The busy SJC

Practice area:

Well, I may have been living in Vacationland the last few weeks entertaining visitors, but our SJC hasn’t been slacking off over the summer.

First, unless you’ve been living in a hole in the ground, you are aware of the lickety-split briefing and argument set for the current dispute about some the Governor’s veto and meaning of “adjournment.”  Here’s a link to what’s happening on that front:

Second, CJ Saufley has issued a letter about what’s doing lately in the court system – here’s a link to that:  CJ Saufley Letter (amended).

Third, the Court issued a unanimous 41-page decision this week in the ongoing Dechaine saga – here’s a link to that decision, 2015 ME 88.

Fourth, this month, the SJC issued an interesting civil decision relating to a legal malpractice claim, Allen v. McCann, 2015 ME 84.  In that case, the decision recites that plaintiff was injured at work in 2002 and hired the defendant McCann to represent her in a workers’ compensation claim.  McCann made a lump sum settlement demand to the employer in September 2004.  The employer offered different jobs, which she declined, then suspended her benefits based on an opinion of an IME.  McCann petitioned for reinstatement of the benefits, which were provisionally reinstated pending a hearing held in February 2006.  The Board awarded the plaintiff partial benefits, finding that she was ineligible for 100% partial incapacity benefits because she hadn’t presented evidence of a work search and concluding she could earn @ $200/week.  The plaintiff asked McCann whether to look for work.  McCann advised her.  In March 2009, plaintiff hired Jim MacAdam, replacing McCann.  MacAdam told her to look for work, which she did unsuccessfully.  MacAdam tried to increase her benefits, but the employer raised a res judicata defense.  There was then a settlement of the workers comp claim in July 2012.  After that settlement, the plaintiff filed suit against McCann.  The Superior Court (Mills, J.) entered summary judgment for the defendant.  The SJC affirmed.

The plaintiff’s argument was that had McCann told her to perform a work search, she could have gotten total incapacity benefits/a bigger settlement.  The SJC (opinion by Mead) affirmed because the only evidence it said was submitted on that point was MacAdam’s assertion that he believed he could have settled for more had the plaintiff been receiving an additional $150/week in workers’ compensation benefits.  This statement, the Court said, did “not provide a foundation upon which a jury could assess damages without resort to speculation,” given that the employer’s settlement amount criteria may or may not have focused on that weekly benefit rate. 

Finally, also of interest is a decision from June with multiple opinions (panel:  Justices Alexander, Gorman, Jabar, Hjelm, and, visiting Justice Clifford; the majority opinion was by Justice Jabar, joined by Justices Gorman and Hjelm; there was a concurrence/dissent by Justice Alexander, and a dissent from Justice Clifford).  Brown v. Delta Tau Delta, 2015 ME 75.  The decision addresses whether a national fraternity had a duty of care to prevent the intentional torts of a member against that member’s social invitee for purposes of a premises liability claim.  To me, the interesting question for further development is to what extent the majority conclusion on this matter (answering yes) will apply in non-fraternity contexts.  Justice Clifford in his dissent states:

The duty that the Court adopts today is … a … duty “to exercise reasonable care and take reasonable steps to provide premises that are reasonably safe and reasonably free from the potential of sexual misconduct by [the fraternity’s] members, for all social invitees to chapter-sponsored events.”  Court’s Opinion ¶ 29.  This broad and vaguely defined duty is fundamentally at odds with basic principles of tort law.  The duty of reasonable care in providing a reasonably safe premises “is not one of absolute care or of an insurer.”  Simmons, Zillman & Gregory, Maine Tort Law § 8.02 at 8-3 (2004 ed.).  On the summary judgment record presented, the Court can only be understood to suggest that a national fraternity is such a general insurer, given that the Court has not identified which facts presented on summary judgment would, if believed, demonstrate any breach of the amorphous duty announced.

It is unclear what measures [the national] was duty-bound to undertake, and it is even less clear how the evidence presented on summary judgment could demonstrate that [the national] failed to undertake any such measures.

¶ 64 (citation omitted).