Fortin v. Titcomb

United States Court of Appeals
For the First Circuit

No. 10-2370

MICHAEL FORTIN,

Plaintiff, Appellant,

v.

JACOB TITCOMB,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John H. Rich III, U.S. Magistrate Judge]

Before

Lynch, Chief Judge,
Lipez and Thompson, Circuit Judges.

Michael A. Feldman, with whom Leslie Feldman-Rumpler was on
brief, for appellant.
Douglas I. Louison, with whom Louison, Costello, Condon &
Pfaff, LLP was on brief, for appellee.

January 26, 2012
 LIPEZ, Circuit Judge. A federal jury awarded appellant

Michael Fortin $125,000 in damages against a Wells, Maine police

officer after finding that the officer negligently used force in

arresting Fortin in 2007. In a post-judgment ruling, the district

court reduced the award to $10,000 – the maximum set by the Maine

Tort Claims Act ("MTCA" or "Act") for the personal liability of

government employees. See Me. Rev. Stat. Ann. tit. 14, § 8104-D.

On appeal, Fortin argues that the MTCA's personal-liability cap is

inapplicable here because the officer was covered by an insurance

policy that triggered a higher limit under the Act.

After carefully examining the statutory scheme, cases

interpreting the MTCA, and the insurance policy, we have determined

that the appeal turns on two unresolved questions of Maine law.

Specifically, whether Fortin is limited to recovery of a $10,000

award depends on the unexplored relationship among several

provisions of the MTCA governing damage awards against government

employees. Our analysis may also require determining what

interpretive rule should be applied to ambiguous insurance policies

providing MTCA liability coverage. We have found "no clear

controlling precedents" in Maine law to guide us on these issues,

which require policy choices we believe are properly reserved for

the state's courts. Me. Rev. Stat. Ann. tit. 4, § 57. Hence, we

certify the two questions identified below to the Maine Supreme

Judicial Court ("the Law Court"). See id.; Me. R. App. P. 25(a).

-2-
 I. Background

The facts surrounding Fortin's arrest are immaterial to

the legal issues, and we thus recite only the procedural background

of the case. Fortin filed this action in May 2009 against appellee

Jacob Titcomb, a Wells police officer, and six other defendants,

asserting federal and state civil rights violations and a state-law

negligence cause of action stemming from the alleged use of

excessive force to arrest him two years earlier.1 In September

2010, at the end of a three-day trial, the jury rejected the civil

rights claims but found Titcomb liable under state negligence law

for injuring Fortin. The court had instructed the jury that an

arrest is a discretionary act for which police officers are

entitled to immunity under Maine tort law "unless the officer's

conduct was so egregious that it clearly exceeded the scope of any

discretion an officer could have possessed in his or her capacity

as a police officer." See Richards v. Town of Eliot, 780 A.2d 281,

292 (Me. 2001); Polley v. Atwell, 581 A.2d 410, 413-14 (Me. 1990).

The jury's judgment thus incorporated a finding that Titcomb was

1
The other defendants were Ogunquit Police Officers Matthew
Buttrick and Michael Faia, the Town of Wells, the Town of Ogunquit,
Wells Police Chief Richard Connelly, and Ogunquit Police Chief
Patricia Arnaudin. The district court granted summary judgment for
all defendants but Titcomb and Buttrick. We dismissed appellant's
appeal from the judgment against Buttrick on motion of all parties.
This opinion therefore addresses only the liability of appellee
Titcomb.

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not entitled to immunity; the jury assessed $125,000 in damages

against him.

Titcomb subsequently filed a motion under Federal Rule of

Civil Procedure 59(e) asking the court to amend the judgment to

conform to § 8104-D of the MTCA, which expressly limits the

personal liability of government employees for negligence to

$10,000.2 Although insurance coverage may affect the availability

and amount of damages under the MTCA, see Me. Rev. Stat. Ann. tit.

14, § 8116, Titcomb argued that the Town's insurance policy, which

provided coverage for the officer, did not affect the applicability

of § 8104-D. Titcomb further asserted that, even if the policy

limits governed the damages award, Fortin's recovery was limited to

$10,000 by the policy's express terms.

The district court granted the motion to amend. It

sidestepped Fortin's contention that Titcomb had not submitted

proper evidence of insurance coverage showing eligibility for the

2
The provision states:

Except as otherwise expressly provided by section
8111 or by any other law, and notwithstanding the common
law, the personal liability of an employee of a
governmental entity for negligent acts or omissions
within the course and scope of employment shall be
subject to a limit of $10,000 for any such claims arising
out of a single occurrence and the employee is not liable
for any amount in excess of that limit on any such
claims.

Me. Rev. Stat. Ann. tit. 14, § 8104-D.

-4-
statutory cap,3 holding that the officer was entitled to an amended

judgment under § 8104-D whether or not the insurance policy was

considered. The court stated that Fortin bore, and failed to meet,

the burden to proffer evidence showing that the statutory cap on

the officer's liability was superseded by an insurance policy

providing greater coverage. Moreover, the court read the policy

excerpts that the defendant submitted to expressly retain the

§ 8104-D cap. Thus, in the district court's view, the result was

the same – i.e., a statutory limitation of $10,000 was placed on

Fortin's recovery – whether or not the court relied on the

defendants' policy evidence.

