# Chretien v. Berman & Simmons

> Superior Court of Maine · December 11, 2018

URL: https://www.frixlaw.com/law-library/cases/10811513

## Case

- **Court:** Superior Court of Maine
- **Decided:** December 11, 2018
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Andrew M. Horton
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10811513

## How later opinions describe it (automated extraction)

- applying Illinois law regarding to a setoff of verdicts

## Opinion text

1
STA TE OF MAINE SUPERIOR COURT

Cumberland, ss.
1~E(::-!) -~J'.:: c:;~_E;:~i(~=: '.·:1'.'
RUSSELL CHRETIEN [)~C~ :.{) ~ I.El A\ l c~: f)2

Plaintiff

V. Docket No. PORSC-CV-17-265 /

BERMAN & SIMMONS and WILLIAM ROBITZEK

Defendants

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

The Motion for Summary Judgment of Defendants Berman & Simmons, P.A.

and William Robitzek (together "Defendants") is before the court for decision. Oral

argument was held November 6, 2018, at which point the court took the Motion under

advisement.

Factual Background

From 1987 to 2000, Plaintiff, Russell Chretien, worked as an agency manager

for Allstate Insurance Company ("Allstate"). (Defendants' Supporting Statement of

Material Facts) (Supp'g S.M.F.) ~ 1.) In 2006, Mr. Chretien entered into an Exclusive

Agency Agreement ("EAA") with Allstate. (Supp'g S.M.F. ~ 3.)

The EAA governed the work relationship between Allstate and Mr. Chretien

and included a Termination Payment Provision ("TPP") in the event the EAA was

terminated. (Supp'g S.M.F ~ 4.) If triggered the TPP would provide Mr. Chretien

with payment equal to his eligible earned insurance premiums multiplied by 1.5 over
a 12-rnonth period. (Supp'g S.M.F ~ 4.) The EAA alternatively allowed for Mr.

Chretien to sell his book of business to a buyer approved by Allstate instead of

collecting the TPP payment. (Supp'g S.M.F ~ 4.) The EAA placed restrictive

covenants on Mr. Chretien and his employees not to disclose confidential information

both before and after termination. (Supp'g S.M.F ~ 4.) The EAA could be terminated

in the following ways: 1) by mutual agreement; 2) by either party, with or without

cause, by providing 90-day notice; and 3) by Allstate for cause. (Supp'g S.M.F ~ 6.)

In 2010, Mr. Chretien planned to expand his agency by purchasing books of

business from other Allstate agents. (Opposing Statement of Material Facts (Add.

S.M.F.) ~ 162.) Acquisition of these books was subject to the EAA. (Add. S.M.F. ~

162.)

Prior to g1vmg Mr. Chretien approval for these purchases, Allstate

incorporated a new coverage program and discontinued its Deluxe Plus Plan. (Add.

S.M.F. ~ 164.) This new program resulted in certain Allstate insureds losing their

coverage. (Add. S.M.F. ~ 164.) The new program concerned Mr. Chretien and he

shared this concern with Allstate. (Add. S.M.F. ~ 167.) Concurrently, Mr. Chretien

helped two customers whose policies had not been renewed appeal their non-renewals

with the Maine Bureau of Insurance. (Add. S.M.F. ~ 168.) These appeals were

sustained in favor of the customers in June 2011. (Add. S.M.F. ~ 168.) In light of this

outcome, Allstate abandoned its new coverage program in Maine. (Add. S.M.F. ~

169.)

2
Allstate denied Mr. Chretien's plan to purchase the additional books of business.

Plaintiffs Additional Statement of Material Facts (Add. S.M.F.) ~ 171.

In the spring of 2011, Mr. Chretien began speaking with United Insurance

Group ("United") about potentially affiliating with United rather than Allstate.

(Supp'g S.M.F. ~ 18.) On September 30, 2011 Mr. Chretien accepted a position with

United as a vice-president. (Supp'g S.M.F. ~ 23.) That same day, Mr. Chretien

notified Allstate that he would no longer be an exclusive agent of Allstate by sending

a 90-day written notice of termination pursuant to the EAA. (Supp'g S.M.F. ~ 25.)

In his termination notice, Mr. Chretien claimed he was the victim of whistleblower

retaliation for supporting the Allstate customers in their appeals of Allstate's

nonrenewals of coverage. (Supp'g S.M.F. ~ 26.)

On December 20, 2011, prior to the 90-day termination initiated by Mr.

Chretien, Allstate terminated Mr. Chretien's Allstate agency, (Supp'g S.M.F. ~ 38.)

Allstate cited Mr. Chretien's simultaneous employment with the United as the reason

for the termination. 1 (Supp'g S.M.F. ~ 38.) Allstate's termination letter stated that

Mr. Chretien was required to comply with the confidentiality and non-solicitation

provisions of the EAA and immediately return all of Allstate's property. (Supp'g

S.M.F. ~ 39.) As .for compensation, Allstate indicated that Mr. Chretien could either

take his TPP or sell his book of business before April 1, 2012. (Supp'g S.M.F. ~ 39.)

1Mr. Chretien maintains that while this is the reason put forth by Allstate, the firing was actually
retaliation for his whistleblowing activity. (Add. S.M.F. ~ 38 .)

3
On December 22, 2011, Mr. Chretien sent a letter to his Allstate customers

which included information about his new United Agency Insurance business. (Supp' g

S.M.F. , , 40-41.) Mr. Chretien officially opened his United Insurance branch by

January 1, 2012. (Supp'g S.M.F. , 44.)

On January 5, 2012, Allstate sent Mr. Chretien a cease and desist letter, alleging

that he was violating the restrictive covenants of the EAA. (Supp'g S.M.F. , 47.)

