Foremost Ins. Co. v. Levesque

• Court: Superior Court of Maine
• Decided: June 4, 2004
• Docket: CUMcv-03-586
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION / CUMBERLAND, ss. DOCKET NO: CV-03-586 /

FOREMOST INSURANCE COMPANY, * * Plaintiff * STATE OF m NE Cumberland, ss, Clem ORDER SIJPERIOR COURT JUi',i 20 ROBERT LEVESQUE, ET AL., *

Defen ~FCEI~ED This case comes before the Court on Plaintiff Foremost Insurance

Company's motion for entry of judgment. Foremost asks the Court to recognize

March 11,2005, as the final disposition of h s case, or in the alternative, the date

of h s Order. After hearing, the motion is granted as of the date of this Order.

Percy Levesque, Robert Levesque's father, was injured while helping h s

son move a washing machine from Robert's truck into a shed attached to his

mobile home. Foremost Insurance is Robert's homeowner insurer and Patriot

Mutual Insurance is h s auto insurer.

Foremost commenced representation of Robert when Percy filed suit

against Robert, Percy Levesque v. Robert Levesque, Aroostook Superior Court, CV-

02-64, claiming that his injuries were caused by Robert's negligence. That action,

however, was stayed when Foremost filed a parallel complaint against Robert,

Percy, and Patriot Mutual seelung a declaratory judgment that it had no duty to

indemnify Robert for the negligence claim. Patriot Mutual filed a cross motion

for summary judgment arguing that it also had no duty to indemnify. Because Robert was left without representation in the declaratory action, he was forced to

hire an attorney to defend his interests against Foremost.

On February 27, 2004, the Superior Court denied Foremosvs motion for

summary judgment and granted Patriot Mutual's motion for summary

judgment. On February 25, 2005, the Law Court affirmed the Superior Court

decision. It issued its mandate on March 11, 2005. Although the Law Court

affirmed that Foremost, rather than Patriot Mutual, had a duty to indemnify

Robert, the motions for summary judgment were brought by only two of the four

parties. Technically speaking then, the declaratory judgment action continued in

the Superior Court against the remaining Defendants Percy and Robert.'

On October 11, 2005, Robert filed a motion for attorney fees and expenses

generated as a result of tlus declaratory judgment action. On February 27, 2006,

the Superior Court held that Robert was entitled to attorney fees. Foremost

appealed that decision and the Law Court dismissed the appeal as interlocutory

and premature.

Simply put, Foremost placed its insured in a compromising situation by

bringing suit against him on the issue of whether or not it had a duty to

indemnify him in the underlying tort action. When it was determined by the

Superior Court and eventually the Law Court that Foremost did indeed have a

duty to indemnify Robert, what logically and ethically follows is that Foremost

pay for Roberrs attorney fees and costs to defend himself. Primarily, that is

because the Maine law recognizes the extensive burden imposed on insureds

Because of the rare procedural posture of the case, the confusion surrounding the date of final disposition is understandable. Generally speaking, when summary judgment is granted on behalf of one defendant, and two more remain, the case remains alive. This further explains why this case is currently on the trial list. when litigating against their insurers on a coverage issue. See Gibson v, Farm

Family Mut. Ins. Co., 673 A.2d 1350 (Me. 1996) (Requiring an insured to defend

and indemnify if there is the potential or possibility for liability under the

policy); Union Mut. Fire Ins. Co. v. Town of Topsham, 441 A.2d 1012, 1019 (Me.

1982).

Although Foremost argued that Robert's motion for attorney fees was

untimely filed, it can make no argument, nor does it attempt to, that it was

prejudiced by this motion. That is because on multiple occasions, Robert placed

Foremost on notice of his expectation that Foremost would be paying h s

attorney fees, including in his Superior Court argument on June 2, 2004, and in

letters to Foremost's counsel dated June 9, 2004, October 4, 2004, and March 8,

2005.

At h s juncture, it appears that the underlying tort action in Aroostook

County has been settled between all parties, and the coverage and attorney fee

issues are decided.' The Court hereby ORDERS the clerk to enter final judgment

in this matter as of the date of this Order. Furthermore, Foremost is ORDERED

to pay Robert's attorney fees without further delay.

Although this Court did not expressly find that the claim for attorney fees was integral to this case, it is clear in Maine, as explained above, that when an insurer forces an insured to litigate a coverage issue and loses, the insurer is responsible for the insured's attorney fees. Rule 54(b)(2) of the Maine Rules of Civil Procedure provides that if the issue of attorney fees is so integral to the claims, entry of final judgment is inappropriate until that issue is resolved.

In an action in which there is a claim for attorney fees, a judgment entered on all other claims shall be final as to those claims unless the court expressly finds that the claim for attorney fees is integral to the relief sought. If the court so finds, any order or other form of decision, however designated, shall not terminate the action as to any claim and is subject to revision at any time before the entry of a final judgment adjudicating all claims including that for attorney fees.

M.R. Civ. P. 54(b)(2). DATE: P" fistice, ~ h e r i o Court r 1.Box 287 laine 041 12-0287

JAMES FORTIN ESQ PO BOX 7 1 0 8 PORTLAND ME: 0 4 1 1 2

JAMES P O L I Q U I N ESQ PO BOX 4 6 0 0 PORTLAND ME 0 4 1 1 2

SCOTT HUNTER ESQ PO BOX 665 CARIBOU ME 0 4 7 3 6

WENONAH WIRICK E S Q 30 FRONT STREET SUITE 2 BATH ME 0 4 5 3 0