# Wilcox v. City of Portland

> Superior Court of Maine · September 10, 2008

URL: https://www.frixlaw.com/law-library/cases/10809068

## Case

- **Court:** Superior Court of Maine
- **Decided:** September 10, 2008
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Thomas D. Warren
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTIONS
Docket Nos. CV-06-444,
CV-06-445, CV-06-446,
CV-06-447, CV-06-448,
CV-06-449, CV-06-450,
CV-06-451, CV-06-452,
CV-06-453, CV-06-454,
CV-06-469, CV-07-91
I i i\jJ - (v {.- D, . 0 "-.,,';
\j.J ~
I
\,,>,

AlVIANDA SUE WILCOX, et al.,

Plaintiffs,

v. ORDER
;.:... • ..J (

CITY OF PORTLAND,

Defendant/Third-Party Plaintiff,

v.

SCOTIA PRINCE CRUISES LTD,
0,)

Third-Party Defendant.

Before the court in these consolidated cases is the City of Portland's motion for

summary judgment based on the various immunities contained in the Maine Tort

Claims Act.

Plaintiffs are thirteen individuals who worked at Portland's former International

Marine Terminal and allege that as a result of the City's negligence in maintaining and

repairing the terminal, they were exposed to airborne biotoxins emanating from mold

in the terminal and have developed various resulting illnesses.

Each of the thirteen plaintiffs have filed individual lawsuits against the City, and

those lawsuits have been consolidated for purposes of considering the City's

immunities under the Maine Tort Claims Act and for purposes of liability. See Order of

December 6,2006. The parties have also agreed to conduct this litigation in stages with
the first stage focusing on the immunity defenses raised by the City.l In three of the

cases - the cases brought by plaintiffs Barry Bartlett, Sadie Thomas-Frye, and Hayley

Saunders, who were not employees of Scotia Prince Cruises Ltd. - the City has filed

third-party complaints against Scotia Prince Cruises, but the third-party claims are not

directly at issue on the instant motion.

1. Summary Judgment

Summary judgment should be granted if there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. In considering a

motion for summary judgment, the court is required to consider only the portions of the

record referred to and the material facts set forth in the parties' Rule 56(h) statements.

E.g., Johnson v. McNeil, 2002 ME 99 <][ 8, 800 A.2d 702, 704. The facts must be considered

in the light most favorable to the non-moving party. [d. Thus, for purposes of

summary judgment, any factual disputes must be resolved against the movant.

Nevertheless, when the facts offered by a party in opposition to summary judgment

would not, if offered at trial, be sufficient to withstand a motion for judgment as a

matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99

<][ 8, 694 A.2d 924, 926.

In this case, because so many potential immunity issues and so many plaintiffs

are involved, the parties' respective statements of material facts total 346 paragraphs.

The court will not recite or attempt to summarize those facts except to the extent that

they are crucial to a ruling on the motion.

1 The parties have deferred one immunity issue - whether the City has waived immunity (at
least to some extent) because it is named as an additional insured on certain insurance policies
obtained by third-party defendant Scotia Prince Cruises Ltd. See 14 M.R.S. § 8116.

2
As will be discussed below, the immunity defenses raised by the City in this case

not only raise a number of unsettled issues under the Maine Tort Claims Act but also

raise difficult and unsettled issues with respect to general tort law. These include (1)

under what circumstances a "discovery rule" should be applied in connection with the

statute of limitations, (2) whether the "continuing tort" doctrine should be applied in

this case, and (3) the applicability of a statutory damage cap in cases involving multiple

plaintiffs who are all potentially subject to the same cap.

2. Public Building

Under 14 M.R.S. § 8103(1) the City, as a governmental entity, is immune from

suit on any tort claims seeking recovery of damages except as expressly provided by

statute. Plaintiffs contend that their claims are permitted by 14 M.R.S. § 8104-A(2),

which provides, with several exceptions not pertinent to this case, that a governmental

entity is liable for "its negligent acts or omissions in the construction, operation or

maintenance of any public building." Plaintiffs contend that this case arises from the

City's negligence in the operation or maintenance of a public building. The City

contends that despite its ownership of the terminal, the terminal does not fall within the

definition of a "public building" under § 8104-A(2).

The Law Court has most recently and most comprehensively considered the

issue of what constitutes a "public building" in Rodriguez v. Town of Moose River, 2007

ME 68 CJICJI 30-33, 35, 922 A.2d 484, 492-94. Under that case, the relevant criteria to be

considered include whether a building is accessible to the public, is owned by the

government, serves a public purpose, provides services to the people on a business

3
basis, and is under some degree of governmental control. Id. <JI<JI 32-33, 35, 922 A.2d at

493 citing, inter alia, to Black's Law Dictionary and Webster's Third New International,2

Based on these criteria, the court concludes that plaintiffs have at least raised

disputed issues of fact as to whether the terminal was a "public building." The terminal

consisted of two buildings, both owned by the City and both accessible to the public ­

specifically, members of the public traveling on the Nova Scotia ferry or meeting

passengers on that ferry.3 Portions of the East Building were leased to Scotia Prince

Cruises on a "non-exclusive" basis with portions designated as a "shared use" area

between Scotia Prince Cruises and the City. E.g., Schrader Ex. 3. Moreover, the portion

of the East Building that was used by u.s. Customs was owned by the City and was not

leased on either an exclusive or non-exclusive basis.

