City of South Portland v. Maine Municipal Association Property & Casualty Pool

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 57
Docket: Cum-16-105
Argued: December 14, 2016
Decided: March 28, 2017

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

CITY OF SOUTH PORTLAND et al.

v.

MAINE MUNICIPAL ASSOCIATION PROPERTY & CASUALTY POOL

HUMPHREY, J.

[¶1] The City of South Portland and its Code Enforcement Officer

Patricia Doucette appeal from a summary judgment entered in the Superior

Court (Cumberland County, L. Walker, J.). The court concluded that the Maine

Municipal Association Property & Casualty Pool had no duty to defend the City

of South Portland and Doucette in a federal lawsuit challenging an ordinance.

We agree that the Pool had no duty to defend, not because, as the court

concluded, the complaint requested only nonmonetary relief, but rather

because any potential damages would be excluded from coverage. We

accordingly affirm the judgment.
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I. BACKGROUND

[¶2] The following facts, developed in the summary judgment record,

are undisputed. See N. E. Ins. Co. v. Young, 2011 ME 89, ¶ 5, 26 A.3d 794.

[¶3] On July 21, 2014, the City Council of South Portland enacted

Ordinance #1-14/15. The Ordinance prohibits the bulk loading of crude oil on

marine tank vessels in South Portland. On February 6, 2015, the Portland

Pipeline Corporation and American Waterways Operators (PPLC) filed suit

against the City of South Portland and Doucette in the United States District

Court for the District of Maine. The suit challenged the legality of the

Ordinance, arguing that the Ordinance was unconstitutional, preempted by

state and federal law, and otherwise beyond the legislative authority of the

municipality. The complaint and prayer for relief requested declaratory and

injunctive relief and attorney fees pursuant to 42 U.S.C.S. § 1988 (LEXIS

through Pub. L. No 115-9). In Count VII, PPLC alleged that the Ordinance

“deprives [PPLC] of [its] rights secured by the United States Constitution . . .

under color of state law, thereby violating 42 U.S.C. § 1983.” PPLC further

alleged in Count VII that it is “suffering and will suffer irreparable harm as a

result of being deprived of [its] Constitutional rights and [is] entitled to
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declaratory and injunctive relief against the City and Doucette in her official

capacity.”

[¶4] The Maine Municipal Association Property & Casualty Pool is a

public self-funded pool established pursuant to 30-A M.R.S. §§ 2251-2256

(2016). The Pool provides liability coverage to the City of South Portland and

its public officials pursuant to a Coverage Certificate. The City notified the

Pool of the PPLC lawsuit, tendered the complaint, and requested a defense,

which the Pool declined to provide.1 The City has therefore funded its own

defense in the PPLC litigation.

[¶5] Agreement H of the Coverage Certificate provides that the Pool will

“pay those sums which the Member shall be obligated to pay by reason of

liability imposed upon the Member by law for damages, direct or

consequential, as defined by the term ‘Ultimate Net Loss’ on account of any

‘Wrongful Act’ of the Member.” Included within the definition of “Wrongful

Act” is a “violation of civil rights protected under 42 U.S.C. § 1981 et seq.

committed by a Member . . . solely in the course of duties or activities for or on

behalf of the Named Member.” Excluded from the definition of “Ultimate Net

Loss” are “punitive or exemplary damages . . . or injunctive, non-monetary or

1
Unless otherwise noted, this opinion refers to the City of South Portland and Doucette
collectively as “the City.”
4

restitutionary relief.” There is an additional exclusion for “any claim or ‘suit’

seeking injunctive or non-pecuniary relief.” “Suit” is defined as “[a] civil

proceeding in which damages because of ‘bodily injury,’ ‘property damage,’

‘personal injury,’ ‘advertising injury,’ or ‘wrongful acts’ to which this

Certificate applies are alleged.” Exclusion C, titled the “TAKING AND OTHER

GOVERNMENTAL CONDUCT AFFECTING LAND AND PROPERTY RIGHTS AND

INTERESTS EXCLUSION,” provides:

This Certificate does not cover, and does not apply to, any loss,
damage, injury, claim, “suit” or liability directly or indirectly (1)
caused or occasioned by, happening through, because or in
consequence of, resulting from, arising out of or in any way
connected with the operation of the principles of eminent domain,
condemnation, inverse condemnation, adverse possession,
prescription, dedication by adverse use, or any other similar
principle, by whatever name called; or (2) caused or occasioned
by, happening through, because or in consequence of, resulting
from, arising out of, in any way connected with, or constituting an
impairment of title, diminution of value, loss of value, inability to
realize or obtain full value, diminution of use, loss of use, or
inability to realize or obtain full use, of land or any property right
or property interest therein, allegedly or actually caused by or
resulting from governmental action, omission or conduct of any
nature, by whatever name called. This exclusion applies whether
or not any such loss, damage, injury, claim, “suit,” or liability is
asserted against any Member directly or by virtue of because of
any agreement entered into by or on behalf of any Member.

