Steele v. Botticello

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION /'

Dr?CKET NO~ ~V -09-252

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ERYN M. STEELE, Plaintiff

v. ORDER

RY AN BOTTICELLO and ROBERT C. BOTTICELLO,

Defendants

Eryn Steele brings this action against Ryan and Robert BotticelJo to recover damages for loss of consortium allegedly resulting from an injury Ryan Botticello negligently inflicted on Eryn's now-estranged husband, Christopher Steele. The Botticellos' motion to dismiss is before the Court. Also before the Court is Eryn Steele's moti on to vacate the dismissal of Christopher Steele v. Ryall BOfficello and Robert Botficello, ALFSC-CV-08-068 (Me. Super. Ct., Yor. Cty., March 5, 2009) (Brennan, J.), set aside the settlement in that case, and consolidate that case wi th this one.

BACKGROUND

In August 2006 defendant Robert Botticell 0 and his minor son, defendant Ryan Botticello, were on vacation in Old Orchard Beach, Maine. Ryan allegedly struck Christopher Steele during this vacation, causing him serious injury. These injuries included a fractured skull and caused Christopher's personality to change. PI aintiff Eryn Steele was married to Christopher at the time, and she

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alleges that the change in Christopher's personali ty led to the breakdown of their marnage.

Christopher Steele filed a personal injury suit against Robert and Ryan Botticello on March 7, 2008. In February 2009 Christopher and the Botticellos reached a settlement whereby Christopher signed a release of claims in exchange for $50,000. A stipulated dismissal was signed on February 22, 2009, and docketed on March 5, 2009. Eryn Steele claims that she and Christopher were estranged at that time, and as a result "she was unaware of the progress of [Christopher's] case or that he had settled it." Eryn filed her own complaint against the Botticellos on April 30, 2009 alleging recklessness and negligence, and seeking to recover for loss of consortium. The Botticellos filed this motion to dismiss on September 8, 2009.

[n their motion, the Botticellos claim that the Law Court's recent decision in Brown v. Crown Equipment Corp., 2008 ME 186, 960 A.2d 1188, decided on December 11, 2008, changed prior law and allows them to assert Christopher's release of claims against Eryn's derivative action for loss of consortium. Eryn opposes the Botticellos' motion and on October 23, 2009 filed a motion arguing that if the Botticellos' interpretation of Brown is correct, then she was an indispensable party to her husband's earlier action because the settlement has prejudiced her rights. Eryn argues that the settlement should be set aside for nonjoinder.

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DISCUSSION

1. The Botticellos' Motion to Dismiss "A motion to dismiss tests the legal sufficiency of the complaint." Heber v.

Luceme-i71-Mai71e Village Corp., 2000 ME 137, 'JI 7, 755 A.2d 1064, 1066 (quoting McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994)). The Court examines "the complaint in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." fd. (quoting McAfee, 637 A.2d at 465).

"The general rule is that only the facts alleged in the complaint may be considered" wi thout transforming the motion to dismiss into a motion for summary judgment. Moody v. State Liquor [.,' Lottery COI/IIIl'n, 2004 ME 20, 'JI 8, 843 A.2d 43, 47. An exception to this rule "allows a court to consider official public documents, documents that are central to the plaintiff's claim, and documents referred to in the complaint ... when the authenticity of such documents is not challenged." [d. at 'JI 9, 843 A.2d at 48.

In this case the Botticellos' motion to dismiss is based primarily on the release of claims signed by Christopher Steele. The pleadings in this case do not contain any reference to Christopher Steele's action or the resolution of that action, so on this motion to dismiss the Court can only consider the release if it fits one of the exceptions announced in Moody. The release is not a public document, and is not referenced in either Eryn Steele's complaint or the Botticellos' answer The Botticellos argue that the release is central to Eryn's claim and thus eligible for consideration, but the Court disagrees. Documents that provide the basis for a cause of action, such as the contract in an action for breach, are central

4

to a plaintiff's claim. See id. at err 12 (court could consider document containing terms of contract); Pmsioll Bellefit GlLnr. Corp. v. WIlife COllsol. Tlldus., 998 F.2d 1192,1196 (3d Cir. 1993) (court could consider document on which plaintiff's claims were based). Eryn's action arises from her marital status and Christopher's injuries, not from the release. Thus, while the release may be central to the Botticellos' defense, it is peripheral to Eryn's claim. The release does not fit any of the exceptions and the Court will not consider it on this motion.

