Day's Auto Body, Inc. v. Town of Medway

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 121
Docket: Pen-15-555
Argued: May 5, 2016
Decided: August 2, 2016

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

DAY’S AUTO BODY, INC.

v.

TOWN OF MEDWAY et al.

GORMAN, J.

[¶1] Day’s Auto Body, Inc., (Day’s Auto) appeals from summary

judgments entered in the Superior Court (Penobscot County, Anderson, J.) in

favor of the Town of Medway (the Town) and Emery Lee and Sons, Inc., (ELS)

on Day’s Auto’s negligence claims arising out of the response to a fire at its

business location. Day’s Auto contends that the trial court erred in

determining that the Town and ELS are immune from Day’s Auto’s claims

pursuant to the Maine Tort Claims Act (MTCA), 14 M.R.S. §§ 8101-8118

(2015). We affirm the judgments.

I. BACKGROUND

[¶2] Viewed in the light most favorable to Day’s Auto, the nonprevailing

party, the summary judgment record establishes the following facts.
2

See Remmes v. Mark Travel Corp., 2015 ME 63, ¶ 3, 116 A.3d 466. While

responding to a fire at Day’s Auto’s shop on October 3, 2011, the Town’s fire

department filled hoses with water before the nozzles were opened, refused

to allow firefighters to enter the building, sprayed water on a fireproof door,

refilled fire trucks from a single hydrant instead of from two other available

hydrants or from the nearby Penobscot River, drove a truck toward a water

holding tank in such a way that it would be impossible to unload water into

the holding tank, and connected a water hose to a nozzle improperly. These

actions allegedly prevented the Town from limiting the damage that the fire

caused to Day’s Auto’s property.

[¶3] ELS is a general contracting and excavating business in

Millinocket. Emery Lee, ELS’s owner and manager, received a call from

someone at the Town’s fire department directing him to report to the fire

scene with an excavator to assist with the effort to extinguish the fire. When

Lee arrived, members of the fire department directed him to take various

actions using the excavator, including taking down walls and moving a large

carrying beam from the center of what remained of the building.1 After about

four hours, the fire department indicated to Lee that the fire was under

1 The parties dispute the severity of the fire when Lee arrived and the extent and cause of

property damage that occurred on the day of the fire. None of these disputes is material to the issue
of immunity pursuant to the Maine Tort Claims Act, 14 M.R.S. §§ 8101-8118 (2015).
 3

control and that he could leave the scene. ELS submitted a bill to the Town for

its work at the fire scene based on four hours of work at an hourly rate.

[¶4] Two years after the fire, Day’s Auto filed its complaint, alleging

that the Town and ELS used vehicles, machinery, and equipment negligently

in the course of their response to the fire.2 The Town and ELS each moved for

a summary judgment, claiming immunity from Day’s Auto’s suit pursuant to

the MTCA.

[¶5] The court granted both motions. The court first concluded that the

Town is immune from Day’s Auto’s suit because the exception to

governmental tort claims immunity upon which Day’s Auto relied—for

“[o]wnership[,] maintenance or use of vehicles, machinery and equipment”—

does not apply. See 14 M.R.S. § 8104-A(1). The court also determined that the

Town is entitled to discretionary function immunity pursuant to 14 M.R.S.

§ 8104-B(3), so that even if the “vehicles, machinery and equipment”

exception did apply, the Town would still be immune from Day’s Auto’s suit.

With regard to ELS, the court concluded that discretionary function immunity

2 On April 28, 2014, Day’s Auto filed a motion for leave to amend its complaint along with a

proposed amended complaint in which it also claimed that the Town is vicariously liable for ELS’s
actions, alleging that ELS “was acting at the direction of and on behalf of [the Town] at all relevant
times.” Although it is unclear from the record whether (and if so, when) the trial court granted
ELS’s motion to amend the complaint, given our affirmance of the summary judgment in ELS’s
favor, see infra ¶¶ 13-22, any well-pleaded vicarious liability claim is moot.
4

applied because when ELS assisted the Town with the fire, it was, for

purposes of the MTCA, acting as an employee of the Town and was engaged in

a discretionary function. See 14 M.R.S. §§ 8102(1), 8111(1)(C). Day’s Auto

filed this appeal.

