Camden Nat'l Bank v. Holmes
This text of Camden Nat'l Bank v. Holmes (Camden Nat'l Bank v. Holmes) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-10=.911 /i/;Vj -C U I~ - ")/(1~00! I CAMDEN NATIONAL BANK, Plaintiff ORDER ON PLAINTIFF / COUNTERCLAIM v. DEFENDANT'S MOTION TO DISMISS COUNTERCLAIM GREGORY M. HOLMES,
Defendant
Before the court is the plaintiff/ counterclaim defendant Camden National Bank's
motion to dismiss the defendant/ counterclaim plaintiff Gregory M. Holmes's
counterclaim pursuant to M.R. Civ. P. 12(b)(6). The plaintiff asserts that the defendant
failed to comply with the specific pleading requirements in M.R. Civ. P. 9(b). For the
following reasons, the motion is granted in part and denied in part.
BACKGROUND
In its complaint, the plaintiff seeks damages for the breach of two promissory
notes. In his counterclaim, the defendant alleges that the plaintiff is responsible for the
alleged fraudulent conduct of its former employee and seeks compensatory and
punitive damages. In his response to the plaintiff's motion to dismiss, the defendant
makes clear that his counterclaim is based on the plaintiff's negligent failure to mitigate
the fraudulent actions of its employee, Tina Torres-York. The defendant alleges the
plaintiff is liable based on the doctrine of respondeat superior.
DISCUSSION
1. Standard of Review
A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) tests the legal sufficiency of
a complaint or counterclaim. New Orleans Tanker Corp. v. Dep't of Transp., 1999 ME
67, 13, 728 A.2d 673, 674-75. The court views the material allegations of the complaint
1 or counterclaim as admitted and considers the pleading in the light most favorable to
the party asserting the claim to determine whether it sets forth elements of a cause of
action or alleges facts that would entitle that party to relief pursuant to some legal
theory. Id.
2. Punitive Damages
The plaintiff first claims that the defendant is not entitled to punitive damages.
Punitive damages cannot be recovered in the absence of express or implied malice. St.
Francis De Sales Fed. Credit Union v. Sun Ins. Co. of N.Y., 2002 ME 127, «]I 16, 818 A.2d
995, 1001. "Express malice exists when 'the defendant's tortious conduct is motivated 1II by ill will toward the plaintiff. Id. (quoting Tuttle v. Raymond, 494 A.2d 1353, 1361
(Me. 1985)). "Implied malice arises when 'deliberate conduct by the defendant,
although motivated by something other than ill will toward any particular party, is so
outrageous that malice toward a person injured as a result of that conduct can be
implied."' Id. Negligence or reckless conduct are not sufficient to justify an award of
punitive damages. Tuttle, 494 A.2d at 1361.
The defendant makes clear in his opposition that his claim is based in negligence.
(Def.'s Opp. at 1-2.) Accordingly, he cannot maintain his claim for punitive damages.
3. Respondeat Superior
The defendant asserts that the plaintiff is liable for Ms. Torres-York's fraudulent
conduct based on the doctrine of respondeat superior because Ms. Torres-York
committed fraudulent activities within the scope of her employment. Maine has
adopted the test in the Restatement of Agency to determine whether an employer
should be held vicariously liable for the actions of an employee. Spencer v. V.J.P., Inc.,
2006 ME 120, «]I 6, 910 A.2d 366, 367. An employer will be liable for an employee's torts
only if they occur "within the scope of employment." ld. (citing Mahar v. StoneWood
2 Transp., 2003 ME 63, err 13, 823 A.2d 540, 544). "An employee acts within the scope of
employment when performing work assigned by the employer or engaging in a course
of conduct subject to the employer's control. An employee's act is not within the scope
of employment when it occurs within an independent course of conduct not intended
by the employee to serve any purpose of the employer." Restatement (Third) of
Agency, § 7.07(2) (2006); see Gniadek v. Camp Sunshine at Sebago Lake, Inc., 2011 ME
11, 134, 11 A.3d 308, 317 (applying the Restatement (Third) of Agency).
In his counterclaim, the defendant alleges that Ms. Torres-York "was an
employee, agent, and representative of [Camden], acting and presenting herself as a
servant within the scope of her employment." (Counter-Cl. 1 7.) Additionally, the
defendant asserts that Ms. Torres-York assumed all responsibility for his accounts with
the plaintiff. (Counter-Cl. 1 8.) The defendant alleges that while employed at the
plaintiff, Ms. Torres-York withdrew "funds from individual customer's line of credit
without authorization," which constituted "fraud and breach of trust, conversion,
embezzlement/ theft, and unjust enrichment." (Counter-Cl. 19.)
The plaintiff argues that it cannot be held liable for its employee's intentional
wrongdoing. An employee's tortious or criminal conduct is not necessarily precluded
from falling within the scope of employment. See Mahar, 2003 ME 63, 116, 823 A.2d at
545. Under the Restatement (Third) of Agency, an employer may be liable for a tort
committed by an employee "in dealing or communicating with a third party on or
purportedly on behalf of the principal when actions taken by the agent with apparent
authority constitute the tort or enable the agent to conceal its commission." Restatement
(Third) of Agency § 7.08 (2006).1 "'Apparent authority is authority which, though not
1 Section 7.08 of the Restatement "applies to torts such as 'fraudulent and negligent misrepresentations, defamation, tortious institution of legal proceedings, and conversion of
3 actually granted, the principal knowingly permits the agent to exercise or which he
holds him out as possessing. Apparent authority exists only when the conduct of the
principal leads a third party to believe that a given party is [its] agent.'" Gniadek, 2011
ME 11, err 33, 11 A.3d at 316-17 (quoting QAD Investors, Inc. v. Kelly, 2001 ME 116, err 19,
776 A.2d 1244, 1250) (emphasis original). The defendant sufficiently alleges that Ms.
Torres-York was acting within the scope of her employment and purportedly on the
plaintiff's behalf when she improperly withdrew funds from individual's credit lines.
(Counter-Cl. errerr 6-9.)
4. Causation
The plaintiff asserts that the defendant does not allege a causal link between Ms.
Torres-York's fraudulent activities and his damages. The defendant's allegations,
viewed in the light most favorable to him, are sufficient to state a causal link between
Ms. Torres-York's actions and his damages. (See Counter-Cl. errerr 15, 16.)
The entry is
The Plaintiff/Counterclaim Defendant's Motion to Dismiss is GRANTED in part and DENIED in part. The Defendant/ Counterclaim Plaintiff's claim for punitive Damages in the Counterclaim is DISMISSED. The remainder of the Motion to Dismiss is DENIED.
Date: March 25, 2011
property obtained by an agent purportedly at the principal's direction." Gniadek, 2011 ME 11,
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
Camden Nat'l Bank v. Holmes, Counsel Stack Legal Research, https://law.counselstack.com/opinion/camden-natl-bank-v-holmes-mesuperct-2011.