plaintiff, could reasonably believe . . . was furthering the mission of the MDC." The parties, however, did not stipulate as to Monk's subjective motivation. Monk alleges that he delayed bringing the prosecution because he did not know the plaintiff's name. Even if Monk was motivated by a degree of vindictiveness, he also may have believed he was serving his employer in prosecuting the plaintiff, and that the plaintiff violated an MDC regulation. Prosecution of criminal complaints for violations of MDC regulations is part of Monk's job. The fact that Monk's superiors knew of the retaliatory action is some evidence that they may have endorsed or ratified Monk's action. See Restatement

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(Second) of Agency Section 218 (1958); Pusateri v. E.F. Hutton & Co., 180 Cal. App. 3d 247 (1986). Whether Monk acted within the scope of his official duties within the meaning of Section 9A is a question of fact. [Note 12]

The second factual question is whether Monk "acted in a wilful, wanton, or malicious manner." G. L. c. 258, Section 9A. We have not yet considered the scope of this exclusion to indemnification. However, "[p]rovisions for indemnity should be construed in a manner which will effectuate their purpose." Filippone v. Mayor of Newton, 392 Mass. 622, 628 (1984). The purpose of Section 9A is to provide an exception to the general rule excluding public liability for intentional torts of public employees. [Note 13] The mandatory indemnification statute evidences the Legislature's determination that intentional torts and civil rights violations arise frequently in the scope of police work, and that indemnification of officers against such claims encourages police service. Cf. Howard v. Burlington, supra at 591. Because intentional torts, by definition, involve some element of "wilfulness," a literal reading of the exclusion would frustrate the express purpose of Section 9A, and thus must be rejected. "The words of a statute will not be read literally if to do so would be inconsistent with legislative intent." Oxford v. Oxford Water Co., 391 Mass. 581, 592 (1984). Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 336 (1982). See Commonwealth v. Neiman, 396 Mass. 754, 757 (1986).

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We conclude that, for purposes of Section 9A, in a civil rights context "wilful, wanton, or malicious" conduct means egregious conduct which would warrant imposition of punitive damages in the underlying action. In Federal civil rights actions, which are among the actions for which Section 9A provides indemnity, the United States Supreme Court has interpreted the terms "malice," "wanton," and "wilful" to constitute a standard for punitive damages "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 39-40 n.8, 56 (1983). Linking the exclusion from indemnification to the standard for punitive damages achieves the Legislature's clear intent; it indemnifies officers for intentional torts and civil rights violations occurring within the scope of their official duties, yet excludes indemnification in egregious cases. It also provides a bright line test for precluding indemnification where punitive damages are awarded in the underlying action.

We reject the plaintiff's assertion that he automatically is entitled to indemnification under Section 9A, because the jury in the Federal civil rights action did not award punitive damages. A failure to award punitive damages, unlike a verdict awarding them, does not establish facts that are binding in future litigation. Punitive damages under Section 1983 are not mandatory, "no matter how egregious the defendant's conduct." Smith v. Wade, supra at 52. The award of punitive damages is "a discretionary moral judgment" made after the plaintiff proves sufficiently serious misconduct on the defendant's part. Id. The Federal jury verdict therefore does not preclude a finding that Monk took himself outside the coverage of Section 9A when he prosecuted the plaintiff. Whether he did is a question to be determined by the finder of fact. [Note 14] See Karas v. Snell, 11 Ill.2d 233, 244-245 (1957).

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The dissent incorrectly argues that the Federal jury verdict precludes indemnification because that verdict necessarily included a finding that Monk's action was "wilful, wanton, or malicious." "[I]t is a condition of such `issue preclusion' (terminology now favored over `collateral estoppel') that the determination to be carried over shall not only have been litigated in the first action, but shall have been essential to the judgment in that action." Rudow v. Fogel, 376 Mass. 587, 591 (1978). Wishnewsky v. Saugus, 325 Mass. 191, 195 (1950). Restatement (Second) of Judgments Section 27 & comments i and j (1982). Issue preclusion is inappropriate because it is impossible to determine on the record before us whether the jury had to find Monk's action "wilful, wanton, or malicious" to award compensatory damages under 42 U.S.C. Section 1983 (1982).

