St.Louis-Farrelly v. Fleury

• Court: Superior Court of Maine
• Decided: December 8, 2011
• Docket: YORcv-11-059
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-11-059 \/ 0 , ___ I~ 0 I I f'tl ~ - / Ul\- lei/+/'~

CARA ST. LOUIS-FARRELLY, Personal Representative of the Estate of Constance Orendorf,

Plaintiff

v. ORDER AND DECISION

WALTER FLEURY and LIBERTY MUTUAL INSURANCE co., Defendants

Cara St. Louis-Farrelly is the daughter of Constance Orendorf who was struck

and killed while crossing Main Street in Saco on July 11, 2010 by a vehicle driven by the

defendant Walter Fleury. Ms. St. Louis-Farrelly as personal representative of the estate

of her mother has brought suit against Mr. Fleury and his insurance carrier Liberty

Mutual Insurance Co.

The complaint contains two counts, Count I is a wrongful death claim pursuant

to 18-A M.R.S.A. §2-804. Count II seeks a declaratory judgment that Mr. Fleury's

insurance policy with Liberty Mutual should be construed to permit separate recoveries

of up to $50,000 for both the losses suffered by Ms. Orendorf and for the loss of the

comfort, society and companionship of Ms. Orendorf suffered by Ms. St.Louis-Farrelly.

Liberty Mutual has paid $50,000 to the estate for Ms. Orendorf' s claim but denies that it

has any obligation to make an additional payment to Ms. St. Louis-Farrelly. Liberty Mutual has filed a motion for summary judgment on Count II which has

been briefed and argued. Mr. Fleury had a policy which required Liberty Mutual to

" ... pay damages for 'bodily injury' ... for which any 'insured' becomes legally

responsible because of an auto accident ... ". "Bodily injury" was defined as "bodily

harm, sickness or disease, including death that results." The coverage limit for bodily

injury was $50,000 each person and $100,000 each accident. The policy also included

an endorsement called SPLIT LIABILITY LIMITS which stated, "The limit of liability

shown in the Schedule or in the Declarations for each person for Bodily Injury Liability

is our maximum limit of liability for all damages, including damages for care, loss of

services or death, arising out of 'bodily injury' sustained by any one person in any one

auto accident."

Liberty Mutual and the plaintiff disagree as to whether the plaintiff can recover

separately for her own losses independent of her recovery on behalf of the estate of her

mother's losses. The dispute will be resolved by interpreting the Split Liability Limits

provision and a decision of the Law Court. Gillchrest v. Brown, 532 A.2d 692 (Me. 1987)

interpreted a similar "each person" provision in the context of a loss of consortium

claim. Mr. Gillchrest, as the physically injured person, settled his claim for the

maximum "each person" limit. His wife had brought a separate claim for loss of

consortium. The Law Court ruled against her finding, at 693, "Thus the 'each person'

limit should be read to apply to 'all damages [arising out of the] bodily injury [that is]

sustained by any one person."'

The Law Court went on to state, at 693, "By its nature Marian Gillchrest' s loss of

consortium is not itself a bodily injury to her. Rather her loss of consortium arises out

of, and is derivative from, the bodily injury sustained by her husband." That

reasoning applies equally well here. The plaintiff's very real and very significant

2 psychological losses result not from a bodily injury that she suffered by being hit by Mr.

Fleury's vehicle, but from the bodily injury and death of her mother.

The policy was written to provide a maximum coverage of $100,000 for bodily

injury regardless of the number of people injured in a collision while limiting the

recovery in any individual claim for bodily injury to $50,000. Since only one

individual, Ms. Orendorf, suffered a bodily injury Liberty Mutual is correct in its

interpretation of its policy. Decisions of Magistrate Judge Kravchuk in State Farm

Mutual Automobile Insurance Co. v. Hall, 2005 WL 58100 (D.Me) and of Justice Hjelm in

New Hampshire Indemnity Co. v. Dunton, 2003 WL 1618563 (Me. Super) support this

result.

The entry is:

Judgment for the defendant Liberty Mutual Insurance Co. on Count II of the complaint. The maximum liability of the defendant Liberty Mutual Insurance Co. for bodily injuries suffered by Constance Orendorf is $50,000.00.

Dated: December 8, 2011

CZJ~~ Paul A. Fritzsche Justice, Superior Court

ATTORNEY FOR PLAINTIFF: ATTORNEYS FOR DEFENDANT: LIBERTY MUTUAL GROUP INC THOMAS L DOUGLAS, ESQ. JOHN WHITMAN MURRAY PLUMB & MURRAY HEIDI J HART PO BOX 9785 RICHARDSON WHITMAN LARGE & BADGER PORTLAND ME 04104-5085 PO BOX 9545 PORTLAND ME 04112-9545 ATTORNEY FOR DEFENDANT WALTER FLEURY: JAMES C HUNT ROBINSON KRIGER & MCCALLUM PA TWELVE PORTLAND PIER PORTLAND ME 04101-4713