Patriot Ins. Co. v. Fahey

• Court: Superior Court of Maine
• Decided: March 8, 2011
• Docket: YORcv-10-025
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-1O-025 l:~:? A().- 1 L) "(- <- I~ /. / -) ,,'K) ._" '--// / C~ _".1

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PATRIOT INSURANCE COMPANY,

Plaintitt

v. ORDER

WILLIAM FAHEY and ESTRELLA MOREL,

Defendants

Plaintitt Patriot Insurance Company filed this complaint for dedaratory

judgment to establish that certain thefts reported by defendant William Fahey were in

fact committed by his wife, defendant Estrella Morel, and therefore not covered by Mr.

Fahey's insurance policy. Patriot moves for summary judgment on the grounds that Mr.

Fahey has not shown that the items were actually stolen within the meaning of the

policy, and that the loss would not be covered if Ms. Morel took the items in question.

Following hearing, the motion is Denied.

BACKGROUND Michael Fahey is the sole owner of the home and relevant personal property

located at 153 Sea Road in Kennebunk, Maine. (Add'l S.M.F. 9I 5.) Mr. Fahey married

defendant Estrella Morel on June 16, 2006. (Add'l S.M.F. 9I 2.) Both Mr. Fahey and Ms.

Morel began residing at 153 Sea Road on June 23, 2006. (Supp. S.M.F. 9I 4.) Mr. Fahey

kept a law office above a detached garage located at the residence. (Supp. S.M.F. 9I 2.)

Patriot Insurance Company issued a homeowners insurance policy in Mr.

Fahey's name with a policy period of January 4, 2009, to January 4, 2010. (Supp. S.M.F. <[ 5.) Mr. Fahey was charged with Domestic Violence Assault against Ms. Morel on May

18, 2009, and was consequently prohibited from returning to the residence at 153 Sea

Road from May 18, 2009 until August 26, 2009. (Supp. S.M.F. <[<[ 7-9.) He could return

to the property only for the purpose of going to his office. (Supp. S.M.F. <[ 8.)

On June 1, 2009, Mr. Fahey filed a police report indicating that two ornate wood

tables had been stolen from his office. (Supp. S.M.F. <[ 10.) On returning to the garage

and office the next day, he discovered that the door handles to his office had been

broken off. (Add'l S.M.F. <[ 15.) A dining table, six chairs, a coffee table, two end tables,

and a jury instruction handbook autographed by Boston attorney William P. Homans Jr.

were missing from his office. (Supp. S.M.F. <[ 11; Add'l S.M.F. <[ 17.) He reported this to

the police. (Supp. S.M.F. <[ 11.) A short time later, Ms. Morel told the police that she had

sold the two ornate wooden tables for $150, but denied taking the other items. (Supp.

S.M.F. <[ 12.) Mr. Fahey filed a claim for those other items with Patriot. (Add'l S.M.F.

<[ 26.)

On July 6, 2009, Mr. Fahey discovered that his computer and printer were

missing from his office. (Supp. S.M.F. <[ 13.) Later, during divorce proceedings, Ms.

Morel denied taking those or other items.! (Add'l S.M.F. <[ 32.) On July 24, 2009, the

District Court issued an order granting Mr. Fahey exclusive possession of the residence

effective August 24, 2009. (Supp. S.M.F. en 14.) Ms. Morel left the residence on August

25, 2009. (Supp. S.M.F. <[ 17.) Mr. Fahey returned to the residence on August 26, 2009,

and discovered that a number of his personal items were missing. (Supp. S.M.F. en 16.)

All of the missing items were personal, non-marital property belonging to Mr. Fahey.

Patriot admits this statement of fact, but the court notes that Mr. Fahey has only included his own affidavit testimony for support. A statement made during prior sworn testimony is only admissible if the declarant is unavailable. M.R. Evid. 804 (2010). Mr. Fahey has not shown that Ms. Morel is unavailable, and has not provided this court with a transcript of her prior statement. Mr. Fahey may be able to do so at trial.

