Grant v. Shanoski

• Court: Superior Court of Maine
• Decided: July 7, 2016
• Docket: CUMcv-15-363
• Status: Unpublished

Opinion

. - STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION Docket No. CV/63 SHIRLEY GRANT,

Plaintiff bRDER ON DEFENDANT'S MOTION v. FOR SUMMARY JUDGMENT

HENRY L. SHANOSKI, STATEOFM'\lNE Cumberland.IS. Cferk's Ofb Defendant JUL 08 2Dl6

Before the court is defendant Henry Shanoski' s motion for summary ju~f;f;J\IEO plaintiff Shirley Grant's legal negligence action. For the following reasons, the motion is

granted.

FACTS

On January 29, 2006, plaintiff experienced a fire at her home in Naples. (Supp.

S.M.F. <[ 1.) Plaintiff owned the home, which had been purchased during her first

marriage. (Id. <[ 3.) At the time of the fire, she resided at the home with her second

husband, Jonathan Edwards. (Id. <[ 2.) The home was insured by the Concord Group

(Concord). (Id. <[ 4.) Mr. Edwards had obtained th~ Concord policy in 1994, after the

Edwardses' prior carrier, Allstate, terminated coverage. (Id. <[<[ 6, 8.)

Plaintiff filed a claim with Concord in February 2006. (Id. 9I 9.) Plaintiff and Mr.

Edwards hired two attorneys to assist them in obtaining payment from Concord. (Id.

<['JI 12-13.) Between February 2006 and January 2010, Concord issued numerous checks

related to the fire loss. (Id. '11'11 11, 14-15, 18, 26, 28-32.) Some of these checks were

addressed to Mr. Edwards only, some were addressed to third parties involved in the

claim, some were addressed to Mr. Edwards and third parties, and one was addressed

to plaintiff and Mr. Edwards. (Id.) In total, Concord paid $391,157.39 for the fire loss

1 and an additional $27,805.28 to third parties for the Edwardses' living expenses. (Id . 9I

35.)

Plaintiff alleges that, because the checks were addressed to Mr. Edwards, she

was unaware that any insurance money had been paid. (Id. 9I 36.) Notwithstanding, the

record shows that, on February 9, 2006, plaintiff signed a form authorizing Concord to

make payments to a third party for the Edwardses' living expenses. (Id. 9I 10.) She also

received a letter from USDA, which held a mortgage on the property, stating that USDA

had sent three checks and disbursed $157,251.74 of the insurance settlement as of

October 16, 2006. (Id . 9I9I 20-21, 44-46.) In addition, plaintiff endorsed three of the checks

that were addressed to Mr. Edwards. (Id. 9I9I 29, 31, 34.)

Mr. Edwards initiated divorce proceedings in 2010. (Id. 9I 50.) Plaintiff hired

defendant to represent her in the divorce. (Id. 9I 52.) In December 2011, plaintiff

requested that defendant also represent her with respect to potential claims against

Concord. (Id. 9I 53.) Defendant sent plaintiff an engagement letter and contingent fee

agreement on December 5, 2011. (Id. 9I 54.) The subject line of the engagement letter was

"Claim against Concord Insurance." (Id. 9I 55.) The engagement letter stated: "The

[contingent fee] agreement provides that I will represent you in drafting a notice of

claim/ demand letter against Concord Insurance for damages resulting from your

husband's being named as the insured on your homeowner's policy." (Id. 9I 56.) The

contingent fee agreement stated that the services to be performed were: "Notice of

claim/ settlement demand against Concord Group Insurance + its agents (prelitigation

demand only)." (Id. 9I 57.) Plaintiff signed the contingent fee agreement on December

10, 2011 and faxed a signed copy to defendant on December 16, 2011. (Id. 9I9I 59-60.)

On January 23, 2012, defendant wrote to plaintiff to inform her that he had

decided not to pursue her claims against Concord. (Id. 9I 62.) Defendant explained that

2 plaintiff's claims against Concord were not viable because, among other reasons, she

had notice that Mr. Edwards was a named insured on the Concord policy and that

insurance money was being paid to him. (Id.

Plaintiff filed a complaint on August 13, 2015. In the complaint, plaintiff alleges

three causes of action: count I, legal negligence; count II, breach of contract; and count

III, negligent infliction of severe emotional distress. Defendant moved for summary

judgment on March 30, 2016. Plaintiff opposed the motion on May 2, 2016. Defendant 1

filed a reply on May 6, 2016.