The fact that the plaintiff alleged "malice" in the civil rights complaint does not establish that "wilful, wanton, or malicious" conduct was essential to the judgment. [Note 15] The complaint, which

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is the only guide in the present record as to what transpired in the Federal court, includes allegations of violations of the plaintiff's rights under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution of the United States. It is not clearly the case that an award of compensatory damages under Section 1983 on every one of these theories necessarily requires a finding of "wilful, wanton, or malicious" conduct. See Parratt v. Taylor, 451 U.S. 527, 534 (1980) (Section 1983 contains no state of mind requirement); Daniels v. Williams, 474 U.S. 327, 330 (1986) (depending on the violation alleged, plaintiff may have to prove defendant's particular state of mind). Standing alone, the complaint does not indicate which issues or questions of fact were essential to the judgment; it does not reveal the proof developed at trial, the theory or theories of law on which the judge instructed the jury, or the basis for the jury's verdict. [Note 16] Issue preclusion attaches only to "issues or questions of fact actually litigated and determined, not those that merely lurk in the record before the court." In re Four Seasons Securities Laws Litigation, 370 F. Supp. 219, 235 (D. Okla. 1974). Brown v. Felsen, 442 U.S. 127, 139 n.10 (1979). See 18 C.A. Wright & A.R. Miller, Federal Practice and Procedure Section 4420, at 182, 183 (1981). On remand, it is open to the Commonwealth

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to attempt to establish that the Federal jury verdict necessarily included a finding that Monk "acted in a wilful, wanton, or malicious manner." We cannot determine that issue on the present record.

3. Conflict of interest. Although neither party raises the issue, we comment on the conflict of interest that may arise in indemnification actions under Section 9A. The Commonwealth, at the request of the affected police officer, is required to provide for the officer's legal representation in a tort or civil rights action. In this case, the office of the Attorney General of the Commonwealth represented Monk in the Federal court civil rights action. The Attorney General's office now represents the MDC. Although different attorneys handled the two cases, the potential obviously exists for the same lawyer to represent an officer in a civil rights or intentional tort case, and represent the Commonwealth in a subsequent action opposing the officer's claim to indemnification. Even if different attorneys handle the two cases, a conflict may arise; confidential information from the first action might be used against the officer in the second. [Note 17] To avoid claims of conflict of interest, the Commonwealth would be wise to follow the procedures outlined in G. L. c. 258, Section 2, Second par., [Note 18] and, in cases where the Commonwealth plans to challenge the right to indemnification reimburse the officer for reasonable attorney's

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fees incurred in defense of the underlying action. [Note 19] If the officer is found liable in that action, a subsequent action by or against the Commonwealth can determine whether an exception to indemnification applies. If an exception applies, the Commonwealth might then recover from the officer those funds expended for legal services on his or her behalf. See Filippone v. Mayor of Newton, supra at 630. [Note Star]

Judgment reversed.

LYNCH, J. (dissenting, with whom O'Connor, J., joins). In the circumstance of this case, it is clear that Monk acted maliciously and, hence, that the exception in the indemnification statute for "wilful, wanton, or malicious" acts applies. The Federal Section 1983 action contained two counts against Monk. Count I of the complaint alleged that Monk "illegally and maliciously instituted a criminal process against the plaintiff in order to punish the plaintiff." Count II, which was for malicious prosecution, contained the same allegation and added that "[t]he prosecution commenced by. . .Monk was instituted . . . without basis and maliciously and with intent to harm the plaintiff." The jury's verdict was for the plaintiff. Therefore, whether under Count I or Count II, the jury must have based its verdict on conduct of Monk that was malicious in the sense that it was not only intentional, but was solely intended to harm and punish the plaintiff. It cannot be that the Legislature intended that police officers be indemnified for harm caused by

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their intentional acts done for the exclusive purpose of causing harm to and punishing another. See Gildea v. Ellershaw, 363 Mass. 800, 820 (1973).

Furthermore, the judge's conclusion that Monk did not act within the scope of his employment because he initiated a "private counter-attack or personal vendetta" against the plaintiff was correct. The plaintiff alleged in the Federal action that Monk's allegations against him were not only false but known by Monk to be false. In the context of this case that conclusion was not a question of fact to be determined by the jury in the State action because it had already been decided by the Federal jury on the basis of the plaintiff's own allegations. Pinshaw's State claim is based upon, and is wholly dependent on, the Federal action. He is, therefore, precluded from asserting facts that are contrary to those upon which the Federal judgment was based. Massachusetts Property Ins. Underwriting Ass'n v. Norrington, 395 Mass. 751, 753 (1985). Fidler v. E.M. Parker Co., 394 Mass. 534, 539 (1985).

I accept for the purposes of argument the court's view that Section 9A excludes from indemnification only egregious conduct, conduct "shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others," ante at 697, quoting Smith v. Wade, 461 U.S. 30, 39 n.8, 56 (1983), because the bringing of a criminal charge known to be false for the sole purpose of harming and punishing the plaintiff fits within even that restrictive definition of malicious conduct. In effect, the judge was ruling on the summary judgment motion on the basis of a jury finding that the criminal action had been brought for a malicious purpose.

I, therefore, respectfully, dissent.