McCue v. Greif

• Court: Superior Court of Maine
• Decided: June 8, 2011
• Docket: PENcv-10-200
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss CIVIL ACTION ~~~lr9~_C~-1~-200 GARY MCCUE,

Plaintiff ORDER ON DEFENDANT'S v. MOTION TO DISMISS AND PLAITNIFFS MOTION TO ARTHUR J. GREIF, AMEND COMPLAINT et a1.,

Defendants

Before the court is defendants Arthur J. Grief and Gilbert & Grief, P.A.'s motion

to dismiss and the plaintiff's motion to amend his complaint. For the following reasons,

the motion to dismiss is granted in part and the motion to amend is granted.

BACKGROUND

This case arises out of the defendants' representation of the plaintiff in a personal

injury action, McCue v. Wal-Mart, Penobscot County, CV-06-103. The jury trial resulted

in a verdict for the defendant. The plaintiff in this case alleges, among other things, that

the defendant Arthur J. Greif represented himself as the best personal injury lawyer in

Bangor, but failed to properly investigate the claims, committed tactical errors before

and during trial, failed to consult with the plaintiff, and failed meaningfully to

communicate a pre-trial settlement offer of $250,000.00. According to the plaintiff's

amended complaint, the defendants' conduct was egregious and a represented a willful

and wanton disregard of the consequences of that conduct on the plaintiff. The plaintiff

1 I The defendants' motion to dismiss the plaintiff's requests for punitive damages and attorney's fees is moot. In his first amended complaint, the plaintiff does not request punitive damages or attorneys' fees.

1 alleges that his damages, including severe emotional distress, were a foreseeable result

of the defendants' conduct.

On November 29, 2010, the plaintiff filed a three-count complaint against the

defendants and asserted causes of action for negligence, count I; breach of fiduciary

duty, count II; and negligent infliction of emotional distress, count III. In each count,

the plaintiff requested exemplary and compensatory damages, costs, interest, attorney's

fees and other relief.

On February 1, 2011, the defendants moved to dismiss count III of the plaintiff's

complaint and argue that Maine law does not recognize an independent cause of action

for negligent infliction of emotional distress arising solely out of an attorney-client

relationship. Additionally, the defendants assert that the plaintiff's claims for punitive

damages and attorneys' fees are not warranted. On February 28, 2011/ the plaintiff

filed opposition to the defendants' motion to dismiss and moved to amend his

complaint to specify his allegations of emotional distress and to eliminate his claims for

punitive or exemplary damages and attorneys' fees.

DISCUSSION

Motion to Amend

When a plaintiff moves to amend the complaint in response to a motion to

dismiss, the court should rule on the motion to amend first. Sherbert v. Remmel, 2006

ME 116,

requires." M.R. Civ. P. 15(a); Sherbert, 2006 ME 116,

indication that the plaintiff has been dilatory in filing this motion to amend, or that the

amendment will unfairly prejudice the defendants.

2 The plaintiff's motion to enlarge by eight days the deadline for filing opposition to the motion to dismiss was granted by order dated March 1, 2011.

2 Motion to Dismiss

"A motion to dismiss tests the legal sufficiency of the complaint." Heber v.

Lucerne-in-Maine Village Corp., 2000 ME 137,

v. Cole, 637 A.2d 463,465 (Me. 1994)). "When a court decides a motion to dismiss made

pursuant to M.R. Civ. P. 12(b)(6), 'the material allegations of the complaint must be

taken as admitted.'" Moody v. State Liquor & Lottery Comm'n, 2004 ME 20,

A.2d 43, 47 (quoting Livonia v. Town of Rome, 1998 ME 39,

dismissal should only occur when it appears beyond doubt that a plaintiff is entitled to

no relief under any set of facts that he might prove in support of his claim./11 Moody,

2004 ME 20,

The Law Court has allowed recovery for severe emotional distress damages in

legal malpractice cases when "the actions involved, in addition to economic loss,

egregious actions on the part of the defendant attorney, harm to the plaintiff's

reputation, or other personal losses, such as deterioration of the plaintiff's marriage."

Garland v. Roy, 2009 NIE 86,

MerrilL 612 A.2d 862, 865 (Me. 1992); Sally v. Childs, 541 A.2d 1297, 1300-01 (Me. 1988).

In his first amended complaint, the plaintiff alleges that the defendants' conduct

was "egregious, willful and wanton," and that he suffered severe emotional distress as a

result of the defendants' conduct. (First Am. CompI.

emotional and psychological distress included "hospitalization for depression within 24

hours of the verdict; depression; anxiety; further descent into poverty; loss of sleep; loss

of appetite; and costs associated with hospitalization, counseling, and medications."

(First Am. CompI.

plaintiff, the plaintiff in his first amended complaint states a claim upon which relief

3 can be granted. The plaintiff will be permitted to pursue emotional distress damages in

connection with his malpractice claim.

The court agrees, however, that the plaintiff's negligent infliction of emotional

distress claim should be dismissed. See Richards v. Town of Eliot, 2001 ME 132, 9I 34,

780 A.2d 281, 293; Rippett v. Bemis, 672 A.2d 82, 87-88 (Me. 1996). As the Law Court

has explained, when a wrongdoer has committed a tort other than negligent infliction of

emotional distress and that separate tort "allows a plaintiff to recover for emotional

suffering, the claim for negligent infliction of emotional distress is usually subsumed in

any award entered on the separate tort." Curtis v. Porter, 2001 ME 158, 9I 19, 784 A.2d

18, 26. Further, while independent negligent infliction of emotional distress claims have

been permitted in bystander liability actions and when a special relationship exists

between the plaintiff and the alleged tortfeasor, those cases do not apply to the

circumstances of this case. 14; see also Bolton v. Caine, 584 A.2d 615, 618 (Me. 1990);

Gammon v. Osteopathic Hosp. of Me., 534 A.2d 1282, 1285 (Me. 1987); Rowe v. Bennett,

514 A.2d 802, 807 (Me. 1986); Bryan R. v. Watchtower Bible & Tract Soc'y, Inc., 1999 ME

144, 9I9I 30-31, 738 A.2d 839, 848. 3 The defendants' alleged duty arises out of the

3 In Angelica v. Drummond, 2003 Me. Super. LEXIS 197, *21-28 (Me. Super. Sep. 9, 2003), the Superior Court, on summary judgment, held: A claim based upon the commission of a separate tort "is usually subsumed in any award entered on the separate tort" because most tort claims allow recovery of compensatory damages based on psychic injury. Curtis v. Porter, 2001 ME 158, 453 N.W.2d 634, 639 (Iowa 1990». If an attorney and his client enjoy a

4 attorney-client relationship; damages for emotional suffering may be available in

connection with the plaintiff's malpractice claim. His negligent infliction of emotional

distress claim is subsumed in that separate tort claim.

The entry is

The Plaintiff's Motion to Amend Complaint is GRANTED.

The Defendants' Motion to Dismiss is GRANTED as follows: Count III, Negligent Infliction of Emotional Distress, is DISMISSED.

Date: ~ ·1// Nancy Mills Justice, Superior Court

special relationship, a claim for negligent infliction of emotional distress would not be subsumed in the malpractice claim.