Opinion
CV-18-426 CV-18-502
03-03-2020
CONCORD GENERAL MUTUAL INSURANCE CO., Plaintiff v. MICHAEL GRINDEL, as Personal Representative of the Estate of COLLETTE BOURE, et al., Defendants MICHAEL GRINDEL, individually and as Personal Representative of the Estate of COLLETTE BOURE, Plaintiff, v. 21st CENTURY INSURANCE & FINANCIAL SERVICES INC., et al., Defendants
Concord General-Matthew Mehalic, Esq. Michael A Grindel as PR of Est ate-Peter Clifford, Esq. Alexander Meyers-Pro Se 21st Century-Jonathan Hunter, Esq./David King, Esq.
Concord General-Matthew Mehalic, Esq.
Michael A Grindel as PR of Est ate-Peter Clifford, Esq.
Alexander Meyers-Pro Se
21st Century-Jonathan Hunter, Esq./David King, Esq.
ORDER
THOMAS D. WARREN, JUSTICE
Before the court, in these consolidated actions, is a motion for partial summary judgment by Concord General Mutual Insurance Co. ("Concord"), the plaintiff in CV-18-426, and what purports to be a cross-motion for summary judgment by Michael Grindel, Personal Representative of the Estate of Collette Boure (the "Estate"), the defendant in CV-18-426.
Collette Boure died tragically on November 2, 2016 as a result of an automobile accident that took place on October 31, 2016 in Oklahoma. At the time of the accident she was a passenger in an automobile driven by Alexander Meyers under circumstances discussed in more detail below.
The dispute presented on the pending motions concerns whether the uninsured or underinsured motorist (UM) coverage in a Concord automobile insurance policy issued to Michael Grindel, Collette's father, applies to claims brought by the Estate of Collette Boure.
The policy in question is contained in the summary judgment record as an exhibit to the affidavit of Arthur Skafidas, Director of Personal Lines Underwriting at Concord (Exhibit 4 to Concord's motion for summary judgment). Subsequent references to the policy will refer to the policy by section and the bates stamp number of the page where that section appears.
Concord is seeking a declaratory judgment that its UM coverage does not apply and also seeks the dismissal of counterclaims brought by the Estate. Although the Estate has filed what it characterizes as a cross-motion, most or all of its arguments are directed to the contention that there are disputed issues of fact sufficient to require the denial of Concord's motion.
Summary Judgment
Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. E.g., Mahar v. StoneWood Transport, 2003 ME 63 ¶ 8, 823 A.2d 540. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Kenny v. Department of Human Services, 1999 ME 158 ¶ 3, 740 A.2d 560.
The Underlying Facts
In this case determining the undisputed facts has been made difficult because both parties have made some factual assertions supported only by hearsay and because the Estate has made a number of assertions without any factual support and has offered opinions as to Collette's mental state that are unsupported and are not offered by a qualified expert.
The basic facts leading up to death of Collette Boure (hereafter "Collette") may be summarized as follows:
Collette Boure was 17 years old at the time of her death on November 2, 2016. Her parents were divorced, and her father, Michael Grindel, had legal custody of Collette. She was living with her father and stepmother until mid-February of 2016, when she left because things were not working out, The last night she spent at her father's residence was on February 13, 2016.
Grindel testified that "we had her go stay with her mom," listing various reasons. Grindel Dep. 25, cited in Concord's October 11, 2019 Reply to Estate's Statement of Additional Material Facts ¶ 31.
Collette thereafter lived with her mother for a while. By the summer of 2016, however, she was living with her boyfriend, Alexander Meyers ("Alex"), who was also under 18. Grindel did not have contact with his daughter from the time she left his residence in February 2016 until sometime in July, when he met her for lunch at Five Guys restaurant in Portland. That was the last time he saw her alive.
