United States District Court, D. Maine
ORDER ON DEFENDANT NETHERLANDS INSURANCE
COMPANY'S MOTION FOR SUMMARY JUDGMENT
E. WALKER U.S. DISTRICT JUDGE
Patricia Harnden filed this declaratory judgment action
asserting claims for breach of contract, violation of the
Maine Unfair Claims Settlement Practices Act, and violation
of the Maine Unfair Trade Practices Act. Compl. (ECF No. 1);
Amend. Compl. (ECF No. 6). Defendant Netherlands Insurance
Company - the sole remaining defendant - now moves for
summary judgment. Mot. Summ. J. (ECF No. 72).
reasons discussed herein, Defendant Netherlands Insurance
Company's Motion for Summary Judgment (ECF No. 72) is
summary judgment facts are drawn from the parties'
stipulations and statements of material facts submitted in
accordance with Local Rule 56. The Court will adopt a
statement of fact if it is admitted by the opposing party and
is material to the dispute. If a statement is denied or
qualified by the opposing party, or if an evidentiary
objection is raised concerning the record evidence cited in
support of a statement, the Court will review those portions
of the summary judgment record cited by the parties, and will
accept, for summary judgment purposes, the factual assertion
that is most favorable to the party opposing the entry of
summary judgment, provided that the record material cited in
support of the assertion is of evidentiary quality and is
capable of supporting the party's assertion, either
directly or through reasonable inference. D. Me. Loc. R. 56;
Boudreau v. Lussier, 901 F.3d 65, 69 (1st Cir.
December 28, 2015, Plaintiff Patricia Harnden was a passenger
in a vehicle owned and operated by Sylvia Parsons. Stipulated
Statement of Material Facts (“SMF”) ¶¶
1-2 (ECF No. 71, #391-92). While Ms. Parson's vehicle was
stopped or in the process of stopping at a red light, it was
struck from behind by a vehicle owned and operated by Mary
Ryan. SMF ¶ 3. Plaintiff asserts she suffered
“significant injury and damages” because of the
accident. SMF ¶ 4.
Ryan was determined to be the party at fault for the
accident. SMF ¶ 6. Mary Ryan was insured under a policy
issued by State Farm Mutual Automobile Insurance Company
(“State Farm”). SMF ¶ 5. This policy
included a Bodily Injury Liability Limit of $100, 000.00 per
person and $300, 000.00 per accident. SMF ¶ 5. Plaintiff
settled her claims against Ryan with State Farm in exchange
for a payment equal to the policy limit: $100, 000. SMF
Parsons and her vehicle were insured under a policy issued by
York Insurance Company of Maine. SMF ¶ 8. This policy
included coverage up to the policy limit of $500, 000 for
acts of underinsured motorists. SMF ¶ 10. This policy
contained an “Other Insurance” provision in the
Uninsured Motorist Coverage Endorsement which stated in
If there is other applicable insurance similar to the
insurance provided by this endorsement, we will pay only our
share of the loss. Our share is the proportion that our limit
of liability bears to the total of all applicable limits.
However, any insurance we provide with respect to a vehicle
you do not own, including any vehicle used as a temporary
substitute for “your covered auto”, shall be
excess over any other collectible insurance similar to the
insurance provided by this endorsement.
Def.'s Statement of Material Facts (“DSMF”)
¶¶ 1, 2 (ECF No. 73, #578); SMF, Ex. 4 at 75 (ECF
No. 71-4). Plaintiff settled her claims against York
Insurance Company in exchange for a payment of $100, 000 - a
figure far below the policy limit of $500, 000. SMF ¶
time of the accident, Plaintiff was insured under a policy
issued by Netherlands Insurance Company. SMF ¶ 12.
This policy included coverage for acts of underinsured
motorists up to the policy limit of $100, 000. SMF ¶ 14.
This policy also included an “Other Insurance”
provision in the Uninsured Motorist Coverage Endorsement
identical to the provision included in Parsons's York
Policy. DSMF ¶¶ 1, 3; SMF, Ex. 5 at 68
(ECF No. 71-5).
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). As cautioned by the Supreme Court,
“the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). A material fact is one that has the
potential to determine the outcome of the litigation.
Id. at 248; Oahn Nguyen Chung v.
StudentCity.com, Inc., 854 F.3d 97, 101 (1st
Cir. 2017). To raise a genuine issue of material fact, the
party opposing the summary judgment motion must demonstrate
that the record contains evidence that would permit the
finder of fact to resolve the material issues in her favor.
See Triangle Trading Co. v. Robroy Indus.,
Inc., 200 F.3d 1, 2 (1st Cir. 1999) (“Unless
the party opposing a motion for summary judgment can identify
a genuine issue as to a material fact, the motion may end the
motion, Defendant focuses on one narrow question:
“whether Plaintiff would be permitted to recover under
the Netherlands' Policy if her damages are in excess of
the amounts already recovered.” Mot. Summ. J., 3.
Relying on Tibbetts v. Dairyland Ins. Co., 2010 ME
61, 999 A.2d 930, Defendant asserts that it is the
“excess” underinsured motorist (“UM”)
insurer and, in light of the coverage provided by
Parsons's York insurance policy, has no liability to pay
any damages to Plaintiff. Mot. Summ. J., 3-7. In response,
Plaintiff agrees with the framework established in
Tibbets, but argues that under York Mutual
Insurance Company v. Continental Insurance Company, 560
A.2d 571 (Me. 1989), the York and Netherlands policies'
“Other Insurance” provisions are contrary to
Maine law and, therefore, should ...