Claire Dean Perry v. William T. Dean Jr.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 35
Docket: BCD-15-623
Argued: September 14, 2016
Decided: March 2, 2017

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

CLAIRE DEAN PERRY et al.

v.

WILLIAM T. DEAN JR. et al.

HUMPHREY, J.

[¶1] The Department of Health and Human Services appeals from an

order entered in the Business and Consumer Docket (Horton, J.) denying its

motions for summary judgment. The Department argues that the court erred

in holding that the Maine Probate Code contains an express waiver of

sovereign immunity from tort claims and thus the Department may be liable

for a breach of fiduciary duty when acting as a public conservator. Because

the Probate Code does not expressly waive sovereign immunity and the

record reflects that the Department did not waive immunity by obtaining

liability insurance, we conclude that the Department is immune from the

breach of fiduciary duty claims and accordingly vacate the order and remand

for the entry of a judgment in the Department’s favor.
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I. BACKGROUND

[¶2] The following facts are undisputed unless otherwise noted.

See Deschenes v. City of Sanford, 2016 ME 56, ¶ 3, 137 A.3d 198.

[¶3] In May 2012, William T. Dean Jr. was involuntarily hospitalized

and later transferred to a psychiatric facility where he remained until

June 2013. After a Department investigation discovered that Dean owned

properties in Owls Head and Rockland that were facing tax foreclosure, the

Department filed a petition for a temporary public conservatorship in the

Probate Court (Penobscot County) on September 5, 2012. See 18-A M.R.S.

§ 5-408-A (2016). The court (Woodcock, J.) granted the petition on

September 6, 2012, appointing the Department as Dean’s temporary public

conservator with the power to manage and control his assets for six months.

[¶4] On May 10, 2013, after the Department sold the Owls Head

property purportedly to pay the outstanding taxes, Dean’s sister, Claire Dean

Perry, filed a complaint in the Superior Court (Knox County) against Dean, the

trustee of a family trust,1 the Department, and individuals who acted on behalf

1 Dean and Perry are beneficiaries of a trust established by their late mother, Alice H. Dean, of

which Key Trust Company of Maine is trustee. In Perry’s complaint, she alleged that the trustee
allowed Dean to wrongfully withdraw funds from the trust and that Dean “confessed” to the
withdrawals, promised to repay Perry $120,000 in full when he sold his Owls Head property, and
agreed that Perry could reside at the property until he repaid that sum.

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of the Department.2 Perry alleged that she was residing at the Owls Head

property pursuant to an agreement with Dean and asserted several claims

arising out of the Department’s management of Dean’s property during the

public conservatorship. The case was thereafter transferred to the Business

and Consumer Docket.

[¶5] Pamela Vose, who is Dean’s cousin, was appointed as his

conservator on August 1, 2013, after the Department’s temporary public

conservatorship had expired. Vose, on behalf of Dean, answered Perry’s

complaint and asserted various cross-claims against the Department and the

individual state defendants, including a claim against the Department for

breach of fiduciary duty. Vose alleged that the Department sold the Owls

Head property for forty percent of the tax-assessed value, damaged Dean’s

real and personal property by allowing the Rockland property’s water pipes

to burst, euthanized Dean’s cat, sold Dean’s Cadillac for less than market

value, and generally mismanaged Dean’s property.

[¶6] Vose then filed a separate action against the purchaser of the Owls

Head property and other parties, and later amended her complaint to join the

2 These individuals included David A. Vaughan, Janice Archer, and Barbara A. Cardone. We refer

to them collectively as “the individual state defendants.”
4

Department as a defendant. She alleged that the Department abused its

authority by selling the cottage for less than fair market value.

[¶7] The Department answered and asserted the affirmative defense of

sovereign immunity in both the action initiated by Perry and the separate

action initiated by Vose. The court (Horton, J.) appropriately consolidated the

two cases for the purposes of discovery.

[¶8] On May 15, 2015, the Department and the individual state

defendants moved for summary judgment on all claims asserted against them

in the two cases. On December 3, 2015, the court entered a summary

judgment in favor of the Department and the individual state defendants on

all of Perry’s claims against them and most of Vose’s claims, but denied the

Department’s motions for summary judgment on Vose’s claims for breach of

fiduciary in both cases.3 The court concluded that provisions in Article V of

the Maine Probate Code, see, e.g., 18-A M.R.S. §§ 5-417, 5-429(b), 5-601, 5-607,

5-611 (2016), expressly waived sovereign immunity and that the Department

was therefore subject to suit in tort when acting as a public conservator. The

court reasoned that by imposing certain duties and liabilities on conservators

3
In the action initiated by Vose, the court denied the Department’s motion for summary
judgment on her “abuse of authority” claim “to the extent” that she asserted a claim for breach of
fiduciary duty.
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and requiring the Department to post a surety bond, the Legislature must

have intended to waive immunity if the Department breached those duties.

