LUZ HARVEY & Another v. ELIAS ASSED (And a Consolidated Case).

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-594

LUZ HARVEY & another1

vs.

ELIAS ASSED (and a consolidated case2).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case involves service of process on a foreign national

residing in Brazil who, while visiting Massachusetts and

exercising his privilege to utilize the roads of the

Commonwealth in a rental car, caused injury to the occupant of

another car and then left the jurisdiction without providing his

true address or taking any responsibility for his actions. As

set forth below, we vacate so much of a final judgment dated

April 19, 2022, that dismissed all claims against the defendant.

The plaintiffs' appeal from the denial of a third motion for

reconsideration and to reinstate is dismissed as moot.

1. Facts. a. Underlying events. On November 24, 2017,

the defendant, Elias Assed, was driving a Jeep Grand Cherokee

1 Michael Harvey.
2 The consolidated case involves the same parties.
rented from Enterprise Rent-A-Car on Route 16 in Medford. The

car was owned by EAN Holdings, LLC. The complaint alleges that

the defendant drove unlawfully through a red light smashing into

the car being operated by plaintiff Luz Harvey. The car Luz

Harvey was operating was owned by her husband, plaintiff Michael

Harvey.

A "Motor Vehicle CRASH Report" signed by Trooper

Christopher Sullo of the Massachusetts State police quoted the

defendant as saying that he was traveling west on Route 16 "and

did not realize the traffic light was red." According to the

report, he stated that he "ran the red light and subsequently

came in contact with" plaintiff Harvey's vehicle.

This was consistent with the statement of a third-party

witness, also conveyed in the CRASH report, who "stated she

observed [the defendant's vehicle] run the red light traveling

west on Rt. 16 causing the accident with [Luz's vehicle]." The

CRASH report, in a section denominated "operator information,"

stated that the defendant had an address of 100 Rivers Edge Dr.,

Apt. 439 in Medford (Medford address). Trooper Sullo cited the

defendant for failure to stop for a red light; this citation,

too, contained the Medford address.

The CRASH report stated that plaintiff Luz Harvey was

"transported by Medford EMS to Lawrence Memorial Hospital with

non-life threatening injuries to her back and legs."

2
The defendant had purchased insurance coverage in

conjunction with his automobile rental. The insurance carrier

was Rental Insurance Services, Inc. (RIS). On January 3, 2018,

an attorney for the plaintiffs notified RIS by letter that Luz

Harvey intended to make a claim against the bodily injury

portion of the policy. In the same correspondence, counsel

requested, pursuant to G. L. c. 175, § 112C, the disclosure of

the policy limits within thirty days from the date of the

letter. RIS responded in a timely manner, disclosing a policy

limit of one million dollars.

b. This litigation. On November 23, 2020, the plaintiffs'

counsel filed the complaint in this action against the defendant

and EAN, alleging, inter alia, negligence causing bodily injury,

expenses for medical care and lost wages, as well as loss of

consortium. In the plaintiffs' statement of damages, documented

expenses including those for the hospital, the doctor,

chiropractic treatment, physical therapy, and lost wages totaled

$228,797.

i. First attempt at service and first motion to dismiss.

On February 9, 2021, a Middlesex County deputy sheriff served

process (i.e., the summons and complaint) on the defendant by

leaving it at the Medford address. The plaintiffs filed the

return of service on February 22, 2021.

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On March 5, 2021, counsel for the defendant entered a

"special appearance for the limited purpose of jurisdiction, and

service of process." The appearance he filed noted that, "[i]n

entering his special appearance, the Defendant does not waive

personal jurisdiction, or service of process defenses."

On April 23, 2021, counsel for the defendant filed a motion

to dismiss for, inter alia, insufficient service of process

under Mass. R. Civ. P. 12 (b) (5), 365 Mass. 754 (1974). The

defendant attached two affidavits, each of which was captioned

with the name and docket number of this case. The first, signed

by the defendant, stated, "I am in my 70's [sic] and am a

lifelong resident of Rio de Janeiro, Brazil;" "I have never

resided at 100 River Edge Drive, Apartment 439, Medford Mass.

