MMG Insurance CO. v. State of Maine, Department of Transportation

STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO. CV-20-71

MMG INSURANCE CO., subrogee of
Dennis and Norma Trahan,
Plaintiff,
DECISION AND ORDER
V.

STATE OF MAINE, DEPARTMENT OF
TRANSPORTATION,
Defendant.

INTRODUCTION
The matter before the court is Defendant Maine Department of Transportation
(MDOT)'s motion for summary judgment. MDOT asserts that it is entitled to
summary judgment because Plaintiff MMG Insurance Co. (MMG) failed to provide
proper notice of its tort claim under the Maine Tort Claims Act (MTCA).
FACTUAL & PROCEDURAL BACKGROUND
There does not appear to be a genuine issue of material fact about the
following.
On February 19, 2019, a collision occurred between an MDOT grader and a
vehicle insured by MMG. Around February 27, 2019, MMG sent a letter to the
grader's driver, Mr. McDonald, claiming he was responsible for damages caused by
the accident. Ex. A. 1 Mr. McDonald forwarded the letter to MDOT's legal services

' This letter purported to "incl udel e J a copy of the police report" regarding the incident, but
that police report was not attached to Exhibit A, and the police report does not otherwise appear
in the summary judgment record. See FIA Card Services N.A. v. Saintonge, 2013 ME 65, ~ 3 & n.2,
70 A.3d 1224 (disregarding evidence that was not incorporated into the summary judgment
record); M .R. Civ. P. 56(c), (e), (h)(2) .
division in early March 2019. MDOT's Manager of Transportation Investigations
subsequently responded to MMG with a letter, which explained that MDOT had
investigated the incident and had determined that MMG' s insured "failed to keep a
proper lookout when entering a roadway and [wa]s therefore the proximate cause of
th[e] accident." Ex. B.
Around April 16, 2019, MDOT received a letter from Latitude Subrogation
Services on behalf of MMG. Ex. C. MMG characterizers this letter as its notice of
claim. Pl.'s Opp'n to Summ. J. at 3-6. The April 16, 2019 notice demanded payment
of $7,174.62 from MDOT and stated "POLICE REPORT FOUND YOUR DRIVER
100% LIABLE WITH OUR VEHICLE STOPPED WHEN STRUCK." Ex. C. The
notice also attached photographs and documentation showing the alleged damage to
the vehicle. Ex. C. Additionally, the notice stated the date of the collision, name of
the insureds, and the name of MDOT' s driver, but it did not reference the location
of the collision. Ex. C.
Meanwhile, a notice of tort claim was not filed with the Office of Attorney
General within 180 days of the collision. Nor is there any indication that MDOT
notified the Attorney General of the claim.
On May 26, 2020, MMG filed a complaint in this court alleging that MDOT
is liable for the damages caused by the collision. On July 1, 2020, MDOT moved for
summary judgment. MMG filed its opposition on July 22, 2020, and MDOT replied
on August 2, 2020. Pursuant to M.R. Civ. P. 7(b)(7), the court will decide this matter
without oral argument.
DISCUSSION
Summary judgment is appropriate if, reviewing the evidence in the statements
of fact and record references in the light most favorable to the non-moving party,
there is no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law. M.R. Civ. P. 56(a), (c); Platz Assocs. v. Finley, 2009 ME 55, ~

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10, 973 A.2d 743 (internal citations omitted). A fact is material if "it has the potential
to affect the outcome of the suit." Id. "A genuine issue of material fact exists when
the fact finder must choose between competing versions of the truth." Id. To
withstand a motion for summary judgment, the non-moving party must present
sufficient admissible evidence to establish a prima facie case for each element of the
claim or defense. Watt v. UniFirst Corp., 2009 ME 47, ~ 21, 969 A.2d 897.
The resolution of MDOT's summary judgment motion requires the court to
decide whether MMG satisfied the notice requirements of the MTCA. MDOT argues
that MMG's notice of claim failed to substantially comply with the MCTA in two
ways. Def.'s Mot. for Summ. J. at 4. "First, and most significantly, it was not filed
with the Office of Attorney General." Def.'s Mot. for Summ. J. at 4. Second, it did
not comply with the MCTA's form requirements-specifically, "it did not provide
a 'statement of the basis of the claim, including the date, time, place and
circumstances of the act, omission or occurrence complained of."' Def.' s Mot. for
Summ. J. at 4.
MMG concedes that a timely notice of claim was not filed with the Attorney
General. Pl.'s Opp'n to Summ. J. at 2-3. 2 But it argues that its failure to notify the

