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Carey v. Maine Board of Overseers of Bar

Superior Court of Maine, Kennebec

January 3, 2018

SETH T. CAREY, Plaintiff,
v.
MAINE BOARD OF OVERSEERS OF THE BAR, et al., Defendants.

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT

          HON. WILLIAM R, ANDERSON JUSTICE

         On 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 ("MTCA").

         Because 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

         The 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[1] (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[2] [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.

         LEGAL STANDARD

         Summary 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 A.3d 1179.

         DISCUSSION

         The 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).

         Practically 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).

         It is 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.

         The 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 following:

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.)

         During 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. ΒΆΒΆ 9-10.) In fact, the written statement of self-insurance explicitly states that there is no insurance coverage "for ...


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