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Blackler v. Dairyland/Sentry Insurance Co.

Superior Court of Maine, Cumberland

December 1, 2016

MARK BLACKLER, Plaintiff,
v.
DAIRYLAND/SENTRY INSURANCE COMPANY, Defendant

          DECISION AND JUDGMENT

          A. M. Horton, Justice

         This civil action came before the court for a jury-waived trial November 22, 2016, with both parties participating through counsel and presenting evidence. The trial was electronically recorded. The only live witness was Plaintiff Mark Blackler, and the deposition testimony of Michael Brewer was also admitted by stipulation. After the trial, each party filed a post-trial memorandum..

         Based on the entire record, the court adopts the following findings of fact and conclusions of law and renders judgment as set forth below. All affirmative findings of fact are made by a preponderance of the evidence.

         1. At all relevant times, Plaintiff Mark Blackler has been a resident of Jefferson, Maine. He has been married to Tamara Blackler for about 28 years and they have two adult children. Mr. Blackler has been employed as a framing and finish carpenter for most of his career. Initially, he was working for other contractors but in the late 1990's or early 2000's he became self-employed. He has worked on various projects for various clients, including high-end clients. Due to the nature of his work, he has experienced some shoulder problems and has had cortisone injections in both shoulders to relieve pain.

         2. As of 2014?, Plaintiff owned a 2006 Harley Davidson motorcycle, VIN lHDlKAVl06Y694445, that was covered by a policy of insurance issued by Dairyland Cycle Insurance/Dairyland Insurance Company, having policy number ME174150800. The policy was in effect as of June 19, 2014 and applies to the accident that gives rise to this lawsuit.

         3. On June 19, 2014, Plaintiff Bladder was riding the motorcycle home from work northbound on Route 1 in Edgecomb. The day was warm and clear and the roads were dry.

         4. At about 5 p.m., not long after he had crossed the bridge from Wiscasset to Edgecomb, he was in a line of traffic traveling at or near the near the Pyro City Fireworks Store on the east side of Route 1. The speed limit in that area of Route 1 is 40 or 45 miles per hour, and the line of northbound vehicles within which Plaintiff was riding his motorcycle was traveling at or near the speed limit. The vehicle directly in front of Plaintiff stopped in the travel lane and signaled a left turn. It did not leave skid marks as it came to a stop. The vehicle was a small passenger car similar to a Toyota Corolla. It had stopped within the northbound travel lane.

         5. At that place, Route .1 consists of a travel lane in each direction, separated by a double yellow stripe. The outside edge of each travel lane is marked by a single white fog line stripe, beyond which there is a paved breakdown lane. At that place, the breakdown lane next to the northbound travel lane is wide enough to accommodate a medium to small sized car or a motorcycle like the one Plaintiff was driving. In other words, at the place where the left-turning car stopped in front of Plaintiffs motorcycle, there is ample room for northbound cars and motorcycles to pass a stopped, left-turning vehicle on the right, by entering the paved breakdown lane.

         6. When Plaintiff first saw that the vehicle had signaled a left turn, he logically and reasonably assumed, given that there was no oncoming traffic that the vehicle would complete the signaled turn. However, the vehicle did not turn-it could have turned because there was no traffic ahead of it, but Plaintiff then realized that the vehicle was not turning because there was no driveway or other area across the roadway for it to turn into. Plaintiff slammed on the brakes of the motorcycle to avoid colliding with the stopped vehicle, causing the motorcycle tires to leave a long, black skid mark on the pavement. The motorcycle started to slide sideways and Plaintiff had to let go of it. As the motorcycle went out from under him, he hit the pavement on his left side and rolled, while the motorcycle travelled a little farther.

         7. While he was braking, Plaintiff could hear the squeal of brakes behind him as the driver of the vehicle behind him also was trying to come to a stop. It turned out to be a tow truck operated by a driver named Michael Brewer. It stopped short of where Plaintiff and his motorcycle had ended up, and Mr. Brewer got out and came to Plaintiffs assistance.

         8. Although shaken up and injured, Plaintiff was able to stand up and walk. He began gathering broken pieces of the motorcycle from the roadway. Meanwhile, the driver of the stopped vehicle that had caused Plaintiff to crash got out of the vehicle and asked if Plaintiff was "OK." Exactly how Plaintiff responded is unclear, but he clearly was injured and shaken. In any case, the driver of the stopped vehicle returned to the vehicle and drove away, not making the left turn but continuing north. Neither the Plaintiff nor Michael Brewer noted the registration plate number on the vehicle before it departed, and neither the vehicle nor its driver has been located or identified.

         9. Both Plaintiff and Michael Brewer testified that the vehicle ahead of Plaintiff stopped very suddenly, although the fact that the vehicle left no skid marks as it stopped plainly suggests that it stopped much less suddenly than did Plaintiffs motorcycle when the Plaintiff braked.

         10. The parties stipulate that "Plaintiff incurred medical bills in the amount of $32, 107.67, as a result of injuries he received that were proximately caused by the event of June 19, 2014 that is the subject of this case." Plaintiffs and Defendant's Joint Stipulation ¶ 3. They also stipulate that, as a result of the June 19, 2014 accident, he had surgery on his left shoulder on January 28, 2015 and that his injuries were fully healed within eight to 12 months after the surgery. He thus claims no permanent impairment due to the accident, and no loss of income after the post-surgery recovery period of eight to twelve months.

         11. To recover under his own policy's uninsured or underinsured motorist provisions. Plaintiff essentially has the same burden of proof that he would have if the driver of the vehicle that stopped in front of Plaintiffs motorcycle were the defendant in this case. This is because the purpose of uninsured/underinsured motorist coverage is "to permit an injured party to receive the same recovery as would have been available to him or her had the tortfeasor ...


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