MMG Ins. Co. v. Nute, Jr.

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. CV-2021-323
)
MMG INSURANCE COMPANY, )
)
Plaintiff, )
)
V. )
)
STEPHEN NUTE, JR. and KRISTAL ) ORDER ON PLAINTIFF'S MOTION
FECTEAU, WESLEY JOHNSON and ) FOR SUMMARY JUDGMENT
DANIELLE JOHNSON, MADISON )
HEIGHTS HOMEOWNERS )
ASSOCIATION, and KERRI-ROSE, )
LLC, )
)
Defendants. )

Before the Court is Plaintiff MMG Insurance Company's ("MMG") Motion for

Summary Judgment on its Complaint for declaratory judgment. For the following

reasons, the Court grants the Motion.

I. Facts

The following is drawn from MMG's statement of material facts in support of its

Motion for Summary Judgment. Defendants did not timely file an opposition to MMG's

Motion or any additional material facts. Accordingly, all properly supported facts

submitted by MMG are deemed admitted.

Defendant Kerri-Rose, LLC ("Kerri-Rose") filed a lawsuit in this court, captioned

Kerri-Rose, LLC v. Madison Heights Homeowners Association, et als., Docket No. RE­

2021-49 ("the Easement Action"). (Pl.'s S.M.F. 'JI 1.) In the Easement Action, Kerri-Rose

alleges that the defendants, who are the same parties as the defendants in this action,

interfered with Kerri-Rose's easement over a roadway within Defendant Madison

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Heights Homeowners Association ("MHHA"). (PL's S.M.F. '![ 2.) Kerri-Rose, a corporate

entity, is the only named plaintiff in the Easement Action. (PL's S.M.F. '![ 3.)

The Easement Action includes nine counts: declaratory judgment of easement

(Count I), declaratory judgment of express easement (Count II), declaratory judgment of

easement by estoppel (Count III), declaratory judgment of easement by implication

(Count IV), declaratory judgment of easement by necessity (Count V),

nuisance/intentional interference with easement rights (Count VI), intentional

interference with contractual/business relations (Count VII), slander of title (Count VIII),

and negligence (Count IX). (PL's S.M.F. '!['![ 4, 5.) The facts Kerri-Rose alleges in the

Easement Action regarding Defendants Nute and Fecteau are, in brief, that Mr. Nute and

Ms. Fecteau have put up signs denying the easement's existence, yelled at potential

buyers of Kerri-Rose's property about the easement, and attempted to deed the roadway

to MHHA. (Pl.'s S.M.F. '![ 6.)

At the time of this conduct, Mr. Nute and Ms. Fecteau maintained a homeowner's

insurance policy, # HC13686765 ("the Policy"), issued by MMG. (PL's S.M.F. '![ 7.) The

Policy provides that MMG will defend at its expense by counsel of its choice if a claim is

made against the insured "for damages because of 'bodily injury' or 'property damage'

caused by an 'occurrence' to which this coverage applies." (PL's S.M.F. '![ 11.) The Policy

defines "bodily injury" to mean "bodily harm, sickness or disease, including required

care, loss of services and death that result." (Pl.'s S.M.F. '![ 13.) The Policy defines

"property damage" to mean "physical injury to, destruction of, or loss of use of tangible

property." (PL's S.M.F. '![ 14.) Finally, the Policy defines "occurrence" to mean "an

accident, including continuous or repeated exposure to substantially the same general

harmful conditions, which results, during the policy period, in: a. 'Bodily injury'; orb.

'Property damage."' (PL's S.M.F. '![ 12.)

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MMG argues that it is entitled to summary judgment on its Complaint for

declaratory judgment that it has no duty to defend Mr. Nute and Ms. Fecteau in the

Easement Action because no claim in the Easement Action may fall within the scope of

coverage of the Policy.