[¶6] On May 8, 2015, the City brought the present action in the Superior

Court (Cumberland County). The amended complaint alleged a breach of the
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duty to defend. The City moved for summary judgment on September 4, 2015,

and the Pool moved for summary judgment on October 20, 2015. The court

(L. Walker, J.) denied the City’s motion and granted the Pool’s motion by

written order. The court concluded that the Pool had no duty to defend

because the complaint, as drafted, requested only declaratory and injunctive

relief, not damages, and therefore there was no potential that the City could be

liable for damages within the scope of coverage. The City timely appealed.

II. DISCUSSION

[¶7] Whether an insurer2 owes a duty to defend is a question of law

that we review de novo. See York Ins. Grp. v. Lambert, 1999 ME 173, ¶ 4,

740 A.2d 984. If the material facts are not in dispute, we “review the

summary judgment for errors of law, including errors in the interpretation of

the insurance policy.” Harlor v. Amica Mut. Ins. Co., 2016 ME 161, ¶ 7,

150 A.3d 793. We compare the insurance policy with the complaint against

the insured, reading the documents broadly, to determine whether there is

2 Although the Pool argues that it is not an insurer, we join several other jurisdictions that have

treated similar risk pools as insurers for the purposes of analyzing coverage issues. See Wash. Hous.
Auth. v. N.C. Hous. Auths. Risk Retention Pool, 502 S.E.2d 626, 629 (N.C. Ct. App. 1998) (“[W]e hold
that policies or coverage documents issued by risk pools such as defendant to their members are
subject to the same standard rules of construction as traditional insurance policies issued by
insurance companies to their customers.”); Ohio Gov't Risk Mgmt. Plan v. Cty. Risk Sharing Auth.,
719 N.E.2d 992, 996 (Ohio Ct. App. 1998) (analogizing risk pool to insurance); S.D. Pub. Entity Pool
for Liab. v. Winger, 566 N.W.2d 125, 128 n.5 (S.D. 1997) (applying same general principles to risk
pools as to insurance policies because coverage concepts are similar).

6

“any legal or factual basis that could potentially be developed at trial and

result in an award of damages covered by the terms of the policy.” Id. ¶ 8. A

factual allegation in the complaint that would give rise to damages may not

trigger the duty to defend if the allegations fall within an applicable exclusion.

See York Golf & Tennis Club v. Tudor Ins. Co., 2004 ME 52, ¶¶ 17-18, 845 A.2d

1173. The insurer has the burden to establish that an exclusion applies. See

Patrons Oxford Ins. Co. v. Harris, 2006 ME 72, ¶ 19 n.6, 905 A.2d 819.

[¶8] The City concedes that the only claim alleged in the complaint that

could give rise to damages triggering the Pool’s duty to defend is Count VII—a

claim pursuant to 42 U.S.C.S. § 1983 (LEXIS through Pub. L. No. 115-9).

Agreement H of the Coverage Certificate expressly provides coverage for an

“Ultimate Net Loss,” which includes a “Wrongful Act,” which in turn includes

an action pursuant to section 1983 alleging a civil rights violation. The City

further concedes that the only allegation in the complaint that provides a

factual basis for an award of damages is paragraph 25. Paragraph 25 alleges

that the Ordinance “immediately and currently reduces the current market

value of PPLC’s pipelines and hinders its ability to engage in interstate and

international commerce.”3 Compensatory lost-profits damages are an

3 The City reiterated at oral argument that lost profits is the factual basis in the complaint that

could give rise to damages that it contends triggered the Pool’s duty to defend.
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available remedy for a section 1983 claim. See Carey v. Piphus, 435 U.S. 247,

255-57 (1978) (stating that Congress intended to permit compensatory

damages for section 1983 violations as a deterrent).

[¶9] Assuming, however, that the section 1983 claim could give rise to

the potential for an award of money damages that would otherwise trigger the

Pool’s duty to defend, those damages would fall squarely within one of several

applicable exclusions in the Coverage Certificate.

