MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Cherrylyn Simmons, appeals from a Superior Court judgment dismissing her complaint asserting tort and contract claims against the Massachusetts Maritime Academy and the Commonwealth (collectively, MMA). A motion judge ruled that the tort claim had not been properly presented in accordance with the Massachusetts Tort Claims Act, G. L. c. 258, § 4, and that the contract claim was in substance a tort claim and therefore must likewise be dismissed for improper presentment. We are constrained to affirm.
Background. On March 10, 2017, Simmons, through counsel, sent a letter addressed to “Christina Aquilana, Office of the President, Massachusetts Maritime Academy,” listing Simmons as the client and September 24, 2016, as the “D/accident,” presumably meaning “date of accident.” This first letter advised that counsel represented Simmons “for personal injuries she sustained on the above-mentioned date when she fell boarding a sponsored event on the campus on a boat ride.” The letter asked that it be forwarded to MMAs insurance carrier.
On May 3, 2017, counsel for MMA replied by letter to Simmonss counsel, acknowledging “receipt of [the] March 10, 2017 claim presentment under M. G. L. c. 258.” The letter stated that MMAs counsel had started to investigate the claim, but had “not discovered anything suggesting liability on the part of [MMA],” and thus requested additional details about the incident in question. The letter concluded, “[p]lease send to [counsels] attention any future communication to [MMA] in this matter.”
On August 23, 2017, Simmonss counsel replied to MMAs counsel by a letter that included details of the alleged negligence by MMA employees, the resulting injuries to Simmons, and the medical expenses she had incurred. This second letter demanded $35,000 in settlement of the claim.
No settlement materialized, and so Simmons filed suit, initially in District Court and later in Superior Court. See G. L. c. 258, § 3 (“The superior court shall have jurisdiction of all civil actions brought against a public employer”). Simmonss complaint asserted essentially identical tort claims against MMA and the Commonwealth and a contract claim against MMA. The contract claim alleged that Simmons, “having anticipated paying adequate consideration as a business invitee, imposes a contract of responsibility on [MMA] to maintain the property in a sufficient manner as to imply safety for its intended business invitee guests and properly training its employees in assisting its invitees.” The complaint alleged that MMA had breached that contract, causing Simmons to suffer injuries and incur medical expenses.
MMA moved to dismiss the complaint for failure to comply with the presentment requirements of G. L. c. 258, § 4. The judge allowed the motion, ruling that (1) Simmonss first letter contained insufficient detail to constitute proper presentment of her tort claim, (2) Simmonss second letter was not addressed or sent to MMAs president and thus did not cure the defects in the first letter, and (3) Simmons could not escape c. 258s presentment requirement by recasting her tort claim as a contract claim. This appeal followed.
Discussion. The Massachusetts Tort Claims Act provides in pertinent part that “[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.”
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G. L. c. 258, § 4. “An oft-recited proposition is that presentment must be made ‘in strict compliance with the statute.’ ” Martin v. Commonwealth, 53 Mass. App. Ct. 526, 528 (2002), quoting Weaver v. Commonwealth, 387 Mass. 43, 47 (1982). See Drake v. Leicester, 484 Mass. 198, 201 (2020); Coren-Hall vs. Massachusetts Bay Transp. Auth., 91 Mass. App. Ct. 77, 80 (2017). The statute thus requires that “presentment [be] made to the proper executive officer ․ in a timely fashion.” Martin, supra at 529. “As a general rule, a party must present its claim directly to the executive officer of the public employer.” Garcia v. Essex County Sheriffs Dept, 65 Mass. App. Ct. 104, 107 (2005). “The purpose of this rule is to provide notice to the highest ranking official with the ability to fully investigate, arbitrate, compromise or settle such claim, in order to ensure that the interests of the Commonwealth are protected” (quotation and citations omitted). Id.
