United States District Court, D. Maine
MEMORANDUM DECISION ON MOTION FOR SUMMARY JUDGMENT
AND MOTION TO EXCLUDE EXPERT 
H. RICH III UNITED STATES MAGISTRATE JUDGE.
Chubb Custom Insurance Company (“Chubb”), moves
for summary judgment on all claims of the plaintiff, Maine
State Properties, LLC (“Maine State”), arising
from Chubb’s denial of coverage for a December 17,
2013, property loss suffered by Maine State when pipes froze
in an insured commercial building in Biddeford, Maine.
See Defendant’s Motion for Summary Judgment
(“S/J Motion”) (ECF No. 25) at 1-2; Complaint
(ECF No. 1-1), attached to Notice of Removal of Defendant
(ECF No. 1), ¶¶ 5-21. In its three-count complaint,
Maine State seeks (i) a declaratory judgment that Chubb is
obligated to pay for Maine State’s provable damages as
a result of the December 17, 2013, loss (Count I), (ii)
damages for Chubb’s alleged breach of contract (Count
II), and (iii) damages for Chubb’s alleged violation of
the Maine Unfair Claims Settlement Practices Act
(“UCSPA”), 24-A M.R.S.A. § 2436-A (Count
III). See Complaint ¶¶ 13-21. Chubb also
moves to exclude all expert testimony of insurance
professional Michael L. Averill on the basis that it
constitutes impermissible legal argument and is irrelevant.
See Defendant Chubb Custom Insurance Company’s
Motion To Exclude the Expert Testimony of Michael L. Averill
(“Motion To Exclude”) (ECF No. 24) at 1-2. For
the reasons that follow, I grant Chubb’s motion for
summary judgment in part, as to Maine State’s USCPA
claim (Count III), and otherwise deny it, and grant its
motion to exclude Averill’s testimony.
Motion for Summary Judgment
Applicable Legal Standards
Federal Rule of Civil Procedure 56
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Ahmed v. Johnson, 752 F.3d 490,
495 (1st Cir. 2014). “A dispute is genuine if
‘the evidence about the fact is such that a reasonable
jury could resolve the point in favor of the non-moving
party.” Johnson v. University of P.R., 714
F.3d 48, 52 (1st Cir. 2013) (quoting Thompson v.
Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)).
“A fact is material if it has the potential of
determining the outcome of the litigation.”
Id. (quoting Maymi v. P.R. Ports Auth., 515
F.3d 20, 25 (1st Cir. 2008)).
party moving for summary judgment must demonstrate an absence
of evidence to support the nonmoving party’s case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In determining whether this burden is met, the court must
view the record in the light most favorable to the nonmoving
party and give that party the benefit of all reasonable
inferences in its favor. Johnson, 714 F.3d at 52.
Once the moving party has made a preliminary showing that no
genuine issue of material fact exists, the nonmovant must
“produce specific facts, in suitable evidentiary form,
to establish the presence of a trialworthy issue.”
Brooks v. AIG SunAmerica Life Assur. Co., 480 F.3d
579, 586 (1st Cir. 2007) (quoting Clifford v.
Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (emphasis
omitted)); Fed.R.Civ.P. 56(c). “As to any essential
factual element of its claim on which the nonmovant would
bear the burden of proof at trial, its failure to come
forward with sufficient evidence to generate a trialworthy
issue warrants summary judgment to the moving party.”
In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001)
(citation and internal punctuation omitted).