02155;" "I have never owned a Massachusetts driver's license;"

"I have never owned a driver's license from any other state in

the United States;" "I have never owned a car in the United

States;" "I have never had a car registered to me in the United

States;" and "On November 24, 2017, I possessed a Brazilian

license only." The written statement did not state the

defendant's address, or even what country he was in when he

signed it.

The defendant further submitted that, "I have not been

served personally with a copy of the Summons and Complaint in

the above-captioned matter." He also asserted that, "[o]n

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November 24, 2017, I was visiting my son for a few weeks while

he was temporarily staying at 100 River Edge Drive, Apartment

439, Medford, Mass. 02155 and attending Boston University."

Finally, the defendant said that he had left this jurisdiction

and returned to his home in Brazil the very night the accident

occurred.

The affidavit was undated; it was preprinted with the month

(March) and the year (2021), but the line on which the specific

date is supposed to be entered was left blank. The final

sentence of the affidavit read, "This affidavit has been

translated into Portuguese by my son, Elias Alexandre Assed

Filho and I understand it, on that basis." As described below,

however, we need not and do not decide whether the affidavit was

admissible.

ii. Second attempt at service and second motion to

dismiss. Apparently in light of the defendant's filing, while

the first motion to dismiss was pending, the plaintiffs effected

service of process on the Registry of Motor Vehicles (RMV) on

May 13, 2021; the summons stated that service was made pursuant

to G. L. c. 90, §§ 3A to 3C.

Sections 3A and 3B of G. L. c. 90 provide that, in all

circumstances, by operating a motor vehicle on our roadways, as

the defendant did, a foreign national consents to make the

Registrar his agent for purposes of service of process.

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Section 3C of G. L. c. 90 spells out how service of process

on the Registrar must be performed:

"Service of process under section three A or three B shall
be made by leaving a copy of the process with a fee to be
determined annually by the commissioner of administration
under the provision of section three B of chapter seven in
the hands of the registrar, or in his office, and by giving
the defendant notice in either the manner provided in
paragraph (1) or in that provided in paragraph (2) hereof."

G. L. c. 90, § 3C.

There is no dispute that the plaintiffs properly served the

Registrar. The only issue raised about this second attempt at

service was whether the defendant was given notice in the manner

provided in paragraph (1) or (2) of G. L. c. 90, § 3C. Those

paragraphs state:

"(1) If the defendant is known by the plaintiff to be the
holder of a motor vehicle registration or operator's
license issued by another state or country, notice of such
service upon the registrar as attorney for the defendant
and a copy of the process shall forthwith be sent by
registered mail, with return receipt requested, by the
plaintiff to the defendant at his address of record in the
office from which such registration or license was issued.
The plaintiff's affidavit of compliance herewith, and the
defendant's return receipt, if received by the plaintiff,
shall be filed in the case on or before the return day of
the process or within such further time as the court may
allow. If the defendant has no motor vehicle registration
or license known to the plaintiff, such notice and copy
shall be sent in the same manner to the last address of the
defendant known to the plaintiff, and affidavit of
compliance herewith, and the defendant's return receipt or
other proof of actual notice, shall be filed in the case
within the time above provided.

"(2) Notice of such service upon the registrar and a copy
of the process shall be served upon the defendant, if found
within the commonwealth, by a sheriff or deputy sheriff of

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any county of this commonwealth, or, if found without the
commonwealth, by any duly constituted public officer
qualified to serve like process in the state or
jurisdiction where the defendant is found, and the
officer's return showing such service to have been made
shall be filed in the case on or before the return day of
the process or within such further time as the court may
allow."

There is another section of G. L. c. 90 that addresses the

procedure for service on those who have applied for a driver's

license or vehicle registration in the Commonwealth. It

provides that after serving the Registrar, "mailing by the

registrar of a copy of such process to [a defendant] at his last

address as appearing on the registrar's records shall be

sufficient notice to him of such service." G. L. c. 90, § 3D.

Despite the way the summons was written, after receiving

the summons and complaint, the RMV -- presumably because its

last address for the defendant was the Medford address on the

police report of the accident -– utilized the § 3D procedure,

mailing the summons to "his last address as appearing on the

registrar's records," G. L. c. 90, § 3D, i.e., the Medford

address. On August 23, 2021, the plaintiffs' attorney sent, via

certified mail, return receipt requested, notice of the

complaint to the defendant, again using the only address he had

for him –- the Medford address. It was returned to the

plaintiffs' attorney as undeliverable.