Allstate's letter informed Mr. Chretien that if he was in violation of the EAA

covenants, Allstate may "withhold any or all remaining termination payments, and[]

pursue injunctive relief, monetary damages, attorney fees, and expenses." (Supp' g

S.M.F. ' 48.)

During the week of January 16, 2012, Mr. Chretien met with Attorney William

Robitzek of Berman & Simmons to discuss Mr. Chretien's dispute with Allstate.

(Supp' g S.M.F. , 52.) As a result, Mr. Chretien retained the Berman & Simmons

firm and attorney Robitzek to represent him in connection with claims by and against

Allstate.

On January 31, 2012, Allstate filed a complaint against Mr. Chretien and three

of his employees in federal court. (Supp'g S.M.F. , 54.) Allstate's complaint alleged

four causes of action against Mr. Chretien: 1) breach of contract, 2) misappropriation

of trade secrets and confidential information, 3) unfair competition, and 4) tortious

interference. (Supp'g S.M.F. , 55.)

On March 5, 2012, Mr. Chretien through attorney Robitzek answered Allstate's

Complaint and asserted a counterclaim under the following theories of liability: 1)

4
breach of contract, 2) tortious interference, 3) unfair competition, 4) conversion, 5)

fraud, and 6) violation of Maine's Whistleblowers' Protection Act, 26 M.R.S. §§ 831

et seq. (Supp'g S.M.F. ~ 59.)

Attorney Robitzek did not file a Whistleblower Protection Act claim with the

Maine Human Rights Commission (MHRC) on behalf of Mr. Chretien. (Add. S.M.F.

'200.)

By statute, as a result of attorney Robitzek's failure to file a complaint on behalf

of Mr. Chretien with the MHRC within 300 days of the alleged discriminatory act,

Mr. Chretien could not recover compensatory and punitive damages and attorney's

fees under the Maine Whistleblowers' Protection Act in his counterclaim against

Allstate. (Add. S.M.F. ~ 201.) See 5 M.R.S. §§ 4611, 4622(1). The reason is that

Whistleblowers' Protection Act claims are subject to the MHRC process, see 26

M.R.S. § 834-A ("Arbitration before the Maine Human Rights Commission"). A

Whistleblowers' Protection Act claim must be filed with the MHRC, in the same way

as other employment discrimination claims must be, in order to preserve the claimant's

ability to recover compensatory and punitive damages and atto!ney fees in a

subsequent action in court.

In the summer of 2012, Allstate agreed to a confidential settlement with the

three employees that were named as defendants in the January 31 Complaint, and the

case proceeded between Allstate and Mr. Chretien only. (Supp'g S.M.F. , 63.)

Around that time, Allstate offered to settle with Mr. Chretien by paying his TPP

amount minus $40,000. In July 2012, Mr. Chretien offered to settle all of his claims

5
for $445,000 (Supp'g S.M.F. ~~ 85, 102, 109). No settlement was reached and the

parties entered into mediation on November 27, 2012. (Supp'g S.M.F. ~ 67.) No

settlement was obtained during mediation. (Supp'g S.M.F. ~~ 68-71.)

On December 20, 2012, Allstate amended its complaint to add an additional

breach of contract claim. (Supp'g S.M.F. ~~ 60-61.) On January 3, 2013, and March

21, 2013, Attorney Robitzek sent letters to Mr. Chretien, warning Mr. Chretien of the

risks of going to trial and encouraging him to settle for $300, 000. (Supp' g S.M.F. ~ ~

72-77.)

During April 2013, attorney Robitzek became aware that his failure to file a

complaint with the Maine Human Rights Commission precluded Mr. Chretien from

recovering compensatory and punitive damages and attorney fees on Mr. Chretien's

Whistleblowers' Protection Act claim. (Add. S.M.F. ~ 208.) However, attorney

Robitzek did not inform Mr. Chretien of his realization for more than a year, until

May 2014. (Add. S.M.F. ~ 225.)

On July 12, 2013, both parties filed for summary judgment. (Supp'g S.M.F. ~~

81-82.) Magistrate Judge Kravchuk's November 2013 recommended decision on the

cross-motions granted summary judgment to Mr. Chretien on Allstate's claims for

unfair competition and tortious interference, and granted summary judgment to

Allstate on Mr. Chretien's counterclaims for tortious interference, unfair competition,

conversion, and fraud. (Supp'g S.M.F. ~~ 85-86.)

Allstate's motion for summary judgment sought judgment as well on Mr.

Chretien's whistleblower counterclaim, based on Allstate's contention that Mr.

6
Chretien was not an employee of Allstate and therefore not entitled to protection

under the Act, but Magistrate Judge Kravchuk recommended denying Allstate's

motion in that regard, based on her conclusion that independent contractors could be

protected by the Act. (Add. S.M .F . ~ 228 & Tab 9).

Judge Hornby affirmed and adopted Magistrate Judge Kravchuk's

recommended decision in December 2013. (Supp'g S.M.F. ~ 86.)

Shortly after this on May 22, 2014, Attorney Robitzek advised Mr. Chretien in

a letter that he had not filed the Whistleblower Protection Act claim with the Maine

Human Rights Commission within the 300-day deadline. (Supp'g S.M.F. ~ 94); see

(Def's Tab(B).) Attorney Robitzek's letter explained that this would likely result in

Mr. Chretien losing his ability to make a claim for compensatory and punitive

damages, and attorney fees on the Whistleblowers' Protection Act counterclaim.

(Supp'g S.M.F. 1 94.) Attorney Robitzek's letter also addressed the potential conflict

of interest this created and informed Mr. Chretien that he could seek new counsel.

(Supp'g S.M.F. ~ 94.) Mr. Chretien decided to continue with Attorney Robitzek and

proceed to trial, which was scheduled to begin in less than two weeks. (Supp'g S.M.F.

