MAZZOLENI v. COTTON, 33 Mass. App. Ct. 147 (1992)

597 N.E.2d 59

No. 90-P-1558.Appeals Court of Massachusetts. Essex.February 12, 1992.
August 5, 1992.

Present: BROWN, KASS, LAURENCE, JJ.

Evidence, Statement in writing by party. Statute,
Construction. Words, “Shall.”

In an action to recover damages for personal injuries suffered by the plaintiff in a fall on or near the defendant’s property, the judge did not abuse his discretion under G.L.c. 233, § 23A, in denying the plaintiff’s motion in limine to exclude her written statement to a representative of the defendant’s insurer regarding the events surrounding her accident where, although the insurer had failed to furnish the written statement within ten days after written request by the plaintiff as prescribed in § 23A, the plaintiff received a copy of the statement almost twenty months before the start of the trial, submitted her motion just as trial was about to begin rather than at earlier pretrial conferences, and failed to establish any prejudice resulting from the insurer’s failure to have complied with the ten-day delivery requirement of § 23A. [150-153]

CIVIL ACTION commenced in the Superior Court Department on September 7, 1988.

The case was tried before J. Harold Flannery, J.

Michele J. Leavitt (Donald R. Bumiller with him) for the plaintiff.

John R. Bologna for the defendant.

LAURENCE, J.

In February, 1987, the plaintiff, Theresa Mazzoleni, slipped and fell on ice on or near the driveway of the defendant, Keith Cotton, and fractured her ankle. Mazzoleni had been housesitting for Cotton, a friend, while he was on his honeymoon. A representative of Cotton’s insurer obtained a written statement from Mazzoleni regarding the events surrounding her accident in April, 1987.

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Sometime thereafter Mazzoleni retained an attorney, who engaged the insurer in settlement negotiations. During those negotiations, on June 16, 1988, her attorney wrote the insurer “formally requesting” a copy of Mazzoleni’s statement. Having received no response to that request, her attorney, on June 30, 1988, again requested a copy of her statement, noting that “the time specified for its production has now expired.” Again, the insurer failed to respond. Neither letter expressly referred to G.L.c. 233, § 23A.[1]

After the breakdown of settlement discussions, Mazzoleni filed a negligence action in Superior Court in September, 1988. In response to her October, 1988, document request, Cotton’s attorney produced a copy of the April, 1987, statement, in November, 1988. On June 12, 1990, just after a jury had been selected and on the eve of trial, Mazzoleni filed a motion in limine to prevent Cotton from referring to her written statement during the trial, citing G.L.c. 233, § 23A.

The judge heard argument on Mazzoleni’s motion prior to opening statements. Cotton’s counsel stressed the fact that Mazzoleni had had a copy of her statement for over a year and a half. She could claim no prejudice or unfair surprise, he argued, warranting an exclusion order should it be referred to at trial, particularly since she had acknowledged her possession of the statement at her earlier deposition. Counsel asked the judge to exercise his discretion to treat the

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November, 1988, production of the statement as sufficient compliance with the statute. Mazzoleni’s counsel protested that the one case decided under the statute, Spellman v Metropolitan Transit Authy., 328 Mass. 446 (1952), mandated production “as soon as possible after the request” on penalty of exclusion. He contended that, while the statute did not require a showing of prejudice from a belated delivery of a requested statement, the plaintiff had in any event been prejudiced because her answers to interrogatories had been served before she received the statement.[2] The judge, after considering the presentations of both parties, denied the motion in limine, stating:

“I agree that the objective of the statute ought to be implemented rigorously. The purpose, the spirit of the statute . . . is to disallow ambushes of injured persons by their adversaries, because statements are sometimes obtained before the injured person is represented . . . [a]nd it’s not fair to permit a defendant at the trial to spring on the plaintiff such a statement. The statute as a shield ought to be . . . vigorously enforced. In this instance [however] the plaintiff seeks to use the statute as a sword, because [she has] had the statement for almost two years. So the risk of unfair surprise at trial is negligible.”