Res judicata provides a potential alternative ground for dismissal in this case.

[T]he doctrine of res judicata bars the relitigation in a present action of all issues that were tried, or may have been tried, in a prior action if:

(1) the same parties or their privies are involved in both actions; (2) a valid final judgment was entered in the prior action; and (3) the matters present for decision now were, or might have been, litigated in the prior action.

Currier v. Cyr, 570 A.2d 1205, 1208 (Me. 1990). Unlike Christopher Steele's release, the entry of final judgment in his action against the Botti cell os is a public document that this Court may consider on this motion. However, assuming without deciding that the final judgment in that action could preclude Eryn from raising the issue of loss of consortium now, this Court still cannot grant the Botticellos' motion to dismiss. The doctrine of res judicata cannot be asserted against a party that did not have adequate notice of the prior action. Freeport II. Greel/lmu, 602 A.2d 1156, 1160 (Me. 1992) (citi ng ResfnfelllCllt (Secolld) of ludg1llCllfs § 83(2)(a) (1982)). The record does not indicate whether Eryn had notice of the prior action, and the Court cannot say that the resolution of that action precludes her current claims as a matter of law.

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The Botticellos have failed to raise an affirmative defense in their motion because Christopher Steele's release of claims is not before the Court, and because the dismissal of Christopher's action does not preclude Eryn's current action as a matter of law. Therefore, the Botticellos' motion to dismiss is denied.

2. Eryn Steele's Motion to Vacate Dismissal, Consolidate, and Set Aside Settlement

Eryn Steele's motion to vacate the dismissal of Christopher Steele's action is essentially a Rule 24 motion to intervene in that action coupled with a Rule 60(b) motion to set aside the judgment. See 2 Field, McKusick & Wroth, Maille Civil Pmctice § 60.12 at 77 (2d ed. 1970) (party in interest can probably petition for review of judgment by combining Rule 24 with Rule 60). "The relief from a final judgment under Rule 60(b) ... is subject to the exercise of a sound discretion by the trial court upon competent evidence supporting one or more of the reasons for which relief is provided by the Rule ...." Warren v. Waterville Urball Rel/ewal Al/tltority, 290 A.2d 362, 365 (Me. 1972); see 2 Field, McKusick & Wroth, 1'v1ail/e Civil Practice § 60.1 at 72 (2d ed. 1970) ("[W]hether any other ground exists for relief from a judgment must be proven by evidence."). Eryn has not placed any evidence before the Court to support her motion, so it is denied.

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The entry is:

The Botticellos have failed to establish their affirmative defense on the pleadings and their motion to dismiss is denied. Eryn Steele has failed to place evidence before the Court supporting her motion to set aside the judgment in Steele v. Botticello, ALFSC-CV-08-068 (Me. Super. Ct., Yor. Cty., March 5, 2009) (Brennan, J.), and her motion is denied.

./.'.;.tUN !VI b'l'./.'.;./.'.;L./.'.; Vb .tCUU\1 ,ljU'1"l'.lC./.'.;LLU ./.'.;'1' .I-\L UTN:AOCSsr -2009-0046101 CASE #:PORSC-CV-2009-00252

01 000000 1120 ,;;.D..;.U.:..;,N~L;;..;;A,;;,.P.:...,_MAR;;..;;;;..;;;;..;;K~ _ 415 CONGRESS STREET PO BOX 4600 PORTLAND ME 04112-4600 F RYAN BOTTICELLO DEF RTND 05/15/2009 -----------..;..~--:---

F ROBERT C BOTTICELLO DEF RTND 05/15/2009 ----------.....;...---­

02 0000002053 ROBITZEK, WILLIAM ----~-...;,,;;;.---------------------

129 LISBON STREET PO BOX 961 LEWISTON ME 04243-0961 F ERYN M STEELE PL RTND 04/30/2009 ------------'---­

STATE OF tvIAINE SUPERIOR COURT CUMBERLAND, 5S. CIVIL ACTION

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DOCKET NO: CV 09l . ;2

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ERYN M. STEELE, Plaintiffs,

v.