At some point, because Collette and Alex were charged as juveniles with some illegal activity, they were ordered not to have contact. Collette did not return to either her mother's residence or Grindel's residence but was admitted to a New Beginnings, a residential treatment program for juveniles. Notwithstanding the "no contact" condition, Collette and Alex had contact by telephone while she was at New Beginnings.
Sometime around October 9, 2016 Collette left New Beginnings after her mother signed her out for a visit. Collette took that opportunity to rejoin Alex.
Grindel testified at his deposition that he understood Collette had manipulated her mother into signing her out from New Beginnings so she could meet up with Alex, which is consistent with Alex's testimony that the two of them devised a plan to get back together. Grindel Dep. 22, cited in Concord's October 11, 2019 Reply to Estate's Statement of Additional Material Facts dated September 19, 2019 (hereafter "Estate SAMF") ¶ 50; A. Meyers Dep. 56-57, cited in Estate SAMF ¶ 50.
At some point Collette and Alex decided to leave Maine so they could be together. On October 21, 2016 Alex and Collette went to the residence of Nancy Snow, Alex's great aunt. Nancy was not at home but she kept one of the keys to her vehicle in her residence, Collette boosted Alex up so he could enter the residence through a window. Collette entered the residence as well, and Alex took the key to the vehicle. They then left the house but returned later on and waited for Nancy to return in her vehicle. After she did, Alex unlocked the car, and they got in and drove away.
Nancy never saw Alex and Collette take her car, and she thereafter reported to the police that it was missing. She never gave either Alex or Collette permission to take or drive her car.
Neither Alexander nor Collette had a driver's license.
Alex and Collette then left Maine in Snow's vehicle. Over the next two weeks they traveled to Florida, Michigan, Texas, Arkansas, and Oklahoma. Alex was the driver of the vehicle, but during their travels Collette took the wheel and drove in parking lots.
On October 31, 2016 with Alex driving and Collette in the front passenger seat, they became involved in a high speed chase in Oklahoma in which they were pursued by police vehicles. When Alex attempted to drive around a roadblock, he lost control of the vehicle and the vehicle hit a telephone pole.
Collette died two days later from injuries suffered in the crash. Alex subsequently pled guilty to manslaughter.
Discussion
Concord argues that based on the undisputed facts, it is entitled to a declaratory judgment that its UM coverage does not apply for three reasons.
Although the parties do not address the issue, it appears that the prerequisites for UM coverage (an operator or a vehicle that is uninsured or underinsured) exist in this case. UM coverage applies, inter alia, when an insured is entitled to recover from the operator of a vehicle and the insurer of that vehicle denies coverage. Part C - Uninsured Motorist Coverage §C(4)(a), Policy at CGMI 0012. The insurer of Nancy Sno`w's vehicle is the defendant in CV-I8~5O2 and has denied coverage.
The first is based on the principle that a person engaged in an illegal act is not entitled to recover for injuries sustained in the course of the illegal act. Concord notes that this principle has not been formally adopted in Maine although it derives some support from the Law Court's 1918 decision in Cobb v. Cumberland County Power & Light, 117 Me. 455, 462, 104 A. 844, 847 (1918). Concord primarily relies on decisions in other jurisdictions, including Lee v. Nationwide Mutual Insurance Co., 497 S.E.2d 328, 329 (Va. 1998), and Parker v. Mid-Century Insurance Co., 962P.2d 1114, 1116-17 (Kans. App. 1998).
In that case, the Law Court stated, "[T]he right of a person to maintain an action for a wrong committed upon him is not taken away because at the time of the injury he was disobeying a statute, provided this disobeyance in no way contributed to the injury." 117 Me. at 462 (emphasis added). Concord argues that Collette's participation in the theft and in the high-speed chase contributed to her injuries. The Estate contends that, if the illegality principle applies in Maine, there is a factual dispute as to the extent that Collette participated in the theft and the high-speed chase, and also contends that there was an insufficient causal connection between any illegal acts committed by Collette and her injuries.