There is also evidence that maintaining some kind of an International Marine

Terminal served a public purpose in promoting and facilitating Portland's role as a

port. 4 In addition, plaintiffs have offered evidence that, even with respect to the

portions of the terminal that were subject to the exclusive use of Scotia Prince Cruises,

the repair and maintenance of the entire terminal remained under a considerable degree

of City control.

2 It is not necessarily required that all of these criteria be met. In Rodriguez a building was
found to constitute a "public building" within the meaning of 14 M.R.S. § 8104-A(2) even
though it was privately owned and had not been leased to any governmental entity. Moreover,
jails and prisons have generally been found to be "public buildings" even though they are not
accessible to the general public.
3 The West Building was less accessible to the public, but that was where the ticket office was
located.
4 The proposition that maintaining Portland's role as a port is a public purpose is demonstrated
by the fact that since 1999, the City has been engaged in a project to develop a new, more
modern terminal (Ocean Gateway). The City thus obviously perceives that the existence of such
a terminal serves a public purpose. This is not a case where the City owned a building that it
had no current use for and had therefore leased it to a private entity for whatever uses the
private entity might choose to undertake.

4
On this record, the City is not entitled to summary judgment on the basis that the

terminal was not a "public building."

3. Lease Exception

Section 8104-B of the Tort Claims Act provides that, notwithstanding the waiver

of immunity for negligence in the operation or maintenance of a public building, a

governmental entity is not liable for any claim which "results from ... the leasing of

governmental property, including buildings." 14 M.R.S. § 8104-B(6). It is undisputed,

moreover, that at least part of the terminal was leased to Scotia Prince Cruises, and that

10 of the 13 plaintiffs were employed by Scotia Prince Cruises. Two other plaintiffs,

although apparently employed by the Nova Scotia Tourist Office, also worked in areas

that had been leased to Scotia Prince Cruises. s

There is no Law Court precedent on the breadth or meaning of the "lease"

exclusion. At the outset, the court interprets § 8104-B(6) as a measure designed to shield

the City from liability on tort claims arising in connection with leased property. This is

true for several reasons. First, although plaintiffs appear to argue that § 8104-B(6) only

excludes tort claims that directly arise out of the lease process itself, it is difficult to

imagine what purpose would be served by the lease exception if this were true. The

court is unable to think of any tort claims that would directly arise out of the lease

process. Second, any doubt as to whether § 8104-B(6) should be interpreted to shield

the City from tort claims by persons who are present on government-owned property

that has been leased to non-governmental agencies is resolved by the principle that

5 Only plaintiff Bartlett appears to have worked in an area of the terminal that was not subject
to a lease on either a non-exclusive or exclusive basis.

5
exceptions to sovereign immunity are to be narrowly construed. New Orleans Tanker

Corp. v. Department of Transportation, 1999 ME 67 ~ 5,728 A.2d 673,675.

A more difficult question involves whether a governmental entity should have

immunity from claims arising from the operation or maintenance of a public building

that has been leased under circumstances where the governmental entity has retained

control over maintenance and repairs of the building in question. An even more

difficult question is presented when - at least as to part of the public building in

question - the lease is for non-exclusive use and the governmental entity is also, under

the terms of the lease, using a portion of the leased premises on a "shared use" basis.

The lease provision was originally enacted in 1986 as part of legislation

authorizing state agencies to lease unused space to not-for-profit organizations. Laws

1985, c. 758. The legislation in question contained two provisions addressed to liability.

The first, contained in the provisions authorizing the leasing of state property and now

codified in 5 M.R.S. § 1786, provided as follows:

Whenever a lease is offered to or signed by another organization
pursuant to this chapter, the lease conditions shall clearly state that
the State or any State agency shall not be liable for any personal
injury or death or any property damage sustained as a result of the
lease of the available facility in accordance with this chapter. The
State shall not be liable for any actions of the lessee or the
employees of the lessee.

The second provision was an amendment to the Tort Claims Act providing that

notwithstanding the statutory provision waiving immunity in certain instances,6 a

governmental entity shall not be liable for any claim which results from "leasing of

state-owned property." Laws 1984, c. 758 § 2.

6 At that time waivers of immunity were contained in 14 M.R.S. § 8103. In the 1987
amendments to the Tort Claims Act, the provisions waiving immunity were recodified in §
8104-A.

6
The relevant statement of fact, L.D. 2291, 112th Legis., 2d Sess. 9 (1986), recites

that the State is not liable for any death, personal injury, or property damage "resulting

from the lease of available State facilities to not for profit organizations." As is apparent

from the language recited above, however, the Tort Claims Act amendment language

covered leasing of state-owned property in general, not just leasing to not-for-profits.

Subsequently in Laws 1987, c. 740 § 4, the Tort Claims Act exclusion was

broadened to cover leasing of governmental property in general, not just State-owned

property. The provision was added in by committee amendment. See Committee

Amendment"A" to L.D. 2443, 113th Legis. 2d Sess. (1988). The Committee file contains

a document prepared by the Maine Municipal Association which contains the proposed

change that was eventually enacted to § 8104-B(6) and which recites that the proposed

amendment in question "is designed to extend to other governmental entities the

immunity now enjoyed by the State in relation to the leasing of property, including

buildings."

