Martin v. G.W.V.

• Court: Superior Court of Maine
• Decided: January 23, 2015
• Docket: CUMcv-14-435
• Status: Unpublished

Opinion

rNTERfD JAN 2 9 2015

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. CV-14-435 ww-cum- ot-;r~-rs BRIANNE MARTIN, as next friend ofK.F.H,

Plaintiff

V. ORDER

G.W.V., Cum~Ja.C:~~ JAN 23 2015 Defendant RECEIVED Before the court is plaintiff K.F.H's amended motion for an attachment.

Defendant essentially concedes that plaintiff is more likely than not to recover judgment

against defendant. He opposes the granting of an attachment both on the grounds that plaintiff

has not adequately demonstrated damages for emotional distress and on the ground that there is

an adequate showing of the availability of insurance to satisfy the judgment.

On the issue of insurance, it is the defendant's burden to demonstrate the availability of

insurance. Given the October 30, 2014 Braddish letter attached to defendant's affidavit and the

potential exclusions discussed in that letter, the court cannot find that defendant has

demonstrated that insurance will be available.

With respect to plaintiffs showing of emotional distress, the Law Court's decision in

Jacques v. Brown, 609 A.2d 290, 292-93 (Me. 1992), demonstrates that a plaintiff seeking

damages for sexual assault is not required to offer the kind of specificity that might otherwise be

required in order to justify an attachment for emotional distress damages. The court has carefully considered the submissions of plaintiff with respect to the actions

complained of and the impact on plaintiff and finds that it is more likely than not that plaintiff

will recover a judgment of at least$ 75,000. 1 However, it cannot conclude on this record that it is

more likely than not that plaintiff will recover the emotional distress damages of $500,000 for

which she is seeking an attachment.

In particular, the court does not find give any weight to the opinion of a Vermont attorney

as to the potential damages that might be awarded in this case. First, the court questions whether

what purports to be an expert opinion as to the likely award of damages is admissible. Second,

Attorney Evers appears to be basing his opinion on the eventual amounts recovered in settlement

or judgments. The court, however, can only consider the facts before it on the instant motion.

After further evidence is presented of plaintiffs emotional distress, Attorney Evers's opinion

may be correct, but that evidence has not been presented here.

The entry shall be:

Plaintiffs motion for an attachment is granted in part. Attachment and attachment by trustee process shall issue against defendant in the amount of $ 75,000?

The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: January 2.3, 2015

Thomas D. Warren Justice, Superior Court 1 In reaching this result, the court notes that defendant was only accused and convicted of unlawful sexual contact, not gross sexual assault, and that the facts presented in support of the motion with respect to the effect of defendant's actions upon the plaintiff are relatively sparse. No affidavit has been submitted from the plaintiff herself. 2 Attachment shall issue in defendant's real name rather than the pseudonym currently being utilized in the pleadings and in the court's orders.

2 Cl-ERK . COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME 04101

MICHAEL BIGOS ESQ BERMAN & SIMMONS PO BOX 9-61 y\CL;f\~;~~ AV\e;,~~e/ LEWISTON ME 04243-0961

CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME04101

HUMPHREY JOHNSON ESQ ~ r:-- \ . ROBINSON KRIGER & MCCALLUM PA TWELVE PORTLAND PIER ~<'(j\0...1{\T'S ~--\\, r-r'd2- ( PORTLAND ME 04101-4713