On appeal, Fortin argues that the district court

misapprehended both the MTCA and the insurance policy. He asserts

that, under Maine case law, Titcomb bore the burden to show a lack

of coverage for damages exceeding the $10,000 limit of § 8104-D and

that the officer failed to satisfy that obligation. Fortin

contends that, in fact, the Town of Wells' policy endorsement

expressly provides coverage in excess of that cap.

3
Titcomb attached to his motion only the policy endorsement
related to coverage for law enforcement activities. The attachment
did not identify the Town of Wells as the insured, however, and it
also did not identify the insurance company that issued the policy.
Nor did it state the policy coverage dates. It consisted of two
paragraphs, quoted infra, stating the criteria for the $1 million
coverage. The full policy, issued by Redland Insurance Company,
was attached to Titcomb's Reply to Plaintiff's Objection to
Defendant's Motion to Alter or Amend.

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 We begin our discussion with a review of the relevant

provisions of the MTCA before examining whether the statute

commands a particular outcome here. Because that examination

raises significant and difficult issues of Maine law on which there

is no controlling precedent, we have decided to certify a question

concerning the MTCA's construction to the Law Court. We have

recognized that certification may be an appropriate option even

where, as here, the parties have not requested it. See Real Estate

Bar Ass'n for Mass., Inc. v. Nat'l Real Estate Info. Servs., 608

F.3d 110, 119 n.2 (1st Cir. 2010) (holding that "[t]his court has

discretion to certify questions to the SJC when a party fails to

move for certification in the district court, or to do so sua

sponte"); Me. Drilling & Blasting, Inc. v. Ins. Co. of N. Am., 34

F.3d 1, 3 (1st Cir. 1994) (noting that the court on occasion

certifies "questions to a state's highest court upon our own

motion").

If the Law Court determines that Fortin's right to

recover the full jury award is not limited by the MTCA, the

coverage provided by the town's insurance policy will become the

centerpiece of the parties' dispute. We thus describe the parties'

debate over the policy language and explain why the policy

interpretation also raises a question of state law requiring

guidance from the Law Court.

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 II. The Maine Tort Claims Act

A. Limitation of Liability under the MTCA

The MTCA contains several provisions that speak to the

amount of damages available to a plaintiff who brings a successful

claim against a governmental entity or its employees. The

provision at the core of this case, § 8104-D, is titled "Personal

liability of employees of a governmental entity," and it limits the

out-of-pocket exposure of a government employee to $10,000 for any

claims arising out of a single occurrence. Me. Rev. Stat. Ann.

tit. 14, § 8104-D; see supra note 2. Another provision of the Act,

titled "Limitation on damages," sets a $400,000 cap on the award of

damages that may be obtained "against either a governmental entity

or its employees, or both . . . for any and all claims arising out

of a single occurrence." Me. Rev. Stat. Ann. tit. 14, § 8105(1).

The § 8105 limit is explicitly superseded in certain instances,

however, when a governmental entity procures liability insurance:

"If the insurance provides protection in excess of the limit of

liability imposed by section 8105, then the limits provided in the

insurance policy shall replace the limit imposed by section 8105."

Id. § 8116.4

4
The substitution of the policy limits for the statutory
limit applies to claims for which immunity is waived by the MTCA
"or under any other law." Me. Rev. Stat. Ann. tit. 14, § 8116. If
the policy covers actions for which the government would otherwise
be immune from liability, "the governmental entity shall be liable
. . . but only to the limits of the insurance coverage." Id.

-7-
B. Personal Liability vs. Limitation of Damages

Appellee Titcomb argues that this case is easily resolved

by reference to the terms of § 8104-D, which he reads to impose a

$10,000 ceiling whenever damages are awarded against a government

employee in his personal capacity. He argues that § 8105, which

allows damages up to $400,000 against a governmental entity or an

employee, must apply only to employees in their official capacity

because that provision otherwise would be inconsistent with

§ 8104-D's much lower cap. He points out that official-capacity

suits are, in essence, suits against the employing governmental

entities. Hence, narrowly construing the word "employee" in § 8105

retains the distinction between the government's liability – capped

at $400,000 under § 8105 – and the individual's liability – capped

at $10,000 under § 8104-D.

No Maine cases address the relationship between §§ 8104-D

and 8105, and Titcomb's depiction of the statutory scheme presents

one plausible interpretation of the MTCA. Section 8104-D

explicitly caps the recovery of damages from individual employees

at $10,000, and that clear limitation would be inconsistent with

§ 8105 if the latter provision were construed to allow up to

$400,000 in damages against such individuals. Arguably, then, the

reference in § 8105 to "employees" cannot refer to the category of

employees covered by § 8104-D, i.e., those sued in their personal

capacity.