Attorney General was not fatal, and otherwise, its notice of claim satisfied the form
requirements of the MCTA. Pl.'s Opp'n to Summ. J. at 3-6.
The MTCA provides that
1. Notice requirements for filing. Within 180 days after any claim or
cause of action permitted by this chapter accrues, or at a later time
within the limits of section 8110, when a claimant shows good cause
why notice could not have reasonably been filed within the 180-day
limit, a claimant or a claimant's personal representative or attorney shall
file a written notice containing:

' MMG makes no argument that its failure to timely notify the Attorney General was
excused by good cause .

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A. The name and address of the clamant, and the name and address of the
claimant 1s attorney or other representative, if any;
B. A concise statement of the basis of the claim, including the date, time,
place and circumstances of the act, omission or occurrence complained of;
C. The name and address of any governmental employee involved, if
known;
D. A concise statement of the nature and extent of the injury claimed to
have been suffered; and
E. A statement of the amount of monetary damages claimed.

3. Notices.
A. If the claim is against the State or an employee thereof, copies of the
notice shall be addressed to and filed with the state department, board,
agency, commission or authority whose act or omission is said to have
caused the injury and the Attorney General.

4. Substantial notice compliance required. No claim or action shall
be commenced against a governmental entity or employee ... unless
the foregoing notice provisions are substantially complied with. A
claim filed under this section shall not be held invalid or insufficient by
reason of an inaccuracy in stating the time, place, nature or cause of the
claim, or otherwise, unless it is shown that the governmental entity was
in fact prejudiced thereby ....

14 M.R.S. § 8107 .3

"The general purposes of notice requirement are to save needless expense
and litigation by providing an opportunity for amicable resolution of disputes, and
to allow the defendant to fully investigate claims and defenses." Faucher v.

' The legislature recently amended section 8107 to extend the timeframe for filing notice
to 365 days following accrual of the claim. L.D. 492 (129th Legis. 2019) . The amendment applies
only to claims that accrue on or after January 1, 2020. Id.§ 3. Because MMG's claim accrued on
February 19, 2019, the amended statute does not apply and the former version of the statute
controls.

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Auburn, 465 A.2d 1120, 1123 (Me. 1983). The Law Court has held that "failure to

comply with the notice provision bars the claim, unless (1) the errors in a
plaintiff's notice constitute mere inaccuracies, and (2) the governmental entity is
unable to show prejudice." Deschenes v. City of Sanford, 2016 ME 56, ~ 12, 137
A.3d 198 (internal citation and quotation marks omitted). In other words, the court
"must[] determine[] whether the error(s) in plaintiff's notice constitutes merely
'inaccuracies' which do not impair substantial compliance or whether the error(s)
are more fundamental." Faucher v. Auburn, 465 A.2d 1120, 1123 (Me. 1983). "If
the former, the governmental entity must show prejudice of a nature sufficient to
bar the claim; if the latter, the notice may be held invalid." Id. Moreover, the
"substantial compliance" exception does not excuse an untimely notice, but rather
"is properly invoked only when the notice, although timely filed or excused from
timely filing because of good cause, is defective in some other respect such as the
failure to satisfy the form requirements of§ 8107(l)(A-E) ." Kelly v. Univ. of Me.,
623 A.2d 169, 172 (Me. 1993) (quoting Erickson v. State, 444 A.2d 345,350 (Me.
1982).
MDOT points the court to Kelly, which involved notice deficiencies that were
fundamental enough to preclude substantial compliance and bar the plaintiff's claim.
In that case, the plaintiff was struck by a University of Maine van on campus. Id. at
171. Afterwards, the plaintiff's attorney sent a letter to the administrative services
office stating that "he represented plaintiff in connection with a personal injury claim
and indicated that there was a 'pending action."' Id. The University also had a copy
of the accident report upon which the claim was based. Id. Moreover, the plaintiff's
counsel "submitted medical bills to the University's insurance carrier and requested
payment for those bills in advance of settlement." Id. The plaintiff did not file a
timely notice of claim with the Attorney General as required by section 8107(3)(A).
Id. at 172.