II. DISCUSSION

A. Standards of Review

[¶6] We review a court’s entry of a summary judgment de novo,

viewing the evidence in the light most favorable to the nonprevailing party to

determine whether a genuine issue of material fact exists. Budge v. Town of

Millinocket, 2012 ME 122, ¶ 12, 55 A.3d 484; see M.R. Civ. P. 56(c) (requiring

entry of a summary judgment where the record reveals “that there is no

genuine issue as to any material fact . . . and that any party is entitled to a

judgment as a matter of law”). “A fact is material if it has the potential to

affect the outcome of the suit,” and an issue of material fact is genuine “when a

fact-finder must choose between competing versions of the truth, even if one

party’s version appears more credible or persuasive.” Angell v. Hallee,

2014 ME 72, ¶ 17, 92 A.3d 1154 (quotation marks omitted). “When the

material facts are not in dispute, we review de novo the trial court’s
 5

interpretation and application of the relevant statutes and legal concepts.”

Remmes, 2015 ME 63, ¶ 19, 116 A.3d 466.

[¶7] “Summary judgment is appropriate when a defendant is immune

from tort liability.” Grossman v. Richards, 1999 ME 9, ¶ 3, 722 A.2d 371;

see Moore v. City of Lewiston, 596 A.2d 612, 614 (Me. 1991). Because

“immunity is an issue distinct from liability,” Grossman, 1999 ME 9, ¶ 3,

722 A.2d 371 (quotation marks omitted), our review in this appeal is limited

to the question of whether the Town and ELS are immune from suit pursuant

to the MTCA as a matter of law.

B. Summary Judgment for the Town

[¶8] The MTCA begins with a broad grant of governmental immunity

from tort claims: “Except as otherwise expressly provided by statute, all

governmental entities shall be immune from suit on any and all tort claims

seeking recovery of damages.”3 14 M.R.S. § 8103(1). The statute then

enumerates several exceptions to that immunity, including the provision that

“[a] governmental entity is liable for its negligent acts or omissions in its

ownership, maintenance, or use of” various types of “vehicles, machinery and

equipment.” 14 M.R.S. § 8104-A(1). Because “the MTCA employs an

3 It is undisputed that the Town is a “governmental entity” within the meaning of the MTCA.

See 14 M.R.S. § 8102(2), (3).
6

exception-to-immunity approach rather than an exception-to-liability

approach,” when we consider the exceptions to immunity for governmental

entities, “we start from the premise that immunity is the rule and exceptions

to immunity are to be strictly construed.” Thompson v. Dep’t of Inland

Fisheries & Wildlife, 2002 ME 78, ¶ 5, 796 A.2d 674 (quotation marks omitted);

see Estate of Fortier v. City of Lewiston, 2010 ME 50, ¶ 14 n.7, 997 A.2d 84;

Carroll v. City of Portland, 1999 ME 131, ¶ 6 n.3, 736 A.2d 279.

[¶9] Day’s Auto argues that the summary judgment record reveals a

genuine dispute of material fact as to whether the Town’s actions fall within

section 8104-A(1)’s exception concerning “vehicles, machinery and

equipment,” and that the trial court therefore erred by entering a summary

judgment in the Town’s favor. We disagree. In a line of cases interpreting

section 8104-A(1), we have made clear that the mere fact that a vehicle or

piece of equipment or machinery is involved in the conduct that allegedly

caused harm does not, in itself, implicate the exception to immunity. In Brooks

v. Augusta Mental Health Institute, for example, where a patient’s estate sued

several government defendants for negligence when the patient died after

jumping from a moving bus operated by the defendants, we held that the

exception did not apply because “the gravamen of [the] claim [was] not the
 7

defendants’ negligent operation, use or maintenance of the bus, but the

monitoring and supervision of the decedent by [government] employees

while the decedent was riding on the bus.” 606 A.2d 789, 790 (Me. 1992);

see New Orleans Tanker Corp. v. Dep’t of Transp., 1999 ME 67, ¶ 9, 728 A.2d

673 (“The major risk from the negligent use of vehicles with the power to

move is that they will be driven or transported in locations where the general

public is exposed to the possibility of a collision and resulting harm.”).

