STATE OF MAINE SUPERIOR COURT YORK, SS. CIVIL ACTION DOCKET NO. CV-14-62
COLEMAN MCDONOUGH,
Plaintiff,
v. ORDER
NORMAND M. METHOT INSURANCE, INC., ERINN FORTUNE, and NICKOLAI FORTUNE,
Defendants.
I. Background
A. Procedural Posture
Plaintiff Coleman McDonough ("McDonough") brings this action against
Normand M. Methot Insurance, Inc. ("Methot") and Erinn and Nickolai Fortune ("the
Fortunes"). McDonough alleges claims for negligence arising out of a fire loss that
occurred at 7 Allen Street in Sanford. Before the court is defendant's motion for
summary judgment. The Fortunes have not answered or appeared in this action and have
been defaulted.
B. Facts
Plaintiff Coleman McDonough is the owner of real property located at 7 Allen
Street in Sanford. (Def.'s S.M.F. ~ 2.) In June of '.2013, McDonough called Brian A.
1 Methot, an insurance agent at Methot Insurance Agency, Inc., to discuss available fire
insurance policies for the property. (Def. 's S.M.F. ~ 4.)
During this conversation, Brian Methot informed McDonough that an inspection
would take place. (Def.'s S.M.F. ~ 5.) Brian Methot performed said inspection, taking
pictures and documenting conditions at the 7 Allen Street property, noting missing
windows and a seemingly "active pigsty." (Def.'s S.M.F. ~ 7.) According to Brian
Methot, the condition of the property was "very poor," but McDonough denies this
assessment. (Pl.'s Opp. Def.'s S.M.F. ~ 7.) As a result of the inspection, Brian Methot
concluded the condition of the property was so poor that it was uninsurable. (Def.' s
S.M.F. ~ 8.)
Brian Methot thereafter attempted to contact McDonough to inform him about the
inspection and his conclusions regarding the insurability of the property. (Def.'s S.M.F. ~
9.) Methot called McDonough on June 7, 2013, and again on June 12 and 13, each time
leaving messages indicating that he could not insure the property and requesting
McDonough call back to discuss the matter. (Def.' s S.M.F. ~ 10.) McDonough never
returned these calls.
McDonough has no memory of Brian Methot calling him after the initial
conversation. 1 (Pl.'s Opp. Def.'s S.M.F. ~~ 9-12.) According to McDonough, during that
first conversation, Brian Methot told him that anything is insurable and to "consider the
property bound." (Pl.'s Add't S.M.F. ~~ 1-2.)
Methot did not submit a policy application and McDonough made no payments to
Methot to bind coverage: (Def.'s S.M.F. ~~ 14-15.) Ultimately, no policy was ever issued
1 For the purposes of summary judgment, the court accepts the plaintiffs version of the facts. This factual dispute is not ultimately material for the reasons set forth below.
2 to cover the 7 Allen Street property. (Def.'s S.M.F. ,r 12.) When McDonough failed to
return messages, Methot assumed McDonough no longer wished to obtain insurance
coverage for the property. (Def.'s S.M.F. ,r 13.)
On September 5, 2013, a fire damaged the property. (Def.'s S.M.F. ,r 3.) The fire
originated at 5 Allen Street, a property owned by the Fortunes. The structures on 5 and 7
Allen Street are connected.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits . . . show that there is
no genuine issue as to any material fact . . . and that any party is entitled to a judgment as
a matter of law." M.R. Civ. P. 56(c). "To avoid a judgment as a matter of law for a
defendant, a plaintiff must establish a prima facie case for each element of her cause of
action." Champagne v. Mid-Me. Med. Ctr., 1998 ME 87, ,r 9, 711 A.2d 842. "A prima
facie case of negligence requires a plaintiff to establish the following elements: a duty
owed, a breach of that duty, and an injury to the plaintiff that is proximately caused by a
breach of that duty." Brown v. Delta Tau Delta, 2015 ME 75, ,r 40, 118 A.3d 789
(citation omitted) (quotation marks omitted).
