Goan v. Concord Ins. Group

Opinion

STATE OF MAINE a _ SUPERIOR COURT CUMBERLAND, ss ee - CIVIL ACTION

he as UE DOCKET NO. CV-99-370 NM -4UM- 2/9/aec

GREGORY GOAN, etal, 9 53 Pil "9 Plaintiffs v. ORDER ON PLAINTIFFS’ THE CONCORD INsURANCHBONALD L. GARBRECHYMOTION TO DISQUALIFY GROUP, et al., 3 tAWLIERARY — DEFENSE COUNSEL Defendants MAR 18 000

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Plaintiffs seek to disqualify-Attorney--Laveie and his law firm from representing the defendants in this case based on the plaintiffs’ allegation that Attorney Lavoie obtained confidential information during his former representation of Gregory Goan. See M. Bar. R. 3.4(d)(1)(i); Pls.’ Reply Mem. at 2-3. The plaintiffs do not allege that there is a substantial relationship between this case and the prior matter involving Mr. Goan and Hanover. Id.; Pls.’ Mem. at 4.

The court heard the testimony of Mr. Goan and Attorney Lavoie and has reviewed the memoranda and attachments, including the affidavits of Attorneys Lavoie and Bower and Gregory Goan. The plaintiff has failed to show on this

record that he was previously a client of Attorney Lavoie. See Board of Overseers

of the Bar v. Dineen, 500 A.2d 262, 264-65 (Me. 1985). The plaintiff also has failed to

show that Attorney Lavoie “actually acquired information that is both confidential

and relevant” to this case or information would give the defendants an advantage

in this case. See Adam v. Macdonald Page & Co., 644 A.2d 461, 464-65 (Me. 1994).

The entry is

The Plaintiffs’ Motion to Disqualify Defense Counsel is DENIED.

Date: March 9, 2000 ef Ju

Nancy Mills _ Justice, is ionl os ourt

~

CUM-CV-99-370

STATE OF MAINE SUPERIOR COURT

Cumberland, ss CIVIL ACTION: (7 DOCKET NO. CV-99-370 | MM -@UM— S]ab/aece

GREGORY and NANCY GOAN,

Plaintiffs Vv. ORDER ON DEFENDANTS'

MOTION FOR RECONSIDERATION

THE CONCORD INSURANCE

GROUP, et al,

Defendants

The court disagrees with the defendants’ analysis of the impact of its statement of undisputed material facts. See Defs.' SUME { 17; Pls.’ Response to Defs.' SUMF, 1 17.

The plaintiffs have not raised an issue of material fact regarding whether statements by defendant Marcotte caused special harm. Whether the statements are capable of imputing to Mr. Goan a criminal offense or a matter incompatible with his business, trade, profession, or office is a question of law. See Lester v. Powers, 596 A.2d 65, 69 (Me. 1991); Bakal v. Weare, 583 A.2d 1028, 1030 (Me. 1990); Cohen v. Bowdoin, 288 A.2d 106, 110 (Me. 1972); RESTATEMENT (SECOND) OF Torts §§ 570, 571, 573, 575 (1977); W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF Torts § 112, at 788-92 (5th ed. 1984); BLAck’s LAW DICTIONARY 114-15 (6th ed. 1990) (“Assault”). The court concludes that the statements are not defamatory per se.

The entry is

The Defendants’ Motion for Reconsideration is GRANTED.

Judgment is entered in favor of the Defendant Marcotte and against the Plaintiffs on Counts I, IV, and XVII of the Plaintiffs’ Third Amended ~ Complaint.

Date: May 26, 2000 [Mes Mar

Nhaty Mills, ee Superior Court

Date Filed 7-1-99 CUMBERLAND Docket No. _CV99-370 , County -

DAMAGES

> ‘Action ~

GREGORY AND NANCY GOAN CONCORD INSURANCE GROUP , RICHARD DAY MARIE MARCOTTE SANDY MACPEEK

VS. Plaintiff's Attorney Defendant’s Attorney Christopher Taintor Esq. 774-7000 II, ESQ. 773-2330 JOHN MCARDLE, I SQ PO Box 4600

183 MIDDLE STREET

PORTLAND MAINE 04101 Portland Me 04112

Date of Entry

1999 July 6 Received 7-1-99:

Summary sheet filed.

Complaint filed. (Under Seal)

» fees Received 7.2.99: Summary sheet filed.

First amended complaint filed. (Under Seal)

July 20 Received 7.19.99:

Summons filed.

Defendant Concord Insurance Group served on 7.1.99 to Brian Caliahan. Summons filed.

Defendant Marie Marcotte, served 7.1.99.

Summons filed. .

Defendant Sandy MacPeek, served on 7.1.99.

July 22 Received 7.20.99:

Summons filed.

