Number 14 July 28, 1975

Number 14 July 28, 1975 Mr. James M. Shepard, Director Division of Fisheries and Game Leverett Saltonstall Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Sir: You have requested my opinion with respect to the proposed full-time use of surplus federal vehicles, which would be driven by your personnel throughout the life of the vehicles. Title and registration, however, would remain with the U. S. Department of Interior. Specifically, you have asked: What are the legal ramifications with respect to state liability and to personal liability for injury or property damage in the event one of our drivers is involved in an accident? It is my opinion that the arrangement you described would not affect the liability of the Commonwealth; but it would affect the ability of an employee to be indemnified by the Commonwealth, as provided for in G. L. c. 12, § 3B, for tortious acts committed while operating those vehicles. The Commonwealth is not liable for the tortious acts of its agents, employ- ees, public officers, or agencies committed in the performance of their duties. Glickman v. Commonwealth, 244 Mass. 148 (1923); Burroughs \. Common- wealth, 224 Mass. 28 (1916). While the doctrine of sovereign immunity has been recently criticized by the Supreme Judicial Court, Morash & Sons, Inc. V. Commonwealth, 1973 Adv. Sh. 785, 296 N.E.2d 461 (1973), it would presently protect the Commonwealth from suit in the event of tortious acts caused by an accident in the vehicles you described. Ownership of the vehicles would have no effect on the outcome of such litigation. The employee's personal liabihty is also not affected by ownership of the vehicle. The employee remains responsible for his own torts. However, the employee's rights to indemnification under certain circumstances for his torts will be affected by ownership of the vehicles. Section 3B of G. L. c. 12 provides for limited indemnification (up to $10,000) for state officers or employee's right to indemnification under certain circumstances for his torts will be affected by ownership of the vehicles. Section 3B of G. L. c. 12 personnel performing lawfully ordered military duty. Further, "owner" is P.D. 12 87 generally defined by title to the vehicle, G. L. c. 90,§ 1 and G. L c. 90D, § 1, which in this case would not be the Commonwealth. Very truly yours, FRANCIS X. BELLOTTI Attorney General