The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, SS. CIVIL ACTION
Docket No. CV-03-238
FILED& ENTERED |~~
SUPERIOR COURT
Diana Wood, UL O1 2004
Plaintiff
PENOBSCOT COUNTY
V. Order (Motions to Dismiss)
Patrons Oxford Mutual Ins. Co. et al.,
Defendants
Pending before the court are the motions to dismiss filed by the two defendants,
Patrons Oxford Mutual Insurance Company and Lori Perry. The court has considered the
parties’ written arguments on the motions.
In her complaint, Diana Wood makes the following allegations. On February 13,
1997, she was a passenger in a vehicle that was involved in a collision with another
vehicle, operated by Perry. Complaint at JJ 4-5. Perry operated her vehicle negligently,
Perry’s negligence caused that collision, and she (Wood) has suffered damages resulting
from the collision. Jd. at {][ 5-6. Wood had contact with employees and other
representatives of Perry’s insurer, Patrons Oxford, regarding her claim arising from the
February 1997 accident. Jd. at {| 7-12. Patrons Oxford’s employees told Wood that the
insurer would settle the claim and that they would “take care of her.” Jd. at { 8. In late
January 2003, a Patrons Oxford employee told Wood that the company needed an
updated medical report from her physician and that the settlement would be finalized
after the carrier received that report. Jd. at [{[ 8-9. The plaintiff requested the updated
report but did not receive it until late May 2003. Id., 10. Around that time, Patrons
Oxford advised Wood that the statute of limitations now barred any claim and that it
would not settle her claim. /d. at { 12. Patrons Oxford was aware of the statutory period
of limitations but falsely represented to Wood that “they were working with and for her.”
Id. at { 11. None of Patrons Oxford’s employees advised Wood of the statute of
limitations. Jd. Wood then alleges that Patrons Oxford’s actions “are binding on
Defendant Perry as her agent.” Jd. at {| 14. Wood commenced this action when she filed
the complaint on December 30, 2003, more than six years and 10 months after the
collision.
On the basis of her allegations, Wood makes five claims: in count 1, she alleges
that Patrons Oxford is liable to her for misrepresentation; in count 2, she alleges that
Patrons Oxford is liable to her on the basis of promissory estoppel; in count 3, she alleges
that Patrons Oxford is liable to her for intentional infliction of emotional distress (IIED));'
in count 4, she seeks punitive damages against Patrons Oxford; and in count 5, ona
conventional theory of negligence, she seeks recovery against Perry for the personal
injuries sustained in the 1997 accident. In count 5, Wood specifically alleges that her
negligence claim against Perry “remain[s] viable pursuant to 14 M.R.S.A. § 859 or other
provisions of the law.” Complaint at 27.
Perry has moved to dismiss the one claim asserted against her, and Patrons
Oxford has moved to dismiss Wood’s claims for misrepresentation, ITED and punitive
damages.”
Defendant Perry’s motion to dismiss
Perry has moved to dismiss Wood’s claim against her, arguing that the pleadings
establish that the claim is barred by the statute of limitations. In considering the merits of
a motion to dismiss, the court deems “all well-pleaded material allegations of the
complaint as admitted.” Culbert v. Sampson’s Supermarkets Inc., 444 A.2d 433, 434
(Me. 1982).
Wood has asserted one cause of action against Perry: a claim of negligent
operation of a motor vehicle, causing an accident that resulted in personal injury. The
pleadings in fact establish that the accident occurred more than Six years prior to the date
Wood commenced this action. Without more, Wood’s claim against Perry would be time
‘In its original form, count 3 of the complaint alleged negligent infliction of emotional
distress. Wood was given leave to amend count 3, so that it now alleges IIED.
* Patrons Oxford has not moved to dismiss Wood’s claim for promissory estoppel, found
in count 2 of the complaint.
barred. See 14 M.R.S.A. § 752. In light of this, Wood makes two arguments in
opposition to Perry’s motion: first, that the statute of limitations was tolled under 14
M.R.S.A. § 866 because Perry was out of state after the negligence claim had accrued
against her; and second, that due to circumstances of fraud, the period of limitations is
extended under section 859. Neither of these arguments is availing to Wood.
