Home DONNA M. WARE vs. COMMONWEALTH.

409 Mass. 89

October 5, 1990 - January 14, 1991

Hampshire County

Present: LIACOS, C.J., ABRAMS, O'CONNOR, & GREANEY, JJ.

The language of G. L. c. 258, the Massachusetts Tort Claims Act, does not demonstrate adequately, either by its express terms or by implication, the Legislature's consent to the recovery of costs against the Commonwealth in a civil action initiated by a private plaintiff; consequently, a plaintiff who prevailed in a tort action against the Commonwealth was not entitled to the recovery of such costs. [91-93]

CIVIL ACTION commenced in the Superior Court Department on December 1, 1986.

The case was tried before William H. Welch, J., and a motion for costs was considered by him.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Peter Sacks, Assistant Attorney General, for the Commonwealth.

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


LIACOS, C.J. 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 (1990). We granted the Commonwealth's application for further appellate review. We vacate that part of the judgment which allowed the recovery of costs.

Page 90

General Laws c. 261, Section 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, Section 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 (1977). See M.C. v. Commissioner of Correction, 399 Mass. 909 , 912 (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 at 722, quoting General Elec. Co. v. Commonwealth, 329 Mass. 661 , 664 (1953).

The plaintiff in the present case sued the Commonwealth under the Massachusetts Tort Claims Act, G. L. c. 258, Sections 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, Section 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

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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 at 739-740, quoting Harborview Residents' Comm., Inc. v. Quincy Hous. Auth., 368 Mass. 425 , 432 (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 (1981). See C & M Constr. Co. v. Commonwealth, 396 Mass. 390 , 392 (1985). "Consent to suit must be expressed by the terms of a statute, or appear by necessary implication from them." Id. at 392, quoting Woodbridge v. Worcester State Hosp., supra at 42. 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 at 725 n.8, 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

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to an extent which appears to be incompatible with the position suggested by the plaintiff. In G. L. c. 261, Section 14 (1988 ed.), the Legislature stated that "[i]n civil actions and in proceedings which are instituted by, or in the name of, the commonwealth, and not at the relation, in behalf, or for the use, of a private person, the commonwealth shall be liable for costs as is an individual." Because G. L. c. 261, Section 14, only provides for the recovery of costs in civil actions initiated by the Commonwealth, it appears that the Legislature did not intend to allow recovery of costs from the Commonwealth in civil actions initiated by a private plaintiff, such as in the present case. See Broadhurst v. Director of the Div. of Employment Sec., supra at 724 ("[G. L. c. 261, Section 14,] does not extend liability for costs to those actions which name the Commonwealth as a defendant"). See also C & M Constr. Co. v. Commonwealth, supra at 393. If, at the time the Massachusetts Tort Claims Act was enacted, the Legislature had intended to allow the recovery of costs against the Commonwealth in tort actions initiated by either the Commonwealth or a private plaintiff, the primary distinction posed by G. L. c. 261, Section 14, between actions initiated by the Commonwealth and actions initiated against the Commonwealth would have been rendered irrelevant. In the absence of express statutory language which declares otherwise, we decline to accept an interpretation of G. L. c. 258 which renders superfluous most of the language of G. L. c. 261, Section 14. See Boston v. Board of Educ., 392 Mass. 788 , 792 (1984). See also C & M Constr. Co. v. Commonwealth, supra at 393. [Note 1]

Page 93

In conclusion, the language of G. L. c. 258 fails to demonstrate adequately, either through express command or "necessary implication," the Legislature's consent to the recovery of costs against the Commonwealth in a civil suit initiated by a private plaintiff. Accordingly, the plaintiff in the present case was not entitled to the recovery of such costs. That part of the judgment for the plaintiff which awarded $471.79 in costs must be vacated.

So ordered.


FOOTNOTES

[Note 1] By way of comparison, the Federal Tort Claims Act, 28 U.S.C. Sections 2671 et seq. (1988 ed.), on which G. L. c. 258 is "modeled closely," see Vasys v. Metropolitan Dist. Comm'n, 387 Mass. 51 , 54 (1982), does not expressly provide for the recovery of costs against the Federal government. Such costs may be awarded, however, on the basis of a separate statutory provision, 28 U.S.C. Section 2412 (1988 ed.), that "[e]xcept as otherwise specifically provided by statute, a judgment for costs . . . may be awarded to the prevailing party in any civil action brought by or against the United States . . . ."