Opinion
Civil Action CV-2017-0150
02-26-2019
DANIEL ARBO and LISA ARBO, 1 Plaintiffs, v. TOWER GROUP, INC. d/b/a TOWER GROUP COMPANIES, and MAINE INSURANCE GUARANTY ASSOCIATION, Defendants.
ATTORNEYS FOR PLAINTIFF: MICHAEL K. MARTIN, ESQ. RYAN ALMY, ESQ. PETRUCCELLI, MARTIN & HADDOW, LLP ATTORNEYS FOR DEFENDANT MAINE INSURANCE GUARANTY ASSOCIATION DANIEL RAPAPORT, ESQ. TIMOTHY CONNOLLY, ESQ. PRETI FLAHERTY
ATTORNEYS FOR PLAINTIFF: MICHAEL K. MARTIN, ESQ. RYAN ALMY, ESQ. PETRUCCELLI, MARTIN & HADDOW, LLP
ATTORNEYS FOR DEFENDANT MAINE INSURANCE GUARANTY ASSOCIATION DANIEL RAPAPORT, ESQ. TIMOTHY CONNOLLY, ESQ. PRETI FLAHERTY
ORDER ON PLAINTIFFS' MOTION FOR RECONSIDERATION
Subsequent to the filing of the present Motion for Reconsideration, Plaintiffs' counsel filed a Notice of Death pursuant to M.R. Civ. P. 25(a)(2) informing the Court of the untimely passing of plaintiff Lisa Arbo. Daniel Arbo did not move to substitute parties pursuant to MR. Civ. P. 25(a)(1) because he had not been appointed personal representative of Lisa Arbo's estate, and therefore the parties named in the caption have not been changed. Mr. Arbo may file such motion, if he desires, within the timeframe prescribed by M.R. Civ. P. 25(a)(1).
John O'Neil, Jr. Justice, Superior Court
Pending before the Court is Plaintiffs' Motion for Reconsideration of the Court's Order granting Defendant Maine Insurance Guarantee Association's Motion for Summary Judgment on all counts of the Plaintiffs' Complaint Plaintiffs contend the Court erred by granting summary judgment against them on their breach of contract claim on an issue not raised by either party.
"A defendant moving for a summary judgment has the burden to assert those elements of the cause of action for which the defendant contends there is no genuine issue to be tried." Corey v. Norman, Hanson & DeTroy, 1999 ME 196, ¶ 9, 742 A.2d 933. Plaintiffs contend MIGA's sole argument with respect to their breach of contract claim was "that there were no disputed facts relevant to the analysis of whether the corporate veil separating York and Tower should be disregarded .. .." (Pis.' Mot. Reconsideration, at 1.)
To the contrary, MIGA argued "the Arbos claims are not 'covered claims existing prior to the determination of the insolvency,' and MIGA has no obligation to pay any money to the Arbos. 24-A M.R.S. § 4438(1)." (Def.'s Mot. Summ. J., at 11.) MIGA noted that its obligation is to "stand[] in the shoes of an insolvent insurer when assessing claims against [an] insolvent insurer." (Id. at 11.) MIGA asserted a number of facts which established that York Insurance Company of Maine, and not Tower Group, Inc., was the only company that could be considered an "insurer," "member insurer," or "insolvent insurer" such that the Arbos' claim would be considered a "covered claim" under the Maine Insurance Guarantee Association Act. (See DSMF ¶¶ 34-44); 24-A M.R.S. § 4435. Plaintiffs were therefore put on notice that they would have to demonstrate that there was a legitimate factual dispute as to whether their claims were both "covered" and timely.
The Arbos responded to MIGA's Motion for Summary Judgment by arguing the doctrine of alter ego liability should apply such that the finder of fact could disregard the separate corporate identities of York Insurance Company of Maine and Tower Group, Inc. Plaintiffs did not supportably refute MIGA's factual averments pertinent to the question of whether their claim was a timely, covered claim. Plaintiffs simply demonstrated that a finder of fact might be able to disregard the separateness of two corporate entities, one foreign and one domestic, without any elaboration as to how that, in turn, would transmute the Tower/York corporate amalgam into a foreign, insolvent, member insurer such that their claims would be both timely under the Maine Insurance Code and "covered" under the Maine Insurance Guarantee Association Act.
Based on the factual record and the arguments presented in the parties' memoranda of law, the Court granted summary judgment to MIGA on the Arbos' breach of contract claim because Plaintiffs could not demonstrate their policy was issued by an "insurer" that was requsitely "foreign." “insolvent, ” and a "member" of the Maine Insurance Guarantee Association such that their claim would not be time-barred by the applicable statute of limitations, or for which M1GA would be obligated to pay as a "covered claim."
Accordingly, the entry shall be:
"Plaintiffs' Motion for Reconsideration of the Order on Maine Insurance Guarantee Association's Motion for Summary Judgment Dated December 4, 2018 is DENIED."
The clerk shall incorporate this order on the docket by reference pursuant to M.R. Civ. P. 79(a).
SO ORDERED.