Wessner v. Montgomery

STATE OF MAINE SUPERIOR COURT

HANCOCK, SS. CIVIL ACTION

Docket No. CV- 02-4

ULE BAe Alaa

Thomas R. Wessner,

Plaintiff

v. Order (Defendant’s Motion

for Summary Tuggmpad t.‘ toe

LAW Lio st

John K. Montgomery,

Defendant way 5 2005

Pending before the court is the defendant’s motion for summary judgment. The

court has considered the submissions filed by the parties in connection with the motion.

This case arises out of an August 2001 incident in which the plaintiff alleges that

the defendant grabbed his wrist, causing personal injury and other damages. The record

on summary judgment establishes that at the time of the alleged incident, the plaintiff was

a golf professional and employed by the Castine Golf Club, and the defendant was the

club’s president. Defendant’s Statement of Material Fact (DSMF) J 2-3. Prior to the

incident spawning this lawsuit, the parties had some history of disputes relating to the

plaintiff’s employment and the golf club itself. Id., 4. On the day of the alleged

battery, the plaintiff, who was a salaried employee, was at work. DSMF { 6; Defendant’s

Reply Statement of Material Fact DRSMF) § 1. Shortly after noon, he used a golf cart to

drive to a general store to buy lunch. DSMF 7, 9. The store is not affiliated with the

golf club and is physically removed from the golf course. Plaintiff’s Statement of

Additional Material Facts (PSAMF) § 11. When the plaintiff went to the store, the

defendant was also present there to buy gas for his personal vehicle. PSAMF 49. The

defendant said to the plaintiff, “I want to know one thing.” Jd., §[ 10. The defendant then

grabbed the plaintiff’s arm and held on for several seconds, when the plaintiff freed

himself from the defendant.’ Id. The defendant chased the plaintiff to the golf cart that

the plaintiff had driven to the store. Id., 11. The defendant stood on the back of the cart

while the plaintiff drove it a short distance. Id., {] 11-12. The plaintiff then stopped the

cart, got out of it and ran across the street back to the golf course. Id., 12. The

defendant threw the cart keys at the plaintiff. Id., { 13.

At the time of the incident, the Castine Golf Club had worker’s compensation

insurance that provided coverage for compensable losses sustained by its employees.

DSMF J 18. Subsequent to the incident at issue here, the golf club filed a notice of claim

for compensation benefits. PSAMF { 13. The plaintiff himself did not do so. Id., 15.

However, the plaintiff has submitted at least some of his medical bills to the worker’s

compensation carrier, MEMIC. DRSMF { 2. As a result, at least some of the plaintiff's

medical bills have been paid by MEMIC, although the record does not establish that all of

the plaintiff’s bills have been paid in this way. POSMF ¥ 3. MEMIC declined to pay

wage benefits to the plaintiff, and the plaintiff did not challenge that decision. DSMF §

17.

In his motion, the defendant contends that he is immune from civil liability and

that the plaintiff’s exclusive form of relief is worker’s compensation benefits. See 39-A

MLR.S.A. §§ 104, 408.

In opposing the summary judgment motion, the plaintiff points out that the

defendant failed to raise statutory immunity as an affirmative defense. Immunity is an

affirmative defense that must be pleaded. M.R.Civ.P. 8(c). The defendant now moves to

amend his responsive pleading to include the affirmative defense of immunity. The court

grants that motion, and so the substance of the parties’ presentations may properly be

addressed.

The defendant contends that he is immunized from civil liability under the

provisions of the Worker’s Compensation Act (the Act). An employer and its employees,

supervisors and officers are “exempt from civil actions . . .involving personal injuries

sustained by an employee arising out of and in the course of employment,” if the

' The defendant denies that he engaged in any wrongful conduct. Plaintiff's Opposing

Statement of Material Fact (POSMF) { 2. The question presented here is whether the

defendant is statutorily immunized from civil liability, notwithstanding his denials of the

plaintiff’s factual allegations.

employer has secured the payment of worker’s compensation. 39-A M.R.S.A. § 104. In

those circumstances, an injured employee’s remedies are limited to the relief available

under the Act. 39-A M.R.S.A. § 408. These immunity and exclusivity provisions,

limiting the employee’s rights of action against the employer and its agents, are to be

applied in a “broad and encompassing” way. Cole v. Chandler, 2000 ME 104, J 10, 752

A.2d 1189, 1195. It protects an employer and the other prospective defendants identified

in section 104 from liability for intentional torts. Liv. CIN. Brown Co., 645 A.2d 606,

608 (Me. 1994). Thus, the remaining question is whether on this record there is a

genuine factual dispute affecting the defendant’ s argument that the plaintiff sustained his

injuries arising out of and in the course of his employment at the golf club.