RY AN BOTTICELLO AND ROBERT C. BOTTlCELLO

Defendants

Plaintiff Eryn M. Steele' brought this action against defendants Ryan and Robert C. BotticclJo to recover for loss of consortium caused by an injury Ryan allegedly inflicted on her now ex-husband. The defendants move for summary judgment, and request permission to amend their complaint to add an affirmative defense.

BACKGROUND

Defendant Ryan Botticello allegedly assaulted Christopher Steele in Old

Orchard Bedcll, Maine, in August of 2006. (Supp. S.M.F. <j[ 3.) Christopher and plaintiff Eryn Steele were married at this time. (Supp. S.M.F. <Ill.) On October 24, 2007, Christopher authorized his attorney to file a notice of claim against the Botti cell os. (Supp. S.M.F. <[ 4.) He commenced a lawsuit for his personal injuries approximately six months later on March 7, 2008. (Supp. S.M.F. <j[ 5.)

1 The plaintiff changed her name after commencing this suit and is now Eryn M.

Soule. The court will continue to refer to the plaintiff as Ms. Steele for clarity and consisten cy.

i\ifs. Steele knew about the injuries, and knew that Christopher was considering a lawsuit and had consulted an attorney. (Supp. S.M.F. q[<Jr 6-8.) She also kne\\! that he had actua1Jy filed the suit, though she did not know precisely when. (Opp. S.M.F. err R.) ~1s. Steele and Christopher lust spoke face-to-face on December 31, 200R, after which Ms. Steele moved out of their shared residence. (Supp. S..\1.F. (1117.)

Christopher signed a release of claims against the Botticellos in exchange for $50,000 on February 24, 2009. (Supp. S.M.F. ~f 23.) Stipul<lted dismissals were signed that February and docketed on March 5, 2009. (Supp. S.M.F. (If 24.) Ms. Steele learned about the settlement at that time or short] y thereafter. (Opp. S.M.F.4f<Jr 25-26; Christopher Steele Depo. at 24.) Ms. Steele never involved herself in Christopher's lawsuit and did not take part in his settlement negoti<ltions with the Bottice1Jos or their insurer. (PJ.'s Add'l S.M.F. 4f(lf 28-29.)

Ms. Steele filed this case against the Botticellos for loss of consortium on April 28, 2009. She claims that Christopher's personality changed after the assault, which she believes caused him to becoITle abusive and led to the dissolution of their marriage. (Supp. S.M.F. ([(fI19-21.) The Botticellos move for summary judgment, arguing that Ms. Steele's claim derives fron1 Christopher's personol injury cloj III and is thus barred by Christopher's release. [\/15. Steele contends that her claim is independent and she should not be bound by the prior release under principles of contract law and fundamental fairness.

DISCUSSION

As a preliminary matter, the defendants' motion to add an affirmative defense related to the release should be granted. Ms. Steele has not filed an

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opposition to this motion, and the issue has clearly been raised und argued by both parties.

Prior to Browll v. CWWIl Equiplllellt Curp., Maine recognized loss of consortium as u separate and independent statutory claim held by spouses. 14 l'vtR.S.A. ~ 302 (2009); Pnrcllf v. E. Me. Med. 01'.,2005 ME 112, 9I 14,884 A.2d 93, 96. The Law Court comprehensively discussed the issue in Hnrdy v. St. C/nir, 1999 ME 142, 739 A.2d 368, and Pm'cllt v. Enster Mnillc Mediml Cell tel', 2005 ME 112, 884 A.2d 93.

Hnrdy involved claims for negligence and loss und consortium brought by ,1 husband and wi Fe against the husband's employer. 1999 MF. 142, ~r 2, 739 A.2d ut 369. The husband wus employed as a member of a pit crew at a raceway. ld. As Cl condition of his employment he WClS required to sign a release and liClbility wCliver. ld. He "WClS injured when Cl plank on a set of bleachers at the raceway reserved for members of the pit crews collClpsed under him." ld. The trial court found that the release barred the husband's negligence c1uim, but did not bar the wife's loss of consortium claim. ld.

