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Jones v. Chalmers Insurance Agency

Superior Court of Maine, Cumberland

June 30, 2014



Roland A. Cole, Justice

Pursuant to Maine Rules of Civil Procedure 56 and 12(b)(6) Defendant Chalmers Insurance Agency (" Chalmers") has moved for summary judgment against Plaintiff Robert Jones on all six of the claims in his Amended Complaint. Count I is for negligence; Count II is for negligence (special relationship); Count III is for negligent misrepresentation; Count IV is for breach of contract; Count V is for equitable estoppel; and Count VI is for promissory estoppel. After reviewing the parties' memoranda and statements of material facts, the summary judgment record, and hearing oral arguments on the Motion, the court has come to the conclusions detailed below.

As an initial matter, however, there are several procedural matters for this court to address. The court notes that the Defendant's Reply contains not only its memorandum as contemplated by M.R. Civ. P. 7(f), but an additional memorandum with Defendant's Reply Statement of Material Facts spanning more than 10 pages on Defendant's general objections concerning expert witness Howard Candage's affidavit. As much as the Defendant has attempted to paint this memorandum as a part of its Reply Statement of Material Facts and as compliant with M.R. Civ. P. 56(h)(3), this court disagrees. Rule 56(h)(3) contemplates a " separate, short, and concise response" . The court thereby notes Defendant's objections to the court's consideration of the Candage Affidavit as mentioned repeatedly in Defendant's specific replies to statements of material fact, but the court is not considering what is for all purposes Defendant's additional memorandum.

The court, however, is not allowing the Candage Affidavit to be introduced for summary judgment purposes, nor is the court accepting the Plaintiffs statements that rely upon the Candage Affidavit. In his affidavit, Mr. Candage represents that he was not asked whether $1 million worth of coverage could have been procured for a motorcycle between 2007 and 2010 in Maine. (D.S.M.F. ¶ ¶ 58-59; PO.S.M.F. ¶ ¶ 58-59; Candage Aff. ¶ 6.) This is inaccurate, as Mr. Candage was asked directly about the availability of $1 million worth of coverage for a motorcycle between 2007 and 2010, and he did not know the answer. (D.S.M.F. ¶ ¶ 58-59; PO.S.M.F. ¶ ¶ 58-59; Candage Aff. ¶ 6.) In addition, Mr. Candage's affidavit also appears to be unreliable as it relies in part on hearsay. (Candage Aff. ¶ 9.)

The court is also only considering the portions of Plaintiff's Response that comply with Rule 56(i)(ii). The court is not considering the pages of additional argument presented in the Plaintiff's Response, or the Defendant's objection thereto. Nor is the court considering Exhibit A attached to the Plaintiff's Response, which was not introduced through a statement of material fact. The court is also not considering the Plaintiff's Supplement to the Motion for Summary Judgment. The Plaintiff and Defendant have both objected to one another's submissions as impermissible under Rule 56, while continuing to add more filings, which in turn are impermissible under Rule 56. This court has only considered those filings that are contemplated by Rule 56, and those statements of material fact that are properly supported by record citations as required by the Rule. Plaintiff's attempt in its Response to Defendant's Reply to remedy its failure to provide citations for certain paragraphs in it Opposing Statements of Material Facts is not curative.


The following facts are gathered from the Defendant's Statement of Material Facts (D.S.M.F.), the Plaintiff's Opposing Statement of Material Facts (O.S.M.F.) and Additional Statement of Material Facts (A.S.M.F.), and the Defendant's Reply Statement of Material Facts (R.S.M.F.).[1] Objections and responses thereto have been considered.

Mr. Jones owns a telecommunications contracting company called Maine Link Communications (" Maine Link"). (D.S.M.F. ¶ 11; O.S.M.F. ¶ 11.) As a part of his business, Mr. Jones's clients sometimes require that he provide certificates of liability insurance. (D.S.M.F. ¶ 42; O.S.M.F. ¶ 42.) Mr. Jones cannot remember any clients inquiring into or requiring uninsured or underinsured motorist coverage. (D.S.M.F. ¶ 45; O.S.M.F. ¶ 45.)