The trial immediately ensued. After two days of testimony, the jury found the defendant 44% negligent and the plaintiff 56% negligent. From the consequent judgment entered for the defendant, Mazzoleni appealed. Her appeal focuses entirely on the trial judge’s denial of her motion in limine to exclude her written statement and relies on the literal, assertedly mandatory language of G.L.c. 233, § 23A. We view

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that language, however, as supportive of the judge’s ruling and affirm the judgment.

The judge’s rationale and action faithfully reflected the policy of G.L.c. 233, § 23A, as explained in the Spellman case: “to enable a party before trial to ascertain what he has written to an adversary.” 328 Mass. at 450.[3] Mazzoleni contends that the language of the statute, particularly the use of the word “shall,” makes impermissible, and reversible error, a trial judge’s exercise of discretion to prevent a plaintiff from using § 23A as a sword. Even without invoking the principle that “shall” does not always and inflexibly denote imperative obligation but may properly be construed as permissive or directory in order to avoid an absurd result or to effectuate a statutory purpose, see Warman v. Warman, 21 Mass. App. Ct. 80, 82-83 (1985), we reject Mazzoleni’s position as incompatible with the discretion conferred on the court by the express terms of § 23A.

The last clause of the statute plainly authorizes the trial court to permit the furnishing of a copy of the statement beyond the ten-day period following a written request. The original form of the statute had not provided for any exception to the ten-day delivery requirement. The last clause was added to § 23A by St. 1953, c. 242, precisely to allow such discretion in order “to provide for special circumstances instead of having an absolute deadline regardless of facts.” See Twenty-Eighth Report of the Judicial Council (1952), Pub. Doc. No. 144, reprinted in 37 Mass.L.Q., December, 1952, at 71. The trial judge’s possession of this discretion is buttressed

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by and consistent with his substantial latitude in other areas of pretrial and trial management, including the scope and timing of discovery, see Matter of Roche, 381 Mass. 624, 638 (1980) Cronin v. Strayer, 392 Mass. 525, 534 (1984); Wansong v Wansong, 395 Mass. 154, 156-157 (1985),[4] the granting or denying of motions in limine, see Commonwealth v. Hood, 389 Mass. 581, 594 (1983), and the admission or exclusion of evidence generally, see Commonwealth v. Haley, 363 Mass. 513, 518-519 (1973).

Mazzoleni has failed to demonstrate that the judge in any way abused his discretion in denying her motion in limine. On the contrary, in the circumstances — her receipt of a copy of the statement almost twenty months before the start of trial, her submission of the motion just as trial was about to begin rather than at earlier pretrial conferences, and her failure to establish any prejudice[5] resulting from the insurer’s

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failure to have complied with § 23A in June, 1988 — the judge’s action reflected a proper exercise of discretion.[6]

Nothing in our opinion should be taken to condone the failure by Cotton’s insurer to have responded directly to the June, 1988, requests by Mazzoleni’s counsel for copies of her statement or to have proffered any reasonable explanation for its lack of response. Our decision today creates no safe harbor for casual, sloppy, or arrogant insurers presented with such a request. The trial judge’s discretion under G.L.c. 233, § 23A, might well have been upheld here had the judge allowed the motion in limine. Se Commonwealth v. Bys, 370 Mass. 350, 361 (1976), quoting fro Davis v. Boston Elev. Ry., 235 Mass. 482, 502 (1920) (“[I]t is obvious that a [party] who claims an abuse of . . . discretion assumes a heavy burden. That burden is not met by merely arguing that on a debatable question of admissibility the judge ruled against [him] while another judge could and might have ruled in his favor. On appellate review of a claim of an abuse of discretion by a trial judge, `[t]he question is not whether we . . . should have made an opposite decision from that

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made by the trial judge. To sustain . . . [the claim] it is necessary to decide that no conscientious judge, acting intelligently, could honestly have taken the view expressed by him.'”).

Judgment affirmed.

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