SETH T. CAREY, Plaintiff,
MAINE BOARD OF OVERSEERS OF THE BAR, et al., Defendants.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
WILLIAM R, ANDERSON JUSTICE
October 25, 2017, this Court issued an Order dismissing all
of Plaintiffs claims against the various Defendants other
than the state law tort claims against the governmental
entity Defendants. The Maine Board of Overseers of the Bar
(the "BBO"), the Maine District Court, the Office
of Clerk of Courts, and the Maine Commission on Indigent
Legal Services (collectively, the "Judicial/MCILS
Defendants") attached a "Statement Relating to
Self-Insurance Pursuant to 14 M.R.S.A. § 8116" to
their respective Motions to Dismiss in an attempt to show
each entity was immune under the Maine Tort Claims Act
it was not particularly clear to the Court what the document
was and whether it was prepared for litigation purposes, the
Court found it to be a proper circumstance in which to
convert the Motions to Dismiss filed by the above
governmental entities to motions for summary judgment.
See M.R, Civ. P. 12(b). The remaining parties were
ordered to file appropriate summary judgment paper work on a
briefing schedule in conformity with M.R. Civ. P. 7.
Accordingly, the BBO and Judicial/MCILS Defendants filed
respective Motions for Summary Judgment on the governmental
entity immunity issue with supporting Statements of Material
Fact on November 13, 2017. Pursuant to MR. Civ. P. 7(c)(2),
Plaintiffs oppositions were due twenty-one days after the
filing of the Motions, which was December 4, 2017. To date,
Plaintiff has not filed an opposition to either Motion.
However, even when a motion for summary judgment is
unopposed, the Court must still review the statement of
material facts submitted by a party moving for summary
judgment to determine whether the material factual assertions
are properly supported. See Cote Corp. v. Kelley
Earthworks Inc., 2014 ME 93, ¶ 8,
97 A.3d 127.
background of this case is thoroughly discussed in this
Court's Order from October 25, 2017, thus the Court will
spare the parties and any other readers from a detailed
recounting. For the purposes of this Order, Plaintiffs
remaining claims-the state law tort claims against the
government entity Defendants-are what matter. Those claims
are: Count I (Negligence); Count III (Negligence & Abuse
of Process); Count IV (Invasion of Privacy & Disclosure);
Count V (Defamation & False Light); Count VI (Malicious
Prosecution); Count VII' (Malicious Prosecution &
Abuse of Process); Count VII (Fraud Upon the Court); Count IX
(Misrepresentation); Count X (Conspiracy); Count XI
(Malicious Prosecution, Negligence, Abuse of Process); Count
XII (Tortious Interference with Prospective and Actual
Economic Advantage, Tortious Interference with Contractual
Relations); Count IXX [sic] (Negligent Infliction of Emotional
Distress); Count XX (Intentional Infliction of Emotional
Distress); and Count XXV (Invasion of Privacy-False Light).
Counts I, in, IV, V, VI, VIII, IX, X, XI, XII, IXX, XX, and
XXV are asserted against the BBO. Counts I, III, IV, V, VI,
VII, VIII, IX, X, XU, IXX, and XX are asserted against the
District Court. Counts I, IV, V, VI, VIII, IX, X, XII, IXX,
and XX are asserted against the Office of Clerk of Courts.
Counts I, III, IV, V, VI, VIII, IX, X, XII, IXX, and XX are
asserted against MCILS.
judgment is granted to a moving party where "there is no
genuine issue as to any material fact" and the moving
party "is entitled to judgment as a matter of law."
M.R. Civ. P. 56(c). A material fact is one capable of
affecting the outcome of the litigation. Savell v.
Buddy, 2016 ME 139, ¶ 19, 147 A.3d 1179. A genuine
issue exists where the jury would be required to "choose
between competing versions of the truth." MP Assocs.
v. Liberty, 2001 ME 22, ¶ 12, 771 A.2d 1040.
"Summary judgment is no longer an extreme remedy."
Curtis v. Porter, 2001 ME 158, ¶ 7, 784 A.2d
18. To survive a defendant's motion for summary judgment,
the plaintiff must establish a prima facie case for every
element of the plaintiffs cause of action. See
Savell, 2016 ME 139, ¶ 18, 147
common law of sovereign immunity in Maine "has been
entirely displaced and supplanted by the enactment of the
[MTCA]." Moore v. City of Lewiston, 596 A.2d
612, 614 (Me. 1991) (citing Darling v. Augusta Mental
Health Inst., 535 A.2d 421, 424 (Me. 1987)).