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 That construction is reinforced by the language of

§ 8116, which allows governmental bodies to procure insurance

coverage "against liability for any claim against it or its

employees for which immunity is waived." Me. Rev. Stat. Ann. tit.

14, § 8116. Section 8116 makes no reference to § 8104-D. Rather,

it states: "If the insurance provides protection in excess of the

limit of liability imposed by section 8105, then the limits

provided in the insurance policy shall replace the limit imposed by

section 8105." A fair reading of § 8116, in the context of

§§ 8104-D and 8105, could lead to the conclusion that § 8104-D is

a stand-alone provision that applies to personal-capacity claims

against governmental employees, while §§ 8105 and 8116 apply to all

other types of claims involving governments and their employees.

Under that construction of the MTCA, the district court would have

properly reduced Fortin's award to the $10,000 limit set by § 8104-D.

Titcomb's construction has some support in the Maine Law

Court's requirement to "strictly construe" the MTCA. Darling v.

Augusta Mental Health Inst., 535 A.2d 421, 424 (Me. 1987); see also

Mueller v. Penobscot Valley Hosp., 538 A.2d 294, 297-98 (Me. 1988)

(rejecting "a broad reading" of the Act). The Law Court appears to

be particularly strict in construing the provisions of the MTCA

that govern suits against government employees. In Darling, for

example, the court explained that "the Tort Claims Act, both by the

limits it places on personal liability of employees and by the

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discretionary authority it grants an immune entity to defend and

indemnify a nonimmune employee, articulates the significant state

interest in regulating the conditions under which suit can be

prosecuted against government employees." See Darling, 535 A.2d at

429.

As one example of that interest, the court emphasized

that "the Act limits to $10,000 the amount that a plaintiff can

recover in a personal suit against a nonimmune employee." Id. at

430 (emphasis added). Although this statement is dicta, and does

not consider the possible impact of insurance coverage on the

§ 8104-D cap, it reflects an assumption by the Law Court that a

plaintiff's recovery in a personal suit against a government

employee is limited to $10,000.

Similarly, in Moore v. City of Lewiston, 596 A.2d 612

(Me. 1991), the Law Court concluded that § 8116 operates

differently as to government entities than as to government

employees sued in their personal capacity. In Moore, the court

noted that, under § 8116, the City of Lewiston could have waived

its statutory immunities in its liability insurance policy; it thus

held that summary judgment on the basis of those immunities,

without a copy of the City's liability insurance policy in

evidence, was premature. See id. at 615. The court went on to

hold, however, that the City could not override the personal

immunity of its employees by purchasing insurance, contrasting the

-10-
explicit waiver in § 8116 of governmental immunity with the absence

of any such explicit waiver for individual employees. See id.

(concluding that "regardless of whether the City's insurance

coverage extended to the defense or indemnity of the police

officers, their personal immunity from liability could not have

been waived" by the City's purchase of insurance).

Although Moore addressed the issue of immunity rather

than damages, Titcomb argues that its reasoning applies to him.

Moore, he says, recognizes that § 8116 gives different effect to

the availability of insurance for an employee sued in his personal

capacity than for a government entity or an employee sued in his

official capacity. He claims that it follows from Moore's

discussion of employee immunity that an employee's liability also

is unaffected by insurance coverage and, hence, remains subject to

the $10,000 limit established by § 8104-D.

Titcomb's construction is not, however, the only

plausible reading of the statutory scheme. As an initial matter,

§ 8105 refers to "employees" without qualification. Reading the

statute to contain an "official-capacity" restriction would be a

significant departure from its plain language – and thus an

approach at odds with basic principles of statutory interpretation

under Maine law. See Anastos v. Town of Brunswick, 15 A.3d 1279,

1283 (Me. 2011) ("In interpreting a statute, we first consider the

plain language and will consider other indicia of legislative

-11-
intent if the language is silent or ambiguous."); Jusseaume v.

Ducatt, 15 A.3d 714, 719 (Me. 2011) ("In interpreting a statute, we

look first to the plain meaning expressed in the statute's language

to discern the Legislature's intent."). Indeed, the Law Court has

previously construed the term "employee" in another section of the

MTCA to include a government employee in his or her personal

capacity. See Mueller, 538 A.2d at 297 (rejecting plaintiff's

argument that the notice requirement of Me. Rev. Stat. Ann. tit.

14, § 8107(4), referring to "a governmental entity or employee,"

does not apply to claims against employee as an individual).

It may also be significant that §§ 8104-D and 8105 by

their terms address different matters: the former relates to

personal liability, while the latter imposes a limit on damages.

Hence, there arguably would be no consistency problem if a

plaintiff were awarded more than $10,000 in damages against a

government employee in his individual capacity, so long as the

employee's personal exposure is capped at $10,000. In fact, the

possibility of a damages judgment beyond the employee cap appears

to be contemplated by the language of § 8104-D, which implicitly

recognizes that the award may include an "amount in excess of th[e]

limit." Me. Rev. Stat. Ann. tit. 14, § 8104-D. Thus, it is

possible to conclude that, under the terms of §§ 8105 and 8104-D,

a plaintiff may obtain an award of damages against a government

-12-
employee in his individual capacity up to $400,000 – but any amount

over $10,000 is not recoverable from the employee himself.