~ 98.)

On June 2, 2014, during a conference, the trial judge, Magistrate Judge John

Nivison, decided to allow Mr. Chretien to proceed and present evidence on his

Whistleblowers' Protection claim, but only for limited equitable relief, including front

pay and back pay, and not for compensatory damages, punitive damages, and

attorney's fees. (Supp'g S.M.F. ~ 100.)

7
On June 5, 2014, after three days of trial, Attorney Robitzek gave Mr. Chretien

a letter discussing settlement. (Supp' g S.M.F. ~ 107; Tab l(S)) In this letter Attorney

Robitzek explained the state of the whistleblower claim (limitation on damages and

attorney's fees), advised Mr. Chretien to obtain independent counsel for settlement,

discussed what damages could be awarded to both Mr. Chretien and Allstate at trial

and the risks associated with continuing the trial. (Supp'g S.M.F. ~~ 108-111; Tab

l(S) at 2-3) The letter indicated that best case outcome for Mr. Chretien would be a

verdict in the one million dollar range and the worst case outcome would be a verdict

for Allstate of several hundred thousand dollars. Tab1(S) at 3. However, Mr. Chretien

claims that there was little downside risk in an adverse verdict because he was

prepared to declare bankruptcy if the verdict went against him, although he had also

been working to avoid bankruptcy. (Add. S.M.F. ~ 260); Defendant's Reply Statement

of Material Facts (Rep. S.M.F.) ~ 260.

On June 6, 2014, two of the trial jurors reported to Judge Nivison, what they

believed to be inappropriate behavior by Mr. Chretien during his testimony. (Supp' g

S.M.F. ~~ 114-16). Judge Nivison interviewed each juror individually about the

juror's report with counsel present. (Supp'g S.M.F. ~ 117.) The jurors appeared not

to have a favorable impression of Mr. Chretien, but it was not clear that the jury was

leaning against Mr. Chretien. (Add. S.M.F. ~ 117).

On June 6, 2014, the parties attended a settlement conference with Judge

Kornreich. (Supp'g S.M.F. ~ 119.) Attorney Paul Brown attended the settlement

conference as a representative of Mr. Chretien. (Supp'g S.M.F. ~ 119.) Judge

8
Kornreich recommended a specific dollar payment by Allstate to Mr. Chretien for

purposes of settling all claims and counterclaims between them. (Supp' g S.M.F. ~

124.) He told Mr. Chretien that "he had to push Allstate hard to get up to that offer

and that Allstate would not go any higher than [the recommended amount]-that

was Allstate's "final number." (Id.) It was understood by Judge Kornreich and the

parties that Mr. Chretien could not recover compensatory and punitive damages and

attorney fees on his whistleblower claim. (Add. S.M.F. ~ 247.)

Mr. Chretien and Allstate agreed to settle all claims and counterclaims between

them for the dollar payment by Allstate to Mr. Chretien that Judge Kornreich had

recommended and for a release and dismissal of all claims and counterclaims.2

(Supp'g S.M.F. ~ 126.)

As the settlement documents were being drafted, Mr. Chretien sought advice

on how to obtain optimal tax treatment for the settlement payment. (Supp' g S.M.F.

~ 127.) Mr. Chretien's accountant recommended that the settlement payment be

characterized as compensation for Mr. Chretien's economic interest in his terminated

Allstate agency, to enable the payment to be taxed as a capital gain rather than as

ordinary income. (Supp'g S.M.F. ~~ 127-130.) The accountant's view was that any

mention of other claims, including the whistleblower claim, could result in adverse tax

implications for Mr. Chretien. (Supp'g S.M.F. ~ 130.)

2 The dollar amount is not shown here because it was agreed between Allstate and Mr. Chretien
to keep the dollar amount confidential.

9
Mr. Chretien and Allstate signed a confidential settlement agreement on June

10, 2014. (Supp'g S.M.F. ~ 131.) Attorney Robitzek agree to waive his and his firm's

entitlement to attorney's fees and reimbursement oflitigation costs advanced on behalf

of Mr. Chretien, so Mr. Chretien did not actually incur any attorney fees or costs.

(Supp'g S.M.F. ~ 132.)

At the time of the settlement, Mr. Chretien was negotiating a payoff for his

Allstate book of business with TD Bank and wanted his settlement with Allstate to

remain confidential. (Supp'g S.M.F. ~~ 134-135.)

The parties executed the settlement agreement on September 19, 2014. (Supp'g

S.M.F. ~ 137.) Allstate issued a check in the agreed-on amount to Mr. Chretien on

September 23, 2014. (Supp'g S.M.F. ~ 137.) The parties filed a stipulation of dismissal

with prejudice on October 7, 2014. (Supp'g S.M.F. ~ 138.)

Mr. Chretien's Additional Statement of Material Facts outlines his

dissatisfaction and unhappiness with attorney Robitzek's handling of his case in a

variety of ways, starting even before attorney Robitzek told him about his error and

the consequences of it in May 2014. He asserts that, during the thirteen months

between the day attorney Robitzek realized-the consequences of his failure to file with

the MHRC and the day he finally informed Mr. Chretien of those consequences,

attorney Robitzek's heart did not seem to be in the case and that attorney Robitzek

was pressuring him to settle. (Add. S.M.F. ~ ~ 221, 231, 252).

He points out that attorney Robitzek's revelation of his error in May 2014 came

two weeks before the beginning of trial-too late for Mr. Chretien to obtain new

10
counsel. (Add. S.M.F. ~~ 233, 234). He also contends that attorney Robitzek was

negligent in failing to "work up" for trial the equitable claims for front and back pay,

(Add. S.M.F. ~ 272), and in failing to keep the contemporaneous time records

necessary to obtain an attorney fee award. (Add. S.M.F. ~ 276).