The legislative history thus does not shed light on whether the immunity for

claims resulting from the leasing of property was intended to apply even when, as in

this case, there is evidence that the City retained control over maintenance and repair of

the leased premises except with respect to repairs costing less than $100. See, e.g., City's

Statement of Material Facts <JI 32. It also offers no assistance as to whether the provision

applies when the lease by its terms covers the "non-exclusive" use of certain specified

portions of the premises. See, e.g., Schrader Exs. 2, 3 (reference to "exclusive use" and

"shared use" areas); 1986 Lease §§ 3.1, 3.2 (Exhibit B to Plaintiffs' SMF).

Since a landlord generally cannot be held liable for conditions on premises unless

it has retained control over the areas where the conditions in question exist, see, e.g.,

Nichols v. Marsden, 483 A.2d 341,343 (Me. 1984), the lease exclusion would not appear to

7
serve any purpose if it did not apply in cases where the governmental lessor retained

control. Even if the court were to conclude, however, that the broad language of the

leasing provision, interpreted in light of the principle that exceptions to sovereign

immunity are to be narrowly construed, immunizes the City from all claims arising

within the leased area, exclusive or not, the City is not entitled to summary judgment

on this record. As noted above, at least one plaintiff worked in the Customs area which

was not the subject of any lease. Moreover, given the non-exclusive use provisions and

the fact that the Customs portion of the East Building was not leased, the lease is at best

ambiguous as to whether areas such as the walls of the passenger terminals and the

restrooms - among the areas where mold was found, see Plaintiffs' Statement of

Additional Material Facts <]I 40 - were covered by the lease. However broadly it might

otherwise be interpreted, § 8104-B(6) does not immunize the City from claims arising

from portions of a public building that were not the subject of a lease.

Moreover, plaintiffs have offered evidence that based on the presence of mold,

they were exposed to airborne biotoxins which migrated throughout the terminal and

originated from all parts of the terminal, not just from specific places within the

terminal. See Plaintiffs' Statement of Additional Material Facts <]I<]I 44-47. Based on the

summary judgment record, therefore, the court cannot grant summary judgment

against those plaintiffs who only worked within leased areas since it cannot be ruled

out at this stage that they were exposed to biotoxins from areas that were not leased. 7

7 In addition, the summary judgment record also indicates that many plaintiffs worked in more
than one area of the terminal.

8
4. Discretionary Function

The City contends that it is alternatively entitled to immunity under another

provision of § 8104-B, which provides that notwithstanding Section 8104-A, a

governmental entity is not liable for any claim which results from "[p]erforming or

failing to perform a discretionary function or duty." 14 M.R.S. § 8104-B(3).

Specifically, the City contends that it made a discretionary policy decision as to

how to allocate scarce resources available for port facilities between the existing and

antiquated International Marine Terminal and the new Ocean Gateway Project, and its

alleged failure to maintain and repair the terminal and prevent the mold problem

should therefore be immunized under the discretionary function provision.

The Law Court has frequently referred to a four part test, first announced in

Darling v. AMHI, 535 A.2d 421, 426 (Me. 1987), to determine whether discretionary

function immunity applies:

1. Does the challenged act, omission, or decision necessarily
involve a basic governmental policy, program or objective?

2. Is the questioned act, omission, or decision essential to the
realization or accomplishment of that policy, program, or
objective as opposed to one which would not change the
course or direction of the policy, program, or objective?

3. Does the act, omission, or decision require the exercise of
basic policy evaluation, judgment, and expertise on the part
of the governmental agency involved?

4. Does the governmental agency involved possess the
requisite constitutional, statutory, or lawful authority and
duty to do or make the challenged act, omission, or decision?

Accord, Rodriguez, 2007 ME 68 <JI 22, 922 A.2d at 490; Norton v. Hall, 2003 ME 118 <JI 7, 834

A.2d 928, 931; Roberts v. State, 1999 ME 89 <JI 8, 731 A.2d 855, 857; Adriance v. Town of

Standish, 687 A.2d 238, 240 (Me. 1996).

9
It is not always easy to determine how this test will be applied in any given case.

For instance, it is difficult at first glance to see how the action complained of in Roberts

v. State, 1999 ME 89 <JI 2, 731 A.2d at 856, constituted a policy decision or an action

essential to the realization of a governmental program. The Law Court has also looked

beyond the four factor test to consider such factors as whether the action in question

was "uniquely governmental" in nature, Tolliver v. MDOT, 2008 ME 83 <JI 17, 948 A.2d

1223, 1229; whether it resembles activities performed by non-governmental actors,

Adriance, 687 A.2d at 241; and whether or not the action is "operational" in nature.

Rodriguez, 2007 ME 68 <JI<JI 22-23, 922 A.2d at 490.

In the court's view one useful method of analysis is to consider whether, as a

matter of public policy, the action for which discretionary immunity is sought involves

decisions that governmental officials should be allowed to make without considering

the possibility of liability. In other words, if the threat of liability could influence a

decision maker to avoid taking action that might be in the public interest, then

immunity should be available. On the other hand, where the threat of liability would

influence decision makers to take safety precautions with no detriment to the public

interest, immunity should be less readily available.

