Kelley v. Kimball

• Court: Superior Court of Maine
• Decided: October 9, 2015
• Docket: CUMcv-15-213
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKETNO. CV-15-213

KATHLEEN KELLEY, individually and as Personal Representative of the Estate of Leon Kelley,

Plaintiff

v. ORDER

MERRILL KIMBALL,

Defendant

Before the court is plaintiff Kathleen Kelley's motion for an attachment on certain real

property owned by defendant Merrill Kimball in joint tenancy with his wife, Karen Kimball.

The court concludes that Kelley has demonstrated that it is more likely than not that she

will recover a judgment against Merrill Kimball on at least some of the claims asserted in the

complaint. The disputed issue raised by this motion concerns whether Kelley has sufficiently

demonstrated the amount of any damages that are likely to be awarded.

As counsel for Kimball emphasizes, the Law Court has required that a party needs to

make a sufficiently specific showing of damages from which an "informed projection" can be

made as to the amount of damages suffered. Bowman v. Dussault, 425 A.2d 1325, 1329 (Me.

1981 ). In this case that is a difficult task because Kelley has not offered any evidence as to the

pecuniary damages that may be recovered by the Estate of Leon Kelley, and the remainder of the

damages sought are for pain and suffering and emotional distress - both of the decedent and

Kelley herself. The affidavits submitted by Kathleen Kelley merely describe in summary fashion that

defendant Kimball illegally entered premises owned by Stan Brown, assaulted and battered the

decedent when asked to leave, and then shot the decedent in Kathleen Kelley's presence. The

Bowman case demonstrates that an affidavit supporting an attachment for emotional distress and

pain and suffering ordinarily must contain evidence as to the nature and extent of the emotional

distress and other suffering for which an attachment is sought. In Vogt v. Churchill, 679 A.2d

522, 524 (Me. 1996), the Law Court noted that although emotional distress damages are not

susceptible to quantification by expert testimony or other evidence, an attachment can be based

on the "nature of the emotional distress described in the affidavits." In this case, however, the

moving party's affidavits do not contain any description of the nature of the pain and suffering or

emotional distress that was allegedly suffered by the decedent or by Kathleen Kelly.

However, in Jacques v. Brown, 609 A.2d 290, 292-93 (Me. 1992), the Law Court

suggested that some wrongful acts are so likely to cause emotional distress that an attachment

can be granted even without some of the specific evidence that would otherwise be required.

Jacques involved a plaintiff who was suing her father for sexual assaults for which the father had

been convicted. Although more evidence was apparently offered by the plaintiff in Jacques to

support her claim for damages than Kelley has presented here, 1 the Law Court stated that the

sexual assaults "in and of themselves" were sufficiently invasive that an attachment of $100,000

could be sustained. 609 A.2d at 293.

Similarly in this case, the court concludes that the facts set forth. in plaintiffs affidavit, in

and of themselves, make it likely that a judgment in plaintiffs favor would include a six figure

damage award. However, given the absence of any evidence as to pecuniary damages, as to the

1 The Law Court noted that the plaintiff in Jacques had alleged that her father's sexual attacks had caused a change in her personality and had adversely affected her relationship with h~:r husband. 609 A.2d at 292.

2 emotional distress that was suffered by the decedent and by Kathleen Kelley, as to any pain and

suffering experienced by the decedent during the events that preceded the shooting, and as to

whether the decedent experienced any conscious pain and suffering from the shooting, the court

cannot justify an attachment in excess of $100,000 but will conclude that it is likely that Kelley

will recover at least that amount for purposes of the motion for attachment.

Kimball also argues that there is a homeowners' policy covering up to $500,000 and that

Kelley has not proven on this record that the amount of damages would likely exceed $500,000.

The insurance policy is in the record and contains a standard exclusion for bodily injury which is

"expected or intended" by the insured. Policy Section II at p. 19, Exclusions, Section A.l. Under

these circumstances the court concludes that it is not likely that there would be liability insurance

available to satisfy an anticipated judgment of $100,000 in this case.

The entry shall be:

Plaintiff's motion for attachment is granted in part. An attachment shall issue against defendant's real property in the amount of $100,000. The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: October _5_, 2015

~ Thomas D. Warren STATE Of"ll(li'\INt Justice, Superior Court CumhArbnrl .-;-:: f~lprlf'~ Officf' OCT 0 9 21115 RECt:iVED

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