The opinion
STATE OF MAINE
CUMBERLAND, ss. SUPERIOR COURT
CIVIL ACTION
DOCKET N.0: CV-11-~ !
VA v1J--- Cu IV\- t ::2 'iS/ ;;>D/1
v
RUDINA GRIBIZIS and WILLIAM
GRIBIZIS,
Plaintiffs,
v.
DAVID CRAY and PATRONS
OXFORD INSURANCE COMPANY,
Defendants
Before the court is defendant, David Cray's, Partial Motion to Dismiss and
Motion for Partial Summary Judgment and defendant, Patrons Oxford Insurance
Company's Motion to Dismiss.
BACKGROUND
Rudina Gribizis and William Gribizis ("Plaintiffs") filed their amended
complaint on August 8, 2011 1 seeking various forms of relief from Defendant
David Cray ("Defendant Cray") and Patrons Oxford Insurance Company
("Patrons) arising from an automobile accident occurring on Franklin Arterial in
Portland, Maine on December 20, 2007. The Plaintiffs allege that Defendant Cray
failed to yield when turning left onto Fore Street from the Franklin Arterial
Inbound. (Am. Compl. 'li'li 5-6.)
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The original complaint was filed on February 24, 2011. The case was originally brought
earlier but was dismissed without prejudice after mediation and after withdrawal of the
Plaintiffs' attorney.
Attorney John Veilleux of Norman, Hanson & DeTroy represented both
Defendants. He answered the original complaint on behalf of both defendants
and represented both at the M.R. Civ. P. 16B mediation conference that took
place on July 21, 2011. Prior to the mediation session, Patrons had paid the
Plaintiffs' claims for property damage and medical payments pursuant to their
insurance contract but had not paid any part of the uninsured motorist claim
made by the Plaintiffs.
The Plaintiffs allege that the mediation conference was the first time they
became aware that Patrons contested Defendant Cray' s liability for the accident.
They allege that Patrons changed its position and has acted in bad faith with
respect to this claim. The Plaintiffs then sought leave to amend the complaint to
add a claim under the Unfair Claims Settlement Practices Act. That motion was
granted and now the Defendants seek dismissal of that count of the amended
complaint.
DISCUSSION
There are two motions pending before the court. First, Defendant Patrons
filed a Motion to Dismiss seeking to dismiss Count IV of the Plaintiffs' Amended
Complaint. Second, Defendant Cray filed a Motion for Partial Summary
Judgment and Motion to Dismiss. Defendant Cray's Motion to Dismiss simply
joins and incorporates by reference Defendant Patrons' Motion to Dismiss.
Motion to Dismiss
The purpose of a motion to dismiss is to test the legal sufficiency of the
complaint. McAfee v. Cole, 637 A.2d 463,465 (Me. 1994). The court examines "the
complaint 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
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to relief pursuant to some legal theory." Id. When testing the complaint under
M.R. Civ. P. 12(b)(6), the material allegations of the complaint must be taken as
admitted. Id. "Dismissal is warranted when it appears beyond a doubt that the
plaintiff is not entitled to relief under any set of facts that he might prove in
support of his claim." Johanson v. Dunnington, 2001 ME 169, <[ 5, 785 A.2d 1244.
The Plaintiffs assert their claim of violation of the Unfair Claims
Settlement Practices Act ("UCSP A") based on the fact that, prior to the initiation
of this lawsuit, Patrons paid their claims and sought subrogation from Defendant
Cray' s insurance company and, once litigation began, Patrons has been
contesting Defendant Cray's liability. The Plaintiffs further claim that by using
the same attorney, their insurer has aligned its interests with Mr. Cray in
violation of statute and that it has failed to "effectuate prompt, fair, and
reasonable settlement" when liability has become "reasonably dear." (Am.
Compl. <[ 24.)
The UCSP A creates a civil cause of action for an insured to recover
damages from an insurance company if the insured can prove one of five
violations, including: "Without just cause, failing to effectuate prompt, fair and
equitable settlement of claims submitted in which liability has become
reasonably clear." 24-A M.R.S. § 2436-A(l) (2010). "Just cause" means "without
a reasonable basis to contest liability, the amount of any damages or the extent of
any injuries claimed." 24-A M.R.S. § 2436-A(2). Whether there is a legitimate
basis for contesting liability is the "touchstone" of the court's inquiry under 24-A
M.R.S. § 2436-A. Sch. Union No. 37 v. United Nat'l Ins. Co., 617 F.3d 554, 564 (1st
Cir. 2010). "[A]ny legitimate doubt is a safe harbor under UCSPA." Rankin v.
