NELL SUTHERLAND, individually and as Personal Representative of the Estate of Scott Sutherland, Plaintiff
MAINE PUBLIC EMPLOYEES RETIREMENT SYSTEM, et al., Defendants
D. Warren Justice.
lawsuit concerns claims by Nell Sutherland, individually and
as Personal representative of the Estate of Scott Sutherland,
arising out of certain life insurance proceeds and
pre-retirement death benefits that were paid to Scott's
ex-wife, Diane Sutherland. In addition to her role as the
Personal Representative of Scott's Estate, Nell
Sutherland was married to Scott Sutherland when he died.
Diane Sutherland was paid the life insurance proceeds and
pre-retirement death benefits because, even after Diane and
Scott were divorced, Diane remained as Scott's designated
beneficiary for those benefits.
has asserted claims against MainePERS, against Lori Ann
Garside,  against Aetna, and against Diane. All have
moved to dismiss.
purposes of a motion to dismiss, the material allegations of
the complaint must be taken as admitted. Ramsey v. Baxter
Title Co., 2012 ME 113 ¶ 2, 54 A.3d 710. The
complaint must be read in the light most favorable to the
plaintiff to determine if it sets forth elements of a cause
of action or alleges facts that would entitle plaintiff to
relief pursuant to some legal theory. Bisson v. Hannaford
Bros. Co., Inc., 2006 ME 131 ¶ 2, 909 A.2d 1010.
Dismissal is appropriate only when it appears beyond doubt
that the plaintiff is not entitled to relief under any set of
facts that she might prove in support of her claim. Moody
v. State Liquor & Lottery Commission, 2004 ME 20
¶ 7, 843 A.2d 43. However, a plaintiff may not proceed
if the complaint fails to allege essential elements of the
cause of action. See Potter, Prescott, Jamieson &
Nelson P.A. v. Campbell, 1998 ME 70 ¶¶ 6-7,
708 A.2d 283.
discussed below, a number of the documents that are central
to plaintiffs claims are attached to the complaint and the
court can therefore consider those documents in considering
whether the complaint states cognizable claims. Moody v.
State Liquor & Lottery Commission, 2004 ME 20
1 - Plaintiffs Breach of Fiduciary Duty Claim
Count One of the complaint plaintiff asserts a claim for
breach of fiduciary duty against MainePERS, Garside, Aetna,
and Diane. A fiduciary relationship requires (1) the actual
placing of trust and confidence by the plaintiff in the
alleged fiduciary and (2) a great disparity or power and
influence. A sufficient disparity of power and influence may
be demonstrated by diminished physical or emotional capacity
on the part of plaintiff or by a letting down of all guards
and defenses. See Oceanic Inn Inc. v. Sloan's Cove
LLC, 2016 ME 34 ¶ 18, 133 A.3d 1021.
complaint does not contain any factual allegations that would
support the existence of a fiduciary relationship between
either Nell or the Estate and any of the defendants. As
discussed below, MainePERS and Aetna may have had a
contractual relationship with the Estate, but this does not
translate into a fiduciary relationship.
One of plaintiff s complaint is therefore dismissed.
2 - Plaintiffs Contract Claim
Two of the complaint alleges breach of contract against
MainePERS and Aetna. Nell Sutherland does not allege that she
had any contractual relationship in her individual capacity
with MainePERS or Aetna, so this claim can only be pursued by
Maine PERS and Aetna argue that even if a contractual
relationship existed with the Estate, there was no breach of
contract because they were statutorily obligated pursuant to
5 M.R.S. §§ 17952 and 18057 to pay the life
insurance and the pre-retirement death benefits to
Scott's designated beneficiary. The documents by which
Scott Sutherland designated Diane as the beneficiary for both
life insurance benefits and pre-retirement death benefits are
attached as Exhibit 3 to the complaint.
argues that those designations were superseded by provisions
of the Divorce Judgment and Divorce Settlement Agreement
between Scott and Diane which are attached to the complaint
as Exhibit 5. Because the beneficiary designations and the
Divorce Judgment and Divorce Settlement Agreement are central
to the Estate's claim, the court can consider them in
connection with the motion to dismiss. See Moody v. State
Liquor and Lottery Commission, 2004 ME 20 ¶¶
neither MainePERS nor Aetna were parties to the Divorce
Judgment and Settlement Agreement between Scott and Diane,
and the Estate cannot pursue a contract claim against
MainePERS or Aetna based on an ...