Considering the various tests that have been proposed, the court concludes that

the alleged actions complained of in this case - negligently failing to take remedial

action with respect to a hazardous condition of which the City knew or should have

known - are not entitled to discretionary immunity. The actions in question are

operational in nature. The City's actions as a landlord are not "uniquely governmental"

but resemble as those of a private landlord. Nor can the court discern any reason why

permitting the claims to go forward could negatively influence governmental decisions

that should be made in the public interest. For purposes of discretionary function

10
immunity, it is in the public interest if the threat of liability provides an incentive for a

municipality to take action to prevent the creation of health hazards in a city-owned

building. As the Law Court noted in Rodriguez, if discretionary immunity were

available in such situations governmental entities "could be immune from suit for

allowing the persistence of hazardous conditions on property that they are required to

maintain." 2007 ME 68 Cf[ 23, 922 A.2d at 490-91.

Finally, the City's argument that the problem here resulted from a discretionary

decision as to the allocation of resources does not convince the court that summary

judgment should be granted on discretionary function immunity. While that argument

may have validity where more uniquely governmental functions are involved/ the Law

Court recently rejected such a rationale in Tolliver v. MOOT, 2008 ME 83 Cf[Cf[ 23-25, 948

A.2d at 1231-32, noting that once the discretionary decision to undertake road repairs is

made, the operational decisions made in performing those repairs are not entitled to

immunity.

This case may involve higher-level decision-making than Tolliver, but at least on

this record there are factual issues for trial as to whether any allegedly negligent failure

to recognize and prevent the mold problem resulted from discretionary policy decisions

or operational decisions. 9

5. Timeliness

Under the Tort Claims Act, unless good cause is shown, a notice of claim must be

filed with the governmental entity within 180 days after the cause of action accrues. 14

8 See Chiu v. City of Portland, 2002 ME 8 <j[<j[ 19-24, 788 A.2d 183, 189-90 (allocation decisions with
respect to enforcement of housing code).
9 In this context, the court notes that the City has not offered evidence that it was aware of the
mold problem and the potential health hazard but made a policy decision (1) not to remedy or
prevent the problem and also (2) not to shut down the terminal.

11
M.R.S. § 8107(1). In addition, a lawsuit must in any event be commenced within 2 years

after the cause of action accrues. 14 M.R.S. § 8110. 10 In this case notices of claim were

filed on February 7, 2005 for all plaintiffs except Barry Bartlett (notice filed May 20,

2005) and Hayley Saunders (notice filed May 23,2005). Moreover, with two exceptions,

all these actions were commenced on August 14, 2006. The two exceptions are George

Wardwell (complaint filed August 21, 2006) and Hayley Saunders (complaint filed

February 20, 2007).

With the exception of Barry Bartlett, if the claims of the parties were timely under

the two-year statute of limitations in § 8110 they will necessarily also be timely under

the 180-day notice of claim provision. Thus, the claims of the ten plaintiffs other than

Bartlett who filed their complaints on August 14, 2006 will be timely so long as their

causes of action accrued on or after August 14, 2004. The three remaining plaintiffs are

Barry Bartlett, George Wardwell, and Hayley Saunders. Bartlett filed his complaint on

August 14, 2006 but because he did not file his notice of claim until May 20, 2005, his

cause of action had to have accrued on or after November 21, 2004 (unless there was

good cause for a delay in the filing of his notice of claim). George Wardwell filed his

complaint on August 21, 2006, so his claims will be time barred unless they accrued on

or after August 21, 2004. Finally, Hayley Saunders filed her complaint on February 20,

2007, and her claim will be time barred unless her cause of action accrued on or after

February 20, 2005.

There are three potentially relevant time periods to be considered with respect to

when the causes of action accrued. The first is when a plaintiff experienced health

problems which he or she now attributes to mold, even if he or she was not aware of the

presence of mold at the time or did not initially attribute the health problems in

10 There is no good cause exception to the two-year deadline in § 8110.

12
question to mold. The City argues that a cause of action usually accrues at the point

when a wrongful act produces an injury for which a potential plaintiff is entitled to seek

judicial relief. See Dugan v. Martel, 588 A.2d 744, 746 (Me. 1991). If this theory were

adopted, it appears that all of the claims in question would be time barred. l1

The second potentially relevant period of time would be the period when the

plaintiffs were allegedly exposed to biotoxins in the terminal. It is undisputed that,

with the exception of Barry Bartlett, all of the plaintiffs left the terminal on or before

August 22,2004 and never returned to the terminal to work. City SMF dated December

28, 2007 <II 62Y Specifically, eight of the plaintiffs left the building on or about August

22, 2004. Seven of those plaintiffs filed their complaints on August 14, 2006 and one

(George Wardwell) filed his complaint on August 21, 2006. All of these plaintiffs,

therefore, were allegedly exposed to biotoxins within the two-year statute of limitations

- either for eight days (from August 14-22, 2004) or, in the case of Wardwell, for two

days (August 21-22,2004).