Allstate Ins. Co., 336 F.3d 8, 16 (1st Cir. 2003). There is no independent tort claim
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for acting in bad faith against an insurer. Marquis v. Farm Family Ins. Co., 628
A.2d 644, 652 (Me. 1993).
The only section of the UCSP A under which the Plaintiffs could
potentially state a claim is the section quoted above. The facts supporting the
Plaintiffs' claim are that Patrons paid property damage and medical payments
claims to the Plaintiffs and sought subrogation from Defendant Cray' s insurer,
indicating that Patrons believed that Cray was liable for the accident. Now that
Patrons has aligned its arguments with Defendant Cray and contests liability, it
is acting in bad faith and is failing to effectuate a prompt settlement when
liability has become reasonably clear. The Plaintiffs argue that liability is
reasonably clear because Patrons has already agreed that Defendant Cray was at
fault because it paid out the original claim and sought subrogation.
The Defendants argue that Patrons was contractually obligated to make
payments to the Plaintiffs on the property and medical claims but that its
obligations under the uninsured motorist provision of the contract does not
require it to make payment and then seek reimbursement from Defendant Clay's
insurer. The law gives Patrons the option to do this but does not require it. The
Defendants argue that there is a "legitimate doubt" as to the Plaintiffs' right to
recover because it has not been established that Defendant Cray was at fault or
that Mrs. Gribizis has sustained the injuries that she is claiming. The Defendants
also cite law proving that Patrons has the right to fully participate in the
litigation.
Because "legitimate doubt" is a "safe harbor" under the statute, the
Plaintiffs cannot recover if the Defendants assert facts that suggest that
Defendant Cray was not at fault or that Mrs. Gribizis is not entitled to the
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medical damages that she seeks. However, the motion to dismiss standard
requires the court to assume that the facts stated in the complaint are true. The
Plaintiffs alleged that Defendant Cray "failed to yield and turned in front [of]
Plaintiffs' vehicle causing a collision between the two vehicles." (Am. Compl. <jJ:
6.) They also alleged that this was due to Defendant Cray's negligence and
resulted in injuries to Mrs. Gribizis. (Am. Compl. <JI<JI 7-9.) If these facts are true
then there cannot be a "legitimate doubt" as to liability and Patrons' failure to
effectuate a reasonable settlement would appear to violate the UCSP A. The
Defendants' motion to dismiss Count IV is denied.
Motion for Partial Summary Iudgment
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. M.R.
Civ. P. 56(c). In considering a motion for summary judgment, the court should
view the facts in the light most favorable to the non-moving party, and 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, <JI 8, 800 A.2d 702.
Defendant Cray moves for summary judgment on Count II of the
Amended Complaint seeking loss of consortium on the grounds that the
Plaintiffs were not married at the time the alleged injury occurred. The Plaintiffs
argue that because they were "domestic partners" at the time of the injury and
the Legislature has created new rights for domestic partners in recent years, the
claim for loss of consortium is valid.
Loss of consortium is a statutory cause of action defined in 14 M.R.S. § 302
(2010), which states, "[a] married person may bring a civil action in that person's
5
own name for loss of consortium of that person's spouse." Prior to this statutory
enactment in 1995loss of consortium was recognized by the Law Court as an
independent cause of action for married persons. See e.g. Sawyer v. Bailey, 413
A.2d 165 (Me. 1980). Both the statute and case law dearly limit the cause of
action to persons who are married at the time of the injury leading to loss of
consortium. The Law Court states:
Where the injured person received his or her injury prior to
marriage, the other spouse upon marriage has no cause of action
for loss of consortium of his or her previously injured marriage
partner, even though they were engaged to be married at the time
of the injury.
Sawyer, 412 A.2d at 166. This is because the cause of action is coincident to the
marital relationship, i.e. it also ends at death or divorce. Id.at 167. If a husband
marries a wife after she has suffered an injury, "he took her for better or for
worse in her then existing state of health, voluntarily taking unto himself any
marital deprivation that might result from his wife's premarital injury." Id.
A statute must be construed to give effect to the Legislature's intent.
Searle v. Town of Bucksport, 2010 ME 89, <[ 8, 3 A. 3d 390. Where the Legislature
has used an unambiguous term, such as "married," the intent of the Legislature
is clear and must be honored.