II. Legal Standard

A party is entitled to summary judgment when review of the parties' statements

of material facts and the record to which the statements refer demonstrates that there is

no genuine issue as to any material fact in dispute, and that the moving party is entitled

to judgment as a matter of law. M.R. Civ. P. 56(c); Dyer v. Dep't of Transp., 2008 ME 106, 'fl

14,951 A.2d 821. A court may consider documents at the summary judgment stage when

the documents are attached to an affidavit that authenticates the documents according to

M.R. Civ. P. 56(e). Ocean Cmtys. Fed. Credit Union v. Roberge, 2016 ME 118, 'fl 8 n.2, 144

A.3d 1178.

A contested fact is material if it could potentially affect the outcome of the case.

Dyer, 2008ME 106, 'fl 14,951 A.2d 821. A genuine issue of material fact exists if the claimed

fact would require a factfinder to "choose between competing versions of the truth." Id.

(quoting Farrington's Owners' Ass'n v. Conway Lake Resorts, Inc., 2005 ME 93, 'fl 9, 878 A.2d

504).

When deciding a motion for summary judgment, the court reviews the evidence

in the light most favorable to the non-moving party. Id. The evidence offered in support

of a genuine issue of material fact "need not be persuasive at that stage, but the evidence

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must be sufficient to allow a fact-finder to make a factual determination without

speculating."' Est. of Smith v. Cumberland County, 2013 ME 13, 'l[ 19, 60 A.3d 759.

III. Discussion

Whether an insurer has a duty to defend is a question of law. Harlor v. Amica Mut.

Ins. Co., 2016 ME 161, 'l[ 7, 150 A.3d 793. The duty to defend "is determined by comparing

the allegations in the underlying complaint with the provisions of the insurance policy."

Com. Union Ins. Co. v. Alves, 677 A.2d 70, 72 (Me. 1996). "[T]he threshold for triggering

an insurer's duty to defend is low." Irving Oil, Ltd. v. ACE INA Ins., 2014 ME 62, 'l[ 12, 91

A.3d 594. The Law Court has held that "[r]egardless of extrinsic evidence, if the

complaint-read in conjunction with the policy-reveals a mere potential that the facts

may come within the coverage, then the duty to defend exists." Cox v. Commonwealth

Land Title Ins. Co., 2013 ME 8, 'l[ 9, 59 A.3d 1280.
The Policy provides that a duty to defend exists only for claims "for damages

because of 'bodily injury' or 'property damage' caused by an 'occurrence' to which this

coverage applies." The Policy defines "bodily injury" to mean "bodily harm, sickness or

disease, including required care, loss of services and death that result" Plainly, the

complaint in the Easement Action includes no claim for bodily harm, sickness, or disease.

Moreover, Kerri-Rose, not a natural person, could not possibly suffer bodily injury so

defined. As defined in the Policy, property damage means only "physical injury to,

destruction of, or loss of use of tangible property." The Easement Action includes no

claim for damage to tangible property. 2 Thus, there is no possibility that any claim in the

1 Each party's statements must include a reference to the record where "facts as would be admissible in
evidence" may be found. M.R. Civ. P. 56(e). A party's opposing statement of material facts "must explicitly
admit, deny or qualify facts by reference to each numbered paragraph, and a denial or qualification must
be supported by a record citation." Stanley v. Hancock Cnty. Comm'r, 2004 ME 157, 'l[ 13, 864 A.2d 169.
2 As MMG notes, an easement is a nonpossessory right to enter and use land and is, therefore, intangible

property. See Tesla's, Inc. v. Coopersmith, 2014 ME 137, 'l[ 12, 105 A.3d 1037.)

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Easement Action may fall within the scope of coverage of the Policy. MMG, therefore, is

entitled to summary judgment.

IV. Conclusion

For the foregoing reasons, a comparison of the complaint in the Easement Action

and the Policy reveals that MMG has no duty to defend Mr. Nute and Ms. Fecteau in the

Easement Action. Accordingly, the Court grants MMG's Motion for Summary Judgment

on its Complaint for declaratory judgment.

The entry is:

MMG's Motion for Summary Judgment on the Complaint for declaratory
judgment is GRANTED.

The Clerk is directed to incorporate this Order into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a).

Dated: _ _,_/_,/_,_1_,lJ_,_!~~;)~l=)=JJ,._·_ _
TI t,..

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