Mr. Chretien also says he spoke to both attorney Robitzek and his own

psychiatrist about feeling suicidal about losing the ability to pursue fully his

whistleblower claim in the Allstate litigation. (Add. S.M.F. ~ ~ 264-65). He says he

felt betrayed and suffered severe emotional distress on learning that attorney Robitzek

had known of the error for more than a year before disclosing it. (Add. S.M.F. ~ 267).

He asserts that attorney Robitzek's conduct was "egregious" and "outrageous," and

resulted in the loss of multiple forms of compensatory and punitive damages. (Add.

S.M.F. ~ 268).

Defendants in their Reply Statement of Material Facts [(Rep. S.M.F.)J dispute

many of these contentions, pointing out that attorney Robitzek suggested that the

court might continue the trial if Mr. Chretien wanted to retain new counsel (Rep.

S.M.F. ~ ~ 233, 234), and denying that attorney Robitzek had failed to work up the

equitable claims. (Rep. S.M.F. ~ 272). Defendants also deny that Mr. Chretien ever

told attorney Robitzek about feeling suicidal and say there is little evidence that the

Allstate case came up a source of stress or distress in Mr. Chretien's sessions with his

psychiatrist. (Rep. S.M.F. ~ ~ 264, 265).

Procedural Hi tory

11
Plaintiffs original complaint was filed July 12, 2017, and an amended complaint

was filed August 21, 2017. Those pleadings are sealed because they contain

confidential information. Plaintiff Chretien filed a substitute amended complaint

alleging malpractice by attorney Robitzek and Berman & Simmons, P.A. on December

19, 2017. The substitute amended complaint is in the public court file.

On June 25, 2018, Plaintiff Chretien filed a motion for leave to file a second

amended complaint. According to the motion, the purpose of the second amended

complaint was to add new claims for fraudulent concealment, intentional

misrepresentation and punitive damages, and also to provide further allegations

relating to negligence, intentional outrageous conduct, egregious professional

misconduct and emotional distress damages. The asserted impetus for the second

amended complaint was the revelation in discovery that attorney Robitzek had known

about the consequences of his failure to file Mr. Chretien's claim with the MHRC for

a year or more before disclosing anything to Mr. Chretien.

On August 8, 2018, while Plaintiffs motion for leave to amend was still

pending, the Defendants filed their Motion for Summary Judgment. The court

granted leave for Plaintiff to file his second amended complaint later in August.

Mr. Chretien filed an opposition to summary judgment on October 1, 2018.

Defendants filed a reply in support of summary judgment on October 22, 2018.

In support of his claims, Mr. Chretien has designated an expert witness, Richard

O'Meara, Esq., to testify on topics of "attorney malpractice, the merits of Mr.

Chretien's whistleblower claim and causation." (Supp'g S.M.F. ~ 139.)

12
With his opposition to Defendants' Motion for Summary Judgment, Plaintiff

Chretien has submitted attorney O'Meara's supplemental affidavit dated September

28, 2018 in connection with Plaintiffs opposition to Defendants' Motion for summary

judgment, elaborating on attorney O'Meara's designation and deposition testimony.

The supplemental affidavit expands on the designation and provides more specifics

about attorney O'Meara's evaluation of the value of Mr. Chretien's whistleblower

counterclaim. Attorney O'Meara's supplemental affidavit asserts as his opinion that

Mr. Chretien more likely than not would have prevailed on the whistleblower claim

at trial and recovered compensatory and punitive damages of$500,000. Supplemental

Affidavit of Richard O'Meara, Esq. ~3(ii).

However, attorney O'Meara has not evaluated the merits of Mr. Chretien's

other counterclaims against Allstate, (Supp'g S.M.F. ~ 143.) He also has not

evaluated the merits of Allstate's claims against Mr. Chretien or Mr. Chretien's

exposure on those claims. (Supp'g S.M.F. ~ 141-42.)

Discussion

1. Standard ef Review

Summary judgment is granted to a moving party where "there is no genuine

issue as to any material fact" and the moving party "is entitled to judgment as a matter

oflaw." M.R. Civ. P. 56(c). "A material fact is one that can affect the outcome of the

case, and there is a genuine issue when there is sufficient evidence for a fact-finder to

choose between competing versions of the fact." Lougee Conservancy v. CitzMortgage,

Inc., 2012 ME 103, ~ 11, 48 A.3d 774 (quotation omitted). To survive a defendant's

13
motion for summary judgment, the plaintiff must establish a prima facie case for every

element of the plaintiffs cause of action. See Savell v. Duddy, 2016 ME 139,, 18, 147

A.sd 1179.

On summary judgment, the court considers reasonable inferences that may be

drawn from the facts. Curtis v. Porter, 2001 ME 158, , 9, 784 A.2d 18. Additionally,

the nonmoving party benefits from all "favorable inferences that may be drawn from

the facts presented." Id. "When facts or reasonable inferences are in dispute on a

material point, summary judgment may not be entered." Id.

2. The Issues Raised on Defendants' Motion

The Defendants' Motion for Summary Judgment raises essentially two

arguments:

First, Defendants contend that Plaintiff has not made a prima facie showing for

purposes of summary judgment regarding an essential element of his claim: that

Defendants' negligence, fraud or other actionable conduct caused Plaintiff any actual

loss or injury. Specifically, Defendants contend that Plaintiff cannot present

admissible evidence that the factfinder could accept as sufficient to show that Plaintiff

would have recovered more than the settlement amount, either by virtue of a higher

settlement or by virtue of a judgment entered after trial. Plaintiff contends that his

evidence is sufficient to show that his whistleblower claim had a value over and above

the settlement amount and therefore that Defendants' motion should be denied.