[¶10] We recognized this principle again in Thompson, where the

plaintiff sought to invoke the exception after he was injured in a snowmobile

accident. 2002 ME 78, ¶¶ 2, 6-9, 796 A.2d 674. He alleged that a rescue effort

by the Department of Inland Fisheries & Wildlife was unduly delayed and that

it exacerbated his injuries because a rescue helicopter was inadequately

fueled and its navigational and radio communications equipment was

inadequate. Id. ¶¶ 2, 6. “[T]he kind of negligence falling within the exception

to immunity provided in section 8104-A(1),” we stated, “involves harms that

flow naturally or directly from the negligent use or maintenance of vehicles.”

Id. ¶ 7. “[T]he focus is on the risk of harm naturally or directly caused by the

vehicle’s contact with the general public.” Id. ¶ 8.
8

[¶11] We apply the same reasoning here. It is true that fire trucks may,

at times, come into contact with the general public to create a risk of collision.

The gravamen of Day’s Auto’s claim against the Town, however, is that the

Town made imprudent tactical decisions in the course of fighting the fire.

Those decisions, if they were poor ones, could indeed create a risk of greater

fire damage, but they do not create the type of risk for which the Legislature

intended governmental entities to incur tort liability when it enacted section

8104-A(1). Section 8104-A(1) cannot be used to end a governmental entity’s

immunity from tort claims simply because vehicles or equipment were

involved in the conduct that allegedly caused harm.

[¶12] Because section 8104-A(1)’s vehicle exception is inapplicable and

Day’s Auto makes no claim that any other exception to immunity applies, we

conclude that the Town is immune from Day’s Auto’s suit pursuant to section

8103(1) and that the court therefore did not err when it entered a summary

judgment in favor of the Town. We do not address the parties’ arguments

regarding the Town’s discretionary function immunity pursuant to 14 M.R.S.

§ 8104-B(3). See Estate of Fortier, 2010 ME 50, ¶¶ 10, 16, 997 A.2d 84;

Simmons, Zillman & Gregory, Maine Tort Law § 15.20 at 15-47 (2004 ed.)

(noting that section 8104-A’s exceptions to immunity provide “the sole
 9

situations in which governmental entities may be liable under the MTCA,” and

that “[i]f the plaintiff’s claim cannot fit within one of [section 8104-A’s] four

categories, the plaintiff will be unable to recover under the MTCA”).

C. Summary Judgment for ELS

[¶13] Day’s Auto also argues that the court erred by entering a

summary judgment in ELS’s favor, contending that (1) ELS does not meet the

MTCA’s definition of “employee,” (2) discretionary function immunity does

not apply to ELS’s actions at the fire scene, and (3) ELS cannot be immune

from suit without first demonstrating that it did not carry liability insurance.

[¶14] We first address the question of whether ELS was a Town

employee, for purposes of the MTCA, when it responded to the fire at Day’s

Auto’s shop. The MTCA defines “employee” as follows:

“Employee” means a person acting on behalf of a governmental
entity in any official capacity, whether temporarily or
permanently, and whether with or without compensation from
local, state or federal funds, including . . . volunteer firefighters as
defined in Title 30-A, section 3151[,] . . . but the term “employee”
does not mean a person or other legal entity acting in the capacity
of an independent contractor under contract to the governmental
entity.

10

14 M.R.S. § 8102(1) (emphases added).4 Day’s Auto argues, at the outset, that

ELS cannot be an employee as defined by the statute because ELS is a

corporation, not a “person.” We are not persuaded. Pursuant to 1 M.R.S.

§ 72(15) (2015), “‘[p]erson’ may include a body corporate.” This rule “shall be

observed in the construction of statutes . . . unless such construction is

inconsistent with the plain meaning of the enactment, the context otherwise

requires or definitions otherwise provide.” 1 M.R.S. § 72 (2015). None of

these circumstances applies here. Section 8102(1), by its terms, specifies that

a legal entity that is “acting in the capacity of an independent contractor” is

not an employee. If, as Day’s Auto contends, no legal entity could ever meet

the MTCA’s definition of “employee,” the phrase “acting in the capacity of an

independent contractor” would be surplusage. We therefore decline to adopt

Day’s Auto’s interpretation. See Dickau v. Vt. Mut. Ins. Co., 2014 ME 158, ¶ 22,

107 A.3d 621 (“We reject interpretations that render some language mere

surplusage.”).

