McDonald v. Dimillo

• Court: Superior Court of Maine
• Decided: July 20, 2023
• Docket: CUMcv-23-52
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. CV-23-52

PATRICK MCDONALD and SONYA MCDONALD,

Plaintiffs, ORDER GRANTING V. MOTION TO DISMISS

ISABELLE DIMILLO, RIVALRIES, LLC, and COMMERCIAL STREET PUB, INC.

Defendants

Before the court is a motion to dismiss brought by Defendant Rivalries, LLC

("Rivalries") pursuant to the Maine Liquor Liability Act, 28-A M.R.S. § 2513.

Background

Plaintiffs Patrick and Sonya McDonald have filed a four-count complaint based on

injuries Patrick sustained when injured in a collision on his motorcycle. The complaint alleges

that DiMillo was operating under the influence of alcohol when she caused her vehicle to strike

Patrick McDonald's motorcycle on October 30, 2021. Count II, brought against Rivalries, is for

violation of the Maine Liquor Liability Act ("Act"), Maine Revised Statutes Title 28-A, Chapter

100. Specifically, it alleges that prior to the collision, Rivalries recklessly and/or negligently

served DiMillo alcohol after her shift working there and when she was visibly intoxicated,

thereby proximately causing serious injury to Patrick McDonald.

Plaintiffs sent Rivalries notice of their claim on October 5, 2022. Rivalries has moved to

dismiss count II. It argues that Plaintiffs failed to give Rivalries notice within the allotted 180­

day window under 28-A M.R.S. § 2513 and have failed to show good cause for that failure.

1 Legal Standard

Every plaintiff seeking damages under this Act must give written notice to all defendants within 180 days of the date of the server's conduct creating liability under this Act. The notice must specify the time, place and circumstances of the server's conduct creating liability under this Act and the time, place and circumstances of any resulting damages. No error or omission in the notice voids the effect of the notice, if otherwise valid, unless the error or omission is substantially material. Failure to give written notice within the time specified is grounds for dismissal of a claim, unless the plaintiff provides written notice within the limits of section 2514 and shows good cause why notice could not have reasonably been filed within the 180-day limit. For purposes of this section, "good cause" includes but is not limited to the inability of the plaintiff to obtain investigative records from a law enforcement officer or law enforcement agency.

28-A M.R.S. § 2513. Section 2514 requires that actions under the Act are brought within two

years after the cause of action accrues.

Discussion

There is no dispute that Plaintiffs gave Rivalries notice of the claim outside of the 180­

day window of§ 2513 but inside of the two-year window of§ 2514. Therefore, the court only

addresses whether Plaintiffs have shown good cause why notice could not have reasonably been

filed within the 180-day limit. Plaintiffs provide an affidavit from Plaintiffs counsel, detailing

his efforts and providing as exhibits the documents he obtained throughout his investigation.

After reviewing the briefs, affidavit, and exhibits, the court determines that Plaintiffs have not

shown good cause and grants Rivalries motion to dismiss count IL

Rivalries cites Beaulieu v. Aube Corp. for the proposition that good cause under the Act

"requires a showing that the plaintiff was unable to file a claim or was meaningfully prevented

from learning the information forming the basis for his or her complaint." 2002 ME 79, 1 13, 796

A.2d 683 (citing Peters v. City a/Westbrook, 2001 ME 179, 16, 787 A.2d 141). Plaintiffs

2 distinguish the case as a more extreme set of facts; however, regardless of the differences in fact,

the definition of good cause in Beaulieu is controlling. 1

According to his affidavit, Plaintiffs' Attorney obtained a copy ofDiMillo's driving

record after agreeing to represent the McDonalds in late January 2022. Aff. ,r,r 2-3. Plaintiffs

argue no information on this document could have alerted them that DiMillo had been operating

under the influence. However, DiMillo's driving record, clearly states, "ADMINISTRATIVE

ACTION - OPER WITH BAC .08 OR MORE," and on the next line, it reads "VIOLATION­

DATE: 10/30/21." (Pls.' Ex. A.) This document should have put Plaintiffs on notice that DiMillo

had been intoxicated at the time of the collision.

The affidavit shows no additional investigative steps by Plaintiffs Attorney between

January and June 2022, during which time the 180-day period lapsed in April, 2022. Plaintiffs

Attorney's affidavit states that he first learned that DiMillo had been arrested for operating under

the influence upon reading the State of Maine crash report (Pls.' Ex. B.), which he received on

June 6, 2022, four to five months after the receipt of the driving report and over one month after

the deadline to notify Rivalries had passed. Aff. ,r,r 4-5. Plaintiffs offer no reason why it took so

long to obtain the crash report. After receipt of the crash report, the affidavit shows no action

until June 20, 2022, when Plaintiffs Attorney requested a copy of the police report from the

Portland Police Department. ,r 5. In a June 22 reply letter, Portland Police Department advised

him to make his request to Portland's Corporation Counsel. ,r 6. He sent a letter requesting the

police file for the collision to Corporation Counsel over a month later on July 27, 2022. ,r 7.

Plaintiff Attorney's affidavit shows that he did not learn ofRivalries's involvement in the

incident until an unspecified date in September 2022, when DiMillo' s counsel in the related

1 The Legislature amended§ 2513 in 2017 to add the final sentence, which clarifies the definition but does not

supersede Beaulieu.

3 criminal case informed him that DiMillo had been drinking alcohol at Rivalries before the

collision. ,r 10. He had first reached out to criminal counsel in June 2022 and requested to meet

with DiMillo herself to ask about her drinking on October 30, 2021. ,r 8. Criminal counsel

offered dates to meet, but Plaintiffs Attorney could not meet on those dates. (Pls.' Ex. F.)

Plaintiffs Attorney asked criminal counsel to meet a few more times. Id Neither the exhibits nor

affidavit shows that he ever asked DiMillo' s criminal counsel anything about the night of the

crash, only that he requested to speak with DiMillo herself. Plaintiffs Attorney states that he

sent notice of the claim to Rivalries "within 30 days of' discovering Rivalries's involvement.

Aff. ,r 13.

The court cannot find good cause on these facts. 2 No evidence suggests Plaintiffs took

any steps to further their investigation between the time in January 2022 when they should have

known of DiMillo' s intoxication and when they actually learned of her intoxication in June 2022,

after the time notice period had lapsed. Any difficulty Plaintiffs Attorney had in scheduling a

meeting with criminal counsel or in obtaining a police report does not excuse the failure to

investigate during the notice period. Plaintiffs have not shown they were meaningfully prevented

from learning about Rivalries's involvement or unable to file a claim. While the result may be

harsh if there was a good case against Rivalries, the statute compels dismissal. The court grants

Rivalries motion to dismiss count II.

The entry is Defendant Rivalries, LLC's Motion to Dismiss is GRANTED. Plaintiffs' Count II is DISMISSED.

The clerk is directed to enter this order on the docket by reference. M.R. Civ. P. 79(a).

2 The parties did not brief or offer authority on whether the court should consider prejudice to the

Defendant as a result of the delay when considering good cause.

4 Signed:--"-/?/_·~._//_/_ _ _ _ ____ _ _ _ __

Thomas R. McKean Justice, Maine Superior Court