Wildes v. City of Portland

• Court: Superior Court of Maine
• Decided: February 1, 2005
• Docket: CUMcv-04-595
• Status: Unpublished

Opinion

STATE OF MAINE CUMBERLAND, ss.

SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-04-595 ;

Mark Wildes, Jr., - Plaintiff Vv. ORDER City of Portland, Defendant FEB 7 2005

This case comes before this Court on Defendant City of Portland’s Motion

to Dismiss. FACTS

Mark Wildes, Jr. (Plaintiff), age 19, was driving on Brighton Avenue in Portland on January 12, 2003 when he slowed down at a railroad crossing. His vehicle was struck from behind by a Portland police van and Plaintiff was transported to Mercy Hospital. Plaintiff's father, Mark Wildes, Sr, contacted the City of Portland (the City) on his son’s behalf, explaining that, following his -_Telease from the hospital, Plaintiff would need to treated at the Portland Back and Neck Pain Center (PBNPC). Liability Program Manager, Cheryl Main allegedly told Mr. Wildes, Sr. that the City assumed responsibility for Plaintiff’s medical expenses and to have PBNPC contact the City directly. At Plaintiff's initial visit, PBNPC called the City to confirm the City would be covering Plaintiff's care. PBNPC was told the City would pay the final bill when Plaintiff's treatment was completed. On January 21, 2003, Mr. Wildes, Sr. met with the

City and was given a check for $2388.75 to cover Plaintiff's property damage only. Mr. Wildes, Sr. signed a release for Property damage only on his son’s behalf.

Plaintiff’s treatments at PBNPC were completed March 4, 2003, fifty-one days after the accident, and Plaintiff Promptly forwarded PBNPC’s final bill to the City. When he received no response, Plaintiff called, but his calls were not returned. Several months later, the City contacted the Plaintiff to tell him it was too late for him to receive payment for his treatment because he had failed to file a Notice of Claim pursuant to 14 M.RS.A. § 8107 of the Maine Tort Claims Act within 180 days of the accident!

Plaintiff was able to secure representation in February 2004, and promptly filed a Notice of Claim. The City responded, saying Plaintiff had released all claims for property damage and the City had no knowledge of any injuries to Plaintiff. On August 27, 2004 Plaintiff brought his negligence suit against the City, seeking damages for injuries caused by the accident. The City filed a Motion to Dismiss for failure to state a claim for which relief can be granted, citing Plaintiff's failure to file a Notice of Claim, and referring in its motion to the affidavit of City Liability Program Manager, Cheryl Main.

DISCUSSION

Both sides have now presented affidavits to the Court. In a motion to

dismiss pursuant to Rule 12(b)(6), “when matters outside the pleading are . presented to and not excluded by the court, the motion shall be treated as one for

summary judgment.” MLR. Civ. P. 12(b). Ona motion for summary

* “Within 180 days after any claim or cause of action permitted by this chapter accrues, or ata later time within the limits of section 8110, when a claimant shows good cause why notice could Here the City argues it is entitled to judgment as a matter of law because

the Plaintiff does not meet the statutory requirements for finding a “good cause”

By law, Plaintiff may file a Notice of Claim within two years of the accident if he can show “good cause” for not filing within the 180-day limit. 14 MRS.A. § 8107. The Law Court has interpreted “good cause” to mean the plaintiff was unable to file a notice of claim or was “in some meaningful way prevented from learning of the information forming the basis of his complaint.”

Smith v. Voisine, 650 A.2d 1350, 1352 (Me. 1994), Furthermore, “good cause” may ee

2 Definition of good cause. “Good cause” as used in [notice requirement section] includes butis - not limited to any causes in which any official of the governmental entity whose duties and authority include the settlement of tort claims or any tort liability insurer of the governmental entity makes direct oral or written contracts with the claimant or the claimants personal representative or attorney, including payments to or on behalf of the claimant, that contain or imply a promise of coverage sufficient to cause a reasonable person to believe that the losses for which no timely notice claim js filed would be covered, 14 M.R.S.A. § 8107(5). be found when an official “whose duties and authority include the settlement of

tort claims or tort liability... makes direct oral or written contracts... that

believe that the losses _. - would be covered.” 14 M.RS.A. § 8107(5).

Here, the Plaintiff Provides evidence in form of affidavits that suggest the City official who manages liability claims, Cheryl Main, told Plaintiff's father that the City would take care of his medical bills and offered to verify this

or to Plaintiff's father acting on Plaintiff’s behalf, that contained or implied a promise that Plaintiff’s medical expenses would be covered. Because the

disputed issue is material to whether Plaintiff has established a “good cause”

Dated

Justic ?, Superior Court “ COURTS 1d Gounty

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PORTLAND ME 04112 ~

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MARSHALL TINKLF ESQ PO BOX 15060 PORTLAND ME 04112