Plaintiff-Gerard Fournier, Esq.
Defendants-Paul Douglas, Esq.
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
Presently before the court is Defendant National General
Insurance Company's motion for summary judgment. For the
following reasons, Defendant's motion for summary
judgment is denied.
following facts are not in dispute. This action for
declaratory judgment arises out of a motor vehicle accident
occurred on September 18, 2013. (Def. Supp. S.M.F. ¶ 1;
PI. Opp. S.M.F. ¶ 1.) Richard and Karen Jarry (the
"Jarrys") were the owners of 2005 Jeep that was
insured under a personal automobile insurance policy issued
by Defendant. (Id. ¶ 3.) The Jarrys' adult
son, Anthony Jarry, was an insured driver under the policy.
(PI. Add'l S.M.F. ¶ 17; Def. Reply S.M.F. ¶
17.) At the time of the accident, Anthony Jarry was not
permitted to drive the Jarrys' vehicle because his
driver's license had been suspended. (Def. Supp. S.M.F.
¶ 12; PI. Opp. S.M.F. ¶ 12.)
September 18, 2013, Karen Jarry gave Kayla Bausha, a person
she knew possessed valid driver's license, permission to
drive the Jarrys' vehicle to take Anthony Jarry to a
medical appointment. (Id. ¶ 13.) Bausha and
Anthony Jarry were accompanied by Vaugh Hanson on the drive
to the medical appointment. (Id. ¶ 21.) En
route to the medical appointment, Bausha drove the
Jarrys' vehicle, with Anthony Jarry and Hanson as
passengers, to the home of a friend of Hanson. (PL Add'l
S.M.F. ¶ 25; Def. Reply S.M.F. ¶ 25.) After
dropping Anthony Jarry off at his medical appointment, Bausha
drove the Jarrys' vehicle, with Hanson as a passenger, to
home of another friend. (Def. Supp. S.M.F. ¶ 24; PI.
Opp. S.M.F. ¶ 24.) When Bausha and Hanson returned to
pick up Anthony Jarry from his medical appointment, Bausha
asked Hanson to drive the Jarrys' vehicle. (Id.
¶ 26.) Bausha claimed that she was tired. (Id.)
Hanson told Bausha he did not have a valid driver's
license. (Id. ¶ 28.) Hanson drove the
Jarrys' vehicle, with Anthony Jarry and Bausha as
passengers, to a pawnshop and then to the home of a friend of
Bausha. (Id. ¶¶ 29-30.) Hanson then drove
the Jarrys' vehicle, with Anthony Jarry and Bausha as
passengers, to Water Street in Saco, Maine. (Id.
¶ 34.) While parked at Water Street, a Maine Drug
Enforcement Agency agent and a Saco police officer approached
the vehicle. (PI. Add'l S.M.F. ¶ 30; Def. Reply
S.M.F. ¶ 30.) Hanson drove away in the Jarrys'
vehicle, with Anthony Jarry as a passenger, in an effort to
flee from the law enforcement officers. (Def. Supp. S.M.F.
¶ 37; PI. Opp. S.M.F. ¶ 37.)
the flight from law enforcement in the Jarrys' vehicle,
Hanson struck another vehicle owned by Harry and Sally
Wellsman (the "Wellsmans") and operated by Harry
Wellsman, resulting in personal injuries and property damage.
(Id. ¶¶ 1-2, 5.) The Wellsmans'
vehicle was insured under a personal automobile insurance
policy issued by Plaintiff. (Id. ¶ 1.)
an investigation, Defendant determined that it would neither
defend nor indemnify Hanson under the Jarrys' policy for
any damages arising out of the September 18, 2013 accident.
(Id. ¶ 4.) As a result of Defendant's
denial of coverage under the Jarrys' policy, Plaintiff
paid $172, 500.00 to the Wellsmans for their injuries
pursuant to the uninsured motorist coverage of their policy.
(Id. ¶ 5.) Plaintiff also paid the Wellsmans
$19, 751.95 for damages to their vehicle under the property
damage coverage of their policy. (Id.)
filed a complaint for declaratory judgment, pursuant to 14
M.R.S. § 5951 et seq., on September 28, 2015.
Plaintiff seeks a judicial declaration that Defendant
breached its duty to indemnify its insured when it denied
Hanson coverage under the Jarrys' policy and that
Plaintiff is entitled to subrogate against, and be
indemnified by, Defendant for the amounts Plaintiff paid to
the Wellsmans. (Compl. ¶¶ a-b.) Defendant filed an
answer and counterclaim for declaratory judgment on October
2, 2015. Defendant asserts, inter alia, that Hanson
was excluded from coverage under the Jarrys' policy
because Hanson lacked an objectively reasonable belief that
he was entitled to use the Jarrys' vehicle. (Ans. Affirm.
Defense ¶ 1.)
moved for summary judgment on March 28, 2016. Defendant
asserts there is no genuine issue of material fact that
Hanson lacked an objectively reasonable belief that he was
entitled to use the Jarrys' vehicle. (Def Mot. Summ. J.
7.) Following an extension of time, Plaintiff filed its
opposition on May 13, 2016. Defendant filed a reply on May
27, 2016. Oral argument was held on June 24, 2016.
STANDARD OF REVIEW
judgment is appropriate if, based on the parties'
statements of material fact and the cited record, there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. M.R. Civ. P. 56(c);
Dyer v. Dep'tof Transp., 2008 ME 106, ¶ 14,
951 A.2d 821. "A material fact is one that can affect
the outcome of the case. A genuine issue of material fact
exists when the fact finder must choose between competing
versions of the truth." Dyer, 2008 ME 106,
¶ 14, 951 A.2d 821 (internal citation and quotation
marks omitted). When deciding a motion for summary judgment,
the court reviews the evidence in the light most favorable to
the non-moving party. Id.
moving parly's motion for summary judgment is properly
supported, the burden then shifts to the non-moving party to
respond with specific facts indicating a genuine issue for
trial in order to avoid summary judgment. M.R. Civ. P. 56(e).
When a defendant moves for summary judgment, the plaintiff
must respond with evidence establishing a prima facie case.
Watt v. UniFirst Corp.,2009 ME 47, ¶ 21, 969
A.2d 897. The evidence proffered by the plaintiff "need
not be persuasive at that stage, but the evidence must be
sufficient to allow a factfinder to make a factual
determination without speculating." Estate of Smith
v. Cumberland Cnty.,2013 ME 13, ¶ ...