Opinion
Civil Action CV-19-048
03-09-2020
SUSAN GOLDING, Plaintiff v. HI-WAY SAFETY SYSTEMS, INC., et al., Defendants
ORDER
Thomas D. Warren Justice
In its November 8, 2019 order the court addressed the City's motion for summary judgment, based on its argument that the claims asserted against it in Counts I, V, VI, and VII of the complaint were "barred by sovereign immunity under the Maine Tort Claims Act.
At that time the operative complaint was the amended complaint filed April 10, 2019. Since then plaintiff has been granted leave to file both a Second Amended Complaint and a Third Amended Complaint As against the City, counts I, V, VI, and VI remain unaltered in the third amended complaint and the City's motion as to those counts is not affected by the amendments to the complaint.
The court ruled that the City had established for purposes of summary judgment that the City was not engaged in any construction, street cleaning or repair at the intersection of Fore and Hancock Streets on July 27, 2018, Accordingly, it found that the City had established that the waiver of sovereign immunity in 14 M.R.S. § 8104-A(4) did not apply. That section provides that a governmental entity is liable ''for Its negligent acts or omissions arising out of and occurring during the performance of construction, street cleaning or repair operations on any ... town way.''
Plaintiff Susan Golding had argued, however, that the City might nevertheless be liable if it had procured insurance coverage in an area where it might otherwise he immune, 14 M.R.S. § 8116. Golding did not offer evidence of such insurance but argued that the construction companies which had worked on the pedestrian crossing at Fore and Hancock Streets might have named the City as an additional insured.
Although Golding had not formally made a Rule 56(f) motion, the court construed her argument as a Rule 56(f) request and gave Golding until November 22 to file a supplemental statement of material facts.
At that point the case had been pending for around nine months and Golding had been aware of the City's immunity arguments for at least five months - since the City had filed its summary judgment motion on June 10, 2019,
Subsequently Golding obtained an unopposed extension to February 14, 2020. She filed a Supplemental Statement of Material Facts on that date and at the same time is seeking a further extension to June 12. The City has filed a Reply Statement of Material Facts to Golding's February 14 submission and opposes an extension to June 12.
The City did not oppose what it understood to be a short extension until a scheduling conference requested by Golding could be held, but it did oppose a further 120-day extension after plaintiff had already received an extension from November 22, 2019 to February 14, 2020.
Golding's Supplemental Statement of Material Facts is repetitive, replete with legal argument, names more than one alleged fact in each paragraph, and does not constitute a separate, short, and concise submission as required by Rule 56(h). It could be disregarded on that basis alone. First Tracks Investments LLC v. Murray Plumb & Murray, 2015 ME 104 ¶ 2, 121 A.3d 1279.
In her Supplemental Statement Golding makes two arguments. The first is that there is evidence that the area where plaintiff fell was an active construction zone. The first problem with this argument is that this was not an issue on which the court, in its November 8, 2019 order, allowed plaintiff to submit a supplemental statement of material facts.
The second problem with this argument is that to the extent there is evidence that the area was an active construction zone, that evidence relates to the activities of private contractors, rather than the City, 14 M.R.S. § 8104-A(4) states that "a governmental entity is liable for its negligent acts or omissions arising out of and occurring during the performance of construction, street cleaning or repair operations on any .. . town way" (emphasis added). That statute does not make the City liable for the negligent acts or omissions of others engaged in construction activities on city streets. Indeed, the next sentence of § 8104-A(4) states;
A governmental entity is not liable for any defect, lack of repair or lack of sufficient railing in any highway, town way, sidewalk, parking area, causeway, bridge, airport runway or taxiway or in any appurtenance thereto.
It bears emphasis the activity of private contractors in the area where Golding suffered injury is not new information but was disclosed to Golding as early as April 2019 in an interrogatory answer. A copy of that interrogatory answer is referred to and attached to the City's original statement of material facts.
Golding's second argument is based on a provision in a contract between the City and defendant Hi-Way Safety Systems that Hi-Way Safety Systems shall obtain insurance naming the City as an additional insured. This is at least the issue on which the court allowed Golding to submit a supplemental statement of material facts.
Golding's arguments on this issue fall short, however, for several reasons. Foremost among these is that very next sentence of the contract cited by Golding states that the City shall only be named as an additional insured "in those areas where governmental immunity has been expressly waived by 14 M.R.S.A. § 8104-A, as limited by § 8104-B, and § 8111." April 16, 2018 Contract § 3, annexed as Ex. A to the February 13, 2020 Affidavit of Christian Lewis and cited in Golding's Supplemental SMF ¶ 1. The existence of this contract, therefore, does not demonstrate that the City has waived sovereign immunity. It demonstrates the contrary.
Golding argues that she should have additional time in which to attempt to explore whether there may be other instances in which the City has been named as an additional insured in a way that might somehow have waived the City's governmental immunity under the circumstances in this case. Golding has already had a year in which to conduct discovery. Her argument for an additional extension amounts to a request under Rule 56(f) that the court give her three more months - in addition to and the four months she has already had since the court's November 8, 2019 order - to attempt to find an insurance waiver broad enough to allow her to keep the City in this case on Counts I, V, VI, and VII.
At this point Golding is not entitled to a further Rule 56(f) extension because she has not offered a "plausible basis" to believe that the kind of insurance waiver she is looking for exists. See Bay View Bank N.A. v. Highland Golf Mortgagees Realty Trust, 2002 ME 178 ¶ 22, 814 A.2d 449. The court cannot find that she has proceeded with "reasonable diligence" on this issue. Id. She has had enough time.
Golding argues that she has been stymied on certain discovery requests directed toward the non-City defendants. However, she has never sought a Rule 26(g) conference. Leaving all discovery issues aside, there remains no plausible basis to believe that any evidence exists of an insurance waiver that would somehow subject the City to liability notwithstanding the last sentence of § 8104-A(4).
The entry shall be:
1. The City of Portland's motion for summary judgment dismissing counts I, V, VI, and VII of the third amended complaint as against the City is granted. The City remains as a defendant on count XI.
2. Plaintiffs motion for a further extension in which to supplement its opposition to the City's motion is denied.
3. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).