[¶9] The Department appealed and Perry and Vose cross-appealed. We

consolidated the appeals and dismissed the cross-appeals filed by Perry and

Vose as interlocutory,4 leaving for decision only the Department’s appeal from

the court’s denial of its summary judgment motions asserting sovereign

immunity in both cases.

II. DISCUSSION

[¶10] Although an appeal from the denial of a defendant’s motion for

summary judgment is generally interlocutory, the Department’s assertion of

sovereign immunity is reviewable pursuant to the death knell exception to the

final judgment rule. See Morgan v. Kooistra, 2008 ME 26, ¶ 18, 941 A.2d 447.

[¶11] The discrete issue presented here is whether the Department is

immune from tort claims when acting as a public conservator, or, as the court

held, the Maine Probate Code waives immunity. We review de novo the denial

of a summary judgment motion asserting immunity. See Estate of Fortier v.

City of Lewiston, 2010 ME 50, ¶ 9, 997 A.2d 84.

4 The court’s order and entry of a summary judgment disposed of only those claims against the

Department and the individual state defendants. A number of claims remain pending before the
court in the two cases, including but not limited to Perry’s claims against Dean and Vose’s claims
against the purchaser of the Owls Head property.
6

A. Maine Tort Claims Act Immunity

[¶12] The Maine Tort Claims Act (MTCA) provides, “[e]xcept as

otherwise expressly provided by statute, all governmental entities shall be

immune from suit on any and all tort claims seeking recovery of damages.”

14 M.R.S. § 8103 (2016). In enacting Section 8103, the Legislature

unambiguously granted the State immunity from tort suits, unless expressly

waived by statute. See New Orleans Tanker Corp. v. Dep’t of Transp., 1999 ME

67, ¶ 5, 728 A.2d 673 (“[I]mmunity is the rule and exceptions to immunity are

to be strictly construed.”); Drake v. Smith, 390 A.2d 541, 543 (Me. 1978) (“In

the absence of specific authority conferred by an enactment of the Legislature,

therefore, the sovereign’s immunity from suit cannot be waived . . . .”).

[¶13] The MTCA expressly waives immunity for particular tort actions,

including negligent operation of vehicles, negligent building and road

construction and maintenance, and negligent discharge of pollutants.

See 14 M.R.S. § 8104-A (2016). The Act also waives immunity “to the limits of

the insurance coverage” when the State purchases liability insurance.

14 M.R.S. § 8116 (2016).

[¶14] We have declared that “a waiver of governmental immunity is not

to be implied.” Young v. Greater Portland Transit Dist., 535 A.2d 417, 419
 7

(Me. 1987); see also Knowlton v. Attorney Gen., 2009 ME 79, ¶ 12, 976 A.2d 973

(“Waivers are not generally implied, and even explicit waivers are construed

narrowly.”).5 Where a statute generally authorizes suits against parties that

could include government entities, this authorization, without more, is

insufficient to constitute a waiver of sovereign immunity; the statute must

further expressly waive immunity. See Hinkley v. Penobscot Valley Hosp.,

2002 ME 70, ¶¶ 6, 9-10, 15, 794 A.2d 643; Young, 535 A.2d at 418 (holding

that a statute providing that a government entity may “sue or be sued” was

insufficient to constitute an express waiver); see also Nelson v. Me. Tpk. Auth.,

157 Me. 174, 179, 170 A.2d 687, 690 (1961).

B. The Maine Probate Code and Conservatorships

[¶15] The issue here is whether the Maine Probate Code waives

sovereign immunity when the Department acts as a public conservator. We

begin with a summary of the relevant Code provisions.

[¶16] The Department “shall act as the public guardian or conservator

for incapacitated persons in need of protective services.” 18-A M.R.S.

5 Whether “a general statute allowing the State to enter into contracts implies a waiver of
sovereign immunity by the Legislature when the State is sued for breach of that contract,” Knowlton
v. Attorney Gen., 2009 ME 79, ¶ 13, 976 A.2d 973 (quotation marks omitted), is not an issue here
because there is no contract between the parties and a claim for breach of fiduciary duty is a tort
claim. See Estate of Hiller, 2014 ME 2, ¶ 18, 86 A.3d 9; Picher v. Roman Catholic Bishop of Portland,
2009 ME 67, ¶ 8, 974 A.2d 286.

8

§ 5-601(b) (2016). The same standards and obligations apply to public

conservators as to conservators.6 See 18-A M.R.S. § 5-601(c) (2016) (“Except

as otherwise provided in this Part, the appointment, termination, rights and

duties, and other provisions for guardians and conservators in this Article

shall apply to public guardians and conservators.”); 18-A M.R.S. § 5-607

(“A public guardian or conservator has the same powers, rights and duties

respecting his ward or the protected person as provided for guardians and

conservators by the other parts of this Article . . . .”).