The defendant moves for summary judgment arguing that (1) the plaintiff has no
expert to testify to the standard of care, (2) the undisputed facts establish defendant met
any applicable standard of care, and (3) plaintiff fails to produce prima facie evidence
that any negligence was the cause of his damages.
3 B. Expert Testimony
Defendant first moves for summary judgment on the basis the plaintiff has not
designated an expert to testify to the applicable standard of care and thus there is no
prima facie evidence of breach.
The Law Court has yet to hold that expert testimony is required in insurance
procurement cases like other professional negligence cases such as legal or medical
malpractice. The general rule is that expert testimony is not required "where the
negligence and harmful results are sufficiently obvious as to lie within common
knowledge." Searles v. Trs. ofSt. Joseph's Coll., 1997 ME 128, ,r 10, 695 A.2d 1206
(citation omitted).
According to McDonough, Brian Methot expressly represented that the property
was "bound," but failed to make direct contact thereafter to inform McDonough the
prope1iy was not in fact insured. Whether Mr. Methot exercised reasonable care under
these circumstances is within the ability of a layperson, untrained in insurance, to
understand.
But even if expert testimony is not required, a plaintiff must still present some
evidence of causation between the insurance agent's alleged breach and the piaintiff s
damages. See Tri-Town Marine, Inc., 2007 ME 67, ,r 10, 924 A.2d 1066. This is
examined further below in Part D.
C. Breach
Defendant argues the undisputed facts establish that the defendant exercised
reasonable diligence as a matter of law and therefore the plaintiff has not made a prima
4 facie showing of breach. Defendant emphasizes that Brian Methot tried but was unable to
secure insurance for the property due to its condition and made multiple efforts to contact
McDonough thereafter.
"An insurance agent generally assumes only those duties found in an ordinary
agency relationship, that is, to use reasonable care, diligence and judgment in obtaining
the insurance coverage requested by the insured party." &elenyi v. A1orse, Payson &
Noyes Ins., 594 A.2d 1092, 1094 (Me. 1991). A reasonable fact-finder could well
conclude that Brian Methot's actions met the standard of care. But drawing all reasonable
inferences in favor of the plaintiff, the court cannot reach this conclusion as a matter of
law because breach is a question of fact. Brown, 2015 ME 75, ~ 29, 118 A.3d 789.
Summary judgment is inappropriate on this basis.
D. Causation
"For causation to be established in [negligent failure to procure insurance cases],
the plaintiff must allege that, but for the defendant's acts, the resulting outcome for the
plaintiff would have been both different, and more favorable." Tri-Town M.arine, Inc.,
2007 ME 67, ,i 10, 924 A.2d 1066.
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STATE OF MAINE SUPERIOR COURT YORK, SS. CIVIL ACTION DOCKET NO. CV-14-62
COLEMAN MCDONOUGH,
Plaintiff,
v. ORDER
NORMAND M. METHOT INSURANCE, INC., ERINN FORTUNE, and NICKOLAI FORTUNE,
Defendants.
I. Background
A. Procedural Posture
Plaintiff Coleman McDonough ("McDonough") brings this action against
Normand M. Methot Insurance, Inc. ("Methot") and Erinn and Nickolai Fortune ("the
Fortunes"). McDonough alleges claims for negligence arising out of a fire loss that
occurred at 7 Allen Street in Sanford. Before the court is defendant's motion for
summary judgment. The Fortunes have not answered or appeared in this action and have
been defaulted.
B. Facts
Plaintiff Coleman McDonough is the owner of real property located at 7 Allen
Street in Sanford. (Def.'s S.M.F. ~ 2.) In June of '.2013, McDonough called Brian A.
1 Methot, an insurance agent at Methot Insurance Agency, Inc., to discuss available fire
insurance policies for the property. (Def. 's S.M.F. ~ 4.)
During this conversation, Brian Methot informed McDonough that an inspection
would take place. (Def.'s S.M.F. ~ 5.) Brian Methot performed said inspection, taking
pictures and documenting conditions at the 7 Allen Street property, noting missing
windows and a seemingly "active pigsty." (Def.'s S.M.F. ~ 7.) According to Brian
Methot, the condition of the property was "very poor," but McDonough denies this
assessment. (Pl.'s Opp. Def.'s S.M.F. ~ 7.) As a result of the inspection, Brian Methot
concluded the condition of the property was so poor that it was uninsurable. (Def.' s
S.M.F. ~ 8.)
