Hewison v. Progressive Cas. Ins. Co.

• Court: Superior Court of Maine
• Decided: June 13, 2003
• Docket: ANDcv-02-126
• Status: Unpublished

Opinion

STATE OF MAINE RECEIVED &eL.ep SUPERIOR COURT ANDROSCOGGIN, SS. CIVIL ACTION

OM NO. CV-02- 126 |

BRUCE HEWISON, Plaintiff ORDER ON PLAINTIFF’S MOTION FOR SUMMARY Vv. JUDGMENT AND TO STRIKE AFFIRMATIVE DEFENSES

PROGRESSIVE CASUALTY INS. CO.

and

JOHN F. PLOURDE JR.,

Defendants

After review and full consideration of the arguments and submissions of the

parties, the court determines that plaintiff's Motion for Summary Judgment should be

granted.

It is therefore hereby ORDERED and ADJUDGED as follows:

1. There is no genuine issue of material fact as to the settlement agreement

between the defendant and the plaintiff. Counsel for plaintiff and Progressive’s representative John Plourde agreed to a settlement in full of $6,500.00. The defendants did not require a release from Tammy Hewison as part of the negotiation or terms.

The fact that it was Progressive’s “policy” to require release from a claimant’s spouse has no legal effect in this case.

The court finds that there was no mutual mistake of fact and that plaintiffs counsel made no misrepresentations to defendants. If there was a mistake here, it is solely on the part of defendants.

An assertion that plaintiff's counsel was aware of Progressive’s policy for a spousal release because of another case’ is irrelevant.

Enforcement of a settlement agreement is a recognizable action. See e.g. Murphy v. Maddaus, 2002 ME 24, 789 A.2d 1281.

1 See affidavit of Donna Yerxa submitted by defendant. Even if the facts set out in the affidavit are deemed relevant, the affidavit is not executed and cannot be considered by the court. 2. Plaintiff, Bruce Hewison, is entitled to summary judgment as a matter of law on the issues of specific performance.

3. Summary judgment is hereby entered in favor of plaintiff, Bruce Hewison. 4. Defendant's affirmative defenses #1, #2, #3, #4, and #5 are stricken.

5. The defendants are Ordered to draft and present to the plaintiff through counsel appropriate documents to affect the final agreement as agreed to by the parties as set forth by the court herein.

6. Plaintiff is awarded his costs and statutory interest.

The clerk is directed to incorporate this Order by reference in the docket for this case.

So Ordered.

DATED: \WAn& (2 ) 200%

Thomat E. Delahanty II Justice, Superior Court