[¶17] One such duty requires that each conservator “act as a fiduciary”

and “observe the standards of care applicable to trustees as described by Title

18-B, sections 802 to 807 and chapter 9.” 18-A M.R.S. § 5-417. Conservators

may, in certain circumstances, be held “individually liable for obligations” in

managing the protected person’s property and for torts committed in

administering the estate. See 18-A M.R.S. § 5-429(b). The public conservator

is required to “give a surety bond for the joint benefit of the wards or

protected persons placed under the responsibility of the . . . [State], with a

surety company or companies authorized to do business within the State, in

6 The fact that the conservatorship was temporary is not material to the issue presented in this

appeal. See 18-A M.R.S. § 5-408(f) (2016) (“A temporary conservator has all the powers of a
permanent conservator provided in this code . . . .”).
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an amount not less than the total value of all assets held by the public

guardian or conservator.” 18-A M.R.S. § 5-611.

C. Whether the Probate Code Expressly Waives Immunity

[¶18] The trial court held that, read together, the above provisions of

the Probate Code constitute an express waiver of immunity. The court

reasoned that because public conservators had the same duties and

obligations as conservators, 18-A M.R.S. §§ 5-601(c), 5-607, conservators

could be held liable for their conduct in managing property, 18-A M.R.S.

§ 5-429(b), and, because the State was required to provide a surety bond in

the amount of assets held, 18-A M.R.S. § 5-611, the Legislature must have

intended that the Department be held liable for a breach of those duties. The

court acknowledged that the Probate Code contains no “explicit statement

that sovereign immunity is waived” but concluded that the bond requirement

in 18-A M.R.S. § 5-611 “would be utterly meaningless” if the protected person

had “no recourse against the bond” when the Department breached duties

imposed by 18-A M.R.S. § 5-417.

[¶19] In Hinkley v. Penobscot Valley Hospital, we considered whether

language in the Maine Health Security Act (MHSA) permitting “any action for

damages for injury or death against any health care provider” constituted an
10

express waiver of sovereign immunity.7 2002 ME 70, ¶ 9, 794 A.2d 643.

Because the MHSA did not explicitly reference the MTCA and did not

specifically waive immunity as to medical malpractice claims, we concluded

that there was no express waiver. Id. ¶¶ 9-10. We reiterated that “a waiver of

governmental immunity is not to be implied” and an express waiver must be

explicitly stated in the statute. Id. ¶ 10 (quotation marks omitted).

[¶20] Even if the express language of the Probate Code provisions,

when read together, supports an inference that immunity is waived, this

would amount to an implied—not express—waiver. Compare Implied Waiver,

Black’s Law Dictionary (10th ed. 2014) (defining “implied waiver” as conduct

“reasonably inferring the intent to waive” (emphasis added)), with Express,

Black’s Law Dictionary (defining “express” as “[c]learly and unmistakably

communicated” as opposed to “implied”); see also Conn v. Bd. of Comm’rs, 51

N.E. 1062, 1064 (Ind. 1898) (“The implication or inference which may arise in

the construction of statutes is of something not expressly declared, but arises

out of that which is directly or expressly declared in the statute.”).

[¶21] Combining various provisions of the Probate Code to reach the

inference that the Legislature waived immunity, as the trial court did,

7 There was no dispute in that case that the defendant, Penobscot Valley Hospital, was a
governmental entity. See Hinkley v. Penobscot Valley Hosp., 2002 ME 70, ¶ 2, 794 A.2d 643.

 11

contravenes the clear statutory language granting the State immunity

“[e]xcept as otherwise expressly provided by statute,” 14 M.R.S. § 8103(1)

(emphasis added), and our precedents rejecting implied statutory waivers.

See Hinkley, 2002 ME 70, ¶ 10, 794 A.2d 643; Young, 535 A.2d at 419. Thus,

although the Probate Code imposes a fiduciary duty on conservators and

provides that they may be held liable for a breach, 18-A M.R.S. § 5-429(b),

without a separate, express provision waiving immunity to bring those claims

against the State, immunity endures. See Hinkley, 2002 ME 70, ¶¶ 10, 12,

794 A.2d 643 (“[W]e have never held that an individual could bring suit

against a government entity under a statute that provides for a specific cause

of action without first determining that the statute expressly waived

governmental immunity.”).

[¶22] Because there is no express waiver in the Probate Code, the

Department is immune.