[¶10] In paragraph 25, PPLC alleges that the Ordinance has caused it

damage by impairing the use and value of a property right: namely, that the

Ordinance leaves PPLC unable to realize full use of its pipelines to generate

profits, resulting in decreased market value of the property. Any damages

awarded pursuant to paragraph 25 would therefore be entirely encompassed

within Exclusion C, which excludes, in relevant part, “any loss, damage, injury,

claim, ‘suit,’ or liability” that is

caused or occasioned by, happening through, because or in
consequence of, resulting from, arising out of, in any way
connected with, or constituting an impairment of title, diminution
of value, loss of value, inability to realize or obtain full value,
diminution of use, loss of use, or inability to realize or obtain full
use, of land or any property right or property interest therein,
allegedly or actually caused by or resulting from governmental
action, omission or conduct of any nature, by whatever name
called.

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Paragraph 25 would therefore not trigger the Pool’s duty to defend.

[¶11] The City emphasizes other claims in the complaint that allege

constitutional violations for which it argues nominal damages, outside

Exclusion C, would be available pursuant to the section 1983 claim alleged in

Count VII.4 See Farrar v. Hobby, 506 U.S. 103, 112-13 (1992) (concluding that

nominal damages are available to section 1983 litigants); see also Baker v.

Farrand, 2011 ME 91, ¶ 11 n.3, 26 A.3d 806 (“Nominal damages are

recoverable for a violation of a plaintiff’s legal right—that is, an ‘injury’—

when that injury is not accompanied by actual loss or harm, or when the

extent of the loss or harm is not proven.”).

[¶12] Nominal damages, however, awarded pursuant to Count VII if

PPLC prevailed on one or more of its claims seeking declaratory and

injunctive relief alleging that the Ordinance violates its constitutional rights,

would similarly fall within Exclusion C and would therefore not trigger the

duty to defend. PPLC would have no standing to bring those constitutional

claims in federal court without a threshold showing that the Ordinance

4 The City focuses entirely on Count VII in arguing that the complaint gives rise to potential

damages. Standing alone, Counts I-VI and VIII-IX would not give rise to an award of damages
because those counts bring claims that would entitle PPLC only to injunctive, declaratory, and
otherwise nonmonetary relief. Those counts would not trigger the duty to defend because claims
for injunctive and nonmonetary relief are not only excluded from the definition of “Ultimate Net
Loss,” but are also subject to a separate exclusion from coverage.
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impinges upon PPLC’s rights in a way that distinguishes it from members of

the general public. See Madore v. Me. Land Use Regulation Comm’n, 1998 ME

178, ¶ 13, 715 A.2d 157 (“It is well established . . . that to have standing to

seek injunctive and declaratory relief, a party must show that the challenged

action constitutes ‘an invasion of a legally protected interest which is (a)

concrete and particularized, and (b) actual or imminent, not conjectural or

hypothetical.’” (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992))). PPLC’s challenge to the constitutionality of the Ordinance turns

entirely upon the alleged impairment of PPLC’s property rights in the

pipeline; without this showing, PPLC would lack standing to bring those

claims. See, e.g., Madore, 1998 ME 178, ¶ 13, 715 A.2d 157. Exclusion C would

thus preclude any potential award of nominal damages to vindicate the

alleged constitutional violations for the same reasons that any damages

pursuant to paragraph 25 would be excluded from coverage. Ultimately, the

very injury that gets PPLC through the courthouse door nullifies, pursuant to

Exclusion C, any duty on the part of the Pool to defend the suit.

[¶13] We conclude that the Pool has no duty to defend the City because

any potential damages for which the City would be liable in the federal suit

would be excluded from coverage pursuant to the terms of the Coverage
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Certificate. See York Golf, 2004 ME 52, ¶¶ 17-18, 845 A.2d 1173 (concluding

that the only factual basis alleged in the complaint that could support a

damage award was subject to an applicable exclusion and there was therefore

no duty to defend). Because the complaint could not give rise to damages

within the scope of coverage, the Pool had no duty to defend the City.5 The

Pool was entitled to a summary judgment.

The entry is:

Judgment affirmed.

Roy T. Pierce, Esq., (orally) and Sally J. Daggett, Esq., Jensen Baird Gardner &
Henry, Portland, for appellants City of South Portland and Patricia Doucette

James M. Bowie, Esq., (orally) and Hillary J. Bouchard, Esq., Thompson &
Bowie, LLP, Portland, for appellee Maine Municipal Association Property &
Casualty Pool

Cumberland County Superior Court docket number CV-2015-196
FOR CLERK REFERENCE ONLY

5 We affirm the judgment on this ground and need not address the trial court’s conclusion that a

complaint artfully drafted to specifically request only non-monetary relief can foreclose the
potential for an award of damages that would otherwise trigger the duty to defend. See York Golf &
Tennis Club v. Tudor Ins. Co., 2004 ME 52, ¶ 8, 845 A.2d 1173; Travelers Indem. Co. v. Dingwell,
414 A.2d 220, 226 (Me. 1980).