ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT,
PLAINTIFF'S MOTION TO AMEND COMPLAINT, AND MOTION TO
INTERVENE OF PROGRESSIVE NORTHWESTERN INSURANCE
the court are defendant Peter Pompeo's motion for summary
judgment, plaintiff's motion to amend complaint, and
Progressive Northwestern Insurance Company's motion to
intervene. For the following reasons, the motion for summary
judgment is granted, the motion to amend complaint is denied,
and Progressive's motion to intervene is moot.
claim arises out of a car accident on August 27, 2011.
(Supp'g S.M.F.¶ 1.) Defendant was driving a vehicle
owned by Michael Hackett. (Supp'g S.M.F. ¶ 2.) Mr.
Hackett was insured by Concord General Insurance Company and
his policy limits were $100, 000.00. (Supp'g S.M.F.
¶ 3.) Defendant was insured by Progressive Northwestern
Insurance Company with policy limits of $500, 000.00.
(Supp'g S.M.F. ¶ 4.)
November 16, 2016, plaintiff's attorney, David Weyrens,
sent Concord a letter and demanded the policy limits to
settle the claim. (Supp'g S.M.F. ¶ 5.) On December
20, 2016, Progressive sent plaintiff's attorney a letter
stating that the policy limits for Kelly Pompeo's excess
policy were $500, 000.00. (Supp. S.M.F. 5 6.) The letter was
addressed to plaintiff's attorney at the address of
Zerillo Law Offices, as listed on the notice of claim,
dd.; Pl.'s Add. S.M.F. ¶ 5; Weyrens Aff. 5
8, Ex. C.) On December 21, 2016, Progressive's claims
representative sent an email to plaintiff's attorney and
a paralegal at his law firm. (Supp'g S.M.F. ¶ 7.)
Plaintiff does not deny that the letter and the email were
received. (Pl.'s Reply S.M.F. ¶ ¶ 6-7.)
Instead, plaintiff states that Attorney Weyrens "never
saw this letter prior to the execution of the release in this
matter." (Pl.'s Reply S.M.F. 5 7; Weyrens Aff.
¶ 18; Pl.'s Add. S.M.F. 5 18.) Attorney Weyrens
"assumed that Progressive's generic reference to the
Progressive coverage in the December 21, 2016 email referred
to Louisos'[s] coverage." (Pl.'s Add. S.M.F.
January 6, 2017, plaintiff executed a release agreement, in
which she released Mr. Hackett, Mr. Pompeo, and Concord from
all future claims resulting from the August 27, 2011
accident. (Supp'g S.M.F. ¶ 8; Pl.'s Add. S.M.F.
¶ ¶ 19-20; Brogan Aff. ¶ ¶ 4,
11-15.) Plaintiff filed this law suit against
defendant on August 25, 2017. (Supp'g S.M.F. 5 9.)
Defendant has asserted the affirmative defense of release and
accord and satisfaction. (Supp'g S.M.F. ¶ 10; Ans.
Affirmative Defenses 1-2.)
judgment is appropriate if the record reflects that there is
no genuine issue of material fact and the movant is entitled
to a judgment as a matter of law. M.R. Civ. P. 56(c). "A
material fact is one that can affect the outcome of the case,
and there is a genuine issue when there is sufficient
evidence for a fact-finder to choose between competing
versions of the fact." Lou gee Conservancy v.
CitiMortgage. Inc.. 2012 ME 103, ¶ 11, 48 A.3d 774
15(a) provides that leave to amend a pleading "shall be
freely given when justice so requires." M.R. Civ. P.
15(a); see Crysler Credit Corp. v. Bert Cote's L/A
Auto Sales. 1998 ME 53, ¶ 15, 707 A.2d 1311. When a
motion to amend is filed after a defendant has moved for
summary judgment, however, the proposed amendments must
"have substantial merit and be supported by substantial
and convincing evidence. In that context, a plaintiff's
motion to amend is an attempt to alter the shape of the case
in order to defeat summary judgment." Glassman v.
Computervision Corp.. 90 F.3d 617, 623 (1st
Cir, 1996) (citations omitted); see Resolution Trust
Corp. v. Gold. 30 F.3d 251, 253 (1st Cir.
1994); see also Northeast Federal Credit Union v.
Neves. 837 F.2d 531, 536 ("Federal courts need not
tiptoe through empty formalities to reach preordained
Motion for Summary Judgment
has failed to raise an issue of material fact regarding the
validity of the January 6, 2017 release. See Glvnn v.
Atlantic Seaboard Corp.. 1999 ME 53, ¶ 10, 728 A.2d
117 (stating that a valid release will extinguish a cause of
action but a release will be set aside if it is the product
of fraud, misrepresentation, or overreaching); Dowling v.
Bangor Hous. Auth.. 2006 ME 136, ¶ 16, 910 A.2d 376
(reliance on a purportedly fraudulent misrepresentation is
unjustified if the plaintiff knows the representation is
false). Communications from Progressive about excess policy
limits of $500, 000.00 for this accident were received by