D. Waiver Pursuant to 14 M.R.S. § 8116

[¶23] We next consider whether the Department waived sovereign

immunity by obtaining liability insurance. See 14 M.R.S. § 8116 (providing

that immunity is waived where the State obtains liability insurance, “but only

to the limits of the insurance coverage”).
12

[¶24] The Department asserted the affirmative defense of sovereign

immunity and thus had the burden of proof on this issue, including the burden

to establish that there is no insurance coverage. See King v. Town of

Monmouth, 1997 ME 151, ¶ 7, 697 A.2d 837. The Department met this

burden. The Department asserted, in a properly supported statement of

material fact, that the State did not purchase liability insurance that would

cover the claims against the Department and that the State’s self-insurance

excludes coverage for claims for which the State is immune. Although Vose

denied this statement, she failed to properly controvert the State’s assertion

because her denial was unsupported by a citation to competent contrary

evidence in the record. See M.R. Civ. P. 56(h)(4).8

E. The Surety Bond

[¶25] Lastly, we decline to reach whether sovereign immunity bars

recovery against the surety bond filed with the Probate Court pursuant to

18-A M.R.S. § 5-611.9 To reach a bond, the Probate Code contemplates a

8 The court relied in part on 14 M.R.S. § 8116 to conclude that immunity was waived “at least to

the extent of the [Department] surety bond,” which was not part of the summary judgment record,
and declined to decide whether the bond was insurance until it was made part of the record. Vose,
however, does not urge this reasoning on appeal, arguing that “the bonds of the public and private
conservators serve the same purpose: surety. Neither is liability insurance.” Vose instead relies
entirely on the argument that the Probate Code expressly waived sovereign immunity.

9 As noted, the bond the Department obtained pursuant to 18-A M.R.S. § 5-611 (2016) was not

part of the summary judgment record and has not been included in the record on appeal. By
 13

separate action, filed in either the Probate Court or the Superior Court, on the

bond against the surety. See 18-A M.R.S. § 8-309 (2016). An action on the

bond would thus proceed against the surety company providing the bond

pursuant to 18-A M.R.S. § 5-611, rather than against the principal, the

Department. See 18-A M.R.S. §§ 5-611, 8-309; Mitchell & Hunt, Maine Probate

Procedure: Guide to Official and Recommended Forms § 13.14.2 at 13-64

(2012) (describing the procedure by which an interested party may bring a

suit against the bond, naming the surety when the bonded fiduciary has

misbehaved); Estate of Jennings v. Cumming, 2013 ME 103, ¶¶ 13-14, 82 A.3d

132 (discussing the Superior Court’s concurrent jurisdiction to adjudicate

claims of conservator misconduct and against the sureties of probate bonds);

see also Restatement (Third) of Suretyship & Guaranty § 1 cmt. d (Am. Law.

Inst. 1996).

[¶26] Because the claims for breach of fiduciary duty were brought

directly against the Department rather than against the bond, this appeal

statute, the Department is not required to file bonds in individual guardianships or
conservatorships, but must give a surety bond “for the joint benefit of the wards or protected
persons placed” in public guardianships or conservatorships in the amount of the total value of all
assets held by the public guardian or conservator. 18-A M.R.S. § 5-611. The total value is calculated
at the end of the State’s fiscal year. Id. According to the Department, the value of Dean’s assets was
not included in any bond because the temporary public conservatorship expired before the end of
the fiscal year. The Department represented at oral argument that notwithstanding this fact, the
bond for the benefit of all wards and protected persons in public conservatorship would still cover
Dean’s property.
14

presents no occasion to reach the issue; we therefore express no opinion

regarding sovereign immunity in an action brought against the bond pursuant

to 18-A M.R.S. § 8-309. Further discussion would be purely advisory.

See Wilcox v. City of Portland, 2009 ME 53, ¶ 12, 970 A.2d 295 (“We do not

issue . . . advisory opinions.”).

III. CONCLUSION

[¶27] We conclude that because the Probate Code does not expressly

refer to the MTCA or expressly provide that the State may be sued and held

liable for a breach of fiduciary duty when acting as public conservator,

see Hinkley, 2002 ME 70, ¶¶ 9-10, 794 A.2d 643, and because, on this record,

there is no evidence that the Department obtained liability insurance coverage

that waived immunity pursuant to 14 M.R.S. § 8116, the Department is

immune from the breach of fiduciary duty claims asserted in these cases. We

therefore vacate the order denying the Department’s motions for summary

judgment and remand with instructions to grant the motions.

The entry is:

Order denying the Department’s motions for
summary judgment vacated. Remanded for the
entry of a summary judgment in favor of the
Department in both cases on the basis of
sovereign immunity.
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Janet T. Mills, Attorney General, and Christopher C. Taub, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellant Department of
Health and Human Services

David F. Jenny, Esq. (orally), Owls Head, for cross-appellant Pamela W. Vose

Cynthia A. Dill, Esq. (orally), Troubh Heisler, Portland, for cross-appellant
Claire Dean Perry

Business and Consumer Docket docket numbers CV-2013-48 and CV-2014-14
FOR CLERK REFERENCE ONLY