[¶15] Having determined that it is possible for a legal entity to meet the

MTCA’s definition of “employee,” we turn to the question of whether, here,

ELS was an employee of the Town when it responded to the fire at Day’s

4 ELS does not contend that it meets the statutory definition of “voluntary firefighter,” which is

“an active member of a volunteer fire association who receives no compensation from the
municipality other than injury and death benefits.” 30-A M.R.S. § 3151(4) (2015).
 11

Auto’s business location. This issue is “predominantly a question of law,”

Cushman v. Tilton, 652 A.2d 650, 651 (Me. 1995), and here, the facts material

to the determination are undisputed, see Campbell v. Washington Cty. Tech.

Coll., 219 F.3d 3, 7-8 (1st Cir. 2000). ELS is a business independent from the

Town. On the day of the fire, the Town’s fire department summoned an ELS

employee, Emery Lee, to assist at the fire scene with an excavator.

Lee brought an excavator to the scene and, after performing various actions

with the excavator for about four hours—all at the direction of the Town—the

fire department indicated that he could leave. ELS submitted a bill to the

Town for its work at the fire scene based on four hours of work at an hourly

rate.

[¶16] In previous cases where we analyzed whether an alleged

tortfeasor was a government employee pursuant to the MTCA, we have most

often focused on the first part of section 8102(1): “‘Employee’ means a person

acting on behalf of a governmental entity in any official capacity, whether

temporarily or permanently, and whether with or without compensation from

local, state or federal funds . . . .” 14 M.R.S. § 8102(1); see Kennedy v. State,

1999 ME 85, ¶¶ 7-12, 730 A.2d 1252; Cushman, 652 A.2d at 651-52; Clark v.

Me. Med. Ctr., 559 A.2d 358, 360 (Me. 1989); Taylor v. Herst, 537 A.2d 1163,
12

1165 (Me. 1988). “[W]e have characterized the [MTCA’s] definition of

employee as ‘broad.’”5 Kennedy, 1999 ME 85, ¶ 8, 730 A.2d 1252 (quoting

Taylor, 537 A.2d at 1165). We examine the worker’s job responsibilities,

see Cushman, 652 A.2d at 652, and whether the work was performed at the

direction of the governmental entity, see Clark, 559 A.2d at 360. We also

consider the worker’s function in relation to that of the governmental entity.

See Kennedy, 1999 ME 85, ¶¶ 7-12, 730 A.2d 1252. In Kennedy, for example,

we determined that a guardian ad litem serving in child custody proceedings

was a government employee pursuant to the MTCA based on her role as an

“arm of the court.” 1999 ME 85, ¶¶ 8-12, 730 A.2d 1252. The guardian was

compensated for “acting on behalf of” and “assist[ing] the court.” Id. ¶¶ 10, 12

(quotation marks omitted).

[¶17] According to the final clause of section 8102(1), “the term

‘employee’ does not mean a person or other legal entity acting in the capacity

of an independent contractor under contract to the governmental entity.”

14 M.R.S. § 8102(1). The common-law distinction between an employee and

an independent contractor, therefore, also guides our analysis. See Campbell,

5 See, e.g., Clifford v. MaineGeneral Med. Ctr., 2014 ME 60, ¶ 47, 91 A.3d 567 (collecting cases

where we held that privately-employed medical workers were government employees pursuant to
the MTCA); McNally v. Town of Freeport, 414 A.2d 904, 905 (Me. 1980) (holding that “an agent of
the Town” who administered a blood test was a government employee pursuant to the MTCA).
 13

219 F.3d at 7; Miller v. Szelenyi, 546 A.2d 1013, 1019-20 (Me. 1988). To make

this distinction, we consider the following eight factors:

“(1) the existence of a contract for the performance by a person of
a certain piece or kind of work at a fixed price;

(2) independent nature of the business or his distinct calling;

(3) his employment of assistants with the right to supervise their
activities;

(4) his obligation to furnish necessary tools, supplies, and
materials;

(5) his right to control the progress of the work except as to final
results;

(6) the time for which the workman is employed;

(7) the method of payment, whether by time or by job; [and]

(8) whether the work is part of the regular business of the
employer.”

