Arnold v. Town of Casco
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Opinion
STATE OF MAINE SUPERIOR COURT Cumberland, ss. CIVIL ACTION DOCKET NO. CV-02-288
RICHARD E. ARNOLD,’
Plaintiff Vv. ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
TOWN OF CASCO,
Defendant ais
This matter is before the court on the defendant’s motion for
summary judgment. The > pial ntiff has not filed an opposition.
BACKGROUND The defendant owns the beach and adjacent swimming area known as Casco Town Beach. Defendant’s Statement of Material Facts (DSMF)
7 1. On August 1, 2001, the plaintiff was injured when he jumped from a float moored at the town beach anc cut his foot on a metal pipe on the e lake. DSMF 112, 4. The defendant had been aware that there were pipes in the area approximately ten to fifteen years prior to the date the plaintiff was injured, and had arranged for the removal of
the pipes. DSMF 7 5
\t the time the plaintiff was injured, the defendant was insured under a policy of liability insurance issued by Northern Insurance Company. DSMF 13. The policy contained a Commercial General
Coverage Form which provided coverage for bodily injury for
Katherine Amold was originally named as a Pia i, but the parties previously stipulated to the dismissal of her clam in Count for the loss of marital services which the insured was obligated to pay and to which the policy ap plied. DSMF 16. The policy also contained an express exclusion for pedily injury arising out of the ownership, maintenance, or use of Jakes and any property located on a lake, or arising out cf operations on lakes which are necessary, or incidental to the ownership, maintenance, or use of the lake. DSMF 417-9. This exclusion was in efiect on the date that the
plaintiff was injured. DSMF {i 10.
negligent because it failed “to maintain a reasonably sate area for swimming and the use of said swimming float by the public” and failed “to warn the Plaintiff ... of the unsafe condition of the swimming area and the danger of jumping into the water from said swimming float.” Comoplt. i 8-9. The defendant respords that it is immune from lability by virtue of the Maine Tort Cieims Act, 14 M.R.S.A. § 8101, ef seg. (MTCA). DISCUSSION
Summary judgment is appropriate when the MTCA shields the defendant from tort abikty. See Grossman v. Richards, 1999 ME 9, 13, 722 A.2d 871, 373; 14 M.R.S.A. § &104-A(2) (2003). The Act provides sovernmental entities with immunity from suit for any tort action for damages, subject only to statutorily created and narrowly construed exceptions. 14 M.R.S.A. § 8103(1) (2002); Clocke
ile v. State Dept. of
Ou
Transp., 437 A.2d 187, 189 (Me.1981) (citing Cushing v. Conen, 420 A.2a The MTCA provides an exception to governmental immunity for certain negligent acts cr omissions relating to (1) the ownership; maintenance or use of vehicles, machinery or equipment; (2) the construction, operation, or maintenance of public buildings or their
appurtenances; (3) the discharge of pollutants; and (4) road construction, or street cleaning or repair. 14 M.R.S.A. § 8104-A (2003). None of these exceptions apply to the plaintiffs claims arising out of a swimming accident at a lake.
The Act provides a further exception to immunity where the governmental entity maintains liability nsurance. 14 M.R.S.A. 3 8116 (2003). “Ifthe insurance provides coverage in areas where the sovernmental entity is immune. tne governmental entity shall be Hable in those substantive areas but only to the Hmits of the insurance coverage Id. The governmental entity bears the burden of establishing that it does net have insurance coverage for any claim made against it. Berard v. McKinris, 1997 ME 186, 9 12, 699 A.2d 1148, 1152 (citing Danforth v. Gottardi, 667 A.2d £47, B48 (Me. 1995); Moore v. City of Lewiston, 596 A.
2d 612, 615 (Mie. 1991). Fowever, the Law Court has repeatedly stressed thal immunity is the rule and exceptions to immunity must be strictly construed. Stretton v. City of Lewiston 588 A.2d 739 (Me. 1991) (citing Darling v. Augusta Mental Health Inst., 535 A.2d 421, 424 (Me. 1987);
Clockedile, 437 A.2d ait 189.
date of the plaintiffs injury. In pertinent part, the policy provided that
Qo This insurance policy does not apply to bodily injury
arising out of: (1) The owne rship, maintenance, or use
of the premises shown in the Exclusion Schedule
above or any property located on these premises; and
2) Operations on those premises cr elsewhere which
are necessary or incidental to the ownership,
rnaintenance or use of those premises....
The defendant argues that its policy does not ccver the plaintif’s claims in this case because the policy's “Exclusion Schedule” includes “lakes” as a “premises” to which the policy does not apply.
The Law Court has held that “the interpretation of an
unambiguous insurance contract is a question of law.” Coulombe v.
lvation Army, 2002 ME 25, 1 17, 790 A.2d 598, 57 (citing Mack v. Acadia Ins. Co., 1998 ME 91,95, 709 A. 24 1187,11S8}. Similarity, the Court has held that when a contract is unambiguous, the construction cf contract language is a question of iaw. Berard, 1997 ME 1&5, 7 13, 659 A.2d at 1153. The court finds that the relevant policy language in this case is unambiguous and supports a conclusion that the policy does not cover risks associated with the lake where the plaintiff was injured.
This construction has a direct bearing on the plaintifi’s claims that his injury arose out of his “use” of the lake and the swimming float, and that the defendant “failed to maintain” a reasonably sate swimming are and failed to warn of the unsafe condition of the swimming area and the
danger of jumping into the water from the swimming float. These claims are necessarily related to the ownership, maintenance or use cf the lake,
bin . + 5 war th 13 actions that are ex cluded from coverage under ihe poucy.
In fine with this construction, the court concludes tnat the
a r co hey Oo o On. ® »J on es to _ and o ot " o pot mt cp flu O aS on Co bed, bs, pat 2 wn £ het OD Cu » c i} ct = oO oO)
jtaims asserted byt plaintiff in this action. Accerdingly, its immunity is noc eroced or
xtinovished. See 14 M.R.S.A. § 8116 (2003); City of Old Town v.
Dimoulas, 2002 ME 133, § 25, 803 A.2d 1018, 1025.
Based upon the foregoing, and pursuant to MLR. Civ. P. 79{a), the
Clerk is directed to enter this Order on the Civil Docket by a notation
incorporating it by reference and the eniry is Oo a
Defendant's Motion for t Summary Judgment is GRANTED; Judgment is entered for Defendant on Plaintiffs Complaint.
Dated: September 9, 2003 . f KEL o f—
eet /
ustice, Superior Court
RICHARD E ARNOLD -
Attorney for: JOHN KELLY ‘RLLY REMMEL & ZIMMERMAN EXCHANGE ST
i
53 PO BOX 597
PLAINTIFF
RICHARD E ARNOLD
PORTLAND ME 04112-0597
KATHERINE ARNOLD -
Attorney for: COHN KELLY
PLAINTIFE
KATHERINE ARNOLD
KELLY REMMEL & ZIMMERMAN 53 EXCHANGE ST
PO BOX 597
VS
TOWN OF CASCO -
Actorney for:
DEFENDANT
TOWN OF CASCO
RONALD LUPTON PTAMPTANO & GAVIN
707 SABLE
OAKS DR
S PORTLAND ME 04106
ling Document: COMPLAINT iling Date:
Minor Case Type: 06/17/2002
Docket Events:
06/13/2002
06/18/2002
06/28/2002
06/20/2002
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