On appeal, the Law Court agreed that tl1e release was effective against the husband. ld. <If 6, 739 A.2d at 370. Regarding the wife's claim, the Court noted that the release could not directly bar her "consortiulll claim because she did not sign it and was not a party to the contract." ld. ~l 9, 739 A.2d at 371. The issue, then, was "vvhether, by expressly barring [the husband's] negligence claim, the [release] illdirectly barred [the wife's] consortium claim. Stated otherwise," the Court declared that it "must determine whether a consortium claim is 'derivative' or 'independent.'" ld.

The Court noted that states were split on the question, and thClt those "<ldopting the derivative approach generally conclude th<lt a cause of Clction for loss of consortium is subject to the same defenses Clv<liJabIe in the injured spouse's underlying tort action." Id. err 10,739 A.2d at 372 (citing Carol J. Miller, Annotation, fJljl/red Porty's Rclcosc (~fTortfCl750r 05 Bl7rr;l1g Spol/se's Actiol1,fin 1"055 of COI/Sorti11111, 29 A.L.RAth 1200 (1981)). "States adopting the independent <1pproach genera]]y conclude that a consortium claim is not subject to such defenses." fd. After reviewing Maine's statutory law <1nd precedent, the Court held that consortium c!Clims are independent causes of acti()Jl:

Although derivative in the sense that both causes of action arise from the sarne set of facts, the injured spouse's claim is based on the common law of negligence while the claim of the other spouse is based on statutory law. Each claim is independent of the other and the pre- or post-injury release of one spouse's claim docs not bar the other spouse's claim.

Id. <If '12, 739 A.2d at 372. The Court expreSSly reserved the question of "whether a loss of consortium claim rnay be subject to traditionill common IClw or stiltutory defenses to the clilims of the injured spouse." Id. <[f 12 n.h, 739 A.2d at 372 n.6.

In Pm'cl1t v, Eostem MO;l1e Ivledient Cel1fcr, Cl wife was misdiagnosed wi th breast CClncer in the yeClf 2000, ilnd she filed Cl lTlillpractice clilim in 2001. 2005 ME 112, (1I(lf 3-4,884 A.2d <It 94. Her husband "was aware of the claim when it was filed, and he occilsionaJly spoke with [his wife'sl attorney," but he did not join in the action at thilt time. fd. (1[91 4, 7, 884 A,2d ilt 94. "[n the summer of 2001, after [the \'\life] had filed her notice of claim, she and [her husbandl separclted. [The wife] subsequently filed for divorce." ld. 9I 5, 884 A,2d at 94. On January 2,2003 the wife informed her now ex-husband that she would be settling her claim soon, and did in fact settle it that January. ld. <jJ: 6, 884 A,2d at 94. In May 2003 the husband filed his o'>vn claim for loss of consortium.

The Superior Court granted surnrnary judgrnent for the defendants, reasoning that the husband's knowing failure to join the wife's claim "constituted a waiver of his loss of consortiurn claim .... " lri. at 919( 8-9,884 A.2d at 94-95. In doing so the Superior Court relied on the RcstntelllC/lt (SCCOllri) Of Torts § 693 (I 977), which reads in relevant part:

[fIE the irnpaired spouse has begun an action for bodily h,wrn, and then settled it and given a release, and the deprived spouse has stood by throughout with full knowledge of the conduct, it has been possible to join in the action at any time before it has become barred by the release, and the deprived spouse cannot now be permitted to maintain a separate action.

Resfntc/Ilc/lt (SCCOllri) of Torts § 693, cmt. g (1977); Pnre/l!, 2005 ME 112, qr 8, 884 i\.2d at 94-94.

The Law Court vClcClted the judgrnent. Pnre/lt, 2005 ME 112, (If 1, 884 A.2d at 93-94. The Court acknowledged that other jurisdictions are split on the question of "whether Cl person who fails to join in his spouse's tort C1ction is bClrred from pursuing his own loss of consortium clairn sternming from the same facts." lri. cII0, 884 A.2d Clt 95. After examining the ICinguage and legislative history of 14 M.R.5.A. § 302 and prior judicial interpretCltions thereof, the Court concluded that "Maine's loss of consortium statute provides an individual with a wholly scpClrate MId independent right of recovery." lri. at (Irqr 11-14, 884 A.2d at 95-96 (citing Hf7rdy v. St. Clf7ir, 1999 \1E 142, 739 A.2d 368 (release signed by husband did not prevent \Nife's loss of consortium clairn); Dioll/lc v. Libbcy-Owclis Forri Co., 621 A2d 414 (Me. 1993) (damages C1warded to wife for loss of consortiU111 not subject to ernployer's workers' compensation setoff)).