Legassie v. Bangor Publ’g Co., 1999 ME 180, ¶ 6 n.1, 741 A.2d 442 (quoting

Murray’s Case, 130 Me. 181, 186, 154 A. 352 (1931)); see id. ¶ 8. Control is the

most important factor, and “[t]he right to control the details of the

performance, present in the context of an employment relationship, must be

distinguished from the right to control the result to be obtained, usually found

in independent contractor relationships.” Id. ¶ 6 (quotation marks omitted).
14

[¶18] Here, the first and eighth factors weigh in favor of a conclusion

that ELS was a government employee pursuant to the MTCA when it

performed the actions relevant to this case: no contract existed for

performance of the work at a fixed price; and the type of work, fire

suppression, was the regular business of the Town. See 30-A M.R.S. § 3152

(2015) (authorizing municipalities to provide fire protection services).

The second, fourth, and sixth factors point toward the contrary conclusion:

ELS is a business independent from the Town, furnished the relevant tools,

and worked for a relatively short period of time. The third and seventh

factors are unhelpful in this case; there is no evidence regarding whether ELS

could have employed assistants, and although ELS was paid based on an

hourly rate, the payment was for one distinct job.

[¶19] With regard to the fifth and most important factor, control, the

relevant evidence, which is undisputed, reveals that ELS acted only at the

direction of the Town, and that the Town maintained control over “the details

of the performance,” not simply “the result to be obtained,” see Legassie,

1999 ME 180, ¶ 6, 741 A.2d 442. ELS took no action other than at the

direction of members of the Town’s fire department, and followed specific

directives from the department about how to use the excavator to take control
 15

of the fire. Because the most important factor weighs in favor of a conclusion

that ELS was the Town’s employee and because, like the guardian ad litem in

Kennedy, ELS functioned only as part of the Town, we conclude that ELS was a

government employee when, at the direction of the Town, it responded to the

fire and used its excavator as directed by the Town in the Town’s attempt to

minimize the damage.

[¶20] Next, we address the question of whether an exception to liability

affords ELS immunity from Day’s Auto’s suit as a Town employee. For claims

against government employees, as opposed to those against governmental

entities, liability is the rule and immunity the exception. See 14 M.R.S.

§§ 8102(2-A), 8104-D; Hilderbrand v. Washington Cty. Comm’rs, 2011 ME 132,

¶ 8, 33 A.3d 425. The exceptions to tort claims liability for government

employees are enumerated in 14 M.R.S. § 8111(1), which provides, inter alia,

that “employees of governmental entities shall be absolutely immune from

personal civil liability for . . . [a]ny intentional act or omission within the

course and scope of employment[,] provided that such immunity does not

exist in any case in which an employee’s actions are found to have been in bad

faith.” 14 M.R.S. § 8111(1)(E). This “intentional act immunity,” therefore,

affords government employees immunity from tort liability where the claim
16

arises out of intentional acts by the employee that are within the scope of

employment and performed in good faith. “Conduct that is within the scope of

employment is the type of conduct the employee was hired to perform; occurs

within the time and space of the employment; and is undertaken, at least

partially, to serve the employee’s master.” Morgan v. Kooistra, 2008 ME 26,

¶ 21, 941 A.2d 447.

