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.
2

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."
3

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.
4

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 
5

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.
6

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 
7

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.
8

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.
9

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 'nonresident' 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).
10

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 
11

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 
12

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 
13

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 
14

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.
15

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

3 The defendant is incorrect that the plaintiffs had any 

obligation to contact "Enterprise Rent-A-Car Company (or the 
16

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.
17

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.