McGinley v. Liberty Ins. Holdings, Inc.

• Court: Superior Court of Maine
• Decided: May 3, 2012
• Docket: CUMcv-11-108
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: CV-llf:O~ R AC- GLc.l)\- 5 j3j2l>l?._ RICHARD D. MCGINLEY, JR.,

Plaintiff,

v. ORDER LIBERTY INSURANCE HOLDINGS, INC. d/b/a LIBERTY MUTUAL INSURANCE COMPANY

and STATe ALLISON B. GREEN Curnbertan OF AfAINE d.sa,Cierk'a "'- ...,.,,.,ce MAY 0 3 2012 Defendant. RECEIVED A Motion for Summary Judgment from defendant Liberty Insurance Holding, Inc.

d/b/a Liberty Mutual Insurance Company (Liberty Mutual) is before the court.

Defendant Allison Green did not participate in this motion.

BACKGROUND On August 1, 2010, defendant Allison Green negligently drove her motor vehicle

in the path of plaintiff Richard McGinley's bicycle. (SJvLF. err 1.) At the time of the

accident, Green was driving a vehicle owned by ARI and registered and leased to

Liberty Mutual. (Add'l S.M.F. errerr 39-40.) She had been issued this vehicle to use both

in the course of her employment and for personal every day use. (S.M.F. err 7.)

At the time of the accident, the plaintiff alleges that Green was an employee of

Liberty Mutual. (S.M.F. err 2.) Green claims that Peerless Insurance Company employed

her. (S.M.F. err 6 denied by Opp. S.M.F. err 6.) Peerless Insurance Company is a wholly

owned subsidiary of Liberty Mutual. (Opp. S.M.F. err 6.) Green's job title was "territory

1 manager" and her position required her to travel about 80% of her working time.

(Add'l S.M.F.

to take a defensive driving course. (Add'l S.M.F.

required to take a road test, a vision test, or participate in a drive-along with training or

supervisory personnel. (Add'l S.M.F.

There is no indication that Green has had a motor vehicle violation in the past

five years. (S.M.F.

traveling the "wrong way down a one way street" roughly 13 or 14 years ago. (Add'l

S.M.F.

when she was seventeen. (Add'l S.M.F.

involved in an automobile accident approximately fourteen years ago. (Add'l S.M.F.

32; Opp. Add'l S.M.F.

As a territory manager, Green controlled her schedule and she worked weekdays

and at home sometimes on the weekends. (Add'l S.M.F.

Green claims at the time of the accident, which was a Sunday morning, she was not

working because it was a day off. (S.M.F.

was driving home after taking her son to an indoor playground. (S.M.F.

getting into the accident, Green followed the protocol set forth in the driver procedural

manual, which Liberty Mutual had prepared. (Add'l S.M.F.

On March 17, 2011, McGinley filed a complaint with this court alleging

negligence against Green in Count I and negligence against Liberty Mutual in Count II.

Liberty Mutual filed this motion for summary judgment.

2 DISCUSSION

1. Standard of Review

Summary judgment is appropriate where there are no genuine issues of material

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

see also Levine v. R.B.I<. Caly Corp., 2001 ME 77,

material fact exists when there is sufficient evidence to require a fact-finder to choose

between competing versions of the truth at trial." Inkell v. Livingston, 2005 ME 42,

869 A.2d 745 (quoting Lever v. Acadia Hasp. Corp., 2004 ME 35, 9[ 2, 845 A.2d 1179). Any

ambiguities must be resolved in favor of the non-moving party. Beaulieu v. The Aube

Corp., 2002 ME 79, 9[ 2, 796 A.2d 683.

2. Liability

Liberty Mutual is not a proper party to this suit for two reasons. First, Green was

not acting in the scope of her employment when the accident occurred so it is not

vicariously liable. Second, Liberty Mutual was not negligent in its entrustment of the

vehicle to Green.

a. Green was not acting within the scope of her employment

If Green is an employee of Liberty MutuaP, then Liberty Mutual can be held

liable for Green's negligence, if she was acting within the scope of employment when

the accident occurred. Nlahar v. StoneWood Transp., 2003 ME 63, 9[ 13, 823 A.2d 540.