In support of her first argument, which is based on section 866, Wood has
submitted an affidavit of Andrew Miller, a private investigator. In the affidavit, Miller
states that he ran a “background check” on Perry and used a “computer software database
that I use to conduct background checks.” From that research, “[i]t appears” that Perry
lived in Michigan “some time between 1996 and 2003.” The submission of this affidavit
triggers the provision of M.R.Civ.P. 12(b) that, subject to the court’s discretion, allows a
party to submit extraneous material, which is then considered in connection with a
motion to dismiss. When a party proceeds in that way, the motion becomes governed by
rule 56. This, of course, changes the standard of analysis. “A motion to dismiss tests the
legal sufficiency of the complaint.” McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994). On
a motion to dismiss, the complaint must be examined "in the light most favorable to the
plaintiff to determine whether it sets forth elements of a cause of action or alleges facts
that would entitle the plaintiff to relief pursuant to some legal theory.” Jd. A dismissal is
proper “only when it appears beyond doubt that a plaintiff is entitled to no relief under
any set of facts that he might prove in support of his claim.” Hall v. Board of
Environmental Protection, 498 A.2d 260, 266 (Me. 1985). On the other hand, summary
judgment is proper if the record on summary judgment shows that there are no genuine
issues of material fact and that the movant is entitled to judgment as a matter of law. See
M.R.Ciy.P. 56. To survive a motion for a summary judgment, Wood must produce
evidence that, if produced at trial, would be sufficient to resist a motion for a judgment as
a matter of law. Rodrigue v. Rodrigue, 1997 ME 99, J8, 694 A.2d 924, 926.
Even if this were a situation appropriate for consideration of extraneous material,
the court concludes that Miller’s affidavit does not meet the criteria required for
affidavits under rule 56(e). Miller’s assertions regarding Perry’s whereabouts are not
based on personal knowledge. Further, the record does not demonstrate that the
substantive computer data is admissible, because the record that Wood has attempted to
create is devoid of any foundation demonstrating the admissibility of that information.
Therefore, the tolling provisions of section 866 are inapplicable.
Wood contends that she should have further opportunity to develop facts that may
have relevance to her argument under section 866. In fact, Wood filed a motion to
enlarge the time in which to respond to Perry’s motion. That motion was granted, and
she was given a deadline of 21 days from the date she received discovery responses
relevant to this issue. Wood in fact filed her response to Perry’s motion at bar. The court
must conclude from this scheduling format that Wood received the responses to the
discovery she propounded in order to address the issues raised in the motion at bar. She
may not now be heard to claim that she is unprepared to address the merits of Perry’s
motion.
Wood next contends that the provisions of section 859 operate to defeat Perry’s
motion. Section 859 identifies two circumstances, both fraud-related, where the period of
limitations begins to run upon a claimant’s discovery that she has a just cause of action:
first, where the prospective defendant fraudulently conceals the cause of action from the
claimant; and second, where the cause of action itself is “grounded in fraud.” See Akins
v. Firstbank, N.A., 415 A.2d 567, 569 (Me. 1980). An examination of the pleadings
reveals that neither of these circumstances is present here.
First, the complaint establishes that Wood herself was involved in the 1997
accident. She can make no claim that Perry fraudulently concealed the existence of her
negligence claim from her. Indeed, the essence of Wood’s claim against Patrons Oxford
is that Wood was fully aware of her personal injury claim arising out of the collision
allegedly caused by Perry’s fault, and that she made ongoing efforts to orchestrate a
resolution of that claim with the insurer.
Second, Wood’s claim against Perry is not “grounded in fraud.” Rather, by the
clear allegations in the complaint, it is a claim for negligence. Even with Wood’s
allegation that Patrons Oxford was Perry’s agent during the time Wood was
communicating with the carrier regarding her claim, any fraudulent conduct that Wood
ascribes to Patrons Oxford is immaterial to this second aspect of her analysis under
section 859, because Wood does not seek recovery from Perry on the basis of any
fraudulent conduct. Wood makes only one claim for fraud, and that is in count 1 (labeled
“misrepresentation”). Count 1 is directed exclusively against Patrons Oxford. Thus,
because Wood’s claim against Perry is not one for fraud, she is not entitled to the
delaying effect that section 859 otherwise might have on the moment when the period of
limitations on her cause of action against Perry began to accrue.
For these reasons, Perry’s motion to dismiss must be granted.
Patrons Oxford’s motion to dismiss
Patrons Oxford has moved to dismiss counts 1, 3 and 4, which set out liability
claims for misrepresentation and ITED, and a claim for punitive damages. This defendant
makes several arguments in support of its motion.