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Under these circumstances, the Law Court held that the plaintiff's claim was
barred and affirmed the Superior Court's order granting summary judgment in favor
of the University. Id. at 170-72. It reasoned that the "plaintiff did not substantially
comply with the notice requirement when no notice was given to the Attorney
General and only a routine police accident report and a letter of representation were
provided to the University within the 180 days after the cause of action accrued."
Id. at 172. That is, the combination of (1) the plaintiff's failure to notify the Attorney
General and (2) other inadequacies in the form of the notice precluded a finding of
substantial compliance. Id.; see also Diviney v. Univ. of Maine Sys., No. CV-2015-
161, 2016 WL 3921505, at *4 (Me. Super. Ct. May 17, 2016); Moody v. Me. State
Lottery, 2003 Me. Super. LEXIS 153, at *6-8 (June 12, 2003); Grip v. Williams,
1998 Me. Super. LEXIS 197, at *5 (Aug. 4, 1998); Naslund v. Maloney, No. CV-
92-839, 1996 WL 34673627, at *2 (Me. Super. Ct. Feb. 26, 1996).
In this case, MMG similarly failed to substantially comply with the notice
requirements of section 8107. As in Kelly, "no notice was given to the Attorney
General." ld. 4 Moreover, MMG's April 16, 2019 notice to MDOT contained
deficiencies in form. While MMG argues that the notice substantially complied with
form requirements of section 8107(1)(A-E), the court agrees with MDOT that the

'Citing footnote 2 in Pepperman v. Barrett, 661 A.2d 1124 (Me. 1995) -a footnote that
discusses the Law Court's holding in Robinson v. Washington County, 529 A.2d 1357 (Me.
1987)-MMG asserts that "lf]ailure to send a copy of the notice to the proper official is not fatal
in and of itself if the notice otherwise complies with the statute." Pl.'s Opp'n to Summ. J. at 3. In
Robinson, the Law Court "held that a notice that was sufficient in all other respects would
substantially comply with the statute even if it was served on the real party in interest instead of
the official designated by the statute to receive notice." Pepperman, 661 A.2d at 1126 n.2 (citing
Robinson, 529 A.2d at 1360). But as discussed in this decision, MMG's notice was not sufficient
in all other respects. Moreover, the court is not convinced that Robinson's holding applies here.
Indeed, Robinson addressed what constitutes substantial compliance with section 8107(3)(8)-a
different provision governing notice to political subdivisions. Robinson had nothing to say about
what would constitute substantial compliance with section 8107(3)(A).

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notice failed to provide an adequate "statement of the basis of the claim, including
the date, time, place and circumstances of the act, omission or occurrence
complained of." 14 M.R.S. § 8107(l)(B). It is undisputed that the notice failed to
state the "place" of the incident. Moreover, the notice insufficiently described the
"circumstances of the act ... complained of," merely stating that the "POLICE
REPORT FOUND YOUR DRIVER 100% LIABLE WITH OUR VEHICLE
STOPPED WHEN STRUCK." This statement amounted to no more than a vague
and conclusory summary of what someone else wrote in a police report-a copy of
which MMG failed to produce. If providing a copy of the actual police accident
report was not sufficient in Kelly, then MMG's summary of the police report must
likewise be insufficient here. See 623 A.2d at 172.
To be sure, MMG's failure to provide an adequate "statement of the basis of .
[its] claim" does not-on its own-necessarily preclude a finding of substantial
compliance. But pursuant to Kelly, the court considers the inaccuracies in the form
of the notice in conjunction with MM G's failure to notify the Attorney General. See
id. And after considering the errors together, the court concludes that MMG's notice

was fundamentally flawed and did not substantially comply with the statute. 5
CONCLUSION

The court concludes that MMG did not substantially comply with the notice
requirements of section 8107 because it failed to notify the Attorney General, and

-' MMG argues that MDOT failed to show it was prejudiced by the errors in its notice of
claim. Pl.'s Opp'n to Summ. J. at 6-7. MDOT, however, need not show prejudice because the
notice errors were "more fundamental" and do not qualify as mere inaccuracies. Faucher, 465
A.2d at 1123; Pepperman v. Barrett, 661 A.2d 1124, 1127 (Me. 1995) (a "governmental entity
must show prejudice only when the errors in the notice amount to mere inaccuracies.") .

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its notice contained other adequacies in form. 6 MMG's failure to provide proper

notice bars its claims against MDOT.
The entry is:
The defendant's motion for summary judgment is GRANTED.

DATED: October 15, 2020

Justice, Maine Superior Court

r:,,•~r~d on the docket / D /1q J~,JOaO
( I

'MDOT asserts that "failure to provide notice to the lAttorney General] should, by itself,
be sufficient to bar