If exposure to biotoxins is determinative for statute of limitations purposes and if

continued exposure to biotoxins (even for a very short period) allegedly caused harm to

these plaintiffs during the statue of limitations period, their complaints are not subject

to dismissal at this time. 13 The same would be true for plaintiff Bartlett, who did not

11 See City SMF dated December 28,2007 <JI<JI 119, 126, 132-33, 141-42, 152-53, 163-64, 171-72, 180­
81, 188-89, 194, 203-04, 217-18, 224-25 (admitted).
12 There is evidence that one or two plaintiffs who had left the building on August 22, 2004
returned to the terminal on one occasion later in 2004 for a repeat exposure test. See Plaintiffs'
Response to <JI 62 of City's SMF.
13 This is true regardless of whether the court adopts a "continuing tort" theory. Under such a
theory, a defendant would be potentially liable for the entire amount of harm inflicted if the tort
continued during the statute of limitations period. The court does not have to adopt that
theory, however, in order to find a complaint timely as to any harm (even if only partial)
inflicted during the statute of limitations period. The Law Court has stopped short of adopting
a continuing tort theory in similar contexts but has left open the possibility that such a theory
would be available. See McLaughlin v. Superintending School Committee of Lincolnville, 2003 ME
114 <JI 23 n.6, 832 A.2d 782,789 n.6.

13
leave the terminal until August 2005, who filed his complaint in August 2006, and

whose period of exposure during the statute of limitations period lasted approximately

a year.

At least four plaintiffs, however, were not exposed to biotoxins at the terminal

during the two years prior to the filing of their complaints - Mark Hudson, who left the

terminal in December 2003; Jay Frye, who ceased working at the terminal in May 2003;

Sadie Thomas-Frye, who ceased working at the terminal in December 2003; and Hayley

Saunders, who ceased working at the terminal in October 2000.

The final time period that is potentially relevant for statute of limitations

purposes would be the date that the plaintiffs discovered that they had been exposed to

biotoxins. Under such a discovery rule (urged by plaintiffs), all of their complaints

would potentially be timely since they all allege that they first learned they had been

exposed to biotoxins within two years of the filing of their complaints. If this theory

were adopted, there are at least disputed issues of fact on this point. 14

14 If a discovery rule were to be applied, the cause of action would not have accrued until a
plaintiff discovered (or in the exercise of reasonable care should have discovered) that he or she
was suffering from illnesses related to the mold problem in the building. See Bernier v. Raymark
Industries Inc., 516 A.2d 534, 543 (Me. 1986). In this case there are some plaintiffs who were
aware that there was mold in the building, but as to those plaintiffs there is a dispute as to
whether, in the exercise of reasonable care, they should have recognized that their illnesses
were mold-related. The most problematic plaintiff in this category is Robert Schrader.
According to the summary judgment record, Schrader began experiencing health problems as
soon as he started working in the terminal in 2002 and wrote a letter complaining of "the
extensive existence of mold and mold spores throughout the facility" in February 2003. In that
letter he also wrote that

mold litigation is on the rise and is viewed by some as the next ADA-type
boon for plaintiff's attorneys. Throughout the country, municipalities
and other governmental agencies have had to undertake expensive mold
abatement processes that are far more extensive than asbestos abatement
programs.

Schedule Dep. Ex. 11, page 4. Schrader argues that this only shows he recognized mold as a
litigation risk rather than a health risk. See Plaintiffs' Response to City SMF <[ 209. While this
contention may be far-fetched, there is still an issue of fact as to whether, even if it is obvious

14
Whether to adopt a discovery rule in this case depends on how the court

interprets the Law Court's decision in McLaughlin v. Superintending School Committee of

Lincolnville, 2003 l'v1E 114, 832 A.2d 782. McLaughlin concerned a claim brought against a

school district for health problems allegedly caused by poor air quality in the

Lincolnville Central School. In order to prevail against the statute of limitations defense

raised by the school district, the plaintiff had to show that there were disputed issues of

fact as to whether the plaintiff's cause of action accrued on or after September 21, 1999.

The plaintiff had remained in the school until April 14, 2000, see 2003 ME 114 err 6, 832

A.2d at 784, and had therefore been exposed to the allegedly unhealthy condition

within the statute of limitations period. The Law Court, expressly noting that "we need

not consider the application of a discovery rule exception here," ruled that the school

had not established that the plaintiff's injuries were not the result of his post September

21, 1999 exposure to the school's air. 2003 ME 114 err 23, 832 A.2d at 789.

Despite the fact that it had previously expressly declined to consider the

application of a discovery rule, the court then proceeded to discuss in dicta that the

school district had also not established that the plaintiff's guardian had reason to

understand the causal relationship between the plaintiff's health condition and the

school air quality. Id. err 24. Plaintiffs argue that this establishes that a discovery rule

was applied sub silentio in McLaughlin and should also be applied in this case.

The court declines to apply a discovery rule in this case. First, McLaughlin is too

slim a reed for the application of a discovery rule given its express statement that it was

declining to consider such a rule and given that it had already concluded that the

that mold was a litigation risk because it was a health risk, Schrader should have recognized
that his own health issues could have resulted from mold.