These “arising out of and “in the course of” elements, when viewed in a

consolidated way, result in compensation coverage (and, conversely, employer immunity

from civil liability) for “injuries suffered while and because they [the employees] were at

work.” Comeau v. Maine Coastal Services, 449 A.2d 362, 366 (Me. 1982) (emphasis in

original). The question of an employer’s statutory immunity is a question of fact. Cole,

2000 ME 104, J 14, 752 A.2d at 1196.

An injury arises out of employment where there exists “some causal connection

between the conditions under which the employee worked and the injury which arose, or

that the injury, in some proximate way, had its origin, its source, its cause in the

employment.” Morse v. Laverdiere’s Super Drug Store, 645 A.2d 613, 614 (Me. 1994),

quoted in Easler v. Dodge, 1999 ME 140, J 6, 738 A.2d 837, 838-39. The “arising out

of” inquiry implicates a number of more specific factors. See Comeau, 449 A.2d at 367.

Application of those factors to the circumstances of this case does not establish this

element of statutory compensability as a matter of law. On the one hand, at least part of

the relationship between the parties derived from their common affiliation with the golf

course, and there had been a history of some disagreement or animosity between them

arising from issues relevant to the golf club. Further, one can argue that the plaintiff was

present at the store for reasons incidental to his employment. However, despite these

factors that support the defendant’s argument, the record does not conclusively establish

a causal connection between the damages claimed by the plaintiff and the circumstances

of his employment. The parties were at the store for personal reasons. The plaintiff was

taking a lunch break during his workday. Although arguably incidental to his job, that

circumstance creates a measure of distance from his employment conditions. Further, to

the extent revealed by the record at bar, the circumstances of the incident are too

ambiguous to establish as a matter of law that the injury had its cause in the plaintiff’s

employment. The record may suggest but does not establish that the defendant’s alleged

conduct resulting in personal injury to the plaintiff arose from or was created by the

latter’s employment at the golf club. Therefore, the record reveals a genuine issue of

material fact on this element of the defendant’s immunity defense, requiring a

factfinder’s assessment.

Second, the condition that the injury must be in the “course of employment” is an

inquiry that “relate[s] to time, place and circumstances under which the accident takes

place. An accident [occurs] in the course of employment when it occurs within the

period of employment at a place where the employee reasonably may be in the

performance of his or her duties or engaged in doing something incidental thereto.”

Northern Security Insurance Co. v. Dolley, 669 A.2d 1320, 1324 (Me. 1996), quoted in

Easler, 1999 ME 140, 7 5, 738 A.2d at 838. An injury is does not fall outside of the

scope of compensability under the Worker’s Compensation Act simply because it occurs

during a break. Northern Security Insurance Co., 669 A.2d at 1324. Rather, the ‘‘course

of employment” can cover events that occur “during the usual lunch hour, he [the

employee] being in any place where he may reasonably be in connection with his

duties....” Id. See also Easler, 1999 ME 140, J 5, 738 A.2d at 838 (“an accident that

occurs during an employee’s paid on-premises lunch break” is in the “course of

employment”).

The record reasonably supports a factual argument, made here by the defendant,

that the plaintiff was within the “course of employment” when he was present and

allegedly assaulted at the store. He was in close proximity to the golf course premises

"and traveled there on a golf cart, and from those circumstances one could infer that it was

reasonable and foreseeable for him to take his lunch there. However, this argument is not

as compelling as the employer’s contention in Easler, where the employee was at the

worksite when she sustained her injuries and was actually paid for the time set aside for

her lunch break. Here, the plaintiff was a salaried employee of the golf club and,

therefore, presumably would receive the same income whether or not he ate his lunch that

day. Further, he chose to buy his lunch at a location near but not on the employer’s

premises. These circumstances bring this aspect of the defendant’s immunity argument

into that realm where its resolution requires the judgment of a factfinder. In other words,

although one certainly could conclude that the relation between the injury and the

circumstances of employment is sufficient to satisfy the “course of employment”

criterion, the evidence supporting that argument is not sufficient to establish that

proposition as a matter of law.

The defendant urges finally that the plaintiff is precluded from contesting the

defense of statutory immunity because he (the plaintiff) has sought and accepted worker’ s

compensation benefits covering at least some of the medical expenses generated by the

defendant’s alleged misconduct. The record on summary judgment establishes that the

plaintiff submitted some of his medical bills for payment and that the golf club’s

compensation carrier may have paid those bills. However, the compensation proceeding

itself was initiated by the golf club, and the record does not include any evidence of an

adjudication that the plaintiff’s injuries were compensable.

