ALLISON ST. LAURENT & another
MIDDLEBOROUGH GAS & ELECTRIC DEPARTMENT.
Nicholas J. Scobbo, Jr., for the defendant.
Alan Curhan for the plaintiffs.
Gas & Electric Department (MGED) appeals from a Superior
Court order denying its motion to dismiss for lack of
presentment. The motion judge denied the motion on the ground
that MGED is not a "public employer" subject to the
Massachusetts Tort Claims Act, and thus the presentment
requirement of G. L. c. 258, § 4, did not apply. We
disagree and remand so that the Superior Court can address
whether the presentment requirement was satisfied on the
complaint alleges that the plaintiffs were injured in
October, 2013, when a ladder they were near came into contact
with an "arc[ing]" electrical current. They claim
that the current came from an "improperly grounded"
line maintained by MGED, and that MGED was negligent. Between
November, 2013, and July, 2015, and prior to filing suit, the
plaintiffs' attorney communicated with representatives of
MGED multiple times, both orally and in writing. Eventually
efforts at presuit resolution failed, and the plaintiffs
filed this lawsuit on April 19, 2016.
filed a motion to dismiss, arguing that the plaintiffs had
failed to make presentment as required by the Massachusetts
Tort Claims Act, G. L. c. 258, § 4. The plaintiffs
responded (1) that no presentment was required because MGED
is not a "public employer" as defined in G. L. c.
258, § 1, as amended by St. 1993, c. 110, § 227,
and thus the Tort Claims Act does not apply and (2) that in
any event the plaintiffs had satisfied the presentment
requirement through correspondence with representatives of
MGED. The motion judge denied MGED's motion on the ground
that MGED was not a public employer, but rather was a
question before us turns on the definition of "public
employer, " found at c. 258, § 1, which provides
that "public employer" includes "any . . .
town . . . and any department . . . thereof . . . including a
municipal gas or electric plant." In construing a
statute we begin with its plain language, and we think the
language here admits of only one interpretation. See
Commonwealth v. Stewart-Johnson,
78 Mass.App.Ct. 592, 600 (2011) ("A statute is to be
interpreted according to the plain and ordinary meaning of
its words" [quotation omitted]). MGED is a department of
the town of Middleborough, and it is a "gas or electric
plant." It squarely meets the statutory
plaintiffs urge us to reach a contrary result based upon
other language in the "public employer" definition
that excludes "the Massachusetts Port Authority, or any
other independent body politic and corporate"
(emphasis added). See G. L. c. 258, § 1. The plaintiffs
argue that MGED is one such "independent" entity.
They rely in particular on a Supreme Judicial Court decision,
Middleborough v. Middleborough Gas
& Elec. Dept., 422 Mass. 583, 587-588 (1996), that
dealt specifically with MGED, and in which the court held
that the town of Middleborough and MGED could be treated as
sufficiently separate so that the town could sue MGED for
losses from a fire it allegedly caused.
Middleborough nor the cases that succeed it support
the position that the defendant gas and electric plant is not
a "public employer" under the Tort Claims Act. In
Middleborough, 422 Mass. at 588, the Supreme
Judicial Court expressly stated that it was not deciding
whether the Tort Claims Act applied in suits against MGED.
Furthermore, the court specifically noted that the amendment
to the "public employer" definition that we rely
upon here, adding gas and electric plants, postdated the
cause of action at issue in Middleborough. See
ibid. Subsequently, in DeRoche v.
Massachusetts Commn. Against Discrimination, 447
Mass. 1, 10 (2006), the Supreme Judicial Court held that the
Wakefield Municipal Gas & Light Department was a
"public entity" for purposes of a different
Massachusetts statute. In so holding the court relied, in
part, on the fact that "[t]he Legislature has
specifically placed the [gas and light] department in the
class of entities subject to the Tort Claims Act, thereby
reflecting its view that the department is in that class of
entities afforded the protections of sovereign
immunity." Ibid. The court went on to consider
and distinguish the Middleborough decision,
concluding that "as a legal and practical matter, the
[gas and electric] department is a department of the town
and, like the town, is a public entity." Id. at
conclude likewise here. In construing the term "public
employer" in G. L. c. 258, § 1, we cannot read the
language excluding "other independent bod[ies]" to
override the inclusion of "municipal gas or
electric plant[s]." See Commonwealth
v. Burgess, 426 Mass. 206, 224-225 (1997),
quoting from United States v.
Menasche, 348 U.S. 528, 538-539 (1955) ("One of
the cardinal principles of statutory construction is to give
effect, if possible, to every clause and word of a
statute"). Moreover, to the extent that the two clauses
might be said to conflict, the exclusion, which is general,
must yield to the inclusion, which is specific. See TBI,
Inc. v. Board of Health of N. Andover,
431 Mass. 9, 18 (2000), quoting from Risk Mgmt.
Foundation of Harvard Med. Insts., Inc. v.
Commissioner of Ins., 407 Mass. 498, 505 (1990)
("[G]eneral statutory language must yield to that which
is more specific"). See also Doe v.
Attorney Gen. (No. 1), 425 Mass. 210, 215 (1997)
("[W]hen two statutes [or provisions within those
statutes] conflict, we have stated that the more specific
provision, particularly where it has been enacted subsequent
to a more general rule, applies over the general rule").
MGED is a "public employer" subject to the Tort
Claims Act. That leaves, on remand, the question whether the
presentment requirement was nevertheless satisfied on the
facts of this case -- in particular, through the
correspondence between the plaintiffs' counsel and
MGED's representatives. That issue was not reached by the
motion judge, and we do not reach it here. The order denying the
motion to dismiss is vacated, and the matter is remanded for
further proceedings consistent with this opinion.