Dyer v. Bowlan

• Court: Superior Court of Maine
• Decided: May 7, 2003
• Docket: PENcv-03-49
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT PENOBSCOT, SS. CIVIL ACTION Docket No. CV-03-49 LH PEW 5/7 20°3

Sheila Dyer et al., «ee BONALD L. GARE 47 Plaintiffs LAW LIBRA: Vv. Buy 1d 200% Order (M. ion. to. Dismiss) FILED & ENTERED SUPERIOR COURT Manager-Larry Bowlan of seas Bowlan Averill Agency, Inc.,-) ~~ nes MAY O07 2003 Defendant PENOBSCOT COUNTY

Pending before the court is the defendant’s motion to dismiss. The court has reviewed the parties’ timely submissions associated with this motion.’

The defendant first contends that that part of the complaint that seeks relief on behalf of plaintiff Sheila Dyer should be dismissed for failure to comply with the requirements of MR.Civ.P. 1 1. The defendant, however, has not specified the nature of this alleged failure, and none is apparent to the court. This part of the motion is therefore denied.

The defendant next argues that the complaint fails to state a claim against him on which relief could be granted. “A motion to dismiss tests the legal sufficiency of the

complaint.” McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994). On a motion to dismiss, the

‘In addition to their objection to the motion at bar, the plaintiffs filed a “reply” memorandum after the defendant filed its reply to the plaintiffs’ objection. Such a “reply” as submitted by the plaintiffs is in the nature of a surrebuttal and is not contemplated or allowed under the rules. Consequently, the court has not read or considered that last filing.

Additionally, in their opposition to the defendant’s motion to dismiss, the plaintiffs have made a number of factual assertions. The motion at issue here requires an examination of the sufficiency of the pleadings themselves. This four corners assessment means that particular factual issues beyond those set out in the complaint are not relevant. Thus, the court has disregarded the plaintiffs’ additional statements of how they contend things actually happened. complaint must be examined "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 to relief pursuant to some legal theory.” Id. A dismissal is proper “only when it appears beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim.” Hall v. Board of Environmental Protection, 498 ‘A.2d 260, 266 (Me. 1985).

In their complaint, the plaintiffs, as insureds under an automobile insurance policy, allege that the defendant, an insurance agency,” was negligent when the agency provided them with incorrect information regarding payment of the premium and other account information. They further allege that the agency negligently and incorrectly led them to believe that their policy was in effect. In fact, the policy had been cancelled, and they claim damages arising from an uncovered property loss.

Under Maine law, an insurance agency is not liable to an insured when that insured does not receive notice of cancellation of a policy. Sunset Enterprises v. Webster & Goddard, 556 A.2d 213, 215-16 (Me. 1989). Rather, it is the insurer’s duty to provide that notice. Id.; 24 M.R.S.A. § 2911 et seq. Here, however, the iist of the plaintiff’s complaint is that the defendant provided incorrect information about the status of that policy. An insurance agency may be held liable for negligent failure to procure insurance for an insured. County Forest Products, Inc. v. Green Mountain Agency, Inc., 2000 ME 61, Tf 43-44, 758 A.2d 59, 69-70. See generally 16A APPLEMAN, INSURANCE LAW AND PRACTICE § 8831 (1981); 11 HoLMes’ APPLEMAN ON INSURANCE 2d § 71.1 (1999) (liability of insurance agent for negligence). The plaintiffs allege here that the defendant

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instructions 7 ion o insurer, that the information was incorrect, that the defendant was negligent in those communications with the plaintiffs and that as a result their policy was cancelled. This allegation implicates a separate duty owed by an insurance agent to an insured, much in line with that recognized specifically in County Forest Products and more generally in

the secondary sources noted above.

* One could argue that the plaintiffs are not clear in identifying the defendant, that is, whether this claim is against Larry Bowlan individually, against him as an agent of the agency, or against the agency itself. This issue is not addressed in the motion at bar, and this order should not be viewed as clarifying any such ambiguity. Finally, the defendant argues that the complaint should be dismissed because the plaintiffs have failed to join a party that the defendant deems indispensable. See M.R.Civ.P. 12(b)(7), 19. The plaintiffs’ claim against the defendant is predicated on allegations that the defendant committed a breach of a duty independent from any duty owed to them by the insurer. The defendant has cited no authority demonstrating that in this situation, the insurer must also be joined as a party-defendant. Due to the distinction between the agent’s duty and the insurer’s duty, the court is not persuaded by this aspect

of the motion.

The entry shall be:

For the foregoing reasons, the defendant’s motion to dismiss is denied.

Dated: May 6, 2003 (hy

J ustice, Maihe Superior Court Jeffrey L. Hjelm

SHEILA DYER - PLAINTIFF SUPERIOR COURT

1126 SPRING BRIDGE ROAD PENOBSCOT, ss.

GREENBUSH ME 04467 . Docket No BANSC-CV-2003-00049 WALTER J DYER ~ PLAINTIFF

1126 SPRING BRIDGE ROAD

GREENBUSH ME 04467 DOCKET RECORD

vs

LARRY BOWLAN - DEFENDANT

P O BOX 456

OLD TOWN ME 04468 Attorney for: LARRY BOWLAN JOHN B LUCY

RICHARDSON

WHITMAN LARGE & BADGER

ONE MERCHANTS PLAZA, SUITE 603

PO BOX 2429 BANGOR ME 0

4402-2429

BOWLAN AVERILL AGENCY - DEFENDANT 168 NORTH MAIN ST P O BOX 456

OLD TOWN ME 04468

Attorney for: BOWLAN AVERILL AGENCY JOHN B LUCY

PO BOX 2429

BANGOR ME 04402-2429

Filing Document: NOTICE OF REMOVAL Minor Case Type: OTHER PERSONAL INJURY TORT Filing Date: 03/19/2003

Docket Events:

03/20/2003 FILING DOCUMENT - NOTICE OF REMOVAL FILED ON 03/19/2003

03/20/2003

03/21/2003

04/07/2003

04/08/2003

REMOVAL FROM DISTRICT COURT, DISTRICT THREE, DIVISION OF SOUTHERN PENOBSCOT, BANGOR.

(BANDC-CV-2003-102) ORIGINAL PAPERS RECEIVED AND FILED. CERTIFIED COPY OF THE DOCKET

ENTRIES RECEIVED AND FILED.

Party(s): LARRY BOWLAN ATTORNEY - RETAINED ENTERED ON 03/19/2003 Defendant's Attorney: JOHN B LUCY

Party(s): LARRY BOWLAN DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 03/20/2003 DEFENDANT'S REQUEST FOR PRODUCTION OF DOCUMENTS BY PLAINTIFFS.

CERTIFY/NOTIFICATION - RULE 13(J) NOTICE OF REMOVAL SENT ON 03/20/2003 TO ATTORNEY FOR THE DEFENDANT AND TO PLAINTIFFS PRO SE.

Party(s): SHEILA DYER,WALTER J DYER OTHER FILING - OPPOSING MEMORANDUM FILED ON 04/07/2003 OPPOSITION TO DEFENDANT'S MOTION TO DISMISS FILED BY PLAINTIFFS PRO SE.

Party(s): LARRY BOWLAN OTHER FILING - REPLY MEMORANDUM FILED ON 04/08/2003 REPLY MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS.

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