15
plaintiff's exposure during the statute of limitations period was sufficient to defeat

summary judgment. 1s

Second, in an area where the Law Court has previously been clear that the

discovery rule has only been approved in extremely limited situations, trial courts

should defer to the Law Court with respect to any expansion of that rule. Previously

the Law Court had expressly declared that a discovery applies in only three situations:

legal malpractice, foreign object and negligent diagnosis medical malpractice, and

asbestosis. Johnston v. Dow and Coulombe Inc., 686 A.2d 1064, 1066 (Me. 1996). In several

of those instances, moreover, the Legislature has subsequently limited the reach of the

discovery rule. See 14 M.R.S. § 753-A; Johanson v. Dunnington, 2001 ME 169 <[<[ 8-9, 785

A.2d 1244, 1246-47; 24 M.R.S. § 2902; Dasha v. Maine Medical Center, 665 A.2d 993, 996

(Me. 1995). Moreover, even though the court in Johnston v. Dow and Coulombe Inc. listed

asbestosis as an instance where a discovery rule was applied, the Law Court's decision

in Bernier v. Raymark Industries actually stops short of adopting such a rule. See 516 A.2d

at 543.

Perhaps more importantly, in every instance where a discovery rule has been

adopted, one of two circumstances existed: either (1) the plaintiff had an injury which

had not manifested itself, e.g., Bernier, 516 A.2d at 542-43 ("sub clinical injury"); Bolton v.

Caine, 541 A.2d 924, 926 (Me. 1988) ("latent medical condition"), or (2) the plaintiff and

the alleged tortfeasor had a fiduciary relationship or another similar relationship (such

as a doctor-patient relationship) in which the plaintiff had reposed trust and confidence

IS Moreover, McLaughlin's further discussion in dicta of whether the plaintiff's guardian had
reason to know of the causal relationship between plaintiff's illness and air quality purports to
rely on Townsend v. Chute Chemical Co., 1997 ME 46 fJI 9, 691 A.2d 199, 202. However, the
relevant portion of Townsend was not directed to whether the claimant in that case had reason to
know of any causal relationship. Rather, it involved a question of whether the claimant had
previously experienced a rash from the same cause - regardless of whether there was any
awareness of the causal connection.

16
in the alleged tortfeasor and therefore would not readily suspect that a breach of duty

had occurred. See Dunelawn Owners Assoc. v. Gendreau, 2000 ME 94 1 14, 750 A.2d 591,

596 (discovery rule inappropriate in the absence of a fiduciary relationship).

In this case the medical problems experienced by the plaintiffs were not sub­

clinical or latent, nor can it conceivably be argued that their relationship to the City of

Portland was a fiduciary relationship or a relationship of trust and confidence.

Summary judgment should therefore be granted with respect to the claims brought by

Jay Frye, Sadie Thomas-Frye, Mark Hudson, and Hayley Saunders.

As to whether the statute should run from the onset of plaintiffs' health problems

or from plaintiffs' last exposure, the court concludes that on this issue it should follow

McLaughlin's holding and look to period of last exposure. See 2003 ME 114 11 21, 23.

As noted above, even if the continuing tort theory were not applicable, the City has not

on this record eliminated the possibility that plaintiffs incurred some medical harm

during the two years prior to August 14, 2006. 16 Summary judgment is therefore denied

with respect to the timeliness of the claims brought by plaintiffs Bartlett, Crawford,

Delano, Hamill, Libby, Salisbury, Schrader, Wardwell, and Wilcox.

16 As a practical matter, the court recognizes that (with the exception of Bartlett) it may be
improbable that plaintiffs suffered much appreciable harm during the brief period in which
they remained in the terminal during the two years prior to the filing of their complaints. As
noted above, many plaintiffs remained in the terminal for only eight days at the beginning of
that time period and one plaintiff (Wardwell) was only in the terminal for two days during that
period. The court is inclined, however, to conclude that this is an appropriate case to apply the
continuing tort doctrine - where the harm is caused by the cumulative effect of the mold
conditions for which the City allegedly bears responsibility, where no single incident can
realistically be identified as the cause of significant harm, and where the result is a continuing
wrong that terminates when the exposure to the harm terminates. See McLaughlin, 2003 ME 114
<[ 23 n.6, 832 A.2d at 789 n.6.

17
6. Damage Cap Per Single Occurrence

The final issue raised by the City's motion for summary judgment is whether the

$400,000 cap on damages for anyone occurrence applies in this case. Specifically, 14

M.R.S. § 8105(1) provides as follows:

In any claim or cause of action permitted by this chapter, the award
of damages, including costs, against either a governmental entity or
its employees, or both, may not exceed $400,000 for any and all
claims arising out of a single occurrence.

To the court's knowledge, the Law Court has not yet provided guidance as to the

interpretation of "single occurrence" for purposes of § 8105(1). In a case of this nature,

moreover, the issue of what constitutes a single occurrence presents significant

difficulties.

The City argues that the occurrence here is its alleged failure to recognize and

remedy the buildup of a mold condition in the terminal that resulted in plaintiffs'

exposure to airborne biotoxins. If so, the City argues, there was one occurrence and the

nine remaining plaintiffs would potentially face an aggregate damage cap of $400,000.

