Massachusetts Bay Ins. Co. v. Jordan Lumber Co., Inc.

• Court: Superior Court of Maine
• Decided: November 10, 2021
• Docket: CUMcv-21-236
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. CV-2021-236 ) MASSACHUSETTS BAY INSURANCE ) COMPANY, ) ) Plaintiff, ) ) ORDER ON PLAINTIFF'S V. ) MOTION FOR SUMMARY ) JUDGMENT JORDAN LUMBER CO., INC., ) JONATHAN V. JORDAN, and DAYID J. ) BUSHLEY, ) REC'D CUMB CLERKS OFC ) NOV 10 '21 PMl:08 Defendants. ) )

Before the Court is Plaintiff Massachusetts Bay Insurance Company's

("Massachusetts Bay") Motion for Summary Judgment. For the following reasons, the

Court denies the Motion.

I. Background

This matter arises out of a personal injury action brought by David J. Bushley

against Jordan Lumber Co., Inc. ("Jordan Lumber") and Jonathan V. Jordan ("the

Underlying Action") in which Mr. Bushley seeks to recover damages for injuries he

sustained when he was knocked over by a machine owned by Mr. Jordan and/ or Jordan

Lumber.

At the time of the incident, Jordan Lumber was insured by Massachusetts Bay. In

this action, Massachusetts Bay seeks a declaratory judgment providing that it has no duty

to defend Jordan Lumber or Mr. Jordan in the Underlying Action. Massachusetts Bay

has moved for summary judgment on its Complaint. As discussed in detail below,

Massachusetts Bay's Motion for Summary Judgment suffers deficiencies that require the

Court to deny the Motion.

Page 1 of 4 II. Summary Judgment Standard

At the summary judgment stage, "strict adherence to [M.R. Civ. P. 56's]

requirements is necessary to ensure that the process is both predictable and just." Cach,

LLC v. Kulas, 2011 ME 70, 91 12, 21 A.3d 1015 (quoting Deutsche Bank Nat'/ Tr. Co. v.

Raggiani, 2009 ME 120, 9f 7, 985 A.2d 1). A party is entitled to summary judgment when

review of the parties' statements of material facts and the record to which the statements

refer demonstrates that there is no genuine issue as to any material fact in dispute, and

that the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); Dyer

v. Dep't of Transp., 2008 ME 106, 9114, 951 A.2d 821. A court may consider documents at

the summary judgment stage only when the documents are attached to an affidavit that

authenticates the documents according to M.R. Civ. P. 56(e). Ocean Cml'ys. Fed. Credit

Union v. Roberge, 2016 ME 118, 918 n.2, 144 A.3d 1178.

A contested fact is material if it could potentially affect the outcome of the case.

Dyer, 2008 ME 106, 9114, 951 A.2d 821. A genuine issue of material fact exists if the

claimed fact would require a factfinder to "choose between competing versions of the

truth." Id. (quoting Farrington's Orvners' Ass'n v. Conway Lake Resorts, Inc., 2005 ME 93, 91

9, 878 A.2d 504).

When deciding a motion for summary judgment, the court reviews the evidence

in the light most favorable to the non-moving party. Id. The evidence offered in support

of a genuine issue of material fact "need not be persuasive at that stage, but the evidence

must be sufficient to allow a fact-finder to make a factual determination without

speculating." 1 Est. of Smith v. Cumberland Counfy, 2013 ME 13, 9119, 60 A.3d 759.

1Each party's statements must include a reference to the record where "facts as would be admissible in evidence" may be fmmd. M.R. Civ. P. 56(e). A party's opposing statement of material facts "must explicitly admit, deny or qualify facts by reference to each numbered paragraph, and a denial or qualification must be supported by a record citation." Stanley v. Hancock Cnty. Comm'r, 2004 ME 157, <[ 13, 864 A.2d 169.

Page 2 of 4 III. Discussion

Whether an insurer has a duty to defend is a question of law. Harlor v. Amica Mut.

ins. Co., 2016 ME 161, 9I 7, 150 A.3d 793. The duty to defend "is determined by comparing

the allegations in the underlying complaint with the provisions of the insurance policy."

Com. Union Ins. Co. v. Alves, 677 A.2d 70, 72 (Me. 1996). 11 (T]he threshold for triggering

an insurer's duty to defend is low." Irving Oil, Ltd. v. ACE INA Ins., 2014 ME 62, 9[ 12, 91

A.3d 594. The Law Court has held that "[r]egardless of extrinsic evidence, if the

complaint-read in conjunction with the policy-reveals a mere potential that the facts

may come within the coverage, then the duty to defend exists." Cox v. Commonwealth

Land Title Ins. Co., 2013 ME 8, 9I 9, 59 A.3d 1280.

Unforhmately, there is no copy of an insurance policy issued by Massachusetts

Bay in the record that the Court is able to consider. Although Massachusetts Bay filed a

copy of an insurance policy supported by a "certification" signed by an employee of

Hanover Insurance Group, the certification contains no jurat and no signature of a notary

or other official. It is, therefore, not an affidavit. See In re Child of Dawn B., 2019 ME 93, 9[

8 n.6, 210 A.3d 169; In re Tyrel L., 2017 ME 212, 91 10, 172 A.3d 916. No other affidavit

referring to the insurance policy is included in the record. Unaccompanied by an

authenticating affidavit complying with Rule 56(e), the Court may not consider the

insurance policy for the purposes of summary judgment. 2 Massachusetts Bay, therefore,

has failed to establish that there is no dispute of material fact as to its duty to defend and

that it is entitled to judgment as a matter of law. Accordingly, the Court must deny the

Motion for Summary Judgment.

IV. Conclusion

2The Court notes that the statements in Massachusetts Bay's Statement of Undisputed Material Facts solely refer to attached documents.

Page 3 of 4 For the foregoing reasons, the Court must deny Massachusetts Bay's Motion for

Summary Judgment.

The entry is:

Plaintiff Massachusetts Bay Insurance Company's Motion for Summary Judgment is DENIED.

The Clerk is directed to incorporate this Order into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a).

Page 4 of 4