The question would then be what alternative source of

funding exists for the balance of such an award. One possible

answer, again requiring our attention to § 8116, is that the Maine

legislature contemplated the availability of insurance coverage for

that purpose.5 As noted above, § 8116 states that, where a

governmental entity procures liability insurance, the policy limits

will replace the $400,000 statutory cap if the insurance provides

coverage "in excess of the limit of liability imposed by section

8105." Id. § 8116. Although we gave significance above to the

absence of any reference in § 8116 to the § 8104-D cap, that

omission does not necessarily reflect a legislative intent to

strictly limit recoveries in personal-capacity claims to $10,000.

It also is plausible to conclude that § 8116 does not reference

§ 8104-D simply because an employee's personal liability would be

unaffected by insurance coverage.

Rather, in allowing a government to procure insurance

"for any claim against it or its employees," § 8116 may have been

5
The MTCA also contains an indemnification provision that
allows a governmental entity, with the employee's consent, to
"indemnify [the] employee against a claim which arises out of an
act or omission occurring within the course and scope of employment
and for which the governmental entity is not liable." Me. Rev.
Stat. Ann. tit. 14, § 8112(1). Indemnification has not been raised
by either party, and we therefore have no occasion to consider how,
or if, it would affect Fortin's recovery here.

-13-
designed at least in part with the victims of government actors in

mind – i.e., to provide a source of funds for payment of damages

that could not be satisfied against the offending actor because the

total award was "in excess" of the § 8104-D cap. Because the

insurance coverage would not override the limit of personal

liability set by § 8104-D, there would be no reason to refer to

that cap. The pertinent limit on damages would instead be the

$400,000 ceiling imposed by § 8105 for damages against governments

and their employees. Hence, § 8116 could have been intended to

apply to personal-capacity claims as it would to any other tort

claim against a government or governmental employee: where

insurance coverage "provides protection in excess of the limit of

liability imposed by section 8105," see id. § 8116, a plaintiff may

recover up to the policy limit.

The legislative history of the MTCA's damages-related

provisions could be read to support the view that § 8104-D does not

remove personal-capacity claims from the scope of §§ 8105 and 8116.

When first enacted in 1977, the MTCA contained no statutory cap on

damages against employees other than in § 8105, which at that time

imposed a $300,000 limitation for damages against "a governmental

entity and its employees." Me. Rev. Stat. Ann. tit. 14, § 8105(1)

(1977). Early on, however, the MTCA was amended to include a

$10,000 limit on the personal liability of state – though not

municipal – employees "in instances in which the State is immune."

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Id. § 8103(3); see Me. Pub. Laws 1977, chap. 578, § 1. In the same

amending legislation, the language of § 8116 was modified so that

it closely tracked the current version allowing governmental

entities to purchase insurance for "claim[s] against it or its

employees" and providing that the policy limit would replace "the

limit of liability imposed by section 8105." Me. Rev. Stat. Ann.

tit. 14, § 8116 (1977); see Me. Pub. Laws 1977, chap. 578, § 5.

Not until 1986 was the $10,000 personal liability cap extended to

all government employees, Me. Pub. Laws 1985, ch. 599, § 2, and the

next year it was broadened to cover claims without regard to the

employing entity's immunity. See Pub. Laws 1987, ch. 110. Later,

the personal liability provision was recodified and became

§ 8104-D. See Me. Pub. Laws 1987, ch. 740, § 4.

Thus, it is reasonable to conclude that the MTCA always

reflected legislative intent to permit successful plaintiffs to

obtain compensatory damage awards up to $300,000 (later, $400,000)

based on the harmful actions of governmental employees performed as

part of their employment. Over time, the legislature also

demonstrated its concern that employees at all levels of government

be protected from personally bearing the burden of such large

judgments. Both of these concerns arguably are addressed by the

combined effect of §§ 8104-D, 8105, and 8116: no individual

employee will be saddled with responsibility beyond $10,000, but

the plaintiff will be entitled to a more complete recovery – up to

-15-
the statutory or policy limits – when the offending employee's

liability is covered by insurance. Reading § 8104-D to supersede

the § 8105 liability limit in every instance, without regard to the

availability of insurance, would defeat the balance the legislature

may have intended to establish between remedying injuries caused by

government employees and protecting those employees from financial

ruin.

The Law Court's existing precedent on the MTCA does not

provide guidance on the issue we face here. Most of the cases

address the relationship between insurance coverage and immunity,

without discussing the interaction of the various statutory

limitations on damages. One such example is Moore, described

above, in which the court held that access to employer-provided

insurance does not waive the personal immunity of employees, as it

does under § 8116 for insured governmental entities. See Moore,

596 A.2d at 616; see also Grossman v. Richards, 722 A.2d 371, 376

(Me. 1999) ("Section 8116 only affects the liability of

governmental entities, and does not waive the immunity of the

individual insured employees."); cf. Doucette v. City of Lewiston,

697 A.2d 1292, 1294-95 (Me. 1997) (holding that both police

dispatcher and city possessed immunity, and that city's immunity

was not waived under the terms of its insurance policy).

