The opinion
STATE OF MAINE SUPERIOR COURT
Cumberland, ss.
STATE OF MAINE
Cumberfand. S&. Clerk's 0(1ioo
ANNA McGEACHEY NO\/ 2. 1. 2017
i~51~
Plaintiff RECEIVED
V. Civil Action Docket No. PORSC-CV-16-0407
PORTLAND WATER DISTRICT
Defendant
ORDER ON DEFENDANT'S MOTION
FOR PARTIAL SUMMARYJUDGMENT
Pursuant to M.R. Civ. P. 56, Defendant Portland Water District has moved
for partial summary judgment. Plaintiff Anna McGeachey opposes the motion, and
Defendant has filed a reply memorandum. The court elects to decide the motion
without oral argument. See M.R. Civ. P. 7(b)(7).
Defendant's motion has three grounds:
~ Defendant seeks an order limiting its liability to Plaintiff to the $400,000
damages cap contained in the Maine Tort Claims Act ("MTCA" or "the Act")
• Defendant seeks an order precluding Plaintiff from recovering any damages
for lost earnings, on the ground that the MTCA precludes an award of such
damages
• Defendant seeks an order precluding Plaintiff from recovering any damages
for lost earnings on the ground that Plaintiffs claim for lost earnings is too
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speculative to be the basis for an award of damages
For the reasons set forth below, the court grants the Motion for Partial
Summary Judgment in part, and otherwise denies it.
I. Background
Defendant is a governmental entity for purposes of the immunity and
limitations provisions of the MTCA. See 14 M.R.S. § 8102( s) (definition of "political
subdivision" includes water districts). Plaintiff claims to have been injured in an
automobile accident for which Defendant is liable. She claims that her injuries have
limited her ability to pursue her career as a musician, and seeks damages for lost
earnings, among other categories of damages.
2. Standard ofReview
"The function of a summary judgment is to permit a court, prior to trial, to
determine whether there exists a triable issue of fact or whether the question[s]
before the court [are] solely ... oflaw." Bouchard v. American Orthodontics, 661 A.2d
1143, 44 (Me. 1995).
"[S]ummary judgment 1s appropriate when the portions of the record
referenced in the statements of material fact disclose no genuine issues of material
fact and reveal that one party is entitled to judgment as a matter of law." Currie v.
Indus. Sec., Inc., 2007 ME 12, , 11, 915 A.2d 400. "A material fact is one that can
affect the outcome of the case, and a genuine issue exists when there is sufficient
evidence for a fact finder to choose between competing versions of the fact." Lougee
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Conservancy v. City-M01tgage, Inc., 2012 ME 103, ~ 11, 48 A.sd 774 (quotation
omitted).
3. Liability Beyond the MTCA $400,000 Damages Cap
The Act includes a waiver of sovereign immunity for claims arising out of the
ownership, maintenance or use of a governmental entity's motor vehicles. Id. §
8104-A(l). The Act also provides that "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." Id. § 8105(1).
However, if the governmental entity has procured liability insurance that "provides
protection in excess of the limit of liability imposed by section 8105, then the limits
provided in the insurance policy shall replace the limit imposed by section 8105." Id.
§ 8116.
The undisputed record before the court indicates that the Defendant has
coverage under two liability insurance policies potentially applicable to this case.
One is a commercial automobile policy issued by Phoenix Insurance Company, which
is a subsidiary of Travelers Insurance Company. The other is an excess or umbrella
insurance policy issued by Travelers. Both of the policies include endorsements that
exclude coverage for any amount above the MTCA statutory damages cap. S ee
Affidavit of Todd Greene, Ex. B. The endorsements unambiguously provide that the
Maine statutory cap is the limit of coverage for a covered occurrence that is subject
to the statutory cap. Though the coverage limits in both policies are higher than
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the $400,000 cap, the effect of the endorsements is to limit the higher coverage limits
to claims that are not subject to the MTCA damages cap.
Accordingly, the record establishes beyond dispute that the Defendant has
insurance coverage, but not coverage beyond the statutory cap. There is no basis on
which the court could find or conclude, for purposes of 14 M.R.S. § 8116, that the
Defendant has waived its immunity for any amount over the $400,000 limit.
