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Packgen Inc. v. Bernstein Shur Sawyer & Nelson P.A.

Superior Court of Maine

December 8, 2017

PACKGEN INC., Plaintiff


          Thomas D. Warren Justice

          Before the court is a motion to dismiss by defendant Bernstein Shur Sawyer & Nelson (BSSN).

         The amended complaint by plaintiff Packgen Inc. alleges that BSSN committed professional negligence by failing to properly serve a notice of claim under oath pursuant to 14 M.R.S. § 1602-B(5) against a company that had allegedly supplied defective laminate product to Packgen, Under 14 M.R.S. § 1602-B(5) prejudgment interest accrues from the time that a notice of claim under oath is served upon the defendant if a judgment is eventually obtained against the defendant.

         Packgen alleges that on May 29, 2008 a BSSN attorney served a notice of claim which was not under oath and then failed to serve any notice of claim under oath during the ensuing period when BSSN continued to represent Packgen. Packgen alleges that it retained new counsel in 2011 and that new counsel promptly brought suit against the supplier and recovered a substantial verdict. However, allegedly because the notice of claim had not been sworn, Packgen only recovered prejudgment interest from the date of the filing of the complaint. Packgen now seeks to recover damages from BSSN for the loss of that prejudgment interest.

          The issue presented by BSSN's motion to dismiss is whether on the fact of the complaint, Packgen's claims are barred by the statute of limitations. For 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 he might prove in support of his claim. Moody v. State Liquor & Lottery Commission, 2004 ME 20 ¶ 7, 843 A.2d 43. However, a plaintiff may not proceed if the complaint on its face shows that the claim asserted is barred by the statute of limitations. E.g., McAfee v. Cole, 637 A.2d 463, 465-66 (Me. 1994).

         Although the court is usually limited to the four corners of the complaint in deciding a motion to dismiss, it can consider official public documents, documents that are central to the complaint, and documents referred to in the complaint without converting a motion to dismiss into a motion for summary judgment. Moody v. State Liquor and Lottery Commission, 2004 ME 20 ¶¶ 9-10. In this case both parties have included in their motion papers documents from Packgen's lawsuit against the supplier and a tolling agreement effective December 11, 2015 between Packgen and BSSN referred to in the amended complaint.

         Statute of Limitations - Attorney Malpractice

         The alleged professional negligence occurred on May 29, 2008, and this action was not commenced until May 23, 2017 - almost nine years later. The applicable statute of limitations is six years from the date that a claim accrues. 14 M.R.SA. § 752. Moreover, for claims against attorneys alleging professional negligence, malpractice, or breach of contract for legal services, 14 M.R.S. § 753-B(1) expressly provides that, except in cases relating to the drafting of wills and the rendering of title opinions, "the statute of limitations starts to run from the date of the act or omission giving rise to the injury, not from the discovery of the malpractice, negligence, or breach of contract."

         If, as BSSN argues, Packgen's malpractice claim accrued on May 29, 2008, the statute of limitations would have expired on May 29, 2014. This would be true despite the tolling agreement entered in December 2015 because the tolling agreement did not save a claim that was already time-barred.

         In opposition to BSSN's motion, Packgen argues that its complaint alleges ongoing professional negligence that lasted until Packgen obtained new counsel in 2011. If this were sufficient to extend the statute of limitations, the action would be timely.[1]

         In support of this argument, Packgen contends that its action is timely under both what is known as the "continuing representation" doctrine and what is known as the "continuing negligence" doctrine. The continuing representation doctrine would toll the running of the statute of limitations until the professional relationship terminates with respect to the matter underlying the malpractice action. Nevin v. Union Trust, 1999 ME 47 ¶ 36, 726 A.2d 694, citing Smith v. Stacy, 482 S.E.2d 115, 120 (W.Va. 1996). It appears that the primary rationale for the continuous representation doctrine is that because of the relationship of trust between client and attorney, "there can be no effective discovery of the negligence so long as the relationship prevails." Smith v. Stacy, 482 S.E.2d at 121.

         The continuing representation doctrine is inconsistent with the Legislature's decision in 14 M.R.S. § 753-B(1) to reject a discovery rule and to require that the six year statute of limitations run from the act or omission giving rise to the injury. Indeed, in medical malpractice cases the Law Court has concluded that the medical analogue of the continuing representation doctrine - the "continuing course of treatment" doctrine - is precluded by 24 M.R.S. § 2902, which provides that a cause of action for medical malpractice "accrues on the date of the act or omission giving rise to the injury." Dickey v. Vermette, 2008 ME 179 ¶ 7, 960 A.2d 1178.

         The "continuing negligence" doctrine, in contrast, has been accepted by the Law Court in medical malpractice cases where a single cause of action arises from multiple acts or omissions that each contributed to the proximate cause of the harm complained so long as at least one of the allegedly negligent acts or omissions occurred within the three-year statute of limitations in 24 M.R.S. § 2902. Baker v. Farrand, 2011 ME 91 ¶ 29, 26 A.3d 806. In Baker, the plaintiff alleged that the defendant primary care physician had committed malpractice by failing to refer him to a urologist based on high PSA tests in each of the years 2002, 2003, 2004, and 2005. Only the tests conducted in 2004 and 2005 fell within the three year period before Baker had filed his notice of claim. 2011 ME 91 ¶¶ 3-5. The Law Court, however, found that Baker could pursue claims of alleged negligence for acts or omissions that had occurred more than three years prior to his notice of claim if, in combination with an act or omission that had occurred within the limitation period, those acts contributed to and were a proximate cause of Baker's harm.

         Packgen argues that the continuing negligence doctrine should also apply in legal malpractice actions. This may be correct. Even though the medical malpractice statute does not have the same express language precluding a cause of action from running from the date of discovery, the Law Court has interpreted both 24 M.R.S. 2902 and 14 M.R.S. § 753-B[l] as statutes of repose precluding a discovery rule. See Baker v. Farrand,2011 ME 91 ...

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