Here, however, immunity is not the issue. The jury found

that Titcomb was not entitled to immunity, which paved the way for

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an award of damages against him. The sole question is whether the

damages ceiling is set by § 8104-D or – because there is insurance

coverage – by §§ 8105 and 8116. Appellee invokes Rodriguez v. Town

of Moose River, 922 A.2d 484 (Me. 2007), where the court held that

§ 8104-D limited the damages recoverable in an action against a

government employee in her personal capacity. Id. at 491-92. In

Rodriguez, however, there was no insurance policy available to

supplement the $10,000 prescribed by the statute. Id. at 488.

The two competing constructions of the MTCA that we have

described each have policy rationales to justify them. The Act

effects a limited waiver of the government's sovereign immunity,

and "even explicit waivers are construed narrowly." Knowlton v.

Att'y Gen., 976 A.2d 973, 977 (Me. 2009); see also Reid v. Town of

Mount Vernon, 932 A.2d 539, 545 (Me. 2007) ("Statutory exceptions

to the doctrine of sovereign immunity must be strictly

construed."); Sanford v. Town of Shapleigh, 850 A.2d 325, 329 (Me.

2004) ("[S]overeign immunity is the rule, and liability for

governmental entities [is] the statutorily created, narrowly

construed exception." (quoting Clockedile v. Me. Dep't of Transp.,

437 A.2d 187, 189 (Me. 1981) (alterations in original))). Hence,

we could not lightly conclude that the Maine Legislature intended

to permit recoveries beyond the limit of § 8104-D via governmental

insurance policies. Even if government coffers would not be

-17-
directly affected by payment of the additional amount,6 the

possible indirect cost of higher insurance premiums is enough to

give us pause. Indeed, the MTCA's legislative history indicates

particular concern for local fiscs and the cost of insurance: the

areas "open[ed] to liability" were those "where it appeared likely

that an insurance program could be arranged within the reach of the

pocketbooks of Maine communities and the State." Rodriguez, 922

A.2d at 493 n.4 (quoting 2 Legis. Rec. 1644 (1977) (remarks of Sen.

Collins)).

At the same time, however, the MTCA itself is a policy

statement that, in certain circumstances, the governmental immunity

from suit should give way to the objective of compensating

individuals who have been harmed by government actors.7 The

Legislature's apparent assumption was that "governmental entities

would acquire insurance to cover liability for claims outside

immunity protection," id., and § 8116 explicitly authorizes

6
We see no basis under the MTCA for directly imposing
Titcomb's excess damages obligation on the Town.
7
The Law Court has stated that "[t]he central purpose of the
MTCA was to restore the common law sovereign immunity that had been
abrogated by this Court in Davies v. City of Bath, 364 A.2d 1269
(Me. 1976)." Beaulieu v. Aube Corp., 796 A.2d 683, 689 n.9 (Me.
2002). The court also has noted, however, that "[t]he MTCA applies
a policy of broad liability to governmental employees, subject to
the exceptions enumerated in [its] immunity provisions." Carroll
v. City of Portland, 736 A.2d 279, 282 (Me. 1999); see also id. at
n.3 ("Although, under the MTCA, liability is the rule and immunity
the exception for governmental employees, immunity is the rule and
liability the exception for governmental entities.").

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governments to obtain such coverage for employees, as well as for

the entities themselves. With $400,000 designated by § 8105 as the

appropriate cap on recoveries "against either a governmental entity

or its employees, or both," the Legislature's purpose to compensate

victims of government-caused injury arguably would be suitably met

by allowing insurance coverage for the amount "in excess of"

§ 8104-D's cap.

We deem the choice between these two paths a matter of

state policy best left to the state's courts. See In re Hundley,

603 F.3d 95, 98 (1st Cir. 2010) (noting that resolution of a

certified question "may require policy judgments about the

applicability of [state] law that the SJC is in the best position

to make"); Trull v. Volkswagen of Am., Inc., 187 F.3d 88, 103 (1st

Cir. 1999) (noting that certified question in that case was

"quintessentially a policy judgment appropriately made for the

state by its own courts"); see also Real Estate Bar Ass'n, 608 F.3d

at 119 (noting "strong federalism interests that are furthered by

providing the state courts with the opportunity to decide on

underlying unsettled questions of state law"). Moreover, the

statutory construction "could easily matter in future cases not

involving these parties." Boston Gas. Co. v. Century Indem. Co.,

529 F.3d 8, 15 (1st Cir. 2008). We therefore will certify the

following question to the Law Court: Where an insurance policy

procured by a governmental entity is available to cover a judgment

-19-
against a government employee sued in his personal capacity, is the

applicable limit on the award of damages set by § 8104-D (i.e.,

$10,000) or by the combination of §§ 8105(1) and 8116 (i.e.,

$400,000 or the policy limit)?

