Onsite Auto Glass v. Metropolitan Casualty Ins. Co.

• Court: Superior Court of Maine
• Decided: April 12, 2022
• Docket: CUMcv-20-379
• Status: Unpublished

Opinion

(

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NOS. CV-20-379 CV-20-380 CV-20-381 CV-20-382 CV-20-383

ONSITE AUTO GLASS, as assignee of Linda Harmon, Mike Capano, Steven Moreau, Dale Stair, and Ethan Peny,

Plaintiff V. ORDER

METROPOLITAN CASUALTY INSURANCE CO., R~GT1 G~iMH CLFRKS OFC Defendant APR 12 '22 P~12:32

Before the court in these five cases are motions by plaintiff Onsite Auto Glass, which is

suing defendant Metropolitan Casualty Insurance Co. as assignees of five insureds, to dismiss the

cases without prejudice. Metropolitan opposes the motion.

The basis of the motions is that Onsite' s representative was hospitalized with Covid-19 and

is still suffering multiple complication from the virus. The hospitalization apparently occurred

prior to December 2021. According to counsel for Onsite, Onsite's representative is unable to

physically appear for any court dates for the foreseeable future, and it is impossible to predict any

time frame for his recovery.

In these five cases, originally filed in May 2020, Onsite contends that Metropolitan

underpaid it for automobile window repairs and is seeking recovery of amounts ranging from

$60.00 (in CV-20-382) to $902.52 (in CV-20-380).The total which Onsite claims it has been

underpaid in all five cases is $2,098.68. What appears to be really driving these cases is Onsite's claim that it was assigned the claims of Metropolitan's insureds and can therefore pursue claims

for interest and attorney's fees for unfair claim settlement practices pursuant to 24-A M.R.S. §

2436-A. In addition to disputing Onsite's underpayment claims, Metropolitan disputes that Onsite

can bring unfair settlement practice claims. It contends that such claims can only be brought by its

insureds against their "own insurer," 1 that it is not Onsite's insurer, that its policies forbade

assignment without Metropolitan' s approval, and that the purported assignments relied upon by

Onsite are not valid.

Without leave of comi, a party can only unilaterally dismiss an action without prejudice

before an answer or motion for summary judgment has been filed. M.R.Civ.P. 4 l(a)(l). In all these

cases answers were filed almost two years ago. After answers have been filed, cases may be

dismissed only on such terms as the court deems proper. M.R.Civ.P. 41(a)(2)

These cases, like all civil cases in Cumberland, have been delayed by the pandemic.

Nevertheless, in the last six months counsel for Metropolitan has not been idle but has propounded

requests for admissions and interrogatories in all five cases. 2 Plaintiffs motions to dismiss,

moreover, were filed less than a month before the discovery deadline. Under the circumstances,

given the amount of time these cases have been pending, given defendant's existing investment of

time an energy in defending these cases, and given the potential prejudice to defendant if these

cases were to be refiled, the court concludes that it will grant plaintiffs motions on the condition

that the dismissals are with prejudice. See Green Tree Servicing LLC v. Cope, 2017 ME 68 ,r 16,

158 A.3d 931.

1 See 24-A M.R.S. 2436-A(l). 2 As set forth in its submissions in connection with the instant motion, counsel for Metropolitan is dissatisfied with Onsite's responses to the request for admissions and has not received verified answers to the interrogatories.

2 Finally, because the driving factor in these cases appears to be the pursuit of attorney's fees

rather than the relatively small amounts allegedly underpaid, the dismissal of these cases with

prejudice does not appear to constitute an injustice.

The entry shall be:

Plaintiffs motions to dismiss the above cases are granted on the condition that the cases shall be dismissed with prejudice. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: April ~ 2022

Thomas D. Warren Active Retired Justice, Superior Court

Entered on ~e Oookat:_,i~f;J

Plaintiff-John Lagrow, Esq. Defendants-John Cronan, Esq.