Second, Defendants contend that Plaintiff could not have prevailed on his

whistleblower claim. Plaintiff contends that the fact that the federal court denied

14
summary judgment on the whistleblower counterclaim is sufficient to justify denying

summary judgment in this case, and that there are genuine issues of material fact for

the factfinder to resolve.

This Order addresses only the first of the Defendants' arguments and concludes

that the Defendants are entitled to summary judgment on the element of causation.

3. Whether This is an Ordinary Legal Malpractice or a "Failure to Plead" Case

The parties devote considerable space in their filings to debating what category

oflegal malpractice case governs this case.

The Defendants contend that this case is governed by the ordinary standards

under which, "[t]o prove attorney malpractice, a plaintiff must show (1) a breach by

the defendant of the duty owed to the plaintiff to conform to a certain standard of

conduct; and (2) that the breach of that duty proximately caused an injury or loss to

the plaintiff." Brooks v. Lemieux, 2017 ME 55, 1 9, 157 A.sd 798 (quoting Pawlendzio

v. Haddow, 2016 ME 144, ~ 9, 148 A.sd 713).

The Plaintiff, however, contends that this is a "failure to plead" case governed

by the Law Court's decision in Nieho.ff v. Shankman & Assocs. Legal Ctr., P.A., which

defines a modified burden of persuasion standard when the "plaintiffs opportunity to

get before the factfinder is lost." 2000 ME 214, 110, 763 A.2d 121. Plaintiff Chretien

argues that attorney Robitzek, in effect, failed to plead a valid whistleblower claim.

The Law Court in Niehoff said that the plaintiffs burden in resisting summary

judgment in a "failure to plead" case is to

15
demonstrate that there are facts in dispute which are sufficient to allow
a jury to conclude that: ( 1) the defendant attorney was negligent in
representation of the plaintiff; and (2) the attorney's negligence caused
the plaintiff to lose an opportunity to achieve a result, favorable to the
plaintiff, which (i) the law allows; and (ii) the facts generated by plaintiffs
M.R. Civ. P. 7( d) would support, if the facts were believed by the jury.
Where a plaintiff generates fact disputes on these issues, summary
judgment must be denied and plaintiff is entitled to proceed to trial.

Id.

The distinction between the Brooks "ordinary negligence" category and the

Niehef["failure to plead" category may be relevant to the Defendants' argument that,

on its merits, Plaintiffs whistleblower claim would hav~ failed. However, the

distinction is not relevant to the Defendants' argument on causation, because the

ordinary Brooks standard and the modified Niehoff standard both require a plaintiff to

prove-and at the summary judgment stage to make out a prima facie showing-that

the defendant attorney's negligence caused a loss or a lost opportunity to the plaintiff

On the merits of the debate, the court agrees with the Defendants that this is

not a "failure to plead" case. The Law Court decision in Brooks v. Lemieux indicates

that if the plaintiffs claim has gone before the court on its merits, the claim has gone

before the factfinder for purposes of Niehoff. In Brooks, the defendant attorney pleaded

the wrong type of claim-an employment discrimination claim instead of the

retaliation claim that the plaintiff claimed should have been brought-and the case

was adjudicated on summary judgment, but the Law Court held nonetheless that the

case did not constitute a Niehoff "failure to plead" case. Brooks v. Lemieux, 2017 ME

55, ~ 12, 157 A .sd 798.

16
The court in Brooks said, "We have held that a modified malpractice standard

applies where the alleged negligence is in failing to plead or timely plead so that

plaintiffs opportunity to get before the factfinder is lost. Niehojf v. Shankman & Assocs.

Legal Ctr., P.A., 2000 ME 214,, 9, 763 A.2d 121. This is not such a case." 2017 ME

55,, 12, 157 A.sd 798. The court in Brooks distinguished Niehoff by noting that "this

is not a case presenting the difficulty of proving that the plaintiff would have prevailed

on a claim that was never brought." 2017 ME 55, , 12 n.5, 157 A.sd 798 (internal

quotes omitted).

Although Plaintiff Chretien contends that attorney Robitzek's failure to file Mr.

Chretien's whistleblower claim with the MHRC constitutes a "failure to plead" for

purposes of Niehoff, this case is more akin to Brooks than Niehoff. Just as the defend ant

attorney's failure in Brooks to plead a retaliation claim deprived his client of a

particular theory of liability and remedy, so Attorney Robitzek's omission deprived

Plaintiff Chretien of the right to claim certain types of damages and to claim attorney

fees. Neither the plaintiff in Brooks nor Plaintiff Chretien was , deprived of the

"opportunity to get before the factfinder" on other theories ofliability and remedies.

In fact, Plaintiff Chretien's whistleblower claim went to trial, albeit not on all

categories of damages permitted by the Whistleblower Protection Act. Moreover,

the Law Court has applied the ordinary Brooks standard in a case in which the

underlying cause of action was resolved by a settlement, as was the case with Plaintiff

Chretien's cause of action. See Allen v. McCann, 2015 ME 84,, 9, 120 A.sd 90.

17
Thus, the issue here is not whether "the attorney's negligence caused the

plaintiff to lose an opportunity to achieve a result, favorable to the plaintiff," Niehoff,

2000 ME 214, ~po, 763 A.2d 121. The issue is whether the Plaintiff Chretien could

have obtained a better result than the result he did obtain, but for the Defendants'
'

negligence.