Concord's second argument is that the Estate is not entitled to UM coverage because its policy excludes coverage for bodily injury sustained by an insured "using a vehicle without a reasonable belief that the 'insured' is entitled to do so." Part C - Uninsured Motorist Coverage, Exclusions § B(3), Policy at CGMI 0013.
Concord finally contends that Collette was not a resident of her father's household at the time of her death and therefore did not qualify as an "insured" under the Concord policy, An "insured" includes any "family member." Part C - Uninsured Motorist Coverage, Insuring Agreement §B(1), Policy at CGMI 0012. "Family member" is defined to include "a person related by blood, marriage or adoption who is a resident of your household." Definitions § F, Policy at CGMI 0008 (emphasis added).
In its original motion for summary judgment, Concord reserved the issue of whether Collette qualified as an insured and initially relied instead on whether coverage was excluded because she had participated in the theft of the automobile and had no reason to believe she was entitled to use the vehicle. See Concord's Motion for Summary Judgment dated August 19, 2019 at 7 n. 1. Subsequently Concord argued, in response to the Estate's cross motion, that it should also be granted summary judgment because Collette had left Grindel's residence and therefore no longer qualified as an "insured." The Estate argued that there were disputed issues of fact as to whether Collette remained a resident of Grindel's household at the time of her death, but it did not object to the fact that Concord raised the residency issue after its initial motion.
Because the illegality argument has not been adopted in Maine and because the motion can be decided on other grounds, the court will focus on Concord's second argument based on unauthorized use of the vehicle.
Unauthorized Use
Concord has offered undisputed evidence that Alex and Collette went to Nancy Snow's house when Snow was not present, that Collette boosted Alex up so he could enter the house through a window, that Alex then took a vehicle key from Snow's residence, and that they later waited for Snow to come home, Once Snow came home and left her vehicle in the driveway, Alex unlocked the vehicle and they drove away, with Alex driving and Collette in the passenger seat. Snow was not aware that anyone had taken the vehicle until she found it missing, and she had never given either Alex or Collette permission to drive or to take the vehicle. Concord SMF ¶¶ 10, 12, 17-18, 20.
References to "Concord SMF" refer to the statement of material facts submitted by Concord and dated August 19, 2019.
These actions were taken in accord with a plan by Alex and Collette to find a car and leave Maine so they could be together. Concord SMF ¶ 21. During the ensuing two weeks Alex and Collette then traveled in the vehicle across country to Florida, Michigan, Texas, Arkansas, and Oklahoma. Alex was the driver, but during their travels, Collette drove the vehicle in parking lots. Concord SMF ¶¶ 23, 24. Concord has offered unrebutted evidence that Alex and Collette "both made all of the decisions all the way through." Meyers Dep. 148, cited in Concord SMF ¶ 36.
The Estate has raised objections and qualifications to certain of the factual assertions cited above, but the court does not find any merit in the objections, and none of the qualifications raise material disputes. Given the facts thus established for purposes of summary judgment, the court finds that Concord has established for purposes of summary judgment that, assuming that she qualified as an insured under the policy, Collette either knew she was not entitled to use the vehicle or lacked "objectively reasonable grounds" to believe that she was entitled to participate in taking the vehicle to leave Maine and travel across country. See Craig v. Estate of Barnes, 1998 ME 110 ¶¶ 7-8, 710 A.2d 258.
The Estate, however, argues that this does not justify a ruling in Concord's favor because the section B(3) exclusion from UM coverage only applies to an insured "using a vehicle without a reasonable belief that [she] is entitled to do so," and contends that Collette was occupying -but not "using" - the vehicle.
The Estate's argument that Collette was not "using" the vehicle even though she was a passenger in the vehicle is untenable. As the Law Court observed in Craig v. Estate of Barnes, 1998 ME 110 ¶ 10:
[O]ne may use a vehicle without operating it. (citation omitted). For example, a person may have an objectively reasonable belief that he or she is entitled to use a motor vehicle as a passenger.(emphasis added).