As a general matter, an employee’s acceptance of compensation benefits paid

voluntarily by an employer’s carrier does not by itself preclude that employee from

obtaining civil redress from that employer. See 6 LARSON’S WORKERS’ COMPENSATION

LAW §102.03[5] (2002). If the rule were otherwise, an employer would be in a position

to foreclose civil liability by simply offering worker’s compensation benefits to an

injured employee who then accepts those benefits. Collins v. Grafton, Inc., 435 S.E.2d

37, 40 (Ga. 1993); Copass v. Illinois Power Co., 569 N.E.2d 1211, 1214-15 (Il. App.

1991); Kohler v. McCrory Stores, 615 A.2d 27, 32 (Pa. 1992). Rather, courts appear to

require a showing of additional circumstances beyond the mere acceptance of benefits in

order to establish either a valid election of remedies or an issue preclusive effect flowing

from the worker’s compensation process. See, e.g. Martin v. United States, 566 F.2d 895,

898 (4" Cir. 1977) (in order for an employee’s civil claim to be barred, the employee’s

conduct must evidence a “conscious intent” to elect the compensation remedy and waive

civil remedies); Kohler, 615 A.2d at 32 (absence of administrative adjudication defeats

employer’s claim of immunity). Here, the plaintiff's continuing acceptance of benefits,

demonstrated by his repeated acts of submitting medical bills for payment by the

compensation carrier, may be strongly suggestive of an election to seek relief under the

worker’s compensation laws and thus a waiver of his rights in the courts. See Martin,

566 F.2d at 898-99 (“More troublesome [to the plaintiff-employee’s civil Claim] is the

fact that plaintiff has continued to accept compensation despite the contradictory theory

of her tort claim.”).

Here, for the reasons noted above, there are genuine factual disputes on the

abstract questions of compensability under the Act. However, even if the plaintiff’ s

submission of medical bills for third-party payment estops him from arguing that his

injuries were compensable, the defendant would not be entitled to summary judgment.

As an affirmative defense, immunity must be proven by the defendant. Under the dual

persona doctrine, a co-employee or officer of an employer is not entitled to immunity

under the Worker’s Compensation Act if that putative defendant is sued and may be

liable “in a separate and distinct Capacity” from the one associated with his employment.

LaBelle v. Crepeau, 593 A.2d 653, 655 (Me. 1991). This limitation on immunity is

narrow. With a corporate defendant, the second persona of that entity must be so distinct

“that it constitutes a separate legal entity and creates a second set of obli gations to the

employee completely distinct from the duties of employment.” Liv. C.N. Brown, Co.,

645 A.2d 606, 609 (Me. 1994). Here, the plaintiff has not sued the defendant in an

employment related capacity, see LaBelle, 593 A.2d at 655 , the defendant’s presence at

the store was not related to work in any way, and there is a genuine issue of material fact

as to whether his conduct toward the plaintiff was causally related to work. Therefore,

the record on summary judgment leaves room for a genuine factual contention that the

defendant’s actionable conduct violated duties that were completely divorced from

circumstances inherent in the parties’ employment.

If the plaintiff alleged that, in the same circumstances otherwise present here, he

had been assaulted by a person who had no affiliation with the golf club, then there still

would be a genuine dispute of whether the plaintiff sustained his injuries in the course

and scope of employment. However, even if it were determined that the plaintiff’ s

injuries were compensable under the Act, then that hypothetical defendant would not be

immunized from civil liability. Rather, the provisions of 39-A M.R.S.A. § 107 would

allow the plaintiff to maintain a civil action against the tortfeasor. Similarly, when the

record here suggests that the defendant was at the store on his own time and not as part of

any employment-related activity, direct or incidental, a factfinder might legitimately

conclude that he was acting in a way utterly distinct from his employment capacity and

that any duty he owed to the plaintiff or standard of conduct imposed on him in that

circumstance was completely unrelated to his work persona. Accordingly, even if the

plaintiff is barred from arguing that his injuries are not compensable under the Worker’s

Compensation Act, there remains a material and factual issue about whether the

defendant’s persona implicated by the plaintiff’s allegations was work-related or

otherwise.

The court finds that the issues presented here, relating to the “arising out of,”

“course of employment” and waiver arguments, are close ones. However, the record

reveals sufficient facts to support factual contentions that a factfinder may need to

resolve.

The entry shall be:

The defendant’s motion to amend is granted. His responsive pleading is amended

to include affirmative defenses of immunity and exclusivity under the Worker’s

Compensation Act. The defendant’s motion for Summary judgment is denied.

Dated: April 21, 2003 ( | Wh

Justice Mae Superior Court

FILED &

ENTERED

APR 28 2003

SUPERIOR COURT

HANCOCK COUNTY