DISCUSSION

1. Standard of Review

"A summary judgment is appropriate when the portions of the record referenced

in the statements of material fact disclose no genuine issues of material fact and reveal

that one party is entitled to judgment as a matter of law." Currie v. Indus. Sec., Inc.,

2007 ME 12,

outcome of the suit." Burdzel v. Sobus, 2000 ME 84,

exists when sufficient evidence supports a factual contest to require a factfinder to

choose between competing versions of the truth at trial." Id. "To survive a defendant's

, With the exception of her response to statement 6, none of plaintiff's denials or qualifications includes a record citation. M.R. Civ. P. 56(h)(2). Although plaintiff's response to statement 6 includes a record citation, the citation is to her affidavit, which asserts only plaintiff's opinion, unsupported by any evidence, that she held a policy with Concord prior to Mr. Edwards's application. See Dyer v. Dep't of Transp ., 2008 ME 106,

3 motion for a summary judgment, the plaintiff must establish a prima fade case for each

element of her cause of action." Lougee Conservancy v. Citi.Mortgage, Inc., 2012 ME

103, 'I[ 12, 48 A.3d 774 (citation omitted).

2. Motion for Summary Judgment

a. Count I, Legal Negligence

In a legal negligence action, the "plaintiff must show: (1) a breach by the

defendant of the duty owed to the plaintiff to conform to a certain standard of conduct;

and (2) that the breach of that duty proximately caused an injury or loss to the

plaintiff." Corey v. or.man, Hanson & DeTroy, 1999 ME 196, 'I[ 10, 742 A.2d 933.

According to plaintiff's expert, Wendy Starkey, defendant committed legal negligence

by: (1) limiting his representation to potential claims against Concord, (2) failing to

investigate the trail of checks issued by Concord, (3) failing to investigate whether

Concord changed the named insured to Mr. Edwards, and (4) failing to advise plaintiff

of the statute of limitations and to seek other counsel. (Pl.'s Addt'l S.M.F. 'I['I[ 34, 39-56.)

1. Breach

Plaintiff has not produced prima fade evidence that defendant breached his duty

to plaintiff by limiting the scope of his representation. "A lawyer may limit the scope of

representation if the limitation is reasonable under the circumstances and the client

provides informed consent after consultation." M.R. Prof. Conduct l.2(c). The

contingent fee agreement limited the scope of defendant's representation to drafting a

notice of claim/ demand letter against Concord for damages resulting from Mr.

Edwards being named as the insured on the Concord policy. (Supp. S.M.F. 'I[

Plaintiff does not allege any facts that would create a dispute as to whether the

limitation was reasonable under the circumstances. On this record, it is established that

plaintiff did not ask defendant to represent her with respect to any other parties, and he

4 did not agree to do so. (Id.

December 10, 2011. (Id.

defendant breached his duty to plaintiff by limiting the scope of his representation.

ii. Proximate Cause

Plaintiff also has not produced prima facie evidence of proximate cause with

regard to defendant's alleged failure to investigate the trail of checks and any change to

the named insured, and his alleged failure to advise plaintiff of the statute of limitations

and to seek other counsel. In "failure to plead" legal negligence actions, the plaintiff

must show that "the attorney's negligence caused the plaintiff to lose an opportunity to

achieve a result, favorable to the plaintiff, which (i) the law allows; and (ii) the facts

generated by plaintiff's [M.R. Civ. P . 56(h)] statements would support, if the facts were

believed by the jury." Niehoff v. Shankman & Assocs. Legal Ctr., 2000 ME 214,

763 A.2d 121. Summary judgment is appropriate "when the link between the attorney's

act or omission and the alleged damage is overly speculative." Steeves v. Bernstein,

Shur, Sawyer & Nelson, P.C., 1998 ME 210,

With regard to defendant's alleged failure to investigate the trail of checks,

plaintiff has offered no evidence as to what information defendant would have learned

if he had done so. Her allegations of misconduct on the part of local insurance agents,

"mail delivery procedures," and unidentified financial institutions are speculative and

not connected to any alleged misconduct by Concord. (Pl.'s Addt'l S.M.F.

extent that plaintiff is arguing defendant should have discovered that certain checks

were issued to Mr. Edwards, she does not explain how that fact would give rise to any

liability on the part of Concord because Mr. Edwards was the named insured. (Id.

27, 39-40; Supp. S.M.F.

5 Plaintiff has not raised a genuine issue of material fact regarding her third

allegation that Concord changed the named insured from plaintiff to Mr. Edwards.

There is no documentation to suggest that plaintiff was at any time listed as the named

insured. To the contrary, when the Edwardses' policy with Allstate ended, Mr. Edwards

completed the application with Concord. (Supp. S.M.F. 1 6.) In April 2006, plaintiff

signed a notarized statement that listed Mr. Edwards as the named insured. (Id. 91 16.)

As a result, plaintiff has not raised a genuine issue of material fact as to whether an

investigation into her theories would have revealed any information that would give

rise to claims against Concord.

