D. Warren Justice
the court is a motion to dismiss by defendant Bernstein Shur
Sawyer & Nelson (BSSN).
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
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
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).
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.
of Limitations - Attorney Malpractice
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."
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.
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.
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.
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.
"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
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 ...