Brian Methot thereafter attempted to contact McDonough to inform him about the
inspection and his conclusions regarding the insurability of the property. (Def.'s S.M.F. ~
9.) Methot called McDonough on June 7, 2013, and again on June 12 and 13, each time
leaving messages indicating that he could not insure the property and requesting
McDonough call back to discuss the matter. (Def.' s S.M.F. ~ 10.) McDonough never
returned these calls.
McDonough has no memory of Brian Methot calling him after the initial
conversation. 1 (Pl.'s Opp. Def.'s S.M.F. ~~ 9-12.) According to McDonough, during that
first conversation, Brian Methot told him that anything is insurable and to "consider the
property bound." (Pl.'s Add't S.M.F. ~~ 1-2.)
Methot did not submit a policy application and McDonough made no payments to
Methot to bind coverage: (Def.'s S.M.F. ~~ 14-15.) Ultimately, no policy was ever issued
1 For the purposes of summary judgment, the court accepts the plaintiffs version of the facts. This factual dispute is not ultimately material for the reasons set forth below.
2 to cover the 7 Allen Street property. (Def.'s S.M.F. ,r 12.) When McDonough failed to
return messages, Methot assumed McDonough no longer wished to obtain insurance
coverage for the property. (Def.'s S.M.F. ,r 13.)
On September 5, 2013, a fire damaged the property. (Def.'s S.M.F. ,r 3.) The fire
originated at 5 Allen Street, a property owned by the Fortunes. The structures on 5 and 7
Allen Street are connected.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits . . . show that there is
no genuine issue as to any material fact . . . and that any party is entitled to a judgment as
a matter of law." M.R. Civ. P. 56(c). "To avoid a judgment as a matter of law for a
defendant, a plaintiff must establish a prima facie case for each element of her cause of
action." Champagne v. Mid-Me. Med. Ctr., 1998 ME 87, ,r 9, 711 A.2d 842. "A prima
facie case of negligence requires a plaintiff to establish the following elements: a duty
owed, a breach of that duty, and an injury to the plaintiff that is proximately caused by a
breach of that duty." Brown v. Delta Tau Delta, 2015 ME 75, ,r 40, 118 A.3d 789
(citation omitted) (quotation marks omitted).
The defendant moves for summary judgment arguing that (1) the plaintiff has no
expert to testify to the standard of care, (2) the undisputed facts establish defendant met
any applicable standard of care, and (3) plaintiff fails to produce prima facie evidence
that any negligence was the cause of his damages.
3 B. Expert Testimony
Defendant first moves for summary judgment on the basis the plaintiff has not
designated an expert to testify to the applicable standard of care and thus there is no
prima facie evidence of breach.
The Law Court has yet to hold that expert testimony is required in insurance
procurement cases like other professional negligence cases such as legal or medical
malpractice. The general rule is that expert testimony is not required "where the
negligence and harmful results are sufficiently obvious as to lie within common
knowledge." Searles v. Trs. ofSt. Joseph's Coll., 1997 ME 128, ,r 10, 695 A.2d 1206
(citation omitted).
According to McDonough, Brian Methot expressly represented that the property
was "bound," but failed to make direct contact thereafter to inform McDonough the
prope1iy was not in fact insured. Whether Mr. Methot exercised reasonable care under
these circumstances is within the ability of a layperson, untrained in insurance, to
understand.
But even if expert testimony is not required, a plaintiff must still present some
evidence of causation between the insurance agent's alleged breach and the piaintiff s
damages. See Tri-Town Marine, Inc., 2007 ME 67, ,r 10, 924 A.2d 1066. This is
examined further below in Part D.
C. Breach
Defendant argues the undisputed facts establish that the defendant exercised
reasonable diligence as a matter of law and therefore the plaintiff has not made a prima
4 facie showing of breach. Defendant emphasizes that Brian Methot tried but was unable to
secure insurance for the property due to its condition and made multiple efforts to contact
McDonough thereafter.
