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FIRST NATIONAL INS. CO. OF AMERICA v. COMMONWEALTH

376 Mass. 248 (1978)

380 N.E.2d 131

FIRST NATIONAL INSURANCE COMPANY OF AMERICA vs. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

August 29, 1978.

Attorney(s) appearing for the Case

Paul R. Devin (Alexander H. Pratt, Jr., with him) for the plaintiff.

Richard E. Rafferty, Assistant Attorney General (William A. Mitchell, Assistant Attorney General, with him) for the Commonwealth.

Present: HENNESSEY, C.J., KAPLAN, WILKINS, LIACOS, & ABRAMS, JJ.

ABRAMS, J.

First National Insurance Company of America (surety) commenced this action against the Commonwealth alleging an abuse of discretion by the Commonwealth in disregard of the surety's interest in certain contract funds. The surety's action was dismissed under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and it appealed. We transferred the case to this court on our own motion. We hold that the complaint sufficiently

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