III. The Insurance Policy

There is no dispute that the Town of Wells purchased

insurance that covers appellee Titcomb. The parties do dispute,

however, the scope of the policy's coverage. Thus, if the Law

Court concludes that §§ 8105 and 8116 apply, we will need to

consider whether the Town's policy in fact provides coverage for

more than $10,000. As we shall explain, that determination

implicates another significant issue of Maine law.

A. The Policy Language

The endorsement submitted with Titcomb's Rule 59 Motion

to Amend consisted of several introductory lines and two

substantive paragraphs that we reproduce in their entirety:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

LIMITS OF LIABILITY-MAINE TORT CLAIMS ACT

This endorsement modifies insurance provided under the
following:

LAW ENFORCEMENT PROFESSIONAL LIABILITY COVERAGE PART

$ 1,000,000 Each Wrongful Act, $ 1,000,000
Aggregate Limit of Liability for causes of
action seeking tort damages pursuant to the
provisions of the Maine Tort Claims Act (14
M.R.S.A. 8101, et seq.). Coverage is limited
to those areas for which governmental immunity

-20-
 has been expressly waived by 14 M.R.S.A. 8104-
A, as limited by 14 M.R.S.A. 8104-B and 14
M.R.S.A. 8111. Coverage amount for causes of
action seeking tort damages pursuant to the
provisions of the Maine Tort Claims Act are
limited to those specified in 14 M.R.S.A. 8105
and 8104-D. Liability coverage shall not be
deemed a waiver of any immunities or
limitation of damages available under the
Maine Tort Claims Act, other Maine statutory
law, judicial precedent or common law.

$ 1,000,000 Each Wrongful Act, $ 1,000,000
Aggregate Limit of Liability for all causes of
action seeking tort damages pursuant to
federal law or state law for which immunity or
limitation of damages is not provided by the
provisions of the Maine Tort Claims Act (14
M.R.S.A. 8101, et seq.).

App. at 26 (emphasis added).

B. Construction of the Policy

We emphasize at the threshold of our analysis of the

policy language that we are not asking the Law Court to construe

the policy provisions. That is not an appropriate issue for

certification. We present our reading of the policy to give

context for the legal question we will pose.

The district court focused on the second full sentence of

Paragraph 1, highlighted above, in concluding that the policy

incorporated the limitation of liability contained in § 8104-D.

Fortin counters that Paragraph 1 is entirely inapplicable in this

case. He asserts that, pursuant to the preceding sentence

describing coverage, Paragraph 1 applies only to instances in which

governmental immunity has been expressly waived by § 8104-A. Here,

-21-
the officer's loss of immunity does not derive from a statutory

waiver, but from the jury's finding that he behaved egregiously.

Hence, Fortin argues, this case is governed by Paragraph 2 of the

endorsement, which he construes to provide up to $1 million in

liability coverage if there is either no statutory immunity or no

statutory limitation of damages. Because Titcomb lacks statutory

immunity, Fortin maintains that the policy provides up to $1

million in coverage for damages awarded against the officer.

Not surprisingly, Titcomb urges the district court's

interpretation of the policy and asserts that Paragraph 1

explicitly limits Fortin's recovery to the $10,000 allowed by

§ 8104-D. He further argues that the $10,000 maximum would apply

even if Paragraph 2 rather than Paragraph 1 governed this case

because, in the words of the policy, that "limitation of damages is

. . . provided by the provisions of the Maine Tort Claims Act."

The two-paragraph structure, with each paragraph

beginning with a statement of $1 million in liability coverage, is

a strong indication that the endorsement addresses two different

categories of claims. The first full sentence of Paragraph 1

states that "[c]overage is limited to those areas for which

governmental immunity has been expressly waived" by § 8104-A. As

noted, this case, which does not involve a statutory waiver of

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immunity, is not within the scope of that limitation.8 Logically,

then, the next sentence in Paragraph 1, defining the "[c]overage

amount" by reference, inter alia, to § 8104-D, also would not

govern this case. Rather, the more sensible reading of the

sentence in context is that it describes the amount of insurance

available for claims that fall within the just-identified scope of

coverage. Paragraph 1 thus appears to have a narrow focus: claims

brought under the MTCA involving the types of conduct listed in

§ 8104-A, unless such conduct is otherwise immunized by §§ 8104-B

and 8111.

By contrast, Paragraph 2's scope of coverage is stated

much more generally. It reaches any tort claim under federal or

state law "for which immunity or limitation of damages is not

provided by the provisions of the Maine Tort Claims Act." Titcomb

appears to suggest that this paragraph categorically excludes all

tort claims covered by the MTCA; at oral argument, his counsel

8
The waiver in § 8104-A applies to the ownership, maintenance
or use of vehicles, machinery or equipment, Me. Rev. Stat. Ann.
tit. 14, § 8104-A(1); the construction, operation, or maintenance
of public buildings, id. § 8104-A(2); the discharge of pollutants,
id. § 8104-A(3); and road construction, cleaning, or repair, id. §
8104-A(4).
The limitations on waiver contained in §§ 8104-B and 8111
cover claims against governmental entities and individual
employees, respectively, arising out of various types of
activities, including legislative, judicial, and prosecutorial
functions; discretionary conduct; and military duties. Id.
§§ 8104-B, 8111. Also excluded from the waiver are intentional
acts or omissions by individual employees that occur within the
course and scope of employment, unless the individual acted in bad
faith. Id. § 8111(E).