Local Rule 56
evidence that the court may consider in deciding whether
genuine issues of material fact exist for purposes of summary
judgment is circumscribed by the local rules of this
district. See Loc. R. 56. The moving party must
first file a statement of material facts that it claims are
not in dispute. See Loc. R. 56(b). Each fact must be
set forth in a numbered paragraph and supported by a specific
record citation. See id. The nonmoving party must
then submit a responsive “separate, short, and
concise” statement of material facts in which it must
“admit, deny or qualify the facts by reference to each
numbered paragraph of the moving party’s statement of
material facts[.]” Loc. R. 56(c). The nonmovant
likewise must support each denial or qualification with an
appropriate record citation. See id. The nonmoving
party may also submit its own additional statement of
material facts that it contends are not in dispute, each
supported by a specific record citation. See id. The
movant then must respond to the nonmoving party’s
statement of additional facts, if any, by way of a reply
statement of material facts in which it must “admit,
deny or qualify such additional facts by reference to the
numbered paragraphs” of the nonmovant’s
statement. See Loc. R. 56(d). Again, each denial or
qualification must be supported by an appropriate record
citation. See id.
Rule 56 directs that “[f]acts contained in a supporting
or opposing statement of material facts, if supported by
record citations as required by this rule, shall be deemed
admitted unless properly controverted.” Loc. R. 56(f).
In addition, “[t]he court may disregard any statement
of fact not supported by a specific citation to record
material properly considered on summary judgment” and
has “no independent duty to search or consider any part
of the record not specifically referenced in the
parties’ separate statement of fact.”
Id.; see also, e.g., Borges ex rel. S.M.B.W. v.
Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010);
Fed.R.Civ.P. 56(e)(2) (“If a party fails to properly
support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule
56(c), the court may . . . consider the fact undisputed for
purposes of the motion[.]”).
parties have stipulated to a number of facts in addition to
filing separate statements of material facts. I have set
forth their stipulated facts, as well as their separate
statements of material facts, crediting the latter to the
extent either admitted or supported by record citations in
accordance with Local Rule 56, with disputes resolved in
favor of Maine State as the nonmovant.
State was formed by Jeffrey Sneller of Bainbridge Island,
Washington, James Swaka of Biddeford, Maine, and Mark Lisson
of Bainbridge Island, Washington. Defendant’s Statement
of Material Facts in Support of Motion for Summary Judgment
(“Defendant’s SMF”) (ECF No. 26) ¶ 2;
Plaintiff’s Opposing Statement of Material Facts
(“Plaintiff’s Opposing SMF”) (ECF No. 28)
¶ 2. Sneller and Swaka are managers of Maine State, and
Sneller, Swaka, and Lisson are affiliated with corporations
that are members of Maine State. Id. ¶ 3.
issued Maine State a commercial property policy of insurance,
Policy Number 99782618-00 (the “Policy”),
effective September 5, 2013, to September 5, 2014, covering
property located at 145 Main Street in Biddeford, Maine (the
“Property”). Stipulated Record for
Defendant’s Motion for Summary Judgment
(“Stipulations”) (ECF No. 21) ¶ 1 & Exh.
A (ECF No. 21-1) thereto. The Policy was underwritten by WKFC
Underwriting Managers. Defendant’s SMF ¶ 1;
Plaintiff’s Opposing SMF ¶ 1.
time the Policy was in effect, Maine State was the lessee of
the Property pursuant to a November 12, 2012, lease with JED
Properties, LLC (“JED”). Stipulations ¶
The parties agree that, at all relevant times, Maine State
had an insurable interest in the Property. Id.
¶ 3. The Policy provided that Chubb would “pay for
direct physical loss of or damage to Covered Property at the
premises described in the Declarations caused by or resulting
from any Covered Cause of Loss.” Policy at Page ID #91.
“Covered Causes of Loss” is defined in the Policy
to mean “Risks of Direct Physical Loss, unless the loss
is . . . [e]xcluded in Section B.,
Exclusions; or . . . [l]imited in Section
C., Limitations[.]” Id. at
Page ID #115.
lessee of the Property, Maine State was responsible for
maintaining heat in the insured premises. Stipulations ¶
5. As lessee in possession, Maine State had complete access
to and control over the insured premises at all relevant
times. Id. ¶ 6. Swaka was the person from Maine
State who was in charge of maintaining the Property,
including maintaining the heat in ...