Defendant Concord Insurance Group served on 7.8.99 to Brian Callahan. reer Defendant Marie Marcott, served 7.8.99.

rere Defendant Sandy MacPeek served 7.8.99.

Received 7.21.99:

Defendants' The Concord Insurance Group, Richard Day, Marie Marcotte, and

Sandy MacPeek's Motion to Dismiss filed. . tere Defendants’ Concord.Insurance Group, Richard Day, Marie Marcotte, and

‘Sandy MacPeek's ‘Memorandum of law in Support of Defendants' Motion to tener Dismiss filed.. 7 veer Defendants’ Motion to Strike with incorporated “nemorandum of Law filed.

5 Sept. 9 Received 9-8-99. All paperwork received from United States District Court.

STATE OF MAINE > SUPERIOR COURT

/

CUMBERLAND, ss. Ps CIVIL ACTION . - __ __ DOCKET NO. CV-99-370 lal; Sarai U pm-aum— 4/23]300¢ GREGORY GOAN and NANCY GOAN, Plaintiffs ORDER ON DEFENDANTS' vs. MOTION FOR SUMMARY JUDGMENT THE CONCORD INSURANCE GROUP, RICHARD DAY,

MARIE MARCOTTE, and SANDY MACPEEK,

Defendants

The plaintiff Gregory Goan has filed claims of defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages against defendants Marcotte, MacPeek, Day, and Concord Insurance Group. Plaintiff Nancy Goan has filed claims for loss of consortium and punitive damages against the same defendants. All defendants seek a summary judgment on, all claims. For the following reasons, the motion is granted on all counts except counts I, IV, and XVII of the plaintiffs’ third amended complaint. DEFAMATION

Any claims for defamation based on statements alleged to have been made by defendants Macpeek and Marcotte prior to their employment by Concord in April, 1995 are barred by the statute of limitations. See 14 M.R.S.A. § 753 (1980 & Supp. 1999); Dets.’ SUMF, T{ 3-5; Pls.’ SDMF, Tf 2-3.

Any claims for defamation based on any alleged statements, which were

made by any defendant during the employment at Concord of Gregory Goan and the

Q e

defendants and which arise out of and in the course of that employment, are barred by the exclusivity provisions of the Maine Worker's Compensation Act. See 39-A M.R.S.A. § 104 (Supp. 1999); Reed _v. Avian Farms, Inc., 941 F. Supp. 10, 14 (D. Me. 1996); Sylvester v. Wal-Mart Stores, Inc., Nos. 95-166-P-H & 95-167-P-H, 1995 WL 788206 *3 (D. Me. Dec. 21, 1995); Gordon v. Cummings, 2000 ME 68, { 30, --A.2d--; Defs.’ SUMF, Tf 6, 8, 9, 12, 16; Pls.” SDMF, Tf 5, 6, 9, 10, 13, 33. There is genuine issue of material fact on this record regarding whether the statement allegedly made —

by defendant Marcotte to Dick George was a statement arising out of and in the

course of employment at Concord. See Caldwell, 908 F. Supp. 29, 34 (D. Me. 1995); Defs.’ SUMF, { 17(ii).

The alleged statements by defendants Marcotte and Macpeek to Dr. Melvin Attfield are privileged. See Aequitron Medical, Inc. v. Dyro, 999 F. Supp. 294, 298-99 (E.D.N.Y. 1998); Hoover _v. Van Stone, 540 F. Supp. 1118, 1122-23 (D.Del. 1982); Dineen v. Daughan, 381 A.2d 663, 664 (Me. 1978); Defs.” SUMF, {I 17(iii), 18(ii), 19; Pls.’ Response to Defs.’ SUMF, { 19; Pls.’ SDMF, {J 18-32.

Re.

INTENTIONAL?

Gregory Goan's claims with regard to emotional distress against defendants Marcotte and Macpeek are based upon their alleged defamation of him. Defs.' SUMF { 24; Pls.’ Response to Defs.’ SUMF, { 24. Claims for emotional distress are subsumed by defamation claims. See Veilleux v. National Broadcasting Co., 206

F.3d 92, 129-30 (1st Cir. 2000); Sylvester, 1995 WL 788206 at *3; Rippett v. Bemis, 672

A.2d 82, 87-88 (Me. 1996).

Gregory Goan's emotional distress claims against defendants Day and Concord are based either on alleged violations of duties not owed by those defendants to plaintiff Gregory Goan or on claims previously dismissed. See Bryan R. v. Watchtower Bible and Tract Society of New York, Inc., 1999 ME 144, J 30, 738 A.2d 839, 848; Bard v. Bath Iron Works Corp., 590 A.2d 152, 156 (Me. 1991); Defs.’ SUMF, { 25; Pls.’ Response to Defs.’ SUMF {[ 25.