Defendant is entitled to partial summary judgment on this ground.
4. Whether the MTCA Permits Recovery efLost Earnings Damages
Defendant's contention that the MTCA's limited waiver of sovereign
immunity does not extend to permitting recovery for damages for lost earnings is
based on the prefatory clause in the waiver section: "a governmental entity is liable
for property damage, bodily injury or death in the following instances ..." Id. §
8104-A. Defendant contends that, because there is no mention of lost earnings,
Plaintiff cannot recover damages for lost earnings.
However, Defendant's argument misapprehends the nature and purpose of the
prefatory clause. The reference to "property damage, bodily injury or death" plainly
describes the types of harm or injury for which immunity is waived. The effect is to
preserve sovereign immunity against claims that do not arise from bodily injury,
death or property damage. For example, the limited waiver of immunity does not
extend to tort claims asserting emotional distress or pain and suffering not resulting
from bodily injury.
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However, the prefatory clause does not purport to limit the types of damages
that may be recovered on a claim based on bodily injury, death or property damage.
This is clearly shown by the fact that, in addition to not mentioning lost earnings,
the prefatory clause does not mention medical expenses or cost of repair, but those
clearly are among the types of damages that can be recovered for bodily injury and
property damage.
As long as the tort claim alleges bodily injury caused by the governmental
entity, a plaintiff may recover any type of compensatory damages allowed by law for
a personal injury claim. Lost earnings are among the categories of damages, along
with medical expenses and pain and suffering, that are recoverable by a plaintiff who
suffers bodily injury caused by the negligence of the defendant.
Accordingly, Defendant's Motion for Partial Summary Judgment to exclude
recovery oflost earnings as a matter oflaw will be denied.
5. Whether Plaintiffs Lost Earnings Claim is Too Speculative
The last component of Defendant's Motion seeks to preclude Plaintiffs lost
earnings claim, not as a matter oflaw, but as a matter of fact, on the ground that it is
too speculative for consideration by the finder of fact. The Law Court has
summarized the Plaintiffs burden of persuasion on lost earnings as follows:
"[R]ecovery may be had for the loss of an earning opportunity if the
claimant proves, by a preponderance of the evidence, that: ( 1) the
opportunity was real and not merely a hoped-for prospect; (2) the
opportunity was available not just to the public in general but to the
plaintiff specifically; (s) the plaintiff was positioned to take advantage of
the opportunity; (4) the income from the opportunity was measurable
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and demonstrable; and (5) the wrongdoer's negligence was a proximate
cause of the plaintifPs inability to pursue the opportunity.
Snow v. Villaccz~ 2000 ME 127, , 16, 754 A.2d 360.
Plaintiff has made a primafacie showing that she has been a member of a band
that made a nationally recognized album and that was scheduled for a national tour
that never took place because of her injuries from the accident. She asserts that the
band now performs on a more limited basis in terms of the location, duration and
frequency of shows, because of her injuries. If national tour dates were booked and
Plaintiffs likely compensation was established, her loss of income for those dates
may be cognizable. Similarly, if she can show that injuries caused by Defendant's
negligence have more likely than not curtailed her ability to earn income as a
performer in concrete, measurable ways, she may be entitled to recover damages for
the loss of income. On this record, the court cannot say her lost earnings claim is
too speculative to be the basis for an award of damages.
Defendant's Motion is denied on this ground.
IT IS HEREBY ORDERED: Defendant's Motion for Partial Summary
Judgment is granted in part, and is otherwise denied. Plaintiffs claims against
Defendant are subject to the $400,000 limitation on damages prescribed by the
Maine Tort Claims Act.
Pursuant to M.R. Civ. P. 79( a), the Clerk is hereby directed to incorporate this
Order by reference in the docket.
Dated November 20, 2017
A. M. Horton, Justice
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Anna McGeachey vs. Portland Water District
Attorney for Plaintiff:
Thimi Mina, Esq.
Mccloskey Mina & Cunniff
12 City Center
Portland, ME 04101
Attorneys for Defendant:
Thomas McKeon, Esq
Joseph Cahoon, Esq.
Richardson Whitman Large & Badger
PO Box 9545
Portland, ME 04112-9545