The Estate's argument is also undermined by the Law Court's decision in Union Mutual Fire Insurance Co. v. Commercial Union Insurance Co., 521 A.2d 308 (Me, 1987). In that case the Law Court was construing a policy that covered claims against an insured or family member for the ownership, maintenance, or use of a vehicle. It stated that the word "use" is "a general catch-all term, encompassing all proper uses of a vehicle," 521 A.2d at 310, and added:
the words use and operation are not synonymous. The use of an automobile denotes its employment for some purpose of the user; the word operation denotes the manipulation of the car's controls in order to propel it as a vehicle. Use is thus broader than operation . . . One who operates a car uses it, . . . but one can use a car without operating it.Id., quoting Allstate Insurance Co, v. Lyons, 400 A.2d 349, 352 (Me. 1979), and Indemnity Insurance Co. v. Metropolitan Casualty Insurance Co. of New York, 33 N.J. 507, 166 A.2d 355, 358 (l96O)(emphasis in original).
While the Estate attempts to draw a distinction between occupying a vehicle and using a vehicle, the short answer is that when Collette was occupying the vehicle in the course of employing the vehicle for the purpose of leaving Maine to be with Alex, she was using the vehicle within the meaning of Union Mutual, 521 A.2d at 310 ("The use of an automobile denotes its employment for some purpose of the user).
In the Union Mutual decision the Law Court did say that the policy in question employed the word use "in an ambiguous manner." In that case, however, the issue was whether "use" of a vehicle encompassed the accidental discharge of a firearm being unloaded from a vehicle. To find "use" ambiguous in that context does not mean that there is any ambiguity as to whether "use" in this case includes Collette's employment of the vehicle for the purpose of leaving Maine and traveling around the country with her boyfriend.
Ambiguities in policy language are resolved in favor of coverage. Metropolitan Property and Casualty Ins. Co. v. Estate of Benson, 2015 ME 155 ¶ 8, 128 A.3d 1065. However, the rule requiring strict construction against the insurer is not applicable unless there is an ambiguity. Union Mutual Fire Ins. Co. v. Commercial Union Ins. Co., 521 A.2d at 311. The Law Court has stated:
In applying these rules of construction, we view the contract language from the perspective of the 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.Peerless Insurance Co. v. Wood, 685 A.2d 1173, 1174 (Me. 1996), Accord, Union Mutual Fire Ins. Co. v. Commercial Union Ins. Co., 521 A.2d at 310. Applying that principle of construction, the average person would construe the actions of Collette as "using" the vehicle without a reasonable belief that she was entitled to do so.
The Estate's remaining argument on this issue is that Collette, according to her father, was mentally ill and had poor impulse control, See, e.g., Estate SAMF ¶¶ 18, 33-34, Accordingly, the Estate argues, Collette cannot be held responsible for her unauthorized use of the vehicle, and her mental condition may have affected whether she had a reasonable belief that she was entitled to use the vehicle.
There are three problems with this argument. The first is that it depends on opinions expressed in the affidavit and deposition testimony of Grindel, who does not have any qualifications to offer expert medical or psychological opinions on the subject of his daughter's mental health or her ability to form a reasonable belief as to her authorization to use Snow's vehicle. In fact, Grindel does not offer any opinion that Collette was unable to understand whether or not she would have been entitled to use the vehicle. Instead he makes only a conclusory statement in his affidavit that she suffered from "severe mental illness," Grindel Affidavit¶ 4, and equally conclusory statements in his deposition that she had "a problem with emotional impulse control" and was "mentally ill." Grindel Dep. 24. Conclusory opinions that Grindel does not have any qualifications to offer do not constitute admissible evidence sufficient to generate a disputed issue of fact for trial.
