United States District Court, D. Maine
JOSEPH A. PINKHAM, Plaintiff
LIBERTY INSURANCE CORPORATION, D/B/A LIBERTY MUTUAL, Defendant
ORDER ON DEFENDANT'S MOTION TO DISMISS COUNT
Brock Hornby United States District Judge.
issue presented by this 12(b)(6) motion is whether Maine
common law allows an insured to recover his attorney's
fees when he successfully sues his insurer for benefits under
his homeowner's insurance policy. I conclude that it does
not, and Grant the defendant insurer's
motion to dismiss Count III of the insured plaintiff's
and Procedural posture
the facts as stated in the plaintiff's complaint. On
January 23, 2018, raw sewage was discharged into the
plaintiff's house for five hours causing extensive and
permanent damage to his house and its contents. Compl.
¶¶ 9-10 (ECF No. 1-1). The plaintiff made a claim
under his homeowner's insurance policy for reimbursement
of the resulting costs and losses. Compl. ¶¶ 6,
14-15. The defendant insurer denied the claim. Compl. ¶
plaintiff then filed this lawsuit in Maine Superior Court,
claiming breach of contract under the policy (Count I) and
unfair claims settlement practices in violation of 24-A
M.R.S. § 2436-A (Count II), and asserting a common law
right to attorney's fees (Count III). The defendant
removed the case to federal court based upon diversity of
citizenship and moved to dismiss Count III, the common law
attorney's fee claim. Notice of Removal (ECF No. 1);
Def.'s Mot. (ECF No. 9).
Maine, under the so-called American Rule, litigants pay their
own attorney's fees absent a statute, contractual
provision, or common law exception to the contrary.
Foremost Ins. Co. v. Levesque, 926 A.2d 1185, 1187
(Me. 2007). This generally includes breach of contract
actions. Gibson v. Farm Family Mut. Ins. Co., 673
A.2d 1350, 1354 (Me. 1996).
has both a statutory and common law exception permitting an
award of attorney's fees in actions establishing an
insurer's duty to defend. See 24-A
M.R.S. § 2436-B; Bucci v. Essex Ins. Co., 393
F.3d 285, 292 (1st Cir. 2005) (citing Gibson, 673
A.2d at 1355-56); see also Metro. Prop. & Cas. Ins.
Co. v. McCarthy, No. 2:12-CV-151-NT, 2015 WL 5440793, at
*2 (D. Me. Sept. 15, 2015) (noting that the common law
exception is “in some respects broader” than the
statutory exception). This lawsuit is not a duty to defend
also has a common law exception permitting an award of
attorney's fees in some duty to indemnify cases:
in Foremost, the Law Court extended the
Gibson rule “to declaratory judgment actions
by an insurer seeking a declaration that it has no duty to
indemnify.” Foremost, 926 A.2d at 1190. But
the lawsuit here is not a declaratory judgment
action brought by an insurer. That is critical, because
Foremost only allows for attorney's fees in such
actions. Id.; see also id. at 1186
(“The question in this case is whether [the insured] is
entitled to an award of attorney fees because he prevailed in
this declaratory judgment action brought by his insurance
company.”); id. at 1188 (framing the issue as
“whether an insurer is liable for the insured's
attorney fees when the insured has to defend against the
insurer's suit seeking a declaration that there is no
duty to indemnify”); id. at 1189 & n.3
(categorizing other states' case law based on whether it
allows attorney fees “when an insured defends a
declaratory judgment” or when “the insurer had
filed the declaratory judgment action”). The plaintiff
himself acknowledges this. Pl.'s Opp'n 3 (ECF No. 12)
(“In Foremost, the Law Court extended the
right of a prevailing insured to recover attorney's fees
and costs incurred in defending a Declaratory Judgment
action filed by the insurer.”) (emphasis
added). Foremost thus does not provide
him a common law right to attorney's fees should he
prevail on his coverage claim.
plaintiff suggests, some of the Foremost reasoning
might support an extension of the Gibson rule to
coverage claims brought by plaintiffs. It may very well be
that “[t]he harm to the insured wrongfully denied
[coverage] is the same whether the insured is defending
coverage litigation or is initiating coverage
litigation.” Pl.'s Opp'n 5; Foremost,
926 A.2d at 1188. But the Law Court has not yet said so, and
“[f]ederal court is not the place to make new state
law.” Town & Country Motors, Inc. v. Bill Dodge
Auto. Grp., Inc., 115 F.Supp.2d 31, 33 (D. Me. 2000).
to the Law Court
the plaintiff asks me to certify a question about the scope
of Foremost to the Maine Law Court pursuant to Me.
R. App. P. 25(a). Pl.'s Opp'n 6; see also 4
M.R.S. § 57 (giving the Law Court jurisdiction to answer
Court can hear certified questions that “may be
determinative of the cause” when “there are no
clear controlling precedents.” 4 M.R.S. § 57; Me.
R. App. P. 25(a) (same). “A question of state law may
be determinative of the cause when one possible answer will
produce a ‘final disposition of the federal
cause.'” Davies v. Datapoint Corp., No.
CIV. 94-56-P-DMC, 1996 WL 521394, at *2 (D. Me. Jan. 19,
1996) (quoting White v. Edgar, 320 A.2d 668, 677
(Me. 1974)). “Thus, unless one answer to a certified
question would dispose of this entire case, certification is
inappropriate.” Id.; accord Allen v.
Forest, 257 F.Supp.2d 276, 278 (D. Me. 2003)
(“[C]ertification is appropriate only if . . . the [Law
Court's] answer to the proposed state-law question will,
‘in at least one alternative, be determinative of'
the federal cause.”) (citations omitted); Hiram
Ricker & Sons v. Students Int'l Meditation Soc.,
342 A.2d 262, 264 (Me. 1975) (“‘Determinative ...