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Diviney v. University of Maine System

Supreme Court of Maine

March 28, 2017

ALESHIAD. DIVINEY
v.
UNIVERSITY OF MAINE SYSTEM

          Argued: February 7, 2017

          William C. Herbert, Esq. (orally), Hardy, Wolf & Downing, P.A., Lewiston, for appellant Aleshia D. Diviney

          Christopher C. Dinan, Esq. (orally), Monaghan Leahy, LLP, Portland, for appellee University of Maine System

          Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          ALEXANDER, J.

         [¶1] Aleshia D. Diviney appeals from the grant of summary judgment for the University of Maine System (UMS) by the Superior Court (Kennebec County, Mullen, J.). The court concluded that Divineys tort claim was time barred by the Maine Tort Claims Act, because it was not filed within the statutory 180-day filing period pursuant to 14 M.R.S. § 8107 (2016), and that the statutory "good cause" justification for the delay in filing could not be demonstrated.

         [¶2] On appeal, Diviney argues that the court erred (1) because the issue of good cause presented a disputed material fact not appropriate for resolution on summary judgment; (2) in its "good cause" determination applying the plain language of section 8107 to the facts in the record; and (3) by failing to interpret section 8107s filing period to commence from the date the "good cause" for delay has been removed.[1] We affirm the judgment.

         I. CASE HISTORY

         [¶3] The following facts are viewed in the light most favorable to Diviney-the party against whom summary judgment was entered. See Remmes v. Mark Travel Corp., 2015 ME 63, ¶ 18, 116 A.3d 466.

         [¶4] On January 17, 2014, Aleshia D. Diviney was injured when she slipped and fell on ice outside of her dormitory, located on the University of Southern Maine (USM) Gorham campus. On February 3, 2014, Divineys father emailed USMs risk management office about his daughters injury. He explained that his daughter sustained a broken leg, torn ligaments, and required surgery because of the injuries. He also stated that he hoped the University would assume some degree of responsibility, because the incident stemmed from maintenance of walks, steps, and parking areas on the campus.

         [¶5] William Wells, Associate Vice President of Operations and Risk Management for USM, responded to the fathers email on February 6, 2014. In his email Wells expressed his sympathy for Diviney, and requested that she file an incident report. He also inquired as to whether she intended to file a claim. Divineys father responded on February 9, 2014, explaining that he and his daughter would not be involving legal counsel "because of.. . [their] faith that the University would be willing to satisfy the medical and other related expenses ... related to this incident without the need for legal counsel."

         [¶6] Wells did not respond to the fathers email or acknowledge receipt of Divineys incident report until March 18, 2014. He explained that "for whatever reason, " USM had not received the previous correspondence or the incident report, but he assured the father that the University was not ignoring the situation. Between March 20 and March 28, 2014, Divineys father and Wells continued to email about documentation needed for the investigation of the incident, including medical releases and Divineys incident report.

         [¶7] On March 28, 2014, Wells referred Divineys claim to the University of Maine Systems risk management department, which referred the case to John Glover at Cross Insurance.[2] That same day, Glover attempted to reach Diviney by phone and email to request a recorded statement about the incident and her treatment. Sometime between March 28 and April 2, 2014, Glover spoke with Diviney by phone to confirm a date to take her recorded statement. During that phone call Glover "advised [Diviney] that although she would probably not recover much from her claim, she would probably recover something, " and further stated that he would "get this worked out for [her]."[3]

         [¶8] By April 2, 2014, Glover had interviewed Diviney and also attempted to reach a witness who was with Diviney at the time of her fall. Due to "a series of issues, " however, Glover did not get a statement from that witness until May 5, ...


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