The plaintiffs understandably disagree, arguing that the summary judgment record

raises factual disputes as to whether there were numerous distinct negligent acts or

omissions by the City in connection with the maintenance and repair of the terminalY

Both sides cite to federal cases and other jurisdictions that have considered the

interpretation of "per occurrence" language in insurance contracts or in other

governmental tort claims acts. See, e.g., Honeycomb Systems Inc. v. Admiral Insurance Co.,

17 Neither side argues that the number of occurrences should be measured by the number of
injuries - i.e., that each plaintiff's injury is a separate occurrence subject to a separate $400,000
cap. It is the court's recollection that at oral argument, the parties agreed that such a contention
would appear to be foreclosed by the wording of § 8105(1), which applies the $400,000 cap to
"any and all claims" arising from a single occurrence.

18
567 F. Supp. 1400, 1405-06 (D. Me. 1983)/8 Home Indemnity Co. v. City of Mobile, 749 F.2d

659,663 (11 th Cir. 1984); Folz v. State of New Mexico, 797 P.2d 246,254 (N.M. 1990).19

For purposes of summary judgment, the court accepts that there were multiple

water intrusions at various locations in the terminal which allegedly resulted in "toxic

mold spores, toxic secondary byproducts of mold, mycotoxins, toxic bacteria, and

endotoxins present throughout the [terminal], from one end of the building to the

other." Plaintiffs' Opposition to Defendant's Summary Judgment Motion, dated

February 15, 2008, at 34. The question is whether each separate water intrusion and

each alleged failure on the part of the City to properly and promptly respond to each

separate water intrusion potentially constitute a separate occurrence.

Although plaintiffs argue that the answer to this question is yes, there are several

problems with their argument. First, the City's alleged liability is based on whether, as

a landlord acting in the exercise of reasonable care, it knew or should have discovered

and remedied the existence of a condition on the premises that endangered the

plaintiffs. See Restatement 2d Torts §§ 342,343. The alleged condition in question is the

overall hazard caused by toxic mold. This is a single problem, not a set of distinct

occurrences. Plaintiffs are not alleging that they suffered distinct injuries as a result of

separate instances of water intrusion.

18 The Honeycomb Systems case sought to apply Maine law but did not find any specific
authority on point so instead applied general principles and looked to the law of other
jurisdictions. 567 P.5upp. at 1404 n.2.
19 At least one of the cases cited by plaintiffs, however, is based in part on the principle that
ambiguous language in an insurance contract should be construed in favor of coverage. See
Norfolk & Western Ry. Co. v. Accident & Casualty Insurance Co., 796 P.5upp. 929, 936 (WD. Va.
1992). Statutory language rather than policy language is involved here, and there is no
principle that ambiguities in the Tort Claims Act should be resolved against the governmental
entity. To the contrary, see New Orleans Tanker Corp. v. Department of Transportation, 1999 ME 67
lJI 5, 728 A.2d at 675.

19
Second, it is illogical for the extent of the City's liability to turn on the number of

separate instances of water intrusion rather than the overall mold problem. There is no

good reason why there should be a dramatic difference in the amount that these

plaintiffs could potentially recover depending on whether the mold problem in the

terminal resulted from a series of separate water intrusions at various different

locations or whether it resulted from a single major water intrusion.

In the court's view, the argument that each water intrusion constituted a separate

occurrence cannot be squared with the intent of § 8105(1). By way of analogy, one may

consider a situation where a group of plaintiffs had been passengers on a bus who were

all injured when the bus collided with a City vehicle and there was evidence that the

City driver had been exceeding the speed limit and that his brakes had failed. Although

an argument could made that there were two separate occurrences - (1) excessive speed

and (2) brake failure - the court has very little doubt that only one occurrence would be

found.

The court therefore is inclined to adopt the interpretation of "single occurrence"

propounded by the Supreme Court of New Mexico in the Folz case:

[A]ll injuries proximately caused by the governmental agency's
successive negligent acts or omissions that combined concurrently
to create a singular, separate, and unitary risk of harm ...

797 P.2d 246, 254. However, the court will not enter a summary judgment finding that

this case involves a single occurrence within the meaning of § 8105(1). This is true for

two reasons. First, the court cannot conclude that the summary judgment record

forecloses the possibility that plaintiffs' claims arose out of more than one occurrence.

The terminal consisted of two buildings, the exposures occurred over a number of

years, and the record is devoid of evidence as to how many opportunities the City

allegedly had to recognize the problem and take remedial action.

20
Thus, the court does not necessarily disagree with the decision of the Eleventh

Circuit in a case cited by plaintiffs, Home Indemnity Co. v. City of Mobile, 749 F.2d at 663.

That case involved flood damage allegedly resulting from the City of Mobile's

negligence in the planning, construction, operation and maintenance of its drainage

system. The court concluded that "each discrete act or omission, or series of acts or

omissions, on the part of the City of Mobile which caused water to flood and damage

properties" was a single occurrence for purposes of a per occurrence clause in the City's

insurance policy. Id. (emphasis added). The court went on to say:

Thus, if on account of the City's negligence, a drain on one street
was blocked so that water flooded the houses on that street, that
would be one "occurrence" with a limit of $100,000 applicable to
the total damage done to the houses. If, at some other location, on
account of negligence on the part of the City, a storm sewer spilled
over or broke open so that water flooded one house, that would be
another occurrence with a total of $100,000 coverage available for
the claims arising out of the damage to that house. If on the other
side of the City, on account of the City's negligence, water flooding
caused damage to 100 houses, that would be a third "occurrence"
and there would be $100,000 in coverage applicable to all property
damage proximately resulting from that negligent act.

