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Brown v. Amica Insurance Co.

Superior Court of Maine, Cumberland

June 16, 2016

CRAIG BROWN, Plaintiff
v.
AMICA INSURANCE CO., et al, Defendants

          MARTICA DOUGLAS ESQ

          ORDER

          Thomas D. Warren Justice

         Before the court are a motion for summary judgment by defendant Arnica Insurance Co. and a cross-motion for summary judgment by plaintiff Craig Brown. These motions have been complicated by a series of repetitive and confusing filings and amended and revised filings by Brown. By order dated March 11, 2016, the court attempted to unravel the status of the case and explained how it would address the motions.

         Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v. McNeil, 2002 ME 99 ¶ 8, 800 A.2d 702. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 ¶ 8, 694 A.2d 924.

         This case is complicated because Brown's most recent submissions include two Rule 56(h) statements, but his statement of material facts in opposition to Arnica's motion, dated February 6, 2016, does not begin its responses to Arnica's statement of material facts with the words "Admitted", "Denied" or "Qualified, " as required by Rule 56(h)(2). However, denials and qualifications of Arnica's numbered paragraphs are set forth in Brown's Amended Opposition to Arnica's motion dated February 6, 2016 at 3-6. Those are not accompanied by citations to the record, but citations to the record are set forth in Brown's statement of material facts in opposition to Arnica's motion and Brown's statement of material facts in support of his cross motion.

         Following its March 11, 2016 order and rather than attempting to decide these motions on technicalities, the court has reviewed Arnica's statement of material facts, Brown's two amended statements of material fact dated February 6, 2016, the affidavit of John Martin, sworn to December 23, 2015 and the affidavit of Craig Brown sworn to January 25, 2016. The court concludes that there are disputed issues of fact that preclude summary judgment on the issue of whether Arnica violated a duty to defend Brown in Knox Docket RE-09-10 and that require the denial of both Arnica's motion and Brown's cross-motion.

         Specifically there is a factual dispute between Brown and Martin as to whether Brown gave notice of the pendency of RE-09-10 to Arnica before that case had been fully tried and was under advisement. If Brown did give notice, he may be able to prove that if Arnica had provided him with representation in that lawsuit, he would have received a more favorable result.[1] That issue remains unresolved on the present summary judgment record. If Brown did not give notice until after the trial, he may nevertheless be able to argue that Arnica should have provided him with representation on an appeal. That might depend on whether there was any reasonable basis on which to appeal. That issue also remains unresolved on the present summary judgment record.[2]

         Brown continues to claim that Arnica's duty to defend required it to offer representation to Brown in any affirmative state or federal lawsuits that Brown wished to initiate, in a protection from harassment proceeding initiated against Brown, and in a criminal prosecution for criminal mischief in which Brown was convicted on March 4, 2010. State v. Brown, CR-09-083 (Knox Superior Court). The court disagrees and has already ordered Brown to limit all future filings to his duty to defend claim relating to RE-09-10.

         The court would add that to the extent that Brown is arguing that Arnica owed him reimbursement for lost wages as part of its duty to defend, the court cannot find any basis for that contention in the Arnica policy but reserves decision on that issue at this time. Moreover, to the extent that Brown wishes to argue that Arnica had a duty to appeal in RE-09-10 because of his contention that Justice Hjelm did not have jurisdiction, the court has already ruled that this does not state a claim.

         The entry shall be:

         Defendant's motion for summary judgment and plaintiffs cross-motion for summary judgment are denied. The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

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Notes:

[1] Brown acknowledges that at one point he hired Attorney Steven Peterson to represent him in RE-09-10 and subsequently discharged Peterson and chose to represent himself. January 25, 2016 Brown affidavit ΒΆ 11. To what extent, if any, this would affect Brown's ability to prove that he was harmed by Arnica's alleged failure to provide representation may be an issue at trial. Specifically, if Brown was able to retain counsel but chose not to do so, ...


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