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On September 29, 2021, the defendant filed a second motion

to dismiss -– the first one still pending -– arguing that this

second attempt at service through the RMV was insufficient.

Again the plaintiffs opposed, arguing that both the first and

the second attempts at service were adequate. The plaintiffs

also filed a motion for extension of time to effect service.

Without holding a hearing, and without ruling on the first

motion to dismiss, the judge on October 21, 2021, ruled on the

second motion to dismiss and the plaintiffs' motion to extend.

The judge said,

"After review, it appears the Plaintiff has properly served
process upon the Registry of Motor Vehicles but has not met
all the procedural requirements of proper notice, having
failed to file an Affidavit of compliance and return
receipt or other proof of actual notice. The Plaintiff's
[sic] motion to extend (Paper #21) is allowed and Plaintiff
may submit its affidavit of compliance and return receipt
of mailing on or before November 30, 2021. The Defendant's
motion to dismiss (Paper #19) is taken under advisement and
held until November 30, 2021, or until the Plaintiff files
its supplemental documents, for consideration."

The plaintiffs failed to make any submission by November 30,

2021, and on December 14, 2021, the claims against the defendant

were dismissed, leaving only EAN in the case.

The plaintiffs, however, filed a motion for reconsideration

and to vacate the order of dismissal on January 28, 2022. The

plaintiffs' counsel asserted in an affidavit that until the

dismissal order, he had not received and was not aware of the

October 21, 2021 order.

8
In an order dated February 3, 2022, the judge addressed the

merits of the motion for reconsideration and denied it, saying

"the Court accepts [counsel's] assertion [that he never
received the October 21, 2021 order]. However, the motion
must still be denied. The Plaintiff's [sic] motion for
extension was based on the procedures set forth in G. L.
c. 90 § 3C. Based on the affidavits of counsel and the
Keeper of Records of the MA Registry of Motor Vehicles,
attached to the motion as Exhibit 2, the procedure followed
was not pursuant to G. L. c. 90 § 3C but rather pursuant to
G. L. c. 90 § 3D, the procedure intended for residents of
the Commonwealth. In discussing § 3C and § 3D, the Supreme
Judicial Court has differentiated the two procedural
sections as follows: 'Section 3C of this chapter,
governing service of process upon nonresident motorist
places obligation on plaintiff to send copy of process to
nonresident; however, [Section 3D], governing service of
process upon resident motorist places such burden on
registrar of motor vehicles.' Hardy v. Utica Mut. Ins.
Co., 369 Mass. 696 (1976). Defendant asserts that he is
and has always been a citizen and resident of Brazil. This
seems to place him clearly in the category of being a 'non-
resident' of MA, requiring compliance with G. L. c. 90
§ 3C. As Plaintiff has not established compliance with
G. L. c. 90 § 3C, it gives new reasons for the same result:
dismissal."

c. Subsequent events. On April 6, 2022, in response to

the plaintiffs' request for production of documents, EAN turned

over to the plaintiffs a document that included an address for

the defendant, as well as his driver's license number with a

notation that its issuing country was Brazil.

On April 20, 2022, the plaintiffs' counsel promptly sent

the process via registered mail to the address in Brazil.

However, the record does not contain proof of delivery (or

notice that the letter could not be delivered).

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Meanwhile, on April 19, 2022, a stipulation of dismissal

signed by the plaintiffs and EAN was filed and entered on the

docket as part of the final judgment dismissing what remained of

the case. Thus, EAN is no longer a party to this case. The

plaintiffs subsequently filed a timely notice of appeal from

that portion of the April 19, 2022 final judgment that dismissed

the claims against the defendant.

d. Motions to reinstate and consolidation of appeals. On

May 6, 2022, the plaintiffs served a second motion for

reconsideration of the order dismissing the case against the

defendant, to vacate said order, and to reinstate the case,

under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). The

defendant filed a reply to which he attached a new affidavit

from his son claiming that, "My father presented the police

officer with his Brazilian driver's license at the time of the

accident," "[t]he police officer told my father that the license

was not acceptable that [sic] he needed a local address," and "I

explained that my father was just a tourist and that he was only

here for a few days. The police officer asked for a local

address, and I provided him with the address I was temporarily

living at in Massachusetts."