Id.

In City of Mobile, the Eleventh Circuit did not expressly consider whether, if two

storm drains failed on the same street resulting in one flooded area, that would

constitute two "occurrences." However, plaintiffs are not contending here that they

were separately harmed by different acts of negligence with respect to separate

locations in the terminal. Instead, they are arguing, as noted above, that all of the

plaintiffs were exposed to biotoxins from all parts of the terminal, rather than from

isolated parts of the terminal. See Plaintiffs' SMF dated February 15, 2008, Additional

21
Facts <]I 47. 20 Nevertheless, the City has not established on this record that there was

only one series of alleged acts or omissions that injured all of the plaintiffs.

An additional reason to withhold summary judgment in this case is that the

court has become aware that there are decisions holding, with respect to per occurrence

clauses in insurance contracts, that separate toxic exposures can constitute separate

"occurrences." See, e.g., Metropolitan Life Insurance Co. v. Aetna Casualty & Surety Co., 765

A.2d 891, 905 (Conn. 2001). The court reserves decision on whether the reasoning in

those cases could apply outside of the insurance context, on whether those decisions are

correctly decided, and on whether they can be reconciled with the language and intent

of the Maine Tort Claims Act. However, the parties have not had the opportunity to

brief those issues.

If it is ultimately found that a single occurrence was involved here, the court

would derive no satisfaction from such a result. Damage caps have been found to

survive rational basis scrutiny, but it cannot be denied that they have arbitrary and

often unfair results. That is particul~rly true when they are applied on a per occurrence

basis to a group of claimants. 21 In large part, however, this is because § 8105(1) is not

intended to result in fairness to claimants but is instead designed to protect public

treasuries.

20 In addition, in contrast to City of Mobile, the liability of the City in the case at bar does not
depend on whether the City was negligent with respect to repairs and maintenance. Rather it
depends on whether the City was negligent in failing to recognize and remedy the mold
Rroblem.
1 Such a cap also raises awkward procedural issues. For instance, it would appear to require
that all of the claims arising out of a single occurrence (or group of related occurrences) be tried
to verdict before any of the judgments can become final. This is necessary in order to determine
whether the overall damages exceed $400,000 times the number of occurrences. If they do, it
will be necessary to proportionately reduce each verdict in order to stay within the cap. The
court agrees with the reasoning in Drummond v. City of Portland, Docket CV-83-18 (Superior Ct.
Cumberland County) 1985 Me. Super. LEXIS 28, *6- *7 (Wernick, J.) that the per occurrence cap
in § 8105(1) must be interpreted to apply regardless of how many lawsuits are brought or
whether those cases are consolidated, but the practical problems created thereby are formidable.

22
In this context, it is instructive to consider the report of the Judiciary Committee

on Sovereign Immunity at the time the Tort Claims Act was first enacted in 1977. That

report observed that the Tort Claims Act adopted a closed end approach to the liability

of state and local governments, as opposed to the open-ended approach of the Federal

Tort Claims Act. While the Committee report recognized that an open ended approach

meant that persons who were actually injured and deserving of compensation were less

likely to be barred from recovery, the Committee concluded that the open ended

approach would subject governmental entities to increased costs and raised serious

questions of insurability. Report at 2-3. It therefore adopted the closed end approach

and the damage cap contained in § 8105(1). While that leads to a potentially arbitrary

and unfair result in this case, assuming that only a single occurrence is found and that

plaintiffs as a group would otherwise recover more than $400,000, this court is not

empowered to rewrite the statute to achieve fairer results. In the court's view, redress

for any unfairness in the application of § 8105(1) lies with the Legislature.

Finally, any conclusion that a $400,000 cap applies to all remaining claims in this

case would not be the end of the inquiry with respect to the limit of liability in this case.

Left to be decided is whether the City, by being named as an additional insured for

certain of the years in question, has expanded the limit of liability under 14 M.R.S. §

8116.

The entry shall be:

The City's motion for summary judgment is granted as to plaintiffs Jay Frye,

Sadie Thomas-Frye, Mark Hudson, and Hayley Saunders, based on the statue of

limitations and the complaints in Docket Nos. CV-06-448, CV-06-450, CV-06-451, and

CV-07-91 are therefore dismissed. In all other respects the City's motion for summary

judgment is denied at this time.

23
The clerk is directed to incorporate this order in the docket by reference pursuant

to Rule 79(a).

DATED: September /0, 2008.

~
Thomas D. Warren
Justice, Superior Court

24
IVY FRIGNOCA ESQ O}(U~
PO BOX 15215
PORTLAND ME 04112

COURTS
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( 287
04112-0287

GERALD PETRUCCELLI ESQ ~C~1 (1 Pr, nJGL
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PO BOX 17555
PORTLAND ME 04112

ine 04112-0287

MARK DUNLAP ESQ
PO BOX 4600 ~GCt1 4 Por 0/lh (/
PORTLAND ME 04112

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10809068. Public record. Not legal advice.