CITY OF SOUTH PORTLAND et al.
MAINE MUNICIPAL ASSOCIATION PROPERTY & CASUALTY POOL
Argued: December 14, 2016
Pierce, Esq., (orally) and Sally J. Daggett, Esq., Jensen
Baird Gardner & Henry, Portland, for appellants City of
South Portland and Patricia Doucette.
M. Bowie, Esq., (orally) and Hillary J. Bouchard, Esq.,
Thompson & Bowie, LLP, Portland, for appellee Maine
Municipal Association Property & Casualty Pool.
ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
The City of South Portland and its Code Enforcement Officer
Patricia Doucette appeal from a summary judgment entered in
the Superior Court (Cumberland County, L. Walker,
J.). The court concluded that the Maine Municipal
Association Property & Casualty Pool had no duty to
defend the City of South Portland and Doucette in a federal
lawsuit challenging an ordinance. We agree that the Pool had
no duty to defend, not because, as the court concluded, the
complaint requested only nonmonetary relief, but rather
because any potential damages would be excluded from
coverage. We accordingly affirm the judgment.
The following facts, developed in the summary judgment
record, are undisputed. See N. E. Ins. Co. v. Young,
2011 ME 89, ¶ 5, 26 A.3d 794.
On July 21, 2014, the City Council of South Portland enacted
Ordinance #1-14/15. The Ordinance prohibits the bulk loading
of crude oil on marine tank vessels in South Portland. On
February 6, 2015, the Portland Pipeline Corporation and
American Waterways Operators (PPLC) filed suit against the
City of South Portland and Doucette in the United States
District Court for the District of Maine. The suit challenged
the legality of the Ordinance, arguing that the Ordinance was
unconstitutional, preempted by state and federal law, and
otherwise beyond the legislative authority of the
municipality. The complaint and prayer for relief requested
declaratory and injunctive relief and attorney fees pursuant
to 42 U.S.C.S. § 1988 (LEXIS through Pub. L. No 115-9).
In Count VII, PPLC alleged that the Ordinance "deprives
[PPLC] of [its] rights secured by the United States
Constitution . . . under color of state law, thereby
violating 42 U.S.C. § 1983." PPLC further alleged
in Count VII that it is "suffering and will suffer
irreparable harm as a result of being deprived of [its]
Constitutional rights and [is] entitled to declaratory and
injunctive relief against the City and Doucette in her
The Maine Municipal Association Property & Casualty Pool
is a public self-funded pool established pursuant to 30-A
M.R.S. §§ 2251-2256 (2016). The Pool provides
liability coverage to the City of South Portland and its
public officials pursuant to a Coverage Certificate. The City
notified the Pool of the PPLC lawsuit, tendered the
complaint, and requested a defense, which the Pool declined
to provide. The City has therefore funded its
own defense in the PPLC litigation.
Agreement H of the Coverage Certificate provides that the
Pool will "pay those sums which the Member shall be
obligated to pay by reason of liability imposed upon the
Member by law for damages, direct or consequential, as
defined by the term Ultimate Net Loss on account of any
Wrongful Act of the Member." Included within the
definition of "Wrongful Act" is a "violation
of civil rights protected under 42 U.S.C. § 1981 et
seq. committed by a Member ... solely in the course of
duties or activities for or on behalf of the Named
Member." Excluded from the definition of "Ultimate
Net Loss" are "punitive or exemplary damages ... or
injunctive, non-monetary or restitutionary relief."
There is an additional exclusion for "any claim or suit
seeking injunctive or non-pecuniary relief."
"Suit" is defined as "[a] civil proceeding in
which damages because of bodily injury, ' property
damage, ' personal injury, ' advertising injury,
' or wrongful acts to which this Certificate applies are
alleged." Exclusion C, titled the "TAKING AND OTHER
GOVERNMENTAL CONDUCT AFFECTING LAND AND PROPERTY RIGHTS AND
INTERESTS EXCLUSION, " provides:
This Certificate does not cover, and does not apply to, any
loss, damage, injury, claim, "suit" or liability
directly or indirectly (1) caused or occasioned by, happening
through, because or in consequence of, resulting from,
arising out of or in any way connected with the operation of
the principles of eminent domain, condemnation, inverse
condemnation, adverse possession, prescription, dedication by
adverse use, or any other similar principle, by whatever name
called; or (2) caused or occasioned by, happening through,
because or in consequence of, resulting from, arising out of,
in any way connected with, or constituting an impairment of
title, diminution of value, loss of value, inability to
realize or obtain full value, diminution of use, loss of use,
or inability to realize or obtain full use, of land or any
property right or property interest therein, allegedly or
actually caused by or resulting from governmental action,
omission or conduct of any nature, by whatever name called.
This exclusion applies whether or not any such loss, damage,
injury, claim, "suit, " or liability is asserted
against any Member directly or by virtue of because of any
agreement entered into by or on behalf of any Member.
On May 8, 2015, the City brought the present action in the
Superior Court (Cumberland County). The amended complaint
alleged a breach of the duty to defend. The City moved for
summary judgment on September 4, 2015, and the Pool moved for
summary judgment on October 20, 2015. The court (L.
Walker, J.) denied the Citys motion and granted the
Pools motion by written order. The court concluded that the
Pool had no duty to defend because the complaint, as drafted,
requested only declaratory and injunctive relief, not