ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Joyce A. Wheeler, Justice, Superior Court.
Plaintiff Mark Chaitier seeks damages from both Farm Family Life Insurance, Co. (" Farm Family") and Gotham Savings Bank for allowing his then wife, Lisa Heward, to cash out an annuity policy from Farm Family and deposit it in a joint checking account with Gorham Sayings Bank without plaintiff's signature. Defendant Farm Family and its agent Joseph Miller have moved for summary judgment, arguing that they had no duty to monitor Mr. Chartier's account. Defendant Gorham Savings Rank has separately moved for summary judgment, arguing that the bank had no duly' to require Mr. Chartier's signature on a check before depositing it into his account. A hearing was held on January 2, 2014.
Factual and Procedural Background
The following facts are not in dispute. Mark Chartier was married to Lisa Heward from June 17, 2001 to November 17, 2011. (Farm Supp. S.M.F. ¶ 6.) On October 16, 2002, Mr. Chartier and Lisa Heward opened a joint checking account with Gorham Savings Bank. (GSB Supp. S.M.F. ¶ 1.)
In 2004, Defendant Joseph Miller from Farm Family began providing Mr. Chartier with insurance. (Pl.'s Farm Add. S.M.F. ¶ 1.) In 2006, Mr. Chartier realized a large amount of money from his father's estate. (Pl.'s Farm Add. S.M.F. ¶ 7.) He contacted Mr. Miller for financial advice, and Mr. Miller came to Mr. Chartier's house on March 13, 2006 to discuss investment options. (Pl.'s Farm Add. S.M.F. ¶ 10.) Mr. Miller recommended an investment package that included a $100, 000 annuity from Farm Family, and Mr. Chartier followed his advice. (Pl.'s Farm Add. S.M.F. ¶ ¶ 13, 15.) On September 8, 2009, Mr. Chartier designated his then-wife Ms. Heward as the primary beneficiary of the annuity policy. (Farm Supp. S.M.F. ¶ 5.)
In addition to the annuity, Mr. Miller recommended that Mr. Chartier invest a portion of his money into an American Funds mutual fund. (Pl.'s Farm Add. S.M.F. ¶ 13.) Mr. Chartier invested $250, 000 into the mutual fund held in a joint account between him and his wife. (Pl.'s Farm Add. S.M.F. ¶ ¶ 13-15.) Shortly after their purchase, Mr. Chartier alleges that Ms. Heward began withdrawing funds from the mutual funds account without Mr. Chartier's knowledge. (Pl.'s Farm Add. S.M.F. ¶ 16).
On October 12, 2009, Ms. Heward contacted Mr. Miller to discuss the penalties and tax consequences of cashing the annuity policy. (Pl.'s Farm Add. S.M.F. ¶ 24.) After the conversation, Farm Family mailed Ms. Heward the necessary form to cash out the policy. (Pl.'s Farm Add. S.M.F. ¶ 27) Ms. Heward signed the form for Mr. Chartier, although the parties dispute whether he authorized her to sign for him. (Pl.'s Farm Add. S.M.F. ¶ 27; Farm Reply S.M.F. ¶ 27.) When Farm Family received the form, it issued a check for $109, 669.49 payable to Mr. Chartier and mailed the check addressed to him at his legal address on record with the company. (Farm Supp. S.M.F. ¶ 16; Pl.'s Farm Add. S.M.F. ¶ 28.)
Ms. Heward intercepted the check without Mr. Chartier's knowledge. (Pl.'s Farm Add. S.M.F. ¶ 28.) She deposited the check in their joint checking account at Gorham Savings Bank on October 26, 2009. (GSB Supp. S.M.F. ¶ 4.) The check was not endorsed but was marked " For Deposit Only." (GSB Supp. S.M.F. ¶ 5; Pl.'s GSB Add. S.M.F. ¶ 7.) Gorham Savings Bank had previously accepted Mr. Chartier's unendorsed checks for deposit without complaint from Mr. Chartier. (GSB Supp. S.M.F. ¶ 6.) On November 9, 2009, Ms. Heward withdrew $40, 000 from the joint account, moved out of the marital home, and told Mr. Chartier she wanted a divorce. (Farm Supp. S.M.F. ¶ 20; Pl.'s Farm Add. S.M.F. ¶ 29.) Ms. Heward was never charged for her actions described in this case. (Farm Supp. S.M.F. ¶ 25.)
Mr. Chartier filed a complaint on October 19, 2012 and amended the complaint on January 9, 2013. He brings three counts: count I, breach of fiduciary duty; count II, breach of the implied covenant of good faith and fair dealing; and count III, negligence. Farm Family filed its motion for summary judgment on September 24, 2013 followed by Gorham Savings Bank's motion on September 25, 2013.
1. Summary Judgment Standard
" Summary judgment is appropriate when there is no genuine issue of material fact that is in dispute and, at trial, the parties would be entitled to judgment as a matter of law." Fitzgerald v. Hutchins , 2009 ME 115, ¶, 983 A.2d 382 (citing Dyer v. Dep't of Transp ., 2008 ME 106, ¶ 14, 951 A.2d 821). " An issue is genuine if there is sufficient evidence supporting the claimed factual dispute to require a choice between the differing versions; an issue is material if it could potentially affect the outcome of the matter." Brown Dev. Corp. v. Hemond , 2008 ME 146, ¶ 10, 956 A.2d 104 (citing Univ. of Me. Found, v. Fleet Bank of Me ., 2003 ME 20, ¶ 20, 817 A.2d 871). To survive a defendant's motion for summary judgment, " the plaintiff must establish a prima facie case for each element of her cause of action." Watt v. UniFirst Corp ., 2009 ME 47, ¶ 21, 969 A.2d 897.
2. Farm Family's Motion for Summary ...