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urged us to read the policy to provide more than $10,000 in

coverage only for civil rights causes of action and not for

ordinary negligence claims. Fortin reads Paragraph 2 to provide

coverage if either of two alternative conditions is present: (1)

if, as here, there is no statutory immunity, or (2) if there is no

"limitation of damages . . . provided by the provisions of the

Maine Tort Claims Act." He argues that the "limitation of damages"

alternative cannot be read to negate coverage once coverage is

triggered by the absence of immunity; such a reading, he points

out, would appear to "exclude coverage in every conceivable case"

under the MTCA because every MTCA recovery is subject to some

statutory ceiling. In effect, that latter view is what Titcomb

proposes – i.e., that Paragraph 2 is simply inapplicable to

ordinary MTCA negligence claims.

We have little difficulty rejecting the parties' self-

serving constructions of Paragraph 2, as it makes no sense to read

the paragraph's reference to a damages cap as incorporating either

of the extremes they suggest. See Jipson v. Liberty Mut. Fire Ins.

Co., 942 A.2d 1213, 1216 (Me. 2008) ("The meaning of language in an

insurance policy is a question of law."). On the one hand, an

insured could not reasonably take Fortin's position that, where an

absence of immunity opens the door to damages, Paragraph 2's

invocation of statutory limits on the amount of the recovery

becomes irrelevant. See Peerless Ins. Co. v. Wood, 685 A.2d 1173,

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1174 (Me. 1996) (noting that, in construing insurance policies, a

court "view[s] the contract language from the perspective of an

average person, untrained in either the law or the insurance field,

in light of what a more than casual reading of the policy would

reveal to an ordinarily intelligent insured"). On the other hand,

it is irrational to construe the limitations language as Titcomb

does to entirely bar recovery where immunity is waived or

inapplicable; allowing a recovery, after all, is the very point of

withdrawing immunity.

Confronted with the illogic of both parties'

interpretations, we conclude that a rational insured would read the

policy language to provide some amount of coverage – up to the

statutory limit – where there is no immunity. Nothing in the

language of Paragraph 2 limits its coverage to civil rights claims.

Indeed, if the paragraph were so limited, the endorsement would

provide no coverage at all where immunity is waived based on the

defendant's conduct rather than on a statutory provision – unless,

of course, we go back to Paragraph 1 and widen its explicit,

limited description of coverage to include actions involving

conduct-based waivers of immunity. As we have explained, however,

the policy's format and language do not reasonably support such a

construction.

Hence, we conclude that Paragraph 2 provides insurance

for the damages awarded in this case up to the statutory limit. A

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question remains, however, as to which statutory maximum applies.

Titcomb argues that the applicable statutory ceiling is the $10,000

limitation on personal liability specified by § 8104-D. That view

incorporates an assumption that Paragraph 2 adopts the most

restrictive possible limitations provision. Such a construction of

the policy language is reasonable, but not inevitable. As

described in Section II above, the MTCA may authorize governments

to procure insurance on behalf of their employees that would allow

plaintiffs to collect up to $400,000 in damages for personal-

capacity claims (and more, if the insurance has a higher liability

limit). Section 8105 thus imposes a "limitation of damages" that

also may be reasonably applied to the circumstances of this case.

Indeed, if § 8116 authorizes a governmental entity to procure

insurance coverage for personal-capacity claims against its

employees, it strikes us as equally likely that the cap on damages

would be the $400,000 set by § 8105. Hence, Paragraph 2 reasonably

could be read to state only that the maximum coverage for Fortin's

award is $400,000.

In fact, the difference between the types of claims

covered under Paragraphs 1 and 2 of the Endorsement suggests a

plausible basis for distinction in the recoverable amount of

damages. Paragraph 1 provides coverage for claims that arise in

the limited set of categories for which the legislature has chosen

to waive the immunity of governmental entities. By contrast,

-26-
Paragraph 2 includes coverage for claims involving conduct found to

be so egregious that the statutory immunity to which the defendant-

employee would otherwise be entitled is stripped away. In such

cases, where individuals are harmed by outrageous on-the-job

conduct of government actors, the employing entity reasonably could

want to insure for the statutory maximum of $400,000 to more fully

compensate the victims.

As the imprecise language of Paragraph 2 does not tell us

which statutory cap applies here, it is necessary to apply an

interpretive principle to construe the policy. Ordinarily, where

language in an insurance policy is ambiguous, it is construed in

favor of coverage. Jacobi v. MMG Ins. Co., 17 A.3d 1229, 1233 (Me.