"Domestic partners" have been defined in Maine law as "two unmarried
adults who are domiciled together under long-term arrangements that evidence
a commitment to remain responsible indefinitely for each other's welfare." P.L.
2003, c. 672, § 2. The Legislature has created certain legal rights for domestic
partners under the Maine Probate Code and the Family Medical Leave Act.
However, there has been no amendment to the statute creating a cause of action
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for loss of consortium and that statute continues only to apply to individuals
who are married at the time of injury for which they seek compensation.
In this case, it is undisputed that Rudina Gribizis and William Gribizis
were not married at the time of the alleged injury to Rudina Gribizis. (Def.
Cray's Stat. Mat. F. 'IT 1.) The situation is factually similar to that in Sawyer.
Rudina and William were domiciled together under a long-term relationship and
may qualify as domestic partners. They also were later married. However, the
law is clear and a cause of action for loss of consortium does not lie when the
individual seeking damages was not married to the partner at the time of the
injury. Defendant Cray's Motion for Partial Summary Judgment is granted.
The entry is:
1. Motion to Dismiss Count IV of the Plaintiffs' Amended
Complaint is DENIED.
2. Motion for Partial Summary Judgment on Count II of the
Amended Complaint is GRANTED.
DATE: December 8, 2011
Plaintiffs
-Philip P Mancini Esq.
-Julia Pitney Esq.
Defendant David Cray
-John Veilleux Esq.
Defendant Patrons Oxford Insurance Co.
-Mark Frnaco,Esq.
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STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. Docket No. CV-11-90,
'-. ) A.vJ ~-()L fll- ·37lt-~ 2. o 1 1,
RUDINA GIBIZIS and WILLIAM
GRIBIZIS,
Plaintiffs,
ORDER ON MOTION
v. FOR SUMMARY
JUDGMENT
DAVID CRAY and PATRONS
OXFORD INSURANCE COMPANY,
Defendants,
.F~C!~.:: f\lE[r
Before the court is Patrons Oxford Insurance Company's Motion for . '~ · ~, '--- ·-·
Summary Judgment on Count IV (Unfair Claims Settlement Practices Act) of the
Amended Complaint. The motion was filed January 4, 2012. The Plaintiffs'
Opposition was filed on January 25, 2012. The court has received no reply
memorandum.
BACKGROUND
The facts of this case have been presented in previous orders and only a
short recitation will be given here. On December 20, 2007, Rudina Gribizis was
driving westbound on the Franklin Arterial at the intersection with Fore Street
when David Cray ("Defendant Cray" or "Cray") was attempting to turn left onto
Fore Street from Franklin Arterial eastbound. (AM. Compl. <[ 5.) The two
vehicles collided. (Am. Compl. <[ 6.) Mrs. Gribizis alleges that Cray was at fault.
She is seeking damages for injuries alleged to have been incurred as a result of
the accident. (Am. Compl. <[<[ 6-24.)
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damages, including costs and attorney's fees, if the insurer's actions fall within
the behavior prohibited by the act. 24-A M.R.S. § 2436-A (2011). Specifically, the
act authorizes recovery if an insurer, without just cause, fails to effectuate a
prompt, fair, and equitable settlement of claims submitted, for which liability has
become "reasonably clear." 24-A M.R.S. § 2436-A(1)(E). Acting without "just
cause" means refusing to settle claims without a reasonable basis to contest
liability, the amount of damages, or the extent of injuries claimed. 24-A M.R.S. §
2436-A(2). Whether there is a legitimate basis for contesting liability is the
"touchstone" of the court's inquiry under 24-A M.R.S. § 2436-A. Sch. Union No.
37 v. United Nat'l Ins. Co., 617F.3d 554, 564 (1st Cir. 2010). "[A]ny legitimate
doubt is a safe harbor under UCSPA." Rankin v. Allstate Ins. Co., 336 F.3d 8, 16
(1st Cir. 2003).
The Plaintiffs allegation of unfair claims settlement arise from the facts
that Patrons paid to Mrs. Gribizis $5,000 in medical payments and maintains
subrogation rights on that payment (Am. Compl. <j[ 20), that Patrons paid out
Mrs. Gribizis' property damage claim and was reimbursed by Defendant Cray' s
carrier, Progressive Insurance (Am. Compl. <j[ 19), that Patrons and Cray were
represented by the same attorney at the mediation conference (Am. Compl. <j[ 18),
and that that attorney submitted a mediation statement in which, allegedly for
the first time, Patrons aligned its position on Cray' s liability with Cray rather
than the Plaintiffs (Am. Compl. <j[ 22).