In 2007, part owner/manager and producer for Chalmers, Jim Chalmers, contacted Mr. Jones to solicit Maine Link's business.[2] (D.S.M.F. ¶ ¶ 12, 17; O.S.M.F. ¶ 12, 17.) Prior to September 2007, Jim and Mr. Jones met in Scarborough. (D.S.M.F. ¶ 14; O.S.M.F. ¶ 14.) At that point, with the exception of his motorcycle insurance, HRH Willis had Mr. Jones's insurance business. (D.S.M.F. ¶ 15.) Mr. Jones was not told by HRH Willis that his motorcycles were covered under his business policy, nor did he discuss the scope of his drive other car coverage with anyone there, but he believed his business policy there covered his motorcycles.[3] (D.S.M.F. ¶ ¶ 28, 30; O.S.M.F. ¶ 28, 30.) Mr. Jones believed that drive any (or other) car insurance coverage was a type of insurance that " 'covered [his] license for whatever [he] drove'" . (D.S.M.F. ¶ 28; O.S.M.F. ¶ 28.)

When they met for the first time, Jim Chalmers learned about Mr. Jones's insurance with HRH Willis. (D.S.M.F. ¶ 18; O.S.M.F. ¶ 18.) When the two met for a second time, Mr. Jones decided to buy his commercial insurance through Chalmers. (D.S.M.F. ¶ 21; O.S.M.F. ¶ 21.)

Mr. Jones only recalls one meeting with Jim Chalmers, and he does not remember whether or not they went through the HRH Willis policy that he was asking Jim Chalmers to replace, nor does he remember asking Jim Chalmers for coverage that was not contained in the HRH Willis policy. (D.S.M.F. ¶ ¶ 23-25.) Mr. Jones cannot remember any particular conversations with Jim Chalmers regarding his motorcycles. (D.S.M.F. ¶ 50; O.S.M.F. ¶ 50.) Mr. Jones states that he said that he needed to be " bulletproof', which Jim Chalmers denies.[4] (A.S.M.F. ¶ 83; R.S.M.F. ¶ 83.) Mr. Jones also avers that he said to Jim Chalmers that he wanted his license insured for anything he drives or could be driving to work. (A.S.M.F. ¶ 84.) Jim Chalmers cannot remember Mr. Jones saying something along the lines of " insure my license" . (R.S.M.F. ¶ 84.) Jim Chalmers was aware that Maine Link required certificates of insurance to provide to clients showing $1 million worth of coverage. (A.S.M.F. ¶ 89.)

Jim did not sell any personal policies to Mr. Jones, and Mr. Jones only recalls that Jim replaced the coverage he had in his policy through HRH Willis. (D.S.M.F. ¶ ¶ 19, 25; O.S.M.F. ¶ ¶ 19, 25.) The business policy that Jim provided through OneBeacon increased the uninsured /underinsured motorist coverage from $500, 000 to $1, 000, 000 to match the liability coverage. (A.S.M.F. ¶ 85; R.S.M.F. ¶ 85.) Mr. Jones cannot remember discussing or specifically requesting uninsured motorist coverage prior to his accident. (D.S.M.F. 31; O.S.M.F. ¶ 31.) Chalmers sent out certificates of insurance to Maine Link customers, representing that there was liability insurance for " any auto." (D.S.M.F. ¶ ¶ 66-67.) Plaintiff's expert witness, Howard Candage, was uncritical of the certificates of insurance issued by Chalmers. (D.S.M.F. ¶ 66.) He viewed the certificates as an appropriate representation of Maine Link's coverage, and he believed that the certificates did not address underinsured motorist coverage. (D.S.M.F. ¶ ¶ 66-67; O.S.M.F. ¶ 67.)