In any case, as noted above, the plaintiff in either category of case must prove

at trial-and must make a prima facie showing at the summary judgment stage-that

the defendant attorney's negligence caused a loss to the plaintiff The burden is

framed somewhat differently-Brooks requires proof that "the breach of that duty

proximately caused an injury or loss to the plaintiff," 2017 ME 55, ~ 9, 157 A.3d 798,

whereas Niehoff requires proof that "the attorney's negligence caused the plaintiff to

lose an opportunity to achieve a result, favorable to the plaintiff," 2000 ME 214, ~ 10,

763 A.2d 121.

Under either formulation, Plaintiff Chretien has the burden to prove that

attorney Robitzek's negligence caused the loss of a better result than the one Mr.

Chretien actually obtained through the settlement. Accordingly, this analysis moves

ahead to the question whether the Plaintiff has made a prima facie showing that the

Defendants' negligence caused the Plaintiff to lose the opportunity to obtain a better

result.

18
4. Whether Plaintiff has Made a Prima Facie Showing that Defendants'
Negligence Caused Him Loss

Plaintiffs perspective is that, under Niehoff, his burden is limited to proving

the fact and the value of the lost opportunity to recover compensatory and punitive

damages and attorney fees. Attorney O'Meara's supplemental affidavit, which the

court is willing to consider at least in pertinent part, values the lost opportunity at

about $500,000.

But a legal malpractice plaintiffs burden on causation has two parts. One part

1s to show that the defendant attorney's negligence resulted in the loss of an

opportunity. Plaintiff Chretien has clearly met that part. The other part of the burden

is to show that the loss of the opportunity caused the loss of a favorable result. A

claim or opportunity lost as a result of an attorney's negligence is not actionable unless

pursuing the opportunity would more likely than not have been of value or benefit to

the attorney's client.

In this case, Plaintiff Chretien has the burden to make a prima facie showing

that he would have obtained a better result had been able to pursue the lost

opportunity. Based on the analysis below, the court concludes that Plaintiff Chretien

has not made that prima facie showing.

There are two ways for Plaintiff Chretien to meet his burden of making a prima

facie showing that the Defendants' negligence caused him to lose the opportunity to

obtain a better result than he obtained through settlement. One way is to show he

would have obtained a judgment after trial in a higher amount than the settlement

19
amount. The other way is to show that he would have obtained a higher amount in

settlement. These will be analyzed in the order just enumerated.

Had Allstate's claims and Mr. Chretien's counterclaims gone to verdict, the jury

would have decided one way or the other on Mr. Chretien's Whistleblowers'

Protection Act counterclaim, and could have been asked to answer a special

interrogatory about whether Mr. Chretien qualified as an employee of Allstate for

purposes for the protection of the Act. The jury's verdict would also have determined

the amount, if any, that Allstate was entitled to recover on its claims.

If the jury made awards to both parties, the federal court would look to state

law to determine whether to set off the jury awards against each other in the judgment.

See National Jockey Club v. Ganassz: 740 F. Supp. 950, 969-70 (N.D. Ill. 2010) (applying

Illinois law regarding to a setoff of verdicts); Weitz Co., LLC v. MH Wash., LLC, 2009

U.S. Dist. LEXIS 1.35022 (W.D. Mo.) (applying Missouri law to set off verdicts).

Under Maine law, because the verdicts on Allstate's claims and Plaintiff

Chretien's counterclaims would have been on claims and counterclaims between the

same parties in the same case, the total amount awarded to Allstate on its claims would

be netted against the total amount awarded to Mr. Chretien on his counterclaims, and

whichever party received the higher award would be granted judgment in the amount

by which its award exceeded the award to the other party. See Guilford Yacht Club

Ass'n v. Northeast Dredging, Inc., 4.38 A.2d 478,479 n.l (Me. 1981).

But because the trial ended before verdict, it is now impossible to determine

what the verdict would have been, and specifically, impossible to determine whether

20
Plaintiff Chretien would have obtained a judgment for more than the amount he

settled for.

Because Plaintiff Chretien has not presented evidence in his opposition to

summary judgment about the strength or value of Allstate's claims against him, he

cannot present evidence of the amount of the net judgment he would or could have

obtained after trial. Attorney O'Meara' s assessment of the strength and value of the

lost whistleblower remedies would be insufficient to support a verdict in this case,

because the jury in this case would have no basis on which to decide the amount by

which a damages award on Plaintiff Chretien's counterclaims would be offset by a

damages award on Allstate's claims.

The other avenue for Plaintiff Chretien to meet his burden is to show that he

more likely ~han not would have obtained a more favorable result through a higher

settlement had he been able to pursue his claims. This was the plaintiffs contention

in Allen v. McCann, 2015 ME 84, ~ 11, 120 A.sci 90. The Law Court rejected the

contention as follows:

Allen argues that she suffered a measurable loss due to McCann's failure
to advise her to perform a work search. However, Allen settled with her
employer, and because of the settlement, her proffered damages
calculation is speculative. Attorney MacAdam's assertion, without
further detail or explanation, that he believes that he could have settled
for more had Allen been receiving an additional $150 per week in
workers' compensation benefits, does not provide a foundation upon
which a jury could assess damages without resort to speculation. The
other party to the settlement, the employer, certainly has its own
settlement criteria, which may or may not have focused upon the weekly
benefit rate. Because the factors producing a settlement cannot be
ascertained or weighed in hindsight, attempting to calculate an award of
damages is speculative. Summary judgment was correctly granted.

21
Id.

The same analysis applies here.

There is no evidence that Allstate would have been willing to pay more in

settlement had Plaintiff Chretien been able to pursue compensatory and punitive

damages and attorney fees under the Whistleblowers' Protection Act. Judge

Kornreich was clear that Allstate's final offer-the offer that Plaintiff Chretien

accepted-was all that Allstate was prepared to pay.

Moreover, as the Law Court opinion in Allen v. McCann points out, "the factors

producing a settlement cannot be ascertained or weighed in hindsight." Id.