"Given the Legislature's explicit grant of the right to bring a loss of consortium Clction in one's O\'\7n name, Clnd absent any evidence of legislative intent to require the mandatory joinder of loss of consortium claims," the Court

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held that loss of consortium elain1s 'would not be barred by an injured spouse's release and thus did not have to be joined with the injured spouse's claim.frl. at 9f 16, 884 A.2d at 96. The Court stated tlli:lt the joinder rules of civil procedure provided 2m adequate safeguClrd against threats of double reCOVel"y or inconsistentobligCltions.frl. at (IT 17, 884 A.2d Clt96.

Justice Alexander, joined by Chief Justice Sauflcy, wrote a brief dissent indicating that he '>vould have upheld the Superior Court's decision and adopted the Restatement's view. lei. at 9[([ 19-21, 884 A.2d at 96 (Alexander, J., dissenting).

Three yeClrs after Pnrcllt, the Law Court again took up the consortium Cluestion in BrowlI u. CroWII Equip. Corp., 2008 ME 186, 960 A.2d 1188. In BrowlI the Court faced two questions certified from the First Circuit Court of Appmls. Jd. (If 2,960 A.2d at 1190. The first question addressed a manufacturer's duty to warn, and the second addressed how "a jury's dollar adjustment for comparative negligence [shouldl be applied \-\There a portion of the original dalllClges award is reduced pursuant to the statutory damage cap[.]" fd. A woman's husband had been killed in a forklift accident, and the majority of her award WClS for loss of consortium. JrI. at (n 7-8,960 A.2d at 1191. The consortium damages were to be reduced by both a statutory cap and the husband's contributory negligence, and the First Circuit needed to know the order in which to apply the two reductions. JrI. at 9l 26, 960 A.2d at 1195.

"In order to fully address the [second] question," the Law Court stated that it had to "determine whether a consortium claim is a derivative or independent c1am1." [d. at 9I 23, 960 A.2d at 1194. Citing Pnrcllt and Hnrdy, the Court acknowledged that it had "previously treated loss of consortium claims as independent claims." ld. at 9I 23, 960 A.2d at 1194-95. The Court then stated:

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After further consideration, we conclude that loss of consortium claims necessarily arise from the same negligent act as the underlying tort claims and are therefore subject to the same rules and limitations.

Accordingly, we hold that a loss of consortium claim is a derivative claim, (lnd to the extent our prior decisions have held otherwise, we overrule those decisions.

frl. at (~23, 960 A.2d at 1195.

Now, this Court is being asked to deternline whether and to what extent Brown has overruled Parellt and Harrly. Ms. Steele champions a limiting interpreti1tion of Brown that would keep the prior cases intact. Tn her view, BroH1Jl merely restates that a loss of consortium claim is derivative of an injured spouse's claim "in the sense that both causes of action arise from the same set of facts ...." Harrly, 1999 ME 142, 9f 12, 739 i\.2d at 372. The claims remain legally independent and an injured spouse's release continues to be ineffective against the other spoLlse's consortium claim. Sec id. This interpretation would read Browll CIS ('Ill Clffirmcltivc answer to the question reserved in Hardy, i.e. "whether a loss of consortium clClim may be subject to traditional common law or statutory defenses to the claims of the injured spouse." fd. ~ 12 n.6, 739 A.2d CIt 372 n.6.