As support for his opinion that Collette was "mentally ill," Grindel cites in his affidavit to "psychiatric records attached as Exhibit B." Grindel Affidavit ¶ 4. It bears emphasis that the Estates Statement of Additional Material Facts consistently cites only generally to Grindel's Affidavit ("Grindel Aff"). It does not provide paragraph references or specific references to any portions of the medical records even though Rule 56(h)(4) provides that the court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' statements of material facts.
Leaving that aside, Exhibit B to Grindel's affidavit consists of psychological evaluations performed when Collette was 10 and 12 years old, which recite the following diagnoses: "Posttraumatic Stress Disorder, chronic; Attention Deficit Hyperactivity Disorder, combined type; Reactive Attachment Disorder; rule out Mood Disorder Not Otherwise Specified." None of the records attached to Grindel's affidavit are authenticated as medical records that would be admissible under 16 M.R.S. § 357 or otherwise.
2012 Report of clinical psychologist Lydia Ward-Gray, clinical psychologist and 2010 Report of clinical neuropsychologist Charles Whitehead. Other unauthenticated reports attached to Grindel's affidavit mention Depression as well as ADHD, Reactive Attachment Disorder, and Mood Disorder Not Otherwise Specified.
Even if these reports were admissible, they would not raise a factual dispute for trial. Persons with ADHD and the other disorders listed are not intrinsically unable to understand whether or not they are authorized to use a vehicle. The Estate has not offered any expert opinion or other evidence calling into question whether Collette could form a reasonable belief that she was entitled to use Snow's vehicle.
To be sure, the reports and other evidence in the summary judgment record indicate that Collette was a troubled young woman. For instance, she had made a suicide attempt sometime in 2015 and was at Spring Harbor on one or more occasions. Collette's psychological issues may in some part explain her behavior, However, none of the evidence offered by the Estate raises a disputed issue of fact as to Collette's ability to understand whether or not she was authorized to use Snow's vehicle.
Grindel's affidavit places the date of that attempt in August 2015, but the records he attaches on that subject (exhibits E and F to his affidavit) all appear to be dated from February 2015 rather than August.
The Estate's focus on Collette's mental state is misplaced for another reason. Under Craig v. Estate of Barnes, 1998 ME 110 ¶¶ 7-8, the issue is whether a person could have an "objectively" reasonable belief that she was entitled to use a motor vehicle. Accord, Patrons Oxford Insurance Co. v. Harris, 2006 ME 72 ¶ 9, 905 A.2d 819. Aside from their other deficiencies and even if adequately supported, all the Estate's arguments with respect to Collette's mental state relate to whether Collette might have had a subjectively - rather than an objectively - reasonable belief.
Finally, although the Estate also argues that a jury could find that Collette acted under duress, it has offered no evidence that could support that contention.
Concord therefore is entitled to partial summary judgment declaring that the UM coverage exclusion in § B(3) of the Concord policy precludes liability on the Estate's UM claim against Concord. In light of that ruling, the court does not need to consider Concord's alternative argument that it is undisputed that Collette did not qualify as an "insured" because, at after February 2016, she ceased to be a resident in Grindel's household.
As the court understands it, this decision necessitates the dismissal of the Estate's counterclaim against Concord. Alexander Meyers has also been named as a defendant by Concord on a claim for contribution or indemnity if Concord were to be found liable, but the court believes that the decision above also terminates Concord's contingent claim against Meyers.
If any party contends that a final judgment should not enter in CV-18-426, that party shall notify the court on or before March 16, 2020.
The entry shall be:
1. For the reasons stated above, the motion for partial summary judgment by plaintiff Concord General Mutual Insurance Co. in CV-18-426 is granted and a declaratory judgment is entered that the automobile policy issued by Concord to defendant Michael Grindel does not provide uninsured or underinsured motorist coverage applicable to the death of Collette Boure, 2. The cross-motion for summary judgment in CV-18-426 by defendant "Michael Grindel, Personal Representative of the Estate of Collette Boure, is denied and the Estate's counterclaim against Concord is dismissed, 3. The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).