Settlements just before or during trial are common, and are influenced by a wide

variety of factors and considerations. Plaintiff Chretien's position appears to be that

the additional value of the lost whistleblower remedies can simply be added onto what

Allstate paid in settlement, but to do so is an exercise in pure speculation. It cannot

simply be assumed that Allstate would have paid any particular additional amount-

much less the full $500,000 value estimated by attorney O'Meara-had Mr. Chretien

been able to pursue the lost whistleblower remedies.

The conclusion that Plaintiff Chretien has failed to make a prima facie showing

that the Defendants' negligence caused him to obtain a less favorable result than he

could have but for the negligence entitles the Defendants to summary judgment on

the three counts of the Second Amended Complaint. This is most evident as to the

legal malpractice claim in Count I and the vicarious liability claim in Count II, but still

22
the case as to the fraudulent concealment claim in Count III, which also requires proof

of some form of loss, injury or harm. See Barr v. Dyke, 2012 ME 108, , 16, 49 A.3d

1280 (elements of fraudulent concealment include proof of reliance "to the aggrieved

party's detriment"). A sufficient showing of causation is required on claims of fraud

and fraudulent concealment, as it is on claims of negligence. See Wilson v. Lilley, P.A.,

2016 Me. Bus. & Cons. Ct. LEXIS (granting defendants' motion for summary

judgment on claims of negligence, fraud, and fraudulent concealment based on

plaintiffs' failure failed to proffer sufficient expert evidence on proximate causation). 3

Conclusion

"A defendant is entitled to a summary judgment if there is so little evidence

tending to show that the defendant's acts or omissions were the proximate cause of

the plaintiffs injuries that the jury would have to engage in conjecture or speculation

in order to return a verdict for the plaintiff." Houde v. Millett, 2001 ME 183,, 11, 787

A.2d 757. See Steeves v. Bernstein, Shur, Sawyer & Nelson, P.C., 1998 ME 210,, 13,

718 A.2d 186 (summary judgment in legal malpractice case is appropriate "when the

link between the attorney's act or omission and the alleged damage is overly

speculative.").

3 It is difficult to see how Plaintiff Chretien could show detrimental reliance in connection with
his agreement to the settlement, because by then he knew that attorney Robitzek's negligence
had deprived him of the ability to pursue certain Whistleblowers' Protection Act remedies. If
there was reliance by Mr. Chretien, it was during the period before attorney Robitzek made the
disclosure of his negligence. Even as to that period, Plaintiff has not shown that, ifhe could have
changed lawyers, the outcome would more likely than not have been better than it turned out to
be.

23
In this case, Plaintiff had the burden to present in his Additional Statement of

Material Facts a proffer of expert evidence establishing a causal link between

Defendants' negligence and some injury or loss sustained by Plaintiff, be it the loss of

the opportunity to obtain a better settlement or the loss of the opportunity to obtain

a judgment after trial for more than the settlement amount. See Pawlendzio v. Haddow,

2016 ME 144,, 15, 148 A.sd 71.3) (defendant attorney entitled to summary judgment

in part because "there is no other proffered expert evidence in the Pawlendzios'

statement of material facts establishing a causal link between Haddow's alleged breach

of duty and the Pawlendzios' injury").

Whether Plaintiff suffered any loss at all as the result of Defendants' negligence,

and certainly the amount of any loss, is a matter of conjecture and speculation.

Plaintiff has not made a showing as to an essential element of his cause of action-the

causal link between Defendants' negligence and any pecuniary loss or harm-

sufficient to withstand summary judgment.

IT IS HEREBY ORDERED AND ADJUDGED:

1. Defendants' Motion for Summary Judgment is hereby granted.

2. Judgment on the Second Amended Complaint is granted to Defendants

against Plaintiff, together with the costs recoverable by a prevailing party.

Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this

Order on the docket for this case by incorporating it by reference. ----

Dated December 10, 2018 ~
A. M. Horton, Justice

Entered on the Docket: 1 j ._,-;·7:~1 [ 24
STATE OF MAINE SUPERIOR COURT

Cumberland, ss.

RUSSELL CHRETIEN

Plaintiff

v. Docket No. PORSC-CV-17-265
s'i-AYE: Ur l~:AI.\ .C
BERMAN & SIMMONS and WILLIAM ROBITZEK
(~,,m\'i~t!~r.r,\ cc r.lA~~'~Officr-- f'J\

Defendants _.
..... C? 0 4 2Qi8 \O'.J~

ECE\\;;o
ORDER ON PLAINTIFF'S MOTION
FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Plaintiff Russell Chretien has brought an action for legal malpractice against

Defendants Berman & Simmons, P.A. and William Robitzek, Esq. Plaintiff has filed

a Motion for Leave to File Second Amended Complaint. Defendants have filed an

opposition and Plaintiff has filed a reply memorandum.

Shortly after filing their opposition, Defendants filed a Motion for Summary

Judgment that, as of this writing, is not fully briefed. For reasons set forth below,

the court has elected to take up the Plaintiffs Motion separately rather than defer

consideration until Defendants' Motion is ready for decision.

Plaintiffs Motion seeks to add to the theories of liability already set forth in

his first Amended Complaint claims for fraudulent concealment, intentional

misrepresentation and punitive damages, and also seeks to add factual allegations

intended to support the existing and new claims.

1
Defendants' opposition to the Motion asserts two major objections-that the

Plaintifi's Motion is untimely and that the Motion is futile because Plaintiff cannot

prevail on any of the proposed additional claims.

The starting point for the analysis is Rule 15(a) of the Maine Rules of Civil

Procedure, which calls for leave to amend to be "freely given w4en justice so

requires." See Diversified Foods, Inc. v. First National Bank, 605 A.2d 609, 616 (Me.

