2004 | Cited 0 times | D. Maine | August 9, 2004


State Farm Mutual Automobile Insurance Co., the plaintiff inthis insurance declaratory judgment action, has moved for summaryjudgment against Marcus Shorey, the operator of a vehicle ownedby a State Farm insured, and Alan C. McCann, a party-in-interestwho was injured by Shorey's operation of the motor vehicle.Marcus Shorey, currently imprisoned at the Maine State Prison,did not originally respond to plaintiff's motion.1Party-in-interest Alan C. McCann has responded fully. Based uponthe record now before the court I recommend that the courtGRANT summary judgment to the plaintiff and issue a declaratoryjudgment finding that State Farm has no duty to defend norindemnify Shorey in the civil action instituted by McCann againsthim. Statement of Facts

In the present case there are no disputed material facts.Party-in-interest Alan McCann and defendant Marcus Shorey haveadmitted all material facts set forth in State Farm's LocalRule 56 statement of material facts. Both Shorey and McCann notedtheir objections to one or two paragraphs of the twenty-sevenparagraph plaintiff's statement of facts. To the extent I agreewith those objections relating to the materiality of the disputedfacts, I have deleted the disputed paragraphs in my recitation ofthe facts. Specifically I agree that ¶ 21 regarding thesignificance of the criminal jury's verdict is a legal conclusionnot a statement of fact. Unfortunately for McCann and Shorey, Ihave independently reached the same legal conclusion.

On September 29, 2003, Alan McCann commenced a civil actionagainst Marcus Shorey in the Penobscot County Superior Court.(Pl.'s St. of Mat. Facts, Docket No. 17, ¶ 1.) The underlyingcomplaint in that action alleges, among other things, that on orabout September 15, 2002, in Bangor, Maine, Shorey "negligentlyand carelessly operated his motor vehicle in such a manner as tostrike" McCann, causing serious personal injury. (Id., ¶ 2.)Shorey and McCann admit that the facts giving rise to theunderlying complaint are the same facts as those that were atissue in the criminal proceedings against Shorey, whichproceeding ultimately resulted in his conviction of ElevatedAggravated Assault. (Id., ¶ 4.) Those criminal proceedingscommenced against Shorey on October 7, 2002, when the PenobscotCounty Grand Jury indicted Shorey alleging, among other things,that "[o]n or about September 15, 2002, in Bangor, PenobscotCounty, Maine Shorey did intentionally or knowingly cause seriousbodily injury to McCann with the use of a dangerous weapon, avehicle." (Id., ¶ 5.) The charge was elevated aggravatedassault, 17-A M.R.S.A. § 208-B(1).2 (Id., ¶ 6.) On February 12 and 13, 2003, the criminal trial against Shoreyfor Elevated Aggravated Assault was held at the Penobscot CountySuperior Court. (Id., ¶ 8.) Marcus Shorey was present duringthe criminal trial and was represented by counsel. Shoreytestified at the trial. (Id., ¶ 10.) Alan McCann also testifiedat Shorey's criminal trial. (Id., ¶ 11.) Shorey's defense wasthat he did not intentionally or knowingly cause harm to McCann.Defense counsel argued in his closing that when McCann wasinjured, Shorey was trying to get away from McCann. The defensetheory was that McCann, a bouncer, was injured when McCann doveonto the car Shorey was operating: "[McCann] was struck but hewas on the car, it wasn't because the car had come to him as muchas he had come to the car." Shorey testified that "[McCann]wouldn't move out of the way; he was standing there. He had alook on his face like he wanted to kill somebody. Yes, I believehe posed a threat to me, yes . . . I didn't hit [McCann]. Iapproached him, he jumped on to the car. . . ." McCann, duringthe same trial, denied that he "jumped on to the vehicle." McCanntestified at the criminal trial that there was nothing to"prevent the operator of the vehicle from seeing" him and thevehicle kept accelerating" to "25, 30 miles an hour" before itstruck him. (Id., ¶¶ 10-17.)

The presiding justice instructed the jury on the elements ofthe crime of elevated aggravated assault as follows: A person is guilty of elevated aggravated assault if the person intentionally or knowingly causes serious bodily injury to another person with the use of a dangerous weapon. Therefore, for the defendant to be convicted of elevated aggravated assault the State must prove the following things beyond a reasonable doubt. Number one, that this defendant, number two, intentionally or knowingly, number three, caused serious bodily injury to another person, here alleged to be Alan McCann, and number four, with the use of a dangerous weapon, here alleged to be a vehicle.The judge also instructed the jury as to the meaning of"intentionally" or "knowingly" with respect to the elements ofthe crime of elevated aggravated assault as follows: A person acts intentionally with respect to the result of his conduct, which here would be serious bodily injury to another person, when it is his conscious object to cause such a result. A person acts knowingly with respect to the result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.(Id., ¶¶ 18-19.) After deliberations, on February 13, 2003, thePenobscot County Jury rendered a verdict that Shorey was guiltyof the offense of elevated aggravated assault pursuant to 17-AM.R.S.A. § 208-B. (Id., ¶ 20.) On May 28, 2003, a judgment andcommitment was entered against Shorey for the conviction of thecrime of elevated aggravated assault. (Id., ¶ 22.)

