WILLIAM DUGAN vs. BOARD OF SELECTMEN OF DARTMOUTH. [Note 1]

WILKINS, J. The town of Dartmouth has accepted the provisions of G. L. c. 258, Section 13 (1990 ed.), under which it is obliged to indemnify municipal officers against personal financial loss and expense, including reasonable legal fees and costs, "arising out of any claim, demand, suit or judgment by

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reason of any act or omission" (with exceptions not here relevant) while acting within the scope of their official duties or employment. [Note 2] The plaintiff Dugan, then a police officer of the town, was involved in an incident with one Andrew Kaluma in April, 1987, after which Kaluma commenced an action against Dugan and others in the United States District Court for the District of Massachusetts. A jury returned a verdict against Dugan for malicious prosecution of Kaluma and assessed damages. Dugan then unsuccessfully demanded indemnification from the town. [Note 3]

Dugan brought this action on July 6, 1990, to enforce his right to indemnification, and obtained a judgment on August 22, 1990, declaring that he was entitled to be indemnified for compensatory damages arising out of any final judgment entered against him in the Federal court action. The town fulfilled its obligation under the declaratory judgment in the last week of December, 1990. On February 27, 1991, Dugan moved for an award against the town in the amount of the attorneys' fees he incurred in this action.

The same judge who had decided that the town was obliged to indemnify Dugan ruled that G. L. c. 258, Section 13, did not require the town to compensate Dugan for his legal fees in this action. He added that, in his discretion, an award of attorneys' fees was not warranted. The judge suggested that the motion for attorneys' fees came late but did not deny it on that ground. We transferred to this court Dugan's appeal

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from the order denying him attorneys' fees. We vacate the order and shall remand the case to the Superior Court for further consideration in light of this opinion.

Dugan's motion for an award of attorneys' fees was not untimely. The August, 1990, judgment did not address the question of attorneys' fees incurred in this action. Dugan's motion for an award of attorneys fees was not a motion to alter or amend a judgment. See Draper v. Town Clerk of Greenfield, 384 Mass. 444, 449-451 (1981), cert. denied sub nom. Draper v. Prescott, 456 U.S. 947 (1982). Cf. White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445, 451-452 (1982). The subject of attorneys' fees could not be dealt with comprehensively until the judgment in the Federal action was final and the town had complied with the order in this action to indemnify Dugan. In his complaint, Dugan had requested an order granting him attorneys' fees in this action. The town thus had notice of the possible assertion of a claim for attorneys' fees. There was no prejudice to the town because of the delay. At the least, the trial judge had discretion to entertain the motion on the merits, and he did so. See Society of Jesus of New England v. Boston Landmarks Comm'n, 411 Mass. 754, 756-757 (1992).

Dugan relies solely on the provisions of G. L. c. 258, Section 13, as support for his claim for the award of attorneys' fees in this action. He is entitled to indemnification for attorneys' fees "arising out of" the Federal action against him. G. L. c. 258, Section 13. The question is whether attorneys' fees incurred to enforce a statutory right of indemnification are fees for which the Legislature intended people like Dugan be indemnified. Such fees did not arise in the Federal case, but they did arise as a result of that case. Thus, in a broad sense, they arose out of the Federal action. Section 13 does not say, as it easily could have, that the obligation to pay attorneys' fees is limited to those incurred in the underlying action. On the other hand, Section 13 does not explicitly state that legal fees incurred in enforcing one's indemnification rights should be reimbursed.

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The town's position is supported by the result in the 1982 opinion of the Supreme Court of Connecticut in Link v. Shelton, 186 Conn. 623 (1982). A police officer, who had been found not guilty of breach of the peace committed in the course of his duties, sought indemnification from the city. A statute provided that, in such circumstances, the city should indemnify the officer "for economic loss sustained by him as a result of such prosecution, including the payment of any legal fees necessarily incurred." Id. at 625 n.1. The court directed that the city indemnify the officer for his attorneys' fees incurred in the defense of the criminal charges (id. at 629-630), but denied him indemnification for the cost of enforcing his right to indemnification (id. at 632). It concluded that the latter legal expenses were not covered by the statute because they were not "sustained as a result of such prosecution" but rather "as a result of a separate action." Id. The court did not discuss the statutory direction to indemnify such an officer for the payment of any legal fees "necessarily incurred."