"Conduct that is within the scope of employment is the type of conduct the employee

was hired to perform; occurs within the time and space of the employment; and is

undertaken, at least partially, to serve the employee's master." Morgan v. Kooistra, 2008

ME 26 9[ 21, 941 A.2d 447. The facts indicate that Green was not acting within the scope

of her employment when the accident occurred. 1 The parties disagree regarding whether Liberty Mutual employed Green. Based on the other

3 The accident occurred on a Sunday when Green claims that she was driving

home after taking her son to an indoor playground. (S.M.F.

evidence before the court regarding Green's weekend work habits indicated that she

sometimes works from home on Sunday. (Green Dep. 15:2-4. 2) As a result, no facts

indicate that Green ever drives the car for work on the weekend. Therefore, there is no

factual support for the argument that Green was acting within the scope of her

employment.

b. Liberty Mutual was not negligent in its entrustment of the vehicle to Green

The plaintiff argues that even if Green was not driving the vehicle in the scope of

her employment, Liberty Mutual acted negligently when it entrusted Green with the

vehicle. In order to prove negligent entrustment the plaintiff must prove the following:

(1) the entrustee was incompetent, inexperienced, or reckless; (2) the entrustor knew or had reason to know of the entrustee's condition or proclivities; (3) there was an entrustment of the chattel; (4) the entrustment created an appreciable risk of the harm to the plaintiff and a relational duty on the part of the defendant; and (5) the harm to the plaintiff was proximately caused or legally caused by the negligence of the defendant. Yunker v. Iverson, 1997 Me. Super. LEXIS 197, *4-5 (July 1, 1997) (quoting Balentine v.

Sparlwum, 937 S.W.2d 647, 650 (Ark. 1997)); see also Restatement (Second) of Torts§§ 308,

390 (1965). The plaintiff asserts, "[c]learly, allowing an employee with prior violations

to drive a company vehicle without any further testing requirements demonstrates

negligence on the part of Liberty Mutual, as the lessee of the vehicle and as the

employer." (Opp. Mot. Summ. J. 9.)

There is no indication here that Green, as the entrustee, was incompetent,

inexperienced, or reckless. "[T]he mere allegation of a prior accident or uninsured

Q. What days during the week would you work? A. Monday through Friday and at home sometimes on the weekends. (Green Dep. 15:2-4.)

4 status does not conclusively demonstrate that someone is an 'incompetent,

inexperienced, or reckless' driver." Rouseel v. Lucas, 2007 Me. Super. LEXIS 13, *6 (Jan.

19, 2007). Since the driving record only appears to contain minor incidents that

occurred over a decade ago, there is no indication on the record that Liberty Mutual

acted negligently in its entrustment of the vehicle to Green.

The entry is:

The Defendant's Motion for Summary Judgment is GRANTED.

DATE:--ArZoiV

5 RICHARD D MCGINLEY JR VS LIBERTY INSURANCE HOLDINGS INC ET AL UTN:AOCSsr -2011-0025112 CASE #:PORSC-CV-2011-00108

01 0000002369 MOORE, FREDERICK 511 CONGRESS STREET SUITE 805 PORTLAND ME 04101 F LIBERTY INSURANCE HOLDINGS INC DEF RTND 04/04/2011 F ALLISON B GREEN DEF RTND 04/04/2011

02 0000009078 TAYLOR ADAM S 30 MILK STREET 5TH FLOOR PORTLAND ME 04101 F RICHARD D MCGINLEY, JR PL RTND 03/17/2011

03 0000009421 NEY JOHN MICHAEL JR 179 FOWLER ROAD CAPE ELIZABETH ME 04107 F RICHARD D MCGINLEY, JR PL RTND 03/17/2011