2011); see also Korhonen v. Allstate Ins. Co., 827 A.2d 833, 836

(Me. 2003) ("'The language of a contract of insurance is ambiguous

if it is reasonably susceptible of different interpretations,' and,

if so, the contract will be strictly construed to resolve

ambiguities in favor of coverage." (citation omitted)).

However, it is also true that the burden of showing

insurance coverage lies on the person claiming coverage, here,

Fortin. See Pelkey v. Gen. Elec. Capital Assurance Co., 804 A.2d

385, 387 (Me. 2002) ("It is [the claimant]'s burden . . . to show

that his injury falls within the scope of the [insurance]

contract."). Although there is no dispute that the Town of Wells

policy provides some coverage for Fortin's claim, the same

-27-
competing state interests that gave us pause in interpreting the

MTCA also cause us to question how Maine would apply these two

divergent principles in determining the amount of available

coverage. See supra pp. 17-19.9

That the direct burden of a coverage-favorable

interpretation would be borne by the insurer, not the Town, does

not eliminate the issue. The indirect result of a coverage-

favorable interpretive principle could be increased costs for the

Town if the insurer sought to recoup its "losses" through higher

premiums. As noted above, ensuring the availability of affordable

insurance was one of the Legislature's concerns in adopting the

MTCA. See supra p. 18.

We therefore will certify the following question to the

Law Court: In light of the competing state interests described,

which interpretive principles should be applied to construe an

insurance policy, procured by a governmental body to cover itself

or its employees for MTCA damages liability, that contains an

ambiguity affecting the scope of coverage?10

9
The parties argue over the significance of Titcomb's
submission of policy excerpts in support of his Rule 59 motion that
identified neither the insured nor the insurer. Although they
characterize the debate as a matter of who has the burden to
establish insurance coverage, we see their argument as essentially
a dispute over the authenticity of the excerpts. The parties,
however, agree that the policy provisions described above apply
here.
10
This case presents the unusual posture of an insured –
Titcomb – arguing for a construction of the policy adverse to

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 IV. Certification

For the reasons set forth herein, we certify the

following two questions to the Maine Supreme Judicial Court:

1. Where an insurance policy is available to cover a

judgment against a government employee sued in his personal

capacity, is the applicable limit on the award of damages set by

§ 8104-D ($10,000) or by the combination of §§ 8105(1) and 8116

($400,000 or the policy limit)?

2. In light of the competing state interests described,

which interpretive principles should be applied to construe an

coverage. Ordinarily, coverage disputes involve an insured arguing
for coverage against the insurer. Here, it is a third party –
Fortin – claiming that Titcomb has insurance coverage that Titcomb
claims he does not have. That oddity, however, would not change
the lens through which we view the policy language if we were
applying the ordinary interpretive principle. Although the rule
frequently is framed as construing the policy "in favor of the
insured," see, e.g., Jipson, 942 A.2d at 1217, the Law Court also
has routinely focused on the insurer and the objective of coverage.
See, e.g., Kinney v. Maine Mut. Group Ins. Co., 874 A.2d 880, 885
(Me. 2005) ("Any ambiguity in an insurance policy must be resolved
against the insurer and in favor of coverage."); Foremost Ins. Co.
v. Levesque, 868 A.2d 244, 246 (Me. 2005) (same); Hall v. Acadia
Ins. Co., 801 A.2d 993, 995 (Me. 2002) ("[I]t is a well-settled
principle that if the language of an insurance policy is ambiguous
or susceptible of varying interpretations, then the policy is
construed against the insurer in favor of coverage." (alteration in
original) (internal quotation marks omitted)); Johnson v. Allstate
Insur. Co., 687 A.2d 642, 645 (Me. 1997) (noting that "ambiguous
language is to be construed against the insurer"). The latter
cases include reach and apply actions brought against insurance
companies by third parties seeking to recover damages assessed
against insureds in underlying judgments. See, e.g., Jacobi, 17
A.3d at 1233 (stating that "any ambiguities in an insurance
contract are construed in favor of coverage"); Korhonen, 827 A.2d
at 836 (same). The principle is thus applied regardless of the
party urging coverage.

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insurance policy, procured by a governmental body to cover itself

or its employees for MTCA damages liability, that contains an

ambiguity affecting the scope of coverage?

We would welcome further guidance from the Law Court on

any other relevant aspect of Maine law that it believes would aid

in the proper resolution of the issues.11

The clerk of this court is directed to forward to the

Maine Supreme Judicial Court, under the official seal of this

court, a copy of the certified questions and our decision in this

case, along with the briefs and appendix filed by the parties. We

retain jurisdiction pending that court's determination.

So ordered.

11
We note another oddity in this case: neither the Town of
Wells nor the insurer, the two parties to the insurance contract,
is a party to the appeal. At oral argument, Titcomb's counsel
asserted that if we were to conclude that the coverage amount
exceeded the $10,000 cap on personal liability imposed by § 8104-D,
the insurance company would refuse to pay the excess, forcing
Fortin into new litigation against the insurer concerning the
meaning of the policy. We do not know what impact certification
will have on that prediction. We simply note the assertion for
whatever insight it might provide to the Law Court.

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