In September of 2007, Mr. Jones supplied Chalmers with a list naming the vehicles registered to Maine Link that would be covered under his business auto policy. (D.S.M.F. ¶ 33; O.S.M.F. ¶ 33.) Mr. Jones was aware that he had to notify his insurance agent when he was deleting a vehicle and adding another vehicle to his policy, as he knows that the insurance company wants a premium for every vehicle it covers. (D.S.M.F. ¶ ¶ 38-40; O.S.M.F. ¶ ¶ 38-40.) At the time, Mr. Jones' only personal vehicles were his motorcycles. (D.S.M.F. ¶ 34; O.S.M.F. ¶ 34.) Mr. Jones always insured his motorcycles separately from his business, and he never discussed registering the motorcycles to his business, as the motorcycles were collector's bikes and he did not want them wrapped up with the business. (D.S.M.F. ¶ ¶ 35-36; O.S.M.F. ¶ ¶ 35-36.)

In November of 2008, when Mr. Jones' daughter ran into a problem with her insurance coverage, and Mr. Jones requested help, Mr. Jones's daughter Jessica Jones was added to the Maine Link policy. (A.S.M.F. ¶ 80-81; R.S.M.F. ¶ 80.)

After Mr. Jones bought his business insurance through Jim Chalmers, his contact at the agency changed to Lena Murch.[5] (D.S.M.F. ¶ 51; O.S.M.F. ¶ 51.) Mr. Jones never reviewed his business policy with Ms. Murch on a coverage-by-coverage level, and prior to the accident he never discussed coverage for motorcycles with Ms. Murch. (D.S.M.F. ¶ ¶ 52-53; O.S.M.F. ¶ 52.) Ms. Murch agreed that she had an obligation to Mr. Jones, as well as Maine Link. (A.S.M.F. ¶ 79; R.S.M.F. ¶ 79.)

Jim Chalmers, Ms. Murch and Loma Richardson were aware that Mr. Jones drove a motorcycle. (A.S.M.F. ¶ 86.) Mr. Jones visited his mother at the Chalmers office, and when he did so he would be riding his motorcycle. (A.S.M.F. ¶ 77.) Jim Chalmers was aware that Mr. Jones was driving his motorcycle to work. (A.S.M.F. ¶ 86.) In April of 2010, Jim emailed Mr. Jones in the afternoon stating, " 'I hope you are out on your bike enjoying the day!'" (A.S.M.F. ¶ 87.)

As of September 20, 2010 the Chalmers website included a statement called " The Chalmers' Customer Bill of Rights." (PSMF ¶ 106.) In the Bill of Rights, Chalmers claimed that it would explain to customers insurance coverages and options. (PSMF ¶ 106.) Chalmers recommended that customers use independent agents to confirm that " 'the right products are in place to cover you and your family.'" (PSMF ¶ 106.) The Plaintiff has provided no evidence that Mr. Jones ever visited the Chalmers website.

On Saturday, September 25, 2010, Mr. Jones was driving his personally owned motorcycle and was horribly injured in a collision with a car. (D.S.M.F. ¶ ¶ 1-2; O.S.M.F. ¶ ¶ 1-2; A.S.M.F. ¶ 102.) Mr. Jones's girlfriend, Cindy Normand, was accompanying Mr. Jones on the back of his bike. (D.S.M.F. ¶ 2; O.S.M.F. ¶ 2.) The two were not driving to work, and Mr. Jones was not acting in the course of his employment during the ride. (D.S.M.F. ¶ 3; O.S.M.F. ¶ 3.) The motorcycle Mr. Jones was driving that day was kept at his home and registered to him, and it was insured along with a second motorcycle through a policy with Dairyland Insurance Company (" Dairyland"). (D.S.M.F. ¶ ¶ 5, 7, 9; O.S.M.F. ¶ ¶ 5, 7, 9.) The policy was not issued through Chalmers. (D.S.M.F. ¶ ¶ 7, 8.). Following the accident, Ms. Murch suggested that Mr. Jones pursue a claim with OneBeacon. (A.S.M.F. ¶ 103.) The court surmises from the Complaint that Mr. Jones had damages of over $1 million, and that the party who caused the accident had a liability limit of $100, 000. Mr. Jones' underinsured motorist claim to OneBeacon was denied. Mr. Candage agreed that regardless of whether or not there was a drive other car endorsement in the policy, the business auto policy ...

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