1. The first letter. Here, Simmonss first letter was not addressed to MMAs executive officer -- whom the parties appear to agree was MMAs president -- but instead to a person with some unidentified role within the presidents office.
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This was insufficient to constitute presentment “directly to the executive officer.” Garcia, 65 Mass. App. Ct. at 107. “[A]lthough presentment occurs upon delivery to the office of the proper executive officer, the presentment letter must still be addressed to the proper executive officer.” Drake, 484 Mass. at 200 n.4. See Lopez v. Lynn Hous. Auth., 440 Mass. 1029, 1030 (2003) (suggesting that presentment letter “addressed generically to ‘Lynn Housing Authority,’ ” rather than to its executive officer, was defective).
Moreover, the content of Simmonss first letter was deficient. A presentment letter must “set[ ] forth sufficient facts from which public officials reasonably can discern the legal basis of the claim, and determine whether it states a claim for which damages may be recovered under the act.” Murray v. Hudson, 472 Mass. 376, 384 (2015). Simmonss first letter included no allegation of any negligence by any public employee, let alone enough factual detail to allow any determination whether Simmonss claim was one for which damages could be recovered under c. 258.
2. The second letter. We assume without deciding that Simmonss second letter cured the first letters content deficiency by including enough facts to satisfy the Murray standard. But the second letter did not cure the first letters addressing deficiency. The second letter was not addressed to MMAs executive officer, as required by c. 258, but instead was addressed to MMAs counsel.
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Nor do the two letters taken together constitute adequate presentment to MMAs executive officer. We recognize that MMAs counsel responded to the first letter by requesting that “any future communication to [MMA] in this matter” be directed to MMAs counsel. Had the first letter been properly addressed to MMAs executive officer, then Simmons might well have been justified in treating the response to the first letter as the executive officers authorization to provide further information to MMAs counsel, instead of to the executive officer himself. However, because the first letter was not sent “directly to the executive officer,” Garcia, 65 Mass. App. Ct. at 107, the response to the first letter cannot be taken as the executive officers authorization to do anything. See id. at 108 (rejecting “agency argument that the attorney who responded to the claim did so in a representative capacity sufficient to demonstrate notice to” executive officer). The letters taken together do not provide the requisite assurance that there was “notice to the highest ranking official with the ability to fully investigate, arbitrate, compromise or settle such claim, in order to ensure that the interests of the Commonwealth are protected” (quotation and citations omitted).
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Id. at 107. Therefore, we must turn to whether one or more of the exceptions to the presentment requirement applies.
3. Actual notice. We are unpersuaded by Simmonss argument that the MMAs executive officer had actual notice of the claim. It is settled that strict compliance with the presentment requirement may be excused “if the plaintiff can show that ․ the designated executive officer had actual notice of the written claim.” Bellanti v. Boston Pub. Health Commn., 70 Mass. App. Ct. 401, 407 (2007). But “the actual notice exception is narrow.” Id. “[N]otice to the executive officer will not be inferred or imputed from the fact that others with responsibility for investigation and settlement of the dispute received the plaintiffs presentment letter and were in contact with the plaintiff.” Id. at 408. See Coren-Hall, 91 Mass. App. Ct. at 79. “Constructive notice of the claim is insufficient” (citation omitted). Garcia, 65 Mass. App. Ct. at 108.
Here, nothing in the record indicates that MMAs executive officer had actual notice of Simmonss claim. Contrast Lopez, 440 Mass. at 1030 (despite improperly addressed presentment letter, actual notice exception applied where executive officer personally “acknowledged not only that he had actual notice of Lopezs claim, but also that the claim had been investigated, evaluated, and eventually denied”).