2 (Supp. S.M.F. cnCJI 6-8.) He suspects that Ms. Morel took the missing items, but has no

knowledge or evidence that she did so. (Supp. S.M.F. CJI 18.)

DISCUSSION

In an action for declaratory judgment, "the substantive gravamen of the

complaint" determines the allocation of the burden of proof. Hodgdon v. Campbell, 411

A.2d 667, 670 (Me. 1980). An insured normally bears the burden of persuasion in an

action to enforce a policy against the insurer. Id.; see Me. Farms Venison v. Peerless, 2004

ME 767, CJI 20, 853 A.2d 767, 771. The insured likewise bears the burden when the

insurer seeks a declaration of non-coverage, despite being the nominal defendant. Id. at

670-71.

Mr. Fahey's insurance policy covers losses caused by theft, unless the theft is

committed by an insured. (CompI. Ex. 1 at 7.) The policy defines a spouse as an insured,

so Ms. Morel was an insured at the time the alleged thefts were reported. (CompI. Ex. 1

at 1.) Patriot contends that Mr. Fahey has not made his prima facie case showing that

Ms. Morel did not commit the reported thefts, and requests summary judgment in its

favor.

Summary judgment is appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits" submitted with the

parties statements of material facts, "show that there is no genuine issue as to any

material fact set forth in those statements and that any party is entitled to judgment as a

matter of law." M.R. Civ. P. 56(c) (2010). Patriot has not produced any competent

evidence that either Mr. Fahey or Ms. Morel took the items reported as missing} so the

2 Patriot notes that Mr. Fahey has testified that he suspects Ms. Morel took the items, but Mr. Fahey's uncorroborated speculation is not competent evidence.

3 only question is whether Mr. Fahey has shown that there is some dispute of fact

material to coverage.

Mr. Fahey has testified that his personal property was taken from his residence

without his knowledge or permission on multiple occasions during the summer of 2009.

(Add'l S.M.F. errerr 5-7, 12, 16-17, 27, 29; Fahey Aff. errerr 5-8, 12, 16-17, 27, 29.) Signs of

forcible entry accompanied one such incident. (Add'l S.M.F. err 15.) Each incident was

reported to the police and to the insurance company. (Add'l S.M.F. errerr 13, 18-19, 26, 28,

30, 34, 36.) The papers assume that the items have not been recovered. From the above,

Patriot is simply incorrect when it states that Mr. Fahey "has failed to set forth any

admissible evidence establishing that anyone took the claimed property with the intent

to deprive [him] of the property, and with no intention to return the property." (Pl.'s

Motion at 7.)

Turning to the question of Ms. Morel's involvement in the matter, she denies that

she "took or exercised control over the property claimed by" Mr. Fahey in her answer to

Patriot's complaint. (Morel Answer err 20.) Patriot admits that she denied taking any of

the claimed items when questioned by police. (Supp. S.M.F. err 12.) There is no other

evidence that she did or did not take the items.

Patriot would leave Mr. Fahey with the heavy burden of proving a negative. By

demanding that he prove that neither he nor Ms. Morel was involved in the alleged

theft, the insurance company would effectively have him to prove who did take the

items in order to survive summary judgment. Mr. Fahey's burden is not so onerous. He

has produced evidence sufficient to show that the claimed items were stolen in the

common sense of the word. Ms. Morel's denial of involvement with the thefts, as

evinced in her answer and in Patriot's own statement of fact, at a minimum show that

there is a dispute of fact as to whether the losses were caused by an insured's action.

4 Giving the non-moving party the benefit of all reasonable inferences, the record does

not show that Patriot is entitled to summary judgment as a matter of law.

CONCLUSION

Patriot's motion for summary judgment is Denied.

Dated: Mareh8 ,2011

thur Brennan ee, Superior Court

Plaintiff's Attorneys

Thomas Marjerison, Esq. Matthew Thomas Mehalic, Esq. Norman Hanson & Detroy P.O. Box 4600 Portland, ME 04112-4600

Defendant, William Fahey, Pro se P.O. Box 121 Farmington, ME 04938

Defendant, Estrella Morel, Pro se P.O. Box 1335 Calais, ME 04619