The context of Brown provides some support for this view, because in thclt case the Law Court was reducing a loss of consortium award for the injured spouse's contributory negligence. BroWIl, 2008 ME 186, 9191 20-24,960 A.2d at 1194-95. The problem with Ms. Steele's interpretation, however, is that it ignores the Law Court's s\,veeping langullgc and express disavowal of Parent and Hardy's reasoning. Tn Harrly, a pre-injury release signed by the husband did not bar the wife's loss of consortium action because the wife's claim was legally "independent" rather than "derivative." Hmdy, 1999 ME 142, 9I91 12, 9, 739 A.2d at 371-72. In ParcJlt, the injured wife's malpractice claim had no preclusive effect on the uninjured husband's consortium claim because the actions were

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"independent," and joinder of the claims was not mandatory tor the same re<1son. Pnrcllt, 2005 [,,ifE 112, <JfCj[ 14,16,884 A.2d at 96. In BroWlI, the Law Court cited both of those examples before declaring that it had reconsidered its prior decisions, that loss of consortium claims are necessarily "derivative" rather than independent and "therefore subject to tIle same rules and limitations" as their underlying tort claims, and that prior decisions indicating otherwise were overruled. Browl/, 2008 ME 186, (If 23,960 A.2d at 1194-95.

This court cannot ignore or wish-away the Law Court's bold language. It expressly overruled prior case law and reversed its past holdings. Whi Ie the Court llad noted in the past that "[t]1le terms 'derivative' and 'independent' are imprecise and may be misleading," the Court used those terms throughout Hnrdy and Pnrcllt to explain its detailed analyses cllld conclusions. Hnrdy, 1999 ME 142, <fl</IIO n.4, 11-12,739 A.2d at 372n.4, 372; PnrC'Jlt, 2005 ME 112, 9f9f 13-15, 884 A.2d at 95-96. The Court tllell used those same terms when reversing itself in Browl/. The Court's deliberate use of those terms and its explicil use of the word "overrule" make it very unlikely that tILe Court was merely addressing the question reserved in footnote six of Hnrdy. 1999 ME 142, Cj[ 12 n.6, 73Y A.2d at 372 n.b. This court also cannot disregard the Law Court's stCltement as "mere dicta," as Ms. Steele suggests it should. A natural reading of BrowlI indicates that the Court would decide Pm'C'lIt and Hnrdy differently today, and that a release of claims signed by an injured spouse can bar the other spouse's subsequent Joss of consortiul1, claim.

A corollary to this change in the law is that spouses with potential consortium claims must be joined in the underlying tort actions if possible, because the resolution of the tort action will prejudice the consortium plaintiff or

9

expose the defendant to the risk of duplictltive litigation or inconsistent obligations. Sec M.R. Civ. P. 19(b); Rcstntell7ent (Secolld) o{Torts § 693, cmt. g (1977). As tl genertll rule the tort defendant or injured spouse would bear the burden of including the consortium. plaintiff. Sec ~M.R. Civ. P. 19(tl) (2009). However, follovving the ResfnfclI7cllf rule adopted by the Superior Court in Pnrcl1t, an uninjured spouse who fails to join the underlying tort action after actual notice of its pendency will be estopped from asserting a consortium clilim after the underlying action is resolved. Pnrellf, 2005 ME 112, 9f9f 19-21,884 !\.2d at 96 (Alexander,]" dissenting); Restntelnellt (Second) olTorts § 693, crnt. g (1977).

Applying these rules, the court finds that Christopher Steele's release does btlr Ms. Steele's loss of consortium claim agilinst the Botticdlos. Her consortium clctirn derives fwnl his negligence claim, and is "therefore subject to the same ~ rules and limittltions." BrauJIl, 2008 ME 186, (If 23,960 !\.2d at 1195. The release limits her ability to recover from the BotticeJlos to the same extent it limits Christopher, i.e. completely.

Ms. Steele defends her position with numerous scholarly arguments based in policy, history, and Maine statutory law, but the LClW Court considered all of these Zlrgul11ents in Hnrdy and Pnre/lt. SCI' Hordy, 1999 ME 142, 9r~I 9-12, 739 A.2d at 371-72; Pnrcllt 2005 ME 112, cn91 10-17,884 A2d tlt 95-97. The court must Clssumc thClt the LtlW Court understood and considered these Clrgulllcnts when it summarily overruled those cases in Brown.