First, Patrons Oxford urges that it did not owe any legal duty to Wood and
therefore, as a matter of law, cannot be held liable for misrepresentation.’ In the
circumstances alleged by Wood, a claim for affirmative misrepresentation is not
predicated on an allegation or proof of a specific duty owed by one party to the other.
Were Wood making a claim that Patrons Oxford had a duty to disclose information to
her, she would be required to allege that she and the carrier stood in a confidential
relationship. See Brae Asset Fund, L.P. v. Adam, 661 A.2d 1137, 1140 (Me. 1995) (“The
law is well established that absent a fiduciary or confidential relationship, there is no duty
to disclose information. However, in her opposition to Patrons Oxford’s motion, Wood
argues that her claim is based on “specific misrepresentations” attributed to the carrier.
Further, she relies on legal authority that imposes liability for affirmative
misrepresentations, rather that a failure to disclose. Thus, although Wood’s complaint
may be seen to suggest that Patrons Oxford did not advise her of the statute of
limitations, her claim must be seen as one for affirmative misrepresentation, based on the
way she has defined her claim here.
“A defendant is liable for fraud or deceit if he (1) makes a false
representation (2) of a material fact (3) with knowledge of its falsity or in reckless
disregard of whether it is true or false (4) for the purpose of inducing another to
* Patrons Oxford advanced a similar argument in support of its motion to dismiss Wood’s
NIED claim, which is the way she originally characterized the claim in count 3 of her
complaint. As is noted above, Wood has amended her complaint to make clear that count
3 alleges a claim for ITED. Patrons Oxford has filed a separate motion to dismiss count 3
as amended. In the latter motion, Patrons Oxford does not make the duty-based argument
used to challenge the superseded NIED claim.
On
act or to refrain from acting in reliance upon it, and (5) the plaintiff justifiably
relies upon the representation as true and acts upon it to her detriment. Reliance
is unjustified only if the plaintiff knows the representation is false or its falsity it
known to her.
Francis v. Stinson, 2000 ME 173, { 38, 760 A.2d 209, 217 (citation and internal
punctuation omitted). As is revealed in this familiar formulation, the existence of a
particular duty between the specific parties is not an element of a claim for affirmative
misrepresentation. Rather, one’s legal obligation not to engage in fraudulent conduct is
inherent in the claim itself. Here, Wood’s allegations cover the elements of a claim for
misrepresentation, or fraud.
Next, Patrons Oxford observes that damages for misrepresentation are limited to
pecuniary losses and that general damages, such as pain and suffering, are not
compensable. See Chapman v. Rideout, 568 A.2d 829, 830 (Me. 1990). Wood does not
dispute this proposition of law. Because of this limitation on any damages that may be
recoverable in count 1, Patrons Oxford goes on to argue that Wood may not maintain an
action for ITED in count 3, because the latter claim has the same factual basis as the
misrepresentation ciaim, and because she cannot recover non-pecuniary damages for
misrepresentation, she cannot recover them for IJED.
This argument enjoys superficial support in Maine law. The Law Court has held
that the damages that ordinarily flow from an NIJED claim are not available when that
claim is based on the commission of a separate tort that does not allow recovery for
emotional distress. Curtis v. Porter, 2001 ME 158, | 19, 784 A.2d 18, 26. However, this
limitation on recovery for non-pecuniary damages must be seen in the context of the
Court’s discussion of the limited applicability of a proper NIED claim. See id., Jf 17-20,
784 A.2d at 24-26. On the other hand, “any person may be liable for the infliction of
emotional distress if the conduct causing the harm is sufficiently outrageous and is
intentional or reckless. ...” Id., [| 17, 784 A.2d at 25 (emphasis added). Thus, if Wood
proves that Patrons Oxford is liable for misrepresentation, then she is entitled to recover
compensatory damages for pecuniary losses caused by that actionable conduct.
However, if she also proves that Patrons Oxford committed the separate tort of IIED,
whether or not that proof overlaps with the proof establishing any misrepresentation, then
Wood is entitled to any damages that are available upon proof of IED. Her claim for
non-pecuniary damages is not foreclosed as a matter of law because of any identity of
factual allegations between her claims for misrepresentation and ITED.