[¶21] Here, the summary judgment record confirms that ELS’s alleged

conduct meets all of the requirements for intentional act immunity pursuant

to section 8111(1)(E). ELS’s actions were intentional, they were within the

scope of its employment, and there is no allegation or indication that they

were taken in bad faith. See Lyons v. City of Lewiston, 666 A.2d 95, 101-02

(Me. 1995) (affirming a summary judgment in favor of a

government-employee defendant where the record revealed no genuine

dispute as to whether the defendant acted in bad faith); cf. Morgan, 2008 ME

26, ¶¶ 21-23, 941 A.2d 447 (concluding that a government-employee

defendant was not entitled to intentional act immunity because alleged

defamatory remarks “were motivated by personal, not professional,

objectives” and were therefore outside the scope of employment); Rodriguez

v. Town of Moose River, 2007 ME 68, ¶ 25, 922 A.2d 484 (concluding that a
 17

government-employee defendant in a negligence action was not entitled to

intentional act immunity because the omission that gave rise to the suit was

unintentional). The trial court therefore did not err when it entered a

summary judgment in favor of ELS, and we do not reach Day’s Auto’s

argument that the court incorrectly concluded that ELS is entitled to

discretionary function immunity pursuant to 14 M.R.S. § 8111(1)(C).6

[¶22] Finally, we are not persuaded by Day’s Auto’s argument that,

notwithstanding ELS’s immunity as a government employee, ELS can still be

held liable for damages to the extent of any private liability insurance that it

holds. Day’s Auto relies on a provision of the MTCA governing the defense and

indemnification of government employees by their employers in “[c]ertain

suits arising out of use of motor vehicles.”7 14 M.R.S. § 8112(9). Contrary to

6 Although the trial court concluded that ELS was entitled to a summary judgment based on

discretionary function immunity, see 14 M.R.S. § 8111(1)(C), we affirm the judgment on different
grounds, see Bouchard v. Frost, 2004 ME 9, ¶ 8, 840 A.2d 109.

7 Title 14 M.R.S. § 8112(9) provides, in its entirety:

9. Certain suits arising out of use of motor vehicles. A governmental entity is
not required to assume the defense of or to indemnify an employee of that
governmental entity who uses a privately owned vehicle, while acting in the course
and scope of employment, to the extent that applicable liability insurance coverage
exists other than that of the governmental entity. In such cases, the employee of the
governmental entity and the owner of the privately owned vehicle may be held
liable for the negligent operation or use of the vehicle but only to the extent of any
applicable liability insurance, which constitutes the primary coverage of any liability
of the employee and owner and of the governmental entity. To the extent that
liability insurance other than that of the governmental entity does not provide
18

Day’s Auto’s contention, it is plain that section 8112(9) does not apply where,

as here, the government employee is otherwise immune from suit pursuant to

the MTCA. Unlike 14 M.R.S. § 8116, which expressly states that a

governmental entity that possesses insurance coverage “in areas where the

governmental entity is immune . . . shall be liable in those substantive areas

but only to the limits of the insurance coverage,” nothing about section

8112(9) indicates that, for a government employee, possession of private

insurance coverage vitiates any absolute immunity conferred by section

8111(1). According to Day’s Auto’s interpretation, section 8112(9) would

govern the defense and indemnification of employees who are totally immune

from suit in the first place. We decline to adopt such an interpretation.

See Fortin v. Titcomb, 2013 ME 14, ¶ 7, 60 A.3d 765 (“We . . . interpret a statute

to avoid absurd, illogical, or inconsistent results . . . .” (quotation marks

omitted)).

The entry is:

The summary judgments in favor of the Town of
Medway and Emery Lee and Sons, Inc., are
affirmed.

coverage up to the limit contained in section 8105, the governmental entity remains
responsible for any liability up to that limit.
 19

On the briefs:

Arthur J. Greif, Esq., and Julie D. Farr, Esq., Gilbert & Greif,
P.A., Bangor, for appellant Day’s Auto Body, Inc.

John J. Wall, III Esq., Monaghan Leahy, LLP, Portland, for
appellee Town of Medway

Gerard O. Fournier, Esq., and Heidi J. Hart, Esq., Richardson,
Whitman, Large & Badger, Bangor, for appellee Emery Lee
and Sons, Inc.

At oral argument:

Arthur J. Greif, Esq., for appellant Day’s Auto Body, Inc.

John J. Wall, III Esq., for appellee Town of Medway

Gerard O. Fournier, Esq., for appellee Emery Lee and Sons,
Inc.

Penobscot County Superior Court docket number CV-2013-156
FOR CLERK REFERENCE ONLY