"An insurance agent generally assumes only those duties found in an ordinary
agency relationship, that is, to use reasonable care, diligence and judgment in obtaining
the insurance coverage requested by the insured party." &elenyi v. A1orse, Payson &
Noyes Ins., 594 A.2d 1092, 1094 (Me. 1991). A reasonable fact-finder could well
conclude that Brian Methot's actions met the standard of care. But drawing all reasonable
inferences in favor of the plaintiff, the court cannot reach this conclusion as a matter of
law because breach is a question of fact. Brown, 2015 ME 75, ~ 29, 118 A.3d 789.
Summary judgment is inappropriate on this basis.
D. Causation
"For causation to be established in [negligent failure to procure insurance cases],
the plaintiff must allege that, but for the defendant's acts, the resulting outcome for the
plaintiff would have been both different, and more favorable." Tri-Town M.arine, Inc.,
2007 ME 67, ,i 10, 924 A.2d 1066. In Tri-Town Marine, the Law Court declined to reach
whether the availability of insurance coverage that would have covered the loss was an
essential element of proof. See id. Since the plaintiff in Tri-Town Marine failed to set
forth prima facie evidence that but for the defendant's negligence, the plaintiff would
have acted in a substantially different way or could have obtained a better result, the court
concluded summary judgment was properly entered on causation grounds.
Plaintiff argues that the defendant's assertion that the property was uninsurable is
an affirmative defense and is precluded on the grounds defendant failed to raise it in the
5 answer. This argument lacks merit because the plaintiff has the burden on summary
judgment to establish all elements of his claim, including causation. Champagne v. lvfid
Me. Med. Ctr., 1998 ME 87, 'ii 9, 711 A.2d 842; Tri-Town J..1arine, Inc., 2007 ME 67, 'ii
10, 924 A.2d 1066. Insurability goes to the heart of causation.
The plaintiff has the burden to produce prima facie evidence of causation behveen
the alleged breach and the damages. In this case, it is not enough to allege the defendant
should have made further efforts to call McDonough to infonn him the property was
uninsured. Assuming that Brian Methot breached the standard of care by not confirming
McDonough had actual knowledge of the lack of insurance, the plaintiff must fu1iher link
the defendant's breach to his damages to advance his claim beyond the speculative.
According to the Law Court, to establish causation, a plaintiff must present evidence that
"but for the defendant's acts, the resulting outcome for the plaintiff would have been both
different, and more favorable." Tri-Tov.111 Marine, Inc., 2007 ME 67, 'ii 10, 924 A.2d
1066.
The problem for the plaintiff here is that the undisputed facts before the court
indicate that 7 Allen Street was in a condition that Brian Methot determined was
uninsurable. (Def. 's S.M.F. ,I 8.) Although the plaintiff argues that he would have sought
opinions from other agents, made repairs to make the property insurable, or taken other
steps, PI. 's Opp. Summ. J. 4, these assertions appear nowhere in an opposing or
additional statement of material fact and as far as the court can discern, have no support
in the summary judgment record. Those factual assertions are therefore not properly
before the court in ruling on summary judgment. See M.R. Civ. P. 56(h)(4) ("The court
may disregard any statement of fact not suppmied by a specific citation to record material
6 properly considered on summary judgment. The court shall have no independent duty to
search or consider any part of the record not specifically referenced in the parties'
separate statement of facts.")
Plaintiff fails to put forth prima facie evidence that but for defendant's acts, he
"would have acted in a substantially different way" and thus fails to establish any breach
of a duty caused him damages. Tri-Town Marine, Inc., 2007 1'vfE 67, 1 11, 924 A.2d
1066. Without prima facie evidence of causation, plaintiff cannot proceed on a claim for
negligence and the defendant is entitled to summary judgment.
III. Conclusion
The plaintiff fails to put forth prima facie evidence of causation. Summary
judgment is therefore appropriate.
The entry shall be:
Defendant's motion for summary judgment is GRANTED.
SO ORDERED.
DATE:lr,P~(~ 2016
John O'Neil, Jr. Justice, Superior Court