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Louisos v. Pompeo

Superior Court of Maine, Cumberland

March 19, 2018




         Before 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.


         This 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.)

         On November 16, 2016, plaintiff's attorney, David Weyrens, [1] 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.)[2] 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.)[3] 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. ¶ 18.)

         On 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.)[4] 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.)


         Summary Judgment

         Summary 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 (quotation omitted).

         Motion to Amend

         Rule 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 results.")


         Defendant's Motion for Summary Judgment

         Plaintiff 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 plaintiff's ...

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