LOSS OF CONSORTIUM The Law Court has determined that consortium claims are separate,

independent causes of action. See Hardy v. St. Clair, 1999 ME 142, { 11, 739 A.2d 368,

372. The Court declined to determine whether such claims are subject to common law or statutory defenses to the claims of an injured spouse. Id. 1999 ME 142, {12, n. 6, 739 A.2d at 372 n.6.

A consortium claim is based on statutory law. 14 M.R.S.A. § 302 (Supp. 1999);

Hardy, 1999 ME 142, J 12, 739 A.2d 368, 372 citing Dionne v. Libbey-Owens Ford Co.,

621 A.2d 414, 418 (Me. 1993). The Legislature could not have intended to allow a consortium claim to proceed when the injured spouse’s claims are barred by a statute of limitation or by the rules pertaining to privilege. See, e.g., Rippett, 672 A.2d at 87 (if alleged defamatory statements are privileged, no recovery for emotional distress because recovery would undermine privilege). Further, the

Legislature could not have intended to create an independent claim for a spouse

who has no cause of action under the Workers’ Compensation Act. See McKellar v.

Clark Equipment Co., 472 A.2d 411, 415 (Me. 1984); see also Petitioning Creditors of

*

Melon Produce, Inc. v. Braunstein, 112 F.3d 1232, 1237 (1st Cir. 1997) ( when possible, statutes should be construed in commonsense manner to avoid absurd and counterintuitive results). PUNITIVE DAMAGES

The plaintiff Gregory Goan has raised an issue of fact regarding whether defendant Marcotte acted with malice toward him. See DiPietro v. Boynton, 628 A.2d 1019, 1024 (Me. 1993); Pls.’ SDMF, { 16.

The entry is

Defendant Marcotte’s Motion for Summary Judgment is DENIED on Counts I, IV, and XVII of the Plaintiffs’ Third Amended Complaint. Defendant Marcotte’s Motion for Summary Judgment is GRANTED on Counts II, III, and XVIII of the Plaintiffs’ Third Amended Complaint. Judgment is entered in favor of Defendant Marcotte and against the Plaintiffs on Counts II, III, and XVIII of the Plaintiffs’ Third Amended Complaint.

Defendant MacPeek’s Motion for Summary Judgment is GRANTED. Judgment is entered in favor of Defendant MacPeek and against the Plaintiffs on Counts V, VI, VIL, VIII, XIX, and XX of the Plaintiffs’ Third Amended Complaint.

Defendant Day’s Motion for Summary Judgment is GRANTED. Judgment is entered in favor of Defendant Day and against the Plaintiffs on Counts IX, X, XI, XII, XXI, and XXII of the Plaintiffs’ Third Amended Complaint.

Defendant The Concord Insurance Group’s Motion for Summary Judgment is GRANTED. Judgment is entered in favor of Defendant Concord Insurance and against the Plagntiffs on Counts XIII, Ny XV,

XVI, XXII, and XXIV of the Plaintiffs’/Third Amended 7 Pit Date: April 23, 2000

Nancy Mills Justice, Superior Couf!

Date Filed 7-1-99 CUMBERLAND Docket No, __CV997-370

County 7“ oo DAMAGES Action GREGORY AND NANCY GOAN CONCORD INSURANCE GROUP RICHARD DAY MARIE MARCOTTE SANDY MACPEEK vs. Plaintiff’s Attorney Defendant’s Attorney JOHN MCARDLE, III, ESQ. 773-2330 So mon Meso Taintor Esq. 774-7000 183 MIDDLE STREET ° nae a Me 04112 PORTLAND MAINE 04101 Portiand Me Date of Entry j 1999 July 6 Received 7-1-99: Summary sheet filed. Complaint filed. (Under Seal) een Received 7.2.99: Summary sheet filed. First amended complaint filed. (Under Seal) July 20 Received 7.19.99: Summons filed. Defendant Concord Insurance Group served on 7.1.99 to Brian Callahan. rere Summons filed. Deferdant Marie Marcotte, served 7.1.99. tere Summons filed. . Defendant Sandy MacPeek, served on 7.1.99. July 22 Received 7.20.99: Summons filed. - Defendant Concord Insurance Group served on 7.8.99 to Brian Callahan. tre Defendant Marie Marcott, served 7.8.99. rere Defendant Sandy MacPeek served 7.8.99. rer Received 7.21.99: Defendants' The Concord Insurance Group, Richard Day, Marie Marcotte, and Sandy MacPeek' Ss Motion to Dismiss filed. . vent Defendants' Concord. Insurance Group, Richard Day, Marie Marcotte, and Sandy MacPeek's ‘Memorandum of law" in Support of Defendants' Motion to vert Dismiss filed.. tere Defendants’ Motion to Strike with incorporated “‘remorandum of Law filed. Sept. 9 Received 9-8-99, All paperwork received from United States District Court.