Further, plaintiff's claims were barred by the statute of limitations at the time she

hired defendant to pursue claims against Concord. Maine law requires fire insurance

policies to establish a two-year statute of limitations. 24-A M.R.S. § 3002(1) (2015).

Consistent with section 3002, plaintiff's policy with Concord provides: "No action can

be brought unless the policy provisions have been complied with and the action is

started within two years after the date of loss." (Supp. S.M.F. 11 74-75.) Plaintiff's loss

occurred on January 29, 2006. (Id. 'JI 1.) Any claims she wished to bring against Concord

were therefore time-barred as of January 29, 2008. Plaintiff did not hire defendant to

pursue claims against Concord until December 2011. (Id. 19153, 59-60.) As a result, even

if plaintiff had produced prima fade evidence to support her theories, her claims fail

because the statute of limitations had expired.

Finally, plaintiff has not raised an issue of material fact that the absence of any

reference to the statute of limitations in defendant's January 23, 2012 letter caused

plaintiff harm because the claim had expired. Similarly, the fact that defendant did not

advise plaintiff to seek other counsel did not proximately cause her harm because

plaintiff did seek the advice of another attorney and has not raised an issue of material

6 fact that another attorney could have revived her expired claim. Defendant is entitled to

summary judgment on count I.

b. Count II, Breach of Contract

To prevail on a breach of contract claim, plaintiff must show: "(1) breach of a

material contract term; (2) causation; and (3) damages." Me. Energy Recovery Co. v.

United Steel Structures, Inc., 1999 ME 31, 'lI 7, 724 A.2d 1248. Plaintiff has not produced

prima facie evidence of a breach of the parties' agreement. An attorney is prohibited

from pursuing frivolous claims. M.R. Prof. Conduct 3.l(a). Defendant explained the

bases for his conclusion that plaintiff's claims were not viable in his January 23, 2012

letter. (Supp. S.M.F. 'lI 63.) Plaintiff has neither properly controverted the facts

underlying defendant's conclusion, nor raised additional facts that challenge his

conclusion. (Opp. S.M.F. 'lf'lI 11-33.) As a result, plaintiff has not raised a genuine issue

of material fact as to whether plaintiff's claims were viable and whether defendant

should have pursued them.

Further, as discussed above, to the extent plaintiff alleges the breach of contract

included the failure to pursue Concord based on the change of the named insured and

making payments to Mr. Edwards, when the Edwardses' policy with Allstate ended,

Mr. Edwards completed the application with Concord. (Supp. S.M.F. 'lI 6; see id. 'lI 69.)

In April 2006, plaintiff signed a notarized statement that listed Mr. Edwards as the

named insured. (Id. !JI 16.) Plaintiff was aware of payments to Mr. Edwards and others.

(Id. 'lI'lI 10, 20-21, 29, 31, 34, 44-46.) Defendant is entitled to summary judgment on

count II.

c. Count III, Negligent Infliction of Emotional Distress

Maine law recognizes claims for negligent infliction of emotional distress when

(1) the plaintiff is a bystander to defendant's tortious conduct, (2) a special relationship

7 exists between the plaintiff and defendant, or (3) the defendant has committed a

separate tort, and the plaintiff cannot recover for emotional distress under the separate

tort. Curtis v. Porter, 2001 ME 158, 'JI 19, 784 A.2d 18. Because plaintiff's other claims

fail, she must raise facts to support a bystander liability theory or the existence of a

special relationship. Although the Law Court has not addressed the issue, the Superior

Court has held that an attorney-client relationship qualifies as a special relationship.

Angelica v. Drummond, 2003 Me. Super. LEXIS 197, at *28 (Sept. 9, 2003).

Plaintiff's statements of material facts, however, include no facts related to

emotional distress, let alone facts sufficient to raise a genuine issue as to serious

emotional distress. See Holland v. Sebunya, 2000 ME 160, 'JI 18, 759 A.2d 205 ("Serious

emotional distress exists where a reasonable person normally constituted, would be

unable to adequately cope with the mental stress engendered by the circumstances of

the event.") (citation omitted). Defendant is entitled to summary judgment on count III.

CONCLUSION

Plaintiff's legal negligence claims fail due to the absence of a genuine issue of

material fact regarding breach and proximate cause. Her breach of contract claim fails

because she has not controverted the facts underlying defendant's conclusion that her

claims against Concord were frivolous. She has also not raised a genuine issue of

material fact regarding emotional distress to support her negligent infliction of

emotional distress claim.

The entry is

Defendant's Motion for Summary Judgment is GRANTED. Judgment is entered in favor o Defendant and inst Plaintiff on Plaintiff's Complaint.

Date: July 7, 2016 Nancy Justice, Superior Court