Patrons argues that its payments under its contract with the Plaintiffs
were required as a matter of contract law and that it has a legitimate basis on
which to contestCray's liability, thus excluding its failure to enter into a
settlement or pay out the Plaintiffs' claim from the protections of the Unfair
3
Claims Settlement Practices Act. Therefore, at summary judgment, Patrons is
only required to prove that facts existed that could provide a legitimate basis for
doubting liability. It is not required to prove that those facts are true; that is,
Patrons does not have to prove that Cray was not at fault in this vehicle accident.
In support of its motion, Patrons states that Defendant Cray testified that
road conditions at the time of the accident were "bad," that the roads were
"slick," and that he saw at least three accidents on his drive home that night.
(Def. SMF <J[<J[ 24-26.) Patrons also states that Cray was familiar with the
intersection and was attempting to make a left-hand turn across traffic at the
time of the accident. (Def. SMF §§ 27-28.) He testified that his truck crept into
the median so that he could get a view of the oncoming traffic, that his truck
/skidded, and that there was nothing he could do to prevent the accident. (Def.
SMF <J[<J[ 29-30.)
The Plaintiffs admit that Cray testified that at the time of the accident road
conditions were bad but they attempt to deny the remainder of Cray's version of
events. However, the Plaintiffs' denials of paragraphs 26-30 do not properly
controvert the Defendant's Statements of Material Fact because the denials are
not supported by record citations, as required by M.R. Civ. P 56(h)(4). The
Plaintiffs provide Rudina Gribizis' s version of events and provide citations to her
deposition but fail to include the deposition for the court. 1
There is no question that the parties dispute. the actual facts of the accident
and there is clearly a genuine issue of fact regarding how Mr. Cray's vehicle
1
The deposition is not only not attached to the Plaintiffs' Opposition but it is not within
the court record at all. Certain excerpts of Rudina Gribizis' s deposition are attached in
support of Patrons Statements of Material Fact but these excerpts do not include the
pages cited by the Plaintiffs.
4
(
entered the opposing lane and collided with :Mrs. Gribizis's vehicle. However, it
is not important for the purposes of this motion to determine which version of
facts is "true"; it is only important for Patrons to prove that it had a reasonable
basis for denying liability. Given :Mr. Cray's testimony, Patrons had a reasonable
and legitimate basis for doubting that a jury would find Defendant Cray
responsible for the Plaintiffs' damages. Additionally, Patrons has demonstrated
that it had a reasonable basis for belief that :Mrs. Gribizis' s damage claims would
not exceed Defendant' Cray' s policy maximum because part of her claim is for
lost income despite the fact that she continued to work at her former job until
December 2008 and voluntarily left for different employment. (De£. S1v1F <JI<JI 19-
21_)2 Patrons had a reasonable basis for believing that a jury would not find that
any loss of wages from this job switch was related to the accident.
The essence of the Plaintiffs claim is that they believe that their insurer
was at one time defending their interests in this litigation against Defendant Cray
and that the insurer suddenly switched sides and became an adversary.
However, the court finds that Patrons' actions were consistent with its
contractual obligations and black-letter insurance law. Patrons payment of
medical and property damage claims to the Plaintiffs, and subsequent
subrogation of the Plaintiffs' right to payment from Defendant' Cray on those
claims, was a contractual obligation. Patrons was required to make those
payments regardless of Cray's liability or the fact of any recovery from Cray's
insurer. By making those payments, Patrons was in no way asserting its belief
that Cray was liable for the accident. Therefore, when the Plaintiffs sued Patrons
2
Again, the Plaintiff's attempt to qualify these Statements of Material Fact fail because
the cited deposition is not included in the record.
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under their uninsured motorist policy, there was no change in position by
Patrons. Even if there were, Patrons was not an adversary until that point and it
was the Plaintiffs who made Patrons an adversary. This is an inherent tension in
insurance law and does not constitute unfair settlement practices.
Defendant Patrons Oxford Insurance Company's Motion for Summary
Judgment on Count N of the Amended Complaint is GRANTED.
The Oerkis directed to incorporate this Order into the docket by reference
pursuant to M.R. Civ. P. 79(a).
Dated: _ _2>-J\,---2.,.,/i)--+J\_"2-_
JiJfii;! Wheeler
Justice, Superior Court
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Plaintiff's Attorney - Philip Mancini Esq
Defendant Patrons Oxford Attorney - Mark
Franco Esq