Ms. Steele also argue,s that she should not be bound by the release because it is a contract to which she was not a party. Hnrdy, 1999 ME 142, <JI 9, 739 A2d 371. As the Law Court explained in Hnrdy, the issue is not whether the release directly bars her claim. Tri. Rather, the issue is whether the release indirectly bars

10

her claim based on the claim's "derivative" or "independent" nature.lri. Tn Hnrdy the Law Court found that the contract did not indirectly bar the consortium c1c1im because it was "independent" from the underlying negligence claim. Id. (lf9f 9,12,739 A.2d e1t 371-72. In BroW/l the Court held that consortium claims arc "derivative" rather than "independent," and overruled Hnrdy to the extent that it decided differently. Brown, 200t\ ME 186, lJ] 23, 960 A.2d at 1195. Since consortium clams arc no longer "independent," it follows that <:1 release of the underlying claim can indirectly bar the consortium claim even when the uninjured spollse is not a party to the contract.

Finally, Ms. Steele contends that she WClS an indispensClble party to the underlying suit and Christopher should not be Clble to wClive her rights without her involvement or permission. To remedy the situCltion, she Clsks thClt either she not be bound by the underlying release Clnd judgment, or that the release and stipulated judgment be set Clside Cllld the underlying Clction consolidated with this one. This Clrgul11ent would hClve fm more purchase if Ms. Steele had not known about Christopher's lClwsuit against the Botticellos prior to its settlement.

The reC()fd contains disputes over precisely how much Ms. Steele knew and when she knew it, but there is no dispute that she knew of the lawsuit while it Wc1S pending and ClEter Christopher's personCllity hCld negCltivcly changed. (Opp. S.M.F. 91(J13-4, 15, 20-21.) She nonetheless WCli ted to assert her consortiulll clClim until Clfter Christopher had settled his clilim with the Botticellos. While she "'"as less involved than the hLlsbClnd in Pnrcnf, she did have actual notice that the underlying litigation was taking place and the Pnrc/lf dissent's rationale applies.

Sec Pnrc/lt, 2005 ME 112, 1crr 8, 19-22, 884 A.2d at 94-95, 97 (citing Restatement (Second) of Torts § 693 cmt. g (1977)). Christopher or the defendants should have

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joined Ms. Steele in that action, but when she received actual notice of the action's pendency the burden to become involved shifted to her. Sec id. err 8, 884 A.2d at 94-95; Restatement (Second) of Torts § 693 cmt. g (1977). By failing to intervene, she waived her right to assert her consortium claim and is now estopped frorn bringing this separate action.

Summary judgment is appropriate vvhere there arc no genuine issues of rnatcriol fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); s('e 0/50 Levine v. R..B.J<. Coly Corp., 2001 ME 77, ~r 4,770 A.2d 653, 655. In the wake of the Law Court's decision in Rrowll v. Crown Equipll7ellt Corpora/iou, the undisputed facts show that the release signed by Christopher Steele bars Ms. Steele's consortium claim. She is estopped from challenging the release's validity or application beciluse she knew that Christopher's negligence action WilS pending but fililed to intervene. The Botticellos' motion for summary judgrncnt is granted. The court does not need to address the issue of claim preclusion raised by the porties. The entry is:

Defendants Ryan and Robert Botticello's Illotion to add an affirmative defense and n,otion for summary judgment Me gran ~.K.YI.'l LV! ::;'l'~~L~ v::; .K.Y.A.1.'l J:::lU·l"l·l.C~LLU ~'l' .t\.L UTN:AOCSsr -2009-0046101 CASE #:PORSC-CV-2009-00252

01 0000001120 DUNLAP, MARK --_....:..-_-----------------------­ 415 CONGRESS STREET PO BOX 4600 PORTLAND ME 04112-4600 F RYAN BOTTICELLO ~D~E~F ~R~T~N_D_~0~5~/~1~5~/~2~0~0~9 F ROBERT C BOTTICELLO DEF RTND 05/15/2009 ~~----~.;..;....---.,;.~~..;..,.;;..~..;;..

02 0000002053 ROBITZEK, WILLIAM ----~------------------------

129 LISBON STREET PO BOX 961 LEWISTON ME 04243-0961 F ERYN M STEELE PL RTND 04/30/2009 ~-----,;;.;;,,;;..;..;....-~~~..;..,.;;..--.,;...;;..