1992). "This mandate means that 'if the moving party is not acting in bad faith or

for delay, the motion will be granted in the absence of undue prejudice.' " Id., quoting

1 Field, McKusick & Wroth,§ 15.4 (1970).

The factors that go into determining whether leave to amend should be

granted include:

• The timing of the motion for leave: A motion made within the period set in

the scheduling order for the case is presumptively timely. A motion made

beyond that deadline is not necessarily untimely, but other factors may result

in leave being denied.

• The reasons for any delay in the timing of the motion: If the moving party

legitimately could not have made the motion earlier, the timing of the motion,

in and if itself, will not weigh against granting leave to amend. However,

"undue delay removes any presumption in favor of allowing amendment."

Diversified Foods, Inc., 605 A.2d at 616 (internal quotes omitted).

2
• Bad faith: An improper purpose or motive on the part of the moving party

weighs substantially against granting leave to amend.

• Undue prejudice: A request for leave to amend that will cause undue prejudice

to an opposing party, meaning harm or detriment beyond the mere potential

for liability on the proposed new claims or allegations, may be denied on that

ground. See Holden v. Weinschenk, 1998 ME 185, ,6, 715 A.2d 915 (leave to

amend properly denied when request made after entry of summary judgment

against the moving party); Drinkwater v. Patten Realty Corp., 563 A.2d 772, 778

(Me. 1989) (denial upheld of motion for leave to amend made three years after

commencement of case and five days before trial).

• Futility: When the proposed amendment would be futile, 1.e. the moving

party could not prevail on the proposed additional claims, leave to amend may

be denied on that ground alone. See Grynn v. City ef South Portland, 640 A.2d

1065, 1067 (Me. 1994) ("[W]hen ... a proposed amended complaint would be

subject to a motion to dismiss, the court is well within its discretion in

denying leave to amend.")

Defendants object to Plaintiffs Motion on the ground that it is untimely and

that what they say is Plaintiffs undue delay will cause them undue prejudice.

Defendants also object on the ground that the proposed amendment would be futile,

not because it fails to state a claim for purposes of a motion to dismiss, but because

3
Defendants would be entitled to summary judgment on the new claims, just as they

contend they are on the current claims.

In an unrecorded conference call with counsel this morning, the court advised

that it is not inclined to decide the Motion based on either side's contention that the

other side has either failed diligently to pursue discovery or failed diligently to

respond to discovery. The court understands each side's perspective on the other's

performance but does not deem either side's perspective either so compelling or so

without merit that either side should be faulted or that discovery issues should be

the basis for deciding Plaintiffs Motion for Leave to Amend.

Likewise, because the proposed new claims are plainly cognizable for purposes

of withstanding a motion to dismiss, the Plaintiffs Motion cannot be deemed futile.

Accordingly, the focus will be on the factors of the timeliness of the Motion in

relation to the inception and schedule for the case; undue prejudice to Defendants,

and bad faith. Although the Motion was filed after the scheduling order deadline for

amendment of the pleadings and thus cannot be deemed presumptively timely, it was

filed before the close of discovery and it does not appear to allege any entirely new

cause of action. Instead, it essentially alleges new theories of liability on the same

cause of action set forth originally and new claims for relief in the form of money

damages.

There has been no showing of bad faith on either side's part and any prejudice

to the Defendants is limited, given the nature of the proposed new claims.

Moreover, any prejudice to Defendants can be alleviated.

4
Finally, the benefit to the parties and the court of addressing Plaintiffs

Motion outside the context of summary judgment is that the Defendants' pending

Motion for Summary Judgment, with any amendment or supplementation allowed

by this Order, can be addressed by the parties and decided by the court without any

uncertainty about which claims are at issue.

Accordingly, it is hereby ORDERED AS FOLLOWS:

1. Plaintiffs Motion for Leave to File Second Amended Complaint is hereby

granted. The copy of the proposed Second Amended Complaint attached to

Plaintiffs Motion as Exhibit 2 shall be docketed separately.

2. Defendants' deadline for answering or otherwise pleading in response to

the Second Amended Complaint is hereby extended. If the court denies Defendants'

Motion for Summary Judgment in whole or part, either in that Motion's present

form or as revised, Defendants shall answer or otherwise plead in response to the

Second Amended Complaint 20 days after the court's ruling on Defendants' Motion

is docketed.

3. Defendants may file an amended Motion for Summary Judgment and

memorandum, or may supplement their present Motion, by no later than September

14, 2018. If Defendants elect to rely on their pending Motion without revision or

supplementation, they shall so notify the Clerk in writing by September 14, 2018.

4. Plaintiffs deadline for filing an opposition to Defendants' Motion is hereby

extended to 21 days after Defendants have either filed an amendment or supplement

5
to their Motion, or filed a letter with the Clerk advising that they will rely on their

present filings.

5. Defendants' reply deadline 1s 14 days after the filing of Plaintiffs

opposition.

6. The Clerk will schedule Defendants' Motion for oral argument on an

available date in November 2018.

7. If claims remain pending after the court's ruling on Defendants' Motion, a

conference of counsel will be convened to discuss the schedule for remaining phases

of the case.

Pursuant to M.R. Civ. P. 79( a), the Clerk is hereby directed to incorporate this

Order by reference in the docket.

Dated August S l, 2018

A. M. Horton, Justice

6
Russell Chretien vs. Berman & Simmons PA, et al., PORSC-CV-17-265

Plaintiff's Counsel:

David Webbert, Esq.
Philip Johnson, Esq.
Johnson Webbert & Young

Defendants' Counsel:

John Aromando, Esq .
Katharine Rand, Esq.
Sara Murphy, Esq.
Pierce Atwood

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10811513. Public record. Not legal advice.