On July 11, 2022, a single justice of this court issued an

order to stay appellate proceedings so that the plaintiffs could

litigate their second motion for reconsideration and to

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reinstate the case. On August 16, 2022, the same Superior Court

judge denied the motion. The plaintiffs filed a timely notice

of appeal from that order.

The plaintiffs' counsel continued to pursue efforts to

provide notice to the defendant pursuant to G. L. c. 90, § 3C.

After significant efforts, counsel enlisted the assistance of

one Maria Bueno, who traveled to Rio de Janeiro, Brazil to

attempt to confirm that the defendant still lived at the Rio de

Janeiro address and to provide the service papers to him. She

was successful in so doing on August 12, 2022. On receipt of

her affidavit, the plaintiffs' counsel filed an affidavit of

compliance with G. L. c. 90, § 3C, which was dated September 22,

2022.

On October 17, 2022, the plaintiffs filed a third motion

for reconsideration of the order dismissing the case against the

defendant, to vacate said order, and to reinstate the case.

That motion was denied on the merits on December 14, 2022, the

judge stating, "The Court adopts the reasoning in Defendant's

opposition, which reflect [sic] the court's prior determination

and rulings, and also based on Plaintiff's [sic] unpersuasive

potential new reasons for relief." The plaintiffs then filed

their third timely notice of appeal.

On December 23, 2022, the stay of appellate proceedings was

vacated. A single justice of this court subsequently allowed

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the plaintiffs' motion to consolidate the appeal from the final

judgment with the appeal from the denial of the third motion for

reconsideration.

2. Discussion. We have before us two appeals, one from

the final judgment in this case, which brings before us the

interlocutory order dismissing all claims against the defendant,

and the other from the denial of the third motion for

reconsideration and reinstatement. Because we conclude that the

original attempt at service of process was effective, we need

address the merits of only the first appeal.

Rule 4 (d) (1) of the Massachusetts Rules of Civil

Procedure, as amended, 370 Mass. 918 (1976), permits process

(the summons and complaint) to be served "by leaving copies

thereof at [the defendant's] last and usual place of abode." In

this case, the plaintiffs had the deputy sheriff leave the

process at the Medford address.

This was the address given by the defendant to the State

trooper who issued him a citation at the scene of the accident

that forms the basis of this action. The return stated that

process was served "by leaving at the last and usual place of

abode of ELIAS ASSAD [sic], 100 RIVER EDGE DRIVE APT 439

MEDFORD, MA 02155."

The defendant argues, by reference to his signed statement,

that the Medford address was never his address. Even assuming

12
that the purported affidavit was both admissible and accurate,

we conclude that pursuant to rule 4 (d) (1), service at the

Medford address was adequate. The plaintiffs were entitled to

rely on the address information contained in the State trooper's

CRASH report and to serve the defendant at what he represented

was his last and usual place of abode. See Crete v. Audet, 353

Mass. 725, 729 (1968).

The Legislature has long been concerned with protecting

people in the Commonwealth from injury or property damage caused

by nonresident drivers. Initially there was, "to a large

extent, immunity from all legal responsibility on the part of

such nonresident" drivers (quotation and citation omitted).

Pawloski v. Hess, 250 Mass. 22, 26 (1924). The Legislature has

taken many steps to remedy this, while protecting the rights of

putative defendants to due process. Thus, for example, it

enacted G. L. c. 90, §§ 3A and 3B, to allow service of process

on the Registrar for nonresident drivers in-State. See id. at

26-27 (upholding such laws from constitutional challenge).