Dugan's position is supported by cases under 42 U.S.C. Section 1988 (1988), which take a broad view of the rights of a successful plaintiff who seeks reimbursement for attorneys' fees incurred in fully enforcing the plaintiff's rights under civil rights laws, such as 42 U.S.C. Section 1983 (1988). Section 1988 directs the allowance of a reasonable attorneys' fee to a prevailing party "[i]n any action or proceeding to enforce a provision of [Section 1983 and other sections]." It is well-established that attorneys' fees incurred in obtaining or sustaining an award of Section 1988 attorneys' fees in a civil rights action should themselves be awarded under Section 1988. See, e.g., Bond v. Stanton, 630 F.2d 1231, 1235 (7th Cir. 1980); Lund v. Affleck, 587 F.2d 75, 77 (1st Cir. 1978).

Courts have dealt with claims under Section 1988 for the payment of counsel fees for legal services rendered in separate actions brought to recover amounts awarded pursuant to Section 1983 or a similar civil rights provision. In each such case that we have found, the court approved the award of counsel fees under Section 1988, based on its view of congressional intent

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and seemingly ignoring the provision in Section 1988 that such an allowance may be made only in an "action or proceeding to enforce" Section 1983 or a similar civil rights law. [Note 4] See Dotson v. Chester, 937 F.2d 920, 932-934 (4th Cir. 1991) (attorneys' fees incurred in seeking to enforce Section 1983 judgment); Argento v. Melrose Park, 838 F.2d 1483, 1495-1496 (7th Cir. 1988) (attorneys' fees incurred in proceeding against insurer of unsuccessful civil rights defendants); Balark v. Curtin, 655 F.2d 798, 802-803 (7th Cir. 1981) (attorneys' fees incurred in garnishment action to collect civil rights judgment). [Note 5] See also Pinshaw v. Monk, 565 F. Supp. 44, 45-46 (D. Mass. 1983) (award of attorneys' fees for opposing discharge of civil rights judgment by Bankruptcy Court).

Section 13 states that an officer of a municipality which has accepted that section must be protected against personal liability for damages and attorneys' fees that arise out of a civil action against the municipal officer (to a dollar limit of $1,000,000 and excluding intentional violations of civil rights). If a municipality declines to fulfil its duty under Section 13 to indemnify such an officer (an obligation that in this case was clear), an action against it by the municipal officer (or perhaps the successful plaintiff in the underlying action) will normally follow.

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Dugan's legal fees and expenses arise out of the Federal suit within the intent of Section 13, and, therefore, Dugan should be indemnified for legal fees and expenses he incurred in order that he be made whole. It is true that the public policy behind vindicating civil rights through an award of legal costs to a prevailing plaintiff may be stronger than the policy behind indemnifying an unsuccessful municipal officer defendant in a civil action. However, the underlying legislative purpose of making a person whole is the same in each instance. By accepting Section 13, the town has agreed to pay the judgment and costs of defense. It should pay for the consequences of its failure to do so. The rule we adopt encourages municipalities with a duty to indemnify to do so promptly. It also provides protection to municipal employees who have a right to rely on the objective underlying Section 13. The town's voters created the situation requiring Dugan to sue, and they should compensate Dugan for the adverse effects of their action on him. The rule we adopt tends to assure that all municipal officers protected by Section 13 will be treated equally.

The order denying counsel fees is vacated, and the case is remanded to the Superior Court for further consideration of the motion for the award of attorneys' fees and expenses, which should include the plaintiff's reasonable attorneys' fees and expenses in prosecuting this appeal.

So ordered.