Accordingly, "[e]xcept as otherwise expressly provided
by statute, all governmental entities shall be immune from
suit on any and all tort claims seeking recovery of
damages." 14 M.R.S. § 8103(1) (2016). Under the
MTCA, a "'[governmental entity' [is] the State .
. . [which includes] the State of Maine or any office,
department, agency, authority, commission, board,
institution, hospital or other instrumentality of the
State." Id. §§ 8102(2), (4).
speaking, the MTCA provides governmental entities with a
broad grant of immunity from tort claims, subject to specific
statutory exceptions. See Darling, 535 A.2d at 424.
Through the MTCA, the State has only waived immunity for its
negligent operation of vehicles, negligent building and road
construction and maintenance, and negligent discharge of
pollutants, as well as "to the limits of the insurance
coverage" when the State purchases liability insurance
for coverage in areas in which it would normally be immune.
See 14 M.R.S. §§ 8104-A, 8116. When a
governmental entity has not waived the immunity granted by
the MTCA through the purchase of liability insurance,
"the governmental entity against whom a claim is made
bears the burden of establishing that it does not have
insurance coverage for that claim." Danforth v.
Gottardi, 667 A.2d 847, 848 (Me. 1995).
readily apparent that the BBO, the Maine District Court, the
Office of Clerk of Courts, and MCILS are governmental
entities within the meaning of the MTCA. The BBO is an
attorney disciplinary board established by the Maine Bar
Rules promulgated by the Supreme Judicial Court, the Maine
District Court is an arm of the State of Maine
Judicial Branch, the Office of Clerk of Courts is a part of
the legislatively-created Administrative Office of the Courts
and part of the Judicial Branch, and MCILS is a
legislatively-created commission. Each governmental entity
Defendant is covered by the provisions of the MTCA. 14 M.R.S.
§§ 8102(2), (4). Thus, they are immune unless that
immunity has been waived. See Darling, 535 A, 2d at
424. Plaintiff has not alleged any facts that the
governmental entities themselves have waived the broad
immunity granted to them under the MTCA (i.e., he has not
alleged any of the subject entities engaged in any negligent
operation of vehicles, negligent building and road
construction and maintenance, or negligent discharge of
pollutants). Because of this, the only way Plaintiff could
potentially recover from the entities is if any of the
entities maintains insurance coverage in areas for which they
would otherwise be immune under the MTCA. Each entity
maintains it has not waived this broad immunity through the
purchase of liability insurance.
Court has reviewed the BBO's and Judicial/MCILS
Defendants' respective Motions and Statement of Material
Facts, which are both properly supported by Assistant
Attorney General Thomas A. Knowlton's affidavit and
related exhibits, as well as Director of the Division of Risk
Management David Fitts' affidavit and related exhibit.
The relevant summary judgment record establishes the
David Fitts has been the Director of the Division of Risk
Management for the State of Maine at all times relevant to
the allegations in this case. (Fitts Aff. ¶ 1.) Mr.
Fitts maintains custody over all past and present insurance
policies for the State and is familiar with the insurance
coverage and self-insurance coverage provided to the State of
Maine, its agencies, and its employees. (Id. ¶
3.) Mr. Fitts is further responsible for administering the
State's self-insurance funds established by 5 M.R.S.
§§ 1731 & 1737. (Id. ¶ 4.)
Pursuant to 14 M.R.S. § 8116, if the State of Maine or
any of its agencies procures liability insurance, it must do
so through the Division of Risk Management. (Id.
¶ 5.) The Division of Risk Management maintains written
statements of self-insurance which set forth the financial
limits of liability and the scope of the liability assumed by
the State of Maine and its agencies, and Mr. Fitts is the
custodian of these statements. (Id. ¶ 6.) Mr.
Fitts has reviewed the written statement of self-insurance
that was in effect during the period relevant to the
allegations in this case. (Id. ¶ 8.)
all relevant times, including the period relevant to the
allegations in this case, neither the State of Maine nor any
of the governmental entity Defendants in this case have
procured commercial liability insurance which would provide
coverage for Plaintiffs claims. (Id. ¶ 7.)
Pursuant to this written statement of self-insurance,
coverage is only limited to the areas for which governmental
immunity has been waived per 14 M.R.S. § 8104-A.
(Id. ¶¶ 9-10.) In fact, the written
statement of self-insurance explicitly states that there is
no insurance coverage "for ...