Verizon New England v. Fleet Electrical Services

• Court: Superior Court of Maine
• Decided: June 2, 2006
• Docket: CUMcv-04-646
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUNrnERLAND, SS DOCKET NO. CV-OSH9 v" : i,ii - i- r - i , / ? I f i ~4. k ' b u VERIZON NEW'ENGLAND, INC.,

Plaintiff

v. ORDER ON DEFENDANT'S MOTION FOR SUMMARY FLEET ,ECTRICAL SERVICES, INC.

Defendant

T h s case comes before the Court on defendant Fleet Electrical Services,

Inc.'s ("Defendant") Motion for Summary Judgment on plaintiff Verizon New

England, Inc.'s ("Plaintiff") complaint.

BACKGROUND

In February, 1994, Defendant upfitted a utility truck belonging to

Verizon's predecessor-in-interest, New England Telephone, with a Utilimaster

custom cube body, which included installation of a generator and a Masterack

Powermaker power distribution unit. On March 12,2001, a fire broke out in

Plaintiff's commercial premises in Kennebunk, Maine. According to the

Complaint, the origin of the fire was the utility truck that had been upfitted by

Defendant in 1994. Specifically, the cause of the fire was determined by

Plaintiff's experts to be a set of exposed wires on the underside of the truck, for

which Defendant had failed to install a circuit breaker, apparently in violation of

the National Electric Code ("NEC"). Plaintiff's complaint, which was filed on October 22,2004, alleges

Negligence, Breach of Contract, and Gross Negligence in Defendant's upfitting of

the utility truck. In support of its motion for summary judgment, Defendant

claims that the statute of limitations on these claims has run.

DISCUSSION

In Maine, the statute of limitations on a tort generally begins to run upon

the date of the wrongful act producing the injury complained of. Bangor Water

Dist. v. Malcolm Pirnie Engineers et al., 534 A.2d 1326,1328 (Me. 1988). A contract

cause of action accrues at the time of breach. Dunelawn Owners' Ass'n v. Gendreau,

2000 ME 94, ¶ 11,750 A.2d 591,595. In this case, the alleged wrongful act

/breach occurred in February, 1994. This action was brought more than 10 years

after the wrongful act / breach, well after expiration of the six-year statute of

limitations on civil actions. See 14 M.R.S.A. § 752.

Plaintiff contends, however, that the discovery rule exception, which tolls

accrual of an action to the date of the plaintiff's discovery of the wrongful action,

should apply in this case. Maine applies the discovery only in circumstances

where there is both (1)a fiduciary relationshp between plaintiff and defendant

and (2) the tort is virtually undiscoverable by the plaintiff, in the absence of an

independent investigation that would be destructive of the fiduciary

relationship. Pirnie, 534 A.2d at 1328. Plaintiff contends that it had a fiduciary

relationshp with Defendant, as it relied on Defendant's expertise in upfitting its

trucks pursuant to industry standards, and that it could not have discovered the

defects in Defendant's upfitting prior to the fire. Whether or not a fiduciary relationshp exists is a question of fact, wherein

the salient elements are (1) the actual placing of trust or confidence by one party

in another and (2) a great disparity of position and influence between the parties

at issue. Stewart v. Machias Savings Bank, 2000 ME 207, ¶ 10; 762 A.2d 44/46. To

demonstrate the necessary disparity of position and influence, a party must

demonstrate diminished emotional or physical capacity or. . . the letting down of

all guards and bars. Id, at ¶ 11. Although Plaintiff claims that it placed trust in

Defendant, it has nowhere alleged a great disparity of position and influence

between the parties, or a letting down of all guards and bars. Accordingly,

Plaintiff has failed to raise a material issue of fact concerning the existence of a

fiduciary relationshp between the parties, and the discovery rule is not

applicable.

Moreover, if the court were to accept Plaintiff's argument, this "narrow"

exception would encompass every situation in whch someone with "expertise"

was hred to perform a service. Such an outcome is contrary to the Law Court's

decisions on this subject. See Dunelawn Owners' Ass'n v. Gendreau, 2000 ME 94,¶

14 (denying application of the discovery rule to plaintiff purchasers of a

condominium unit against defendant condominium builders); Pirnie, 534 A.2d at

1328 (denying application of the discovery rule to plaintiff water district against

defendant water pipe construction company). Both building contractors and

water pipe contractors, like Defendant in this case, are experts in their particular

areas, and the plaintiffs in Dunelawn and Pirnie relied on them to perform their

services to certain standards, which they may very well not have done. This did

not prevent application of the general rule that the injury accrued at the time the defendants' alleged faulty services were rendered, and not upon discovery of the

faulty construction.

Plaintiff also argues that, if it is able to establish through discovery that

Defendant fraudulently concealed its failure to install a circuit breaker when it

upfitted the utility buck, then, under 14 M.R.S.A. 5 859, the statute of limitations

would be tolled until discovery of the fraud. Plaintiff, however, has not pled

fraud, much less with the particularity of facts required to sustain a motion to

dismiss. See M.R.Civ.P. 9(b). Such an allegation is required prior to application

of § 859. See Pirnie, 534 A.2d at 1329.

The entry is:

Defendant's motion for summary judgment is GRANTED.

Dated: June 2,2006

Justice, h e r i o r Court COURTS ~dCounty IX 287 04 1 12-0287

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J O H N WHITMAN E S Q P O BOX 9545 PORTLAND ME 0 4 1 1 2