Jay v. Emery Lee & Sons, Inc.

Maine Superior

Jay v. Emery Lee & Sons, Inc.

DecidedJuly 15, 2004

DocketPENcv-04-89

StatusUnpublished

This text of Jay v. Emery Lee & Sons, Inc. (Jay v. Emery Lee & Sons, Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jay v. Emery Lee & Sons, Inc., (Me. Super. Ct. 2004).

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Opinion

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. CIVIL ACTION tNo-CV-04.89

FILED & ENTERED SUPERIOR COURT

Tina M. Jay, Personal Representative JUL 15 200% of the Estate of Tony L. Jay, . ar PENOBSCOT COUNTY ! Order (Motion for Attachment Vv. and Trustee Process) Emery Lee & Sons, Inc. Se : ved Defendant —

SUG 19 angi

Pending before the court is the plaintiff's motion for attachment and trustee process. The court has considered the parties’ submissions on- thelmotion and their presentations advanced at the July 7, 2004, hearing on the motion. In this action, the

plaintiff seeks recovery for Josses occasioned bythe death of her-husband.in a-motor—~——- vehicle collision that also involved an employee of the defendant.

In support of the motion at bar, the plaintiff has submitted two affidavits: one that she executed, and one executed by her counsel of record. Counsel’s affidavit is appended by three documents: an accident report prepared by a police officer; an accident reconstruction report prepared by a different police officer; and a report prepared by an economist. The first two reports are relevant to the question of liability, and the third bears on the plaintiff’s claim for pecuniary loss. The defendant has not filed any counter- affidavits but rather challenges the legal sufficiency of the plaintiff's submissions as a

basis for the order she seeks here.

M.R.Civ.P. 4A(i) sets out the requirements for an affidavit that must accompany a motion for attachment. Rule 4B(c) incorporates those requirements into the procedure used to obtain attachment by trustee process. Under the former provision, an affidavit “shall set forth specific facts sufficient to warrant the required findings and shall be upon

the affiant’s own knowledge, information or belief; and, so far as upon information and belief, shall state that the affiant believes this information to be true.” The form of the jurat authorized by this rule plainly allows the affiant to represent information that is both personally known and not personally known. If the latter, the affiant must swear that he believes that the information is true. Here, the jurat embodying counsel’s oath satisfies this requirement, thus demonstrating that he (counsel) believes that the information in the two police reports and in the economist’s report is true. The sufficiency of the jurat used here distinguishes this case from Englebrecht v. Development Corp. for Evergreen Valley, 361 A.2d 908 (Me. 1976), on which the defendant relies, because there the affiant did not affirmatively state that the affidavit expressed his actual knowledge, information or belief and because the jurat there was facially insufficient.

The defendant argues that counsel’s affidavit, taken by itself, does not “set forth specific facts” as required by rule 4A(i), because the specific facts relating to the circumstances of the accident and to the pecuniary loss claim are set out, not in the affidavit, but in the three reports accompanying the affidavit. As a general matter, this observation is true.' The court concludes, however, that in the present circumstances, the format of the affidavit, essentially incorporating those reports, is not insufficient. The purpose of the requirement of factual specificity is to allow the court to properly assess whether the movant is more likely than not to prevail at trial and, if so, to determine the amount of any attachment or trustee process. Cf Bowman v. Dussault, 425 A.2d 1325, 1329 (Me. 1981). Here, the best way to convey that underlying factual information to the court and to the motion opponent is through the reports prepared by the persons who have actually conducted the studies that resulted in their conclusions. There can be no question that those reports set out specific factual information that satisfies this aspect of rule 4A(i). The defendant argues that this information should be presented in the form of an affidavit. However, rule 4A(i) does not require the authors of those reports to execute an affidavit. Rather, the affiant could be a person who expresses a sworn beliefthat the reported information is true. Under the defendant’s analysis, the affiant would be

allowed simply to restate the contents of that report, rather than to incorporate the report

' Counsel’s affidavit does independently set out some of the contents of the police reports. However, it restates nothing of the economist’s report save the ultimate conclusion regarding the actual amount of pecuniary loss calculated by that economist. into a properly sworn affidavit. When a report is attached to and functionally incorporated into the affidavit, then the affidavit itself must be deemed to include the “specific facts” required by the rule. Thus, although the plaintiff could have submitted affidavits executed by the authors of the reports, the format used here is still within the requirements of rule 4A(i).

Svenska Ortmedicinska Institutet v. DeSoto, 164 F.Supp.2d 27 (D.Me. 2001) does not compel a different result. There, the movant relied on an auditor’s letter summarizing the status of accounts that constituted the grounds for a contract claim. Jd. at 33-34. The letter itself was not presented in the form of an affidavit. Id. at 34. Additionally, from the court’s opinion, it does not appear that was supported by anyone’s oath satisfying the requirements of M.R.Civ.P. 4A. Jd. (“Without an affidavit, the audit summary alone is insufficient to support a showing that Plaintiffs could recover a certain amount of damages from Defendants on their claims for breach of contract.”). Further, to the extent that the federal court required information in an affidavit to be “admissible,” see id., this court respectfully disagrees. Rule 4A allows a movant to submit information that clearly would be inadmissible, see Precision Communications, Inc. v. Rodrigue, 451 A.2d 300, 302, n. 3 (Me. 1982), because, for example, that information need not be supported by personal knowledge.

As a separate challenge to the motion, the defendant contends that 29-A M.R.S.A. § 2251(7) prohibits consideration of the two police reports. In part, that statute provides that the contents of an investigating officer’s accident report “may not be admitted in evidence in any trial, civil or criminal, arising out of the accident.” However, as the defendant agreed at the motion hearing, a motion for attachment and trustee process is not atrial. Further, standards of evidence are inapplicable here, as is shown in the rule’s allowance for information or even beliefs that an affiant thinks are true. Although the purpose of accident reports may be other than evidentiary, the terms of section 2251(7) do not preclude consideration of those reports in the present context.

As part of the basis for attachment and trustee process, the plaintiff contends that she is more likely than not to obtain recovery of $400,000 for loss of the comfort, society and companionship of her husband. See 18-A ML.R.S.A. § 2-804(b). In support of this

part of her motion, the plaintiff has submitted her own affidavit, which factually addresses the quality of the marital relationship and the decedent’s role in the family. Additionally, in his affidavit, counsel has expressed an opinion that based on his experience, the plaintiff is likely to recover the full amount allowable ($400,000) for this part of her claim. The defendant contends that counsel’s opinion should not be considered. The court is inclined to agree with the defendant’s position.

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