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Hamlin v. Geico Indemnity Co.

Superior Court of Maine, Cumberland

January 5, 2016

GEICO INDEMNITY CO., et al., Defendants


Roland Cole Chief Justice

Before the court is defendants GEICO Indemnity Co. and Sarah Grzybowski's motion to dismiss, or alternatively to stay, plaintiffs breach of contract action. For the following reasons, the court denies the motion to dismiss and grants the motion to stay.


On September 30, 2014, plaintiff obtained an insurance policy from GEICO that provided coverage for his 1997 GMC Yukon S1/SLE (the "vehicle"). (Compl. ¶ 1.) On October 30, 2014, plaintiff filed a police report stating that the vehicle had been stolen. (Compl. p. 2.) The police recovered plaintiffs damaged vehicle nearby and towed it to a garage in South Portland. (Id.) On November 1, 2014, a GEICO appraiser inspected the vehicle at the garage. (Id.) He determined that the vehicle was totaled and recommended a settlement amount of $2, 858.03. (Id.)

On November 18, 2014, plaintiff faxed a copy of the police report to Sarah Grzybowski, a GEICO insurance agent. (Id.) The police report indicated that the reporting officer questioned the veracity of plaintiffs report. (Def.'s Ex. 1.) Plaintiff had made two prior stolen vehicle reports-one in November 2011 and the other in September 2013-and the reporting officer found it "odd" that he now had a third stolen vehicle.[1] (Id.) She also believed that the vehicle's windows had been broken from the inside because the windows were "bowed outward" and most of the broken glass was outside the vehicle. (Id.)

On November 24, 2014, plaintiff and Ms. Grzybowski spoke on the phone regarding plaintiffs claim. (Compl. p. 2.) Plaintiff contends that Ms. Grzybowski stated that she was approving the recommended settlement amount of $2, 858.03. (Id.) GEICO claims that this initial approval was based only on the information plaintiff had provided to date and was contingent on completion of GEICO's investigation. It is undisputed that Ms. Grzybowski authorized a $200 payment for the loss of plaintiff s personal items in the vehicle, and that plaintiff received this payment. (Id.) Plaintiff then sent the vehicle's keys and title to GEICO. (Id.) That package never arrived, and plaintiff was informed that he needed to obtain a new title. (Id.)

While plaintiff was obtaining a new title, GEICO became aware of several inconsistencies in the materials plaintiff submitted in his claim.[2] As a result of these inconsistencies and the statements in the police report, GEICO requested on January 19, 2015 that plaintiff submit to an examination under oath. (Def.'s Ex. 3.) GEICO scheduled an examination for February 17, 2015, but plaintiff was unable to attend. (Def.'s Exs. 5-6.) GEICO sent plaintiff a letter requesting that he reschedule the examination. (Def.'s Ex. 6.) The record does not indicate whether plaintiff contacted GEICO to reschedule. It is undisputed, however, that plaintiff has since become incarcerated and has not attended an examination to date.

Plaintiff filed his complaint on January 22, 2015, alleging one count of breach of contract. (Compl. ¶¶ 1-8.) Plaintiff seeks a total of $8, 733.06, which includes $2, 858.03 in compensatory damages, treble damages for GEICO's failure to honor the contract, and costs and fees. (Compl. ¶¶ 8-11.) On March 27, 2015, defendants filed a motion to dismiss. Plaintiff filed an opposition to defendants' motion on April 6, 2015, and defendants filed a reply on April 13, 2015. Plaintiff then filed a surreply, which defendants have moved to strike.[3] A hearing on defendants' motion was held on November 30, 2015.


A. Standard of Review

A motion to dismiss under M.R. Civ. P. 12(b)(6) tests the legal sufficiency of the complaint. State v. Weinschenk, 2005 ME 28, 10, 868 A.2d 200. The court reviews the complaint's material allegations in the light most favorable to the plaintiff and dismisses the complaint only "when it appears beyond doubt that a plaintiff is entitled to no relief under any set of facts" Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, ¶ 7, 843 A.2d 43 (citation omitted). The court may consider the pleadings, official public documents, documents that are central to the plaintiffs claim, and documents referred to in the complaint, when the authenticity of those documents is not challenged. Id. ¶ 10. Alternatively, the court "may temporarily stay the execution of its judgment whenever it is necessary to accomplish the ends of justice." Cutler Assocs. v. Merrill Trust Co., 395 A.2d 453, 456 (Me. 1978).

B. Breach of Contract

Plaintiff argues that GEICO has breached the insurance policy because it has failed to pay him the recommended settlement amount. To prevail on a breach of contract claim, plaintiff must prove the existence of an enforceable contract, a breach of the applicable contractual duty, causation, and damages. Me. Energy Recovery Co. v. United Steel Structures, Inc., 1999 ME 31, ¶ 7, 724 A.2d 1248. GEICO argues that it has not breached its duty for two reasons: (1) its duty has been discharged because plaintiff has not ...

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