Home SARAH MCVAY PAWLICK vs. THOMAS BIRMINGHAM & another. [Note 1]

438 Mass. 1010

December 30, 2002

Sarah McVay Pawlick appeals from a judgment of a single justice of this court dismissing her complaint for declaratory relief. She seeks a declaration of the duties of the President of the Massachusetts Senate, in his capacity as a "private citizen," under art. 48, The Initiative, IV, as amended by art. 81, § 1, of the Amendments to the Massachusetts Constitution. [Note 2], [Note 3] Her complaint alleges that the Senate President acted unlawfully in failing to bring a so-called initiative amendment to a vote of a joint session of the General Court, in accordance with art. 48, The Initiative, IV, §§ 2-4. The single justice did not err in denying the requested relief. Regardless of the capacity in which the Senate President is named, the fact is that the plaintiff seeks a declaration with respect to his official duties as Senate President. As a private citizen, the Senate President has no official duties, and the plaintiff has no actual controversy with him in that capacity. See G. L. c. 231A, § 1. Declaratory relief is likewise unwarranted, in the circumstances present here, with respect to the Senate President's official duties as the presiding officer of an art. 48 joint session of the General Court. See, e.g., LIMITS v. President of the Senate, 414 Mass. 31 , 31 n.3, 35 (1992) ("Just as a judicial order directing the joint session to act is not appropriate, declaratory relief is not available to the plaintiffs as a remedy"); G. L. c. 231A, § 2. The single justice did not err in denying the requested relief. [Note 4] So ordered.

J. Edward Pawlick for the plaintiff.

Peter Sacks, Assistant Attorney General, for the defendants.


FOOTNOTES

[Note 1] Secretary of the Commonwealth.

[Note 2] The plaintiff does not allege an actual controversy with the Secretary of the Commonwealth with regard to his performance of duty, nor does her complaint seek any relief against him. The complaint was properly dismissed as to the Secretary.

[Note 3] The plaintiff also requests a "clarification" concerning the "duties of each legislator when they vote" on an initiative amendment. Neither the joint session nor its members are named as parties and, in any event, that relief is unwarranted in the circumstances of this case. See LIMITS v. President of the Senate, 414 Mass. 31 , 35 (1992); G. L. c. 231A, § 1.

[Note 4] We confine our review to the decision of the single justice, based on the record and arguments before him.

Home CHRISTINE E. MAHAN vs. ARBELLA MUTUAL INSURANCE COMPANY.

438 Mass. 1010

January 23, 2003

Christine E. Mahan appeals from a judgment of dismissal entered in the Superior Court following a judge's denial of her motion to confirm an arbitration award. We transferred the case to this court on our own motion and now affirm.

On March 9, 1997, Mahan was injured in an automobile accident when the car she was driving was struck by a vehicle being operated by Bruce Fagan, who had ignored a red traffic light and proceeded through an intersection. Mahan settled her claim against Fagan for the limits of his liability insurance

Page 1011

policy and then proceeded to file an underinsured motorist claim with Arbella Mutual Insurance Company (Arbella), her insurance carrier. The parties agreed to submit their dispute concerning the amount of underinsured motorist benefits due to Mahan to arbitration. Mahan's asserted claims against Arbella pursuant to the provisions of G. L. c. 93A and G. L. c. 176D were not submitted to arbitration and therefore not considered. On April 25, 2001, an arbitrator awarded Mahan the sum of $107,000, but due to a clerical error, notification was not sent to the parties until June 4, 2001. On June 8, 2001, Mahan filed a motion in the Superior Court seeking confirmation of the arbitration award, pursuant to G. L. c. 251, § 11. She has claimed in her brief that she filed this motion in order to obtain a "judgment" so as to be able to pursue multiple damages under G. L. c. 93A, § 9 (3). On June 12, 2001, Arbella delivered a check in the amount of $107,000 to Mahan. A judge in the Superior Court then denied Mahan's motion to confirm the arbitration award on the grounds that (1) because the arbitration award had been fully paid, confirmation would serve no purpose, and (2) because the parties had agreed to arbitration, no action by the court was necessary, and "the entire dispute appear[ed] to be moot." Mahan's subsequent motion for reconsideration was denied, and a judgment of dismissal was entered.

Mahan contends that the Superior Court judge erred in denying her motion to confirm the arbitration award because the language of G. L. c. 251, § 11, [Note 1] mandates that the court confirm an arbitration award on application of a party, and because the judge's refusal to confirm the award prevented her from pursuing the full breadth of remedies available under G. L. c. 93A. [Note 2] The judgment of dismissal entered by the Superior Court is affirmed for the reasons set forth today in Murphy v. National Union Fire Ins. Co., ante 529, 532-533 (2003). Nothing in our decision precludes Mahan from pursuing her claims under G. L. c. 93A and G. L. c. 176D. However, because Mahan has been fully paid, she is not entitled to have her arbitration award reduced to a "judgment" that may then be subject to doubling or trebling under G. L. c. 93A.

So ordered.

Thomas J. Fay for the defendant.

Joseph G. Abromovitz for the plaintiff.


FOOTNOTES

[Note 1] General Laws c. 251, § 11, provides: "Upon application of a party, the court shall confirm an [arbitration] award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in sections twelve and thirteen."

[Note 2] Although Arbella submitted to the Superior Court an affidavit stating that Mahan sought to obtain a "judgment" so she could collect prejudgment interest on the arbitration award, Mahan has not raised an appellate issue pertaining to prejudgment interest.