4. The “lulling” exception. We are likewise unpersuaded by Simmonss argument that MMA “lull[ed] [her] into believing that presentment [was] not an issue” and therefore “should be equitably estopped from contesting the sufficiency of presentment.” Garcia, 65 Mass. App. Ct. at 111. To trigger this exception to the presentment requirement, “the defendant must affirmatively indicate that the presentment requirement has been met or is waived.” Id. Moreover, the lulling exception has been applied only where the defendant made such an indication during the course of litigation, rather than before litigation was instituted. See Holahan v. Medford, 394 Mass. 186, 190-191 (1985) (explaining that exception reflects principle that “a litigant cannot assume inconsistent and contradictory positions” [citation omitted]).
Here, Simmons did not raise her lulling argument to the motion judge, and thus the argument is waived. See Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493-494 (1983). Were we to reach the argument, we would reject it. Simmons points to nothing in the record whereby MMA affirmatively indicated that the presentment requirement had been met or was waived. Although MMAs counsels letter referred to Simmonss first letter as a “claim presentment under M. G. L. c. 258,” it in no way indicated that the first letter satisfied the statutory presentment requirement; rather, it sought further information. Moreover, MMAs counsels letter was sent before, rather than during, litigation.
5. The contract claim. Simmons finally argues that her contract claim was not subject to c. 258s presentment requirement and therefore should not have been dismissed. But “a plaintiff may not avoid the requirements and limitations of the Massachusetts Tort Claims Act by designating what is essentially a personal injury claim as a contract claim” (citation omitted). Ayala v. Boston Hous. Auth., 404 Mass. 689, 704 (1989). “[W]here ․ the ‘essential nature of the plaintiffs claim is recovery for personal injuries founded on ․ negligence, [her] action, whether it be denominated tort or contract, is governed by c. 258.” Schenker v. Binns, 18 Mass. App. Ct. 404, 406 (1984), quoting Thomas v. Massachusetts Bay Transp. Auth., 389 Mass. 408, 410 (1983). “The policy against allowing form to prevail over substance is particularly strong in construing [G. L. c. 258] in view of the explicit provision in [G. L. c. 258,] § 2 making its remedies exclusive.” Schenker, supra at 406. Simmonss contract claim was therefore correctly dismissed for defective presentment.
Conclusion. As the court has repeatedly recognized, dismissal based on defective presentment can be “a harsh result” if it “made no practical difference to the [public employer] that [the executive officer], himself, was not notified of the plaintiffs claim.” Coren-Hall, 91 Mass. App. Ct. at 80, quoting Bellanti, 70 Mass. App. Ct. at 408. However, lack of prejudice has been held irrelevant. Coren-Hall, supra. “Therefore, we are constrained to conclude” that Simmonss complaint was properly dismissed. Id. at 81.
Judgment affirmed.
FOOTNOTES
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. The statute also deems presentment sufficient if made to certain other officials, including, in the case of State entities such as MMA, the Attorney General. See G. L. c. 258, § 4, second par. That provision is not implicated here.
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. “Executive officer of a public employer” is defined in pertinent part as “the secretary of an executive office of the commonwealth, or in the case of an agency not within the executive office, the attorney general; the adjutant general of the military forces of the commonwealth; ․ and, in the case of any other public employer, the nominal chief executive officer or board.” G. L. c. 258, § 1.
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. Simmons errs in arguing that sending the second letter directly to the executive officer would have violated Mass. R. Prof. C. 4.2, as appearing in 471 Mass. 1440 (2015). That rule provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” Id. Here, communication with a public employers executive officer in order to present a tort claim is authorized by G. L. c. 258, § 4.
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. Garcia recognized that if a public employers attorney responded to a purported presentment by directly acknowledging that the attorney represented the executive officer and that the executive officer “had direct notice of th[e] claim,” and by instructing that further communications be sent to someone other than the executive officer, such further communications could count as communications to the executive officer through his or her representative. Id. at 109, citing Carifio v. Watertown, 27 Mass. App. Ct. 571, 575 (1989). Here, MMA counsels response to Simmonss first letter stated that MMA counsel represented MMA, but it did not indicate that MMAs executive officer had any direct or other notice of Simmonss claim.