By letter dated January 24, 2003, Marvin Glazier, an attorneyfor McCann, communicated with State Farm's insured, RobertThomas, alleging that Mr. Thomas was the owner of the automobiledriven by Shorey, which struck McCann on September 15, 2002.(Id., ¶ 24.) After McCann filed the Underlying Complaintagainst Shorey in the Penobscot Superior Court, Mr. Glazierprovided a copy of the Underlying Complaint to State Farm.(Id., ¶ 25.) State Farm is providing a defense to Shorey fromthe complaint of Alan McCann under a reservation of rights.(Id., ¶ 26.) A true and accurate copy of the automobileinsurance policy that State Farm issued to Robert Thomas isattached to the Affidavit of Michael Gately as Exhibit 4. (Id.,¶ 27.) Both sides agree the insuring clause at issue providesthat State Farm "will pay damages which an insured becomeslegally liable to pay" because of injury "caused by accidentresulting from the ownership, maintenance or use of" the insuredvehicle. Discussion

The plaintiff is entitled to summary judgment only "if thepleadings, depositions, answers to interrogatories, andadmissions on file, together with the affidavits, if any, showthat there is no genuine issue as to any material fact and that[they are] entitled to judgment as a matter of law." Fed.R. Civ.P. 56(c). A fact is material if its resolution would affect theoutcome of the suit, Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986), and the dispute is genuine "if the evidence issuch that a reasonable jury could return a verdict for thenonmoving party," id. I view the record in the light mostfavorable to the non-movants and I indulge all reasonableinferences in their favor. See Savard v. Rhode Island,338 F.3d 23, 25-26 (1st Cir. 2003).

For purposes of this motion, Marcus Shorey is the putativeinsured under the policy issued by State Farm to Robert Thomas.As a general rule under the law of the State of Maine, thepleading comparison test is used to determine if there is a dutyto defend an insured. The court resolves as a question of lawwhether there is a duty to defend by comparing the civilcomplaint with the terms of the insurance contract. Elliott v.Hanover Ins. Co., 711 A.2d 1310, 1312 (Me. 1998). Generally,insurers cannot avoid their duty to defend by establishing, priorto the conclusion of the underlying action, that ultimately therewill be no duty to indemnify. Penney v. Capitol City Transfer,Inc., 707 A.2d 387, 388-89 (Me. 1998).

Maine law does recognize limited exceptions to the pleadingcomparison test. N. Sec. Ins. Co., Inc. v. Dolley,669 A.2d 1320, 1322-23 & n. 3 (Me. 1996). In certain circumstances, theLaw Court has considered an insured's criminal conviction indetermining whether a duty to defend exists, even though the factof the conviction lay outside the facts alleged in the complaint.In State Mutual Insurance Company v. Bragg, 589 A.2d 35 (Me.1991), the insured under a tenant's insurance policy pleadedguilty to and was convicted of murder and attempted murder after a civil negligence suit was filed on behalf of thevictims. Following a non-jury hearing, the trial court concludedthat neither the insured nor the plaintiff could relitigate theissue of the insured's intent, which had been established by theguilty plea, and that the insurer had no duty to defend orindemnify the insured because the insurance policy excludedcoverage for bodily injury expected or intended by the insured.Id. at 38. The Law Court affirmed, observing that the use of"offensive, nonmutual collateral estoppel" is permitted "on acase by case basis if it serves the ends of justice." Id. at37. So long as "the identical issue necessarily was determined bya prior final judgment, and . . . the party estopped had a fairopportunity and incentive to litigate the issue in the priorproceeding," the court held, "the comparison test for aninsurer's duty to defend may include facts established against aninsured in a prior proceeding." Id. Thus, the insured'sconviction of murder and attempted murder precluded a "finding ofinjury other than that excluded by [the] policy." Id.

In addition to murder and attempted murder convictions, the LawCourt has held that convictions for either robbery involving theuse of a dangerous weapon or sexual abuse also relieve an insurerof its duty to defend because the likelihood of physical injuryis so great that any resulting injury is to be deemed as intendedor expected. Landry v. Leonard, 1998 ME 241, ¶ 9, 720 A.2d 907,909 (Me. 1998) (affirming summary judgment and holding that thereis no duty to defend where insured was convicted of robberyinvolving the use of a dangerous weapon); Perreault v. Me.Bonding & Cas., 568 A.2d 1100, 1101 (Me. 1990) (affirmingsummary judgment and holding that there is no duty to defendwhere insured was convicted of unlawful sexual contact committedagainst a child). However, the Law Court has concluded that aconviction for aggravated assault, an offense that can becommitted by acting "recklessly," does not necessarily precludecoverage in a companion civil action. Patrons-Oxford Mut. Ins.Co. v. Dodge, 426 A.2d 888, 892 (Me. 1981). The policy in question inDodge also contained an exclusion for bodily injury that isexpected or intended by the insured. Id. at 889.