In moving to dismiss Wood’s ITED claim, Patrons Oxford also argues that the
actionable conduct as alleged in the complaint could not be found to be “so extreme and
outrageous as to exceed all possible bounds of decency and must be regarded as
atrocious, utterly intolerable in a civilized community.” Curtis, 2001 ME 158, { 10, 784
A.2d at 22. When the complaint is viewed as deferentially as a motion to dismiss
requires, the court is unable to conclude that it would be impossible for Wood to prove
this aspect of her claim for ITED.‘
Finally, Patrons Oxford moves to dismiss Wood’s claim for punitive damages
because, it argues, her causes of action for the underlying torts are legally insufficient.
For the reasons noted above, Wood has stated colorable claims for misrepresentation and
for TED. These claims may generate proper consideration of an award of punitive
damages.
The entry shall be:
For the foregoing reasons, defendant Lori Perry’s motion to dismiss is granted.
The plaintiff's claim against her (count 5) is dismissed with prejudice because that claim
is barred by the statute of limitations. Perry is awarded her costs of court.
Defendant Patrons Oxford Mutual Insurance Company’s motion to dismiss is
denied.
The plaintiff’s motion to strike is dismissed as moot.
* Wood has moved to strike Patrons Oxford’s motion to dismiss her IED claim. Because
the court denies the motion to dismiss on its merits, Wood’s motion is moot. However, it
does reflect a misunderstanding of the court’s order enlarging the time in which she was
required to file a response to Patrons Oxford’s initial motion to dismiss. As is discussed
in the text, Wood sought a delay in her response deadline so that she could conduct
discovery germane to the issues raised in the defendants’ motions. She then filed her
responses. Subsequently, Patrons Oxford filed a separate motion to dismiss count 3 as
‘amended, because that amendment had been allowed after the issuance of the order
enlarging Wood’s response time. The very fact that Wood had already filed her
responses to the motions to dismiss evidences her readiness to do so. Further, Wood did
not seek a similar enlargement with respect to Patrons Oxford’s motion to dismiss
amended count 3. Thus, the court has treated this latter motion as ready for disposition.
Dated: June 30, 2004 p [jh
t t
Justice, Maind Superior Court
Jeffrey L. Hjelm
DIANA WOOD - PLAINTIFF
1616 HUDSON ROAD
HUDSON ME 04449
Attorney for: DIANA WOOD
N LAURENCE WILLEY JR
WILLEY LAW OFFICES
15 COLUMBIA STREET, SUITE 501
PO BOX 924
BANGOR ME 04402-0924
VS
PATRONS OXFORD MUTUAL INSURANCE CO - DEFENDANT
C/O MALCOLM PHILBROOK AGENT 178 COURT ST STE 2
AUBURN ME 04402
Attorney for: PATRONS OXFORD MUTUAL INSURANCE CO
TAYLOR DOUGLAS FAWNS
OFFICE OF WILLIAM J KELLEHER
7 EAST CRESCENT STREET
AUGUSTA ME 04330
Attorney for: PATRONS OXFORD MUTUAL INSURANCE CO
WILLIAM KELLEHER
OFFICE OF WILLIAM J KELLEHER
7 EAST CRESCENT STREET
AUGUSTA ME 04330
LORI PERRY - DEFENDANT
RR1 BOX 345
ETNA ME 04434
Attorney for: LORI PERRY
J WILLIAM DRUARY JR
MARDEN DUBORD ET AL
PO BOX 708
44 ELM STREET
WATERVILLE ME 04901-0708
Filing Document: COMPLAINT
Filing Date: 12/30/2003
Docket Events:
SUPERIOR COURT
PENOBSCOT, ss.
Docket No BANSC-CV-2003-00238
DOCKET RECORD
Minor Case Type: AUTO NEGLIGENCE
12/30/2003 FILING DOCUMENT - COMPLAINT FILED ON 12/30/2003
12/30/2003 Party(s): DIANA WOOD
ATTORNEY - RETAINED ENTERED ON 12/30/2003
Plaintiff's Attorney: N LAURENCE WILLEY JR
12/30/2003 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 12/30/2003
TO ATTORNEY FOR PLAINTIFF.
11/12/2004 Party(s): PATRONS OXFORD MUTUAL INSURANCE CO
DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 01/08/2004
DEFENDANT, PATRONS OXFORD INSURANCE COMPANY'S INTERROGATORIES PROPOUNDED TO THE PLAINTIFF;
DEFENDANT, PATRONS OXFORD INSURANCE COMPANY'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO
THE PLAINTIFF.
8 Printed on: 07/01/2004