More to the point here, the Legislature also enacted

criminal laws requiring those motor vehicle operators who

collide with other motor vehicles -– as the defendant did in

this case –- to provide their name and residence before leaving

the scene. Under these laws, the defendant was legally

obligated to provide his correct and proper address at the scene

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of the accident. General Laws c. 90, § 24 (2) (a), says that

"whoever without stopping and making known his name, residence

and the register number of his motor vehicle goes away after

knowingly colliding with or otherwise causing injury to any

other vehicle or property . . . shall be punished." General

Laws c. 90, § 24 (2) (a 1/2) (1), states, in relevant part:

"Whoever operates a motor vehicle upon any way or in any
place to which the public has right of access, or upon any
way or in any place to which members of the public shall
have access as invitees or licensees, and without stopping
and making known his name, residence and the registration
number of his motor vehicle, goes away after knowingly
colliding with or otherwise causing injury to any person
not resulting in the death of any person, shall be punished
by imprisonment for not less than six months nor more than
two years and by a fine of not less than five hundred
dollars nor more than one thousand dollars."

The "obvious purpose" of such laws "is to enable those in

any way injured by the operation of an automobile upon a public

way to obtain forthwith accurate information as to the person in

charge of the automobile," as such information is "of a nature

which will identify him readily, and make it simple and easy to

find him thereafter" (emphasis added). Commonwealth v.

Horsfall, 213 Mass. 232, 236 (1913) (addressing earlier statute

requiring making one's name and residence known after causing

injury to person or property). Here, the address given at the

scene to the trooper, the Medford address, was, if the

defendant's affidavit is credited, not his residence, nor did it

make it simple and easy to find him thereafter.

14
In Crete, 353 Mass. at 730, a case involving a car

accident, the Supreme Judicial Court held that service was

adequate even though it was sent to an incorrect address and

returned to the sender. The defendant himself had given the

incorrect address in a report of the accident that was

statutorily required under G. L. c. 90, § 26. Id. at 726.

Although the court stopped short of deciding that the defendant

was estopped as a matter of law from denying the address in the

report, id. at 730 n.7, it concluded that "there was sufficient

representation by [the defendant] that his real address was the

Hartford address to which notice was sent, and sufficient

tendency for that representation to mislead [the plaintiff], so

that [the defendant] should not now be heard to argue that [the

plaintiff] did not send notice" to the proper address, id. at

730.

We think the same is true here. Given the laws requiring

provision of one's residence at the scene of an accident, the

defendant's provision only of the Medford address was both a

sufficient representation that that was his residence, and had a

sufficient tendency to mislead, such that he cannot now be heard

to argue that the process was served at the wrong address. The

original attempt at service therefore was sufficient.3

The defendant is incorrect that the plaintiffs had any
3

obligation to contact "Enterprise Rent-A-Car Company (or the

15
To counter this, the defendant would rely on an affidavit

of his son filed after final judgment below, at the time of the

third motion for reconsideration in April 2022, which stated

that the defendant offered his Brazilian license to the trooper,

but that he refused to accept it and required a United States

address. Even if we assume the son's 2022 affidavit is true,

and that the events it described would amount to "making known"

his Brazilian residence, G. L. c. 90, § 24 (2) (a), (a 1/2) (1),

two questions we do not decide, this affidavit was not submitted

with the original motion to dismiss, nor indeed at any time

before final judgment entered. As it was not in the record

before the judge considering the first motion to dismiss, who

had no basis for finding irregular the provision of the Medford

address to the trooper, we may not consider it in the appeal

from the final judgment.

3. Conclusion. Because we conclude the initial attempt at

service was effective, we need not address either the second

attempt, which is also raised in the appeal from the final

title owner, EAN Holdings LLC) to determine the licensure status
and home address of Assed" before relying on the address given
to the trooper. The defendant was required at the scene of the
accident to make known his name and residence in order to "make
it simple and easy to find him" after an accident. Horsfall,
213 Mass. at 236. A plaintiff is not required to contact or
engage in discovery with other adverse parties or nonparties
seeking information that they may or may not have before relying
on the defendant's own representation.

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judgment, nor the appeal from the denial of the subsequent

motion to reinstate.

So much of the final judgment dated April 19, 2022, that

dismissed all claims against the defendant is vacated, and the

case is remanded for reinstatement of those claims. The

plaintiffs' appeal from the denial of the third motion for

reconsideration and to reinstate is dismissed as moot.

So ordered.

By the Court (Rubin, Singh &
Hershfang, JJ.4),

Clerk

Entered: June 28, 2024.

4 The panelists are listed in order of seniority.

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