This case presents two novel issues under the line of casesreferenced above. The first issue is whether the insuring clauseat issue in this case, which provides coverage only for injuries"caused by accident resulting from the ownership, maintenance oruse of" the insured vehicle, extends to injuries cause by theintentional or knowing acts of the insured. The second issue iswhether a conviction by the insured for elevated aggravatedassault, involving use of the insured vehicle as a weapon, barsrelitigation of the insured's state of mind. As McCann pointsout, this case differs from Bragg, Landry, Perreault andDodge3 in that the policy in each of those casescontained specific language excluding intentional conduct fromcoverage. In the present case the policy does not contain anexclusion for bodily injury expected or intended by the insured.Rather, the policy only provides coverage for injuries caused by"accident."

The Maine Law Court has defined the word "accident" in thecontext of a liability insurance policy as meaning "anunanticipated event." Me. Mut. Fire Ins. Co. v. Gervais,1998 ME 197, ¶ 10, 715 A.2d 938, 941 (quoting Vigna v. Allstate Ins.Co., 686 A.2d 598, 600 (Me. 1996). If an insured actsintentionally or knowingly to cause a result, by definition theresult cannot be deemed an unanticipated event. In my view theinsuring clause in dispute here has the same effect as theexclusion discussed in the other Maine cases and the outcome ofthis case should be guided by Bragg and its progeny.

As a result of the jury finding Shorey guilty of elevatedaggravated assault, he is collaterally estopped from relitigatingwhether of not the injury to McCann occurred as the result of an accident. Elevated aggravated assault, unlike assault oreven aggravated assault, can only be committed if the defendantacted intentionally or knowingly. 17-A M.R.S.A. § 208-B(1)(A)(see, supra, footnote 2). In this case the jury found Shoreyguilty beyond a reasonable doubt of elevated aggravated assaultafter the presiding justice had instructed them that anintentional or knowing state of mind was required for a guiltyverdict. Moreover, pursuant to Landry, the intentional use of amotor vehicle as a weapon makes the likelihood of physical injuryso great that any resulting injury is to be deemed as intended orexpected. Because Shorey has already litigated the issue of hisintent in the context of a criminal prosecution and the issue wasdetermined by a final judgment against him, the use of offensive,nonmutual collateral estoppel is proper here and Shorey cannotclaim in this litigation that the injury occurred by accident.Therefore, State Farm is entitled to declaratory judgment in itsfavor.


Based upon the foregoing I recommend that the court GRANTState Farm's Motion for Summary Judgment and declare that it hasno duty to defend or indemnify Shorey in the action broughtagainst him by McCann in the Maine Superior Court.

1. Counsel for State Farm sent a letter to the courtexplaining that she was contacted by Shorey the first week ofJuly. He informed counsel that he had not received a copy of theoriginal motion for summary judgment but he had received McCann'scounsel's response to the motion. Counsel for State Farmimmediately sent a copy of the original motion to Shorey andindicated that if he needed additional time to respond to themotion she would not object to his request. On August 2, 2004,Shorey filed a motion for extension of time to respond,indicating that he had actually received the motion on July 12.His twenty-one days from actual receipt expired on August 2.However, I granted him a brief extension to respond until August9, 2004. He has now filed his response and State Farm replied toit.

2. Title 17-A M.R.S.A. § 208-B, "elevated aggravated assault,"provides as follows: 1. A person is guilty of elevated aggravated assault if that person: A. Intentionally or knowingly causes serious bodily injury to another person with the use of a dangerous weapon; B. Engages in conduct that manifests a depraved indifference to the value of human life and that in fact causes serious bodily injury to another person with the use of a dangerous weapon; or C. With terroristic intent engages in conduct that in fact causes serious bodily injury to another person. 2. Elevated aggravated assault is a Class A crime.

3. The same sort of exclusion was in play in Mutual Fire Ins.Co. v. Hancock, 634 A.2d 1312, 1312, 1313 (Me. 1993) (vacatingjudgment that insurer owed a duty to indemnify and remanding forentry of a contrary declaration where the insured, "while in astate of alcoholic blackout, beat and raped" the plaintiff, onthe ground that the court's findings regarding the particulars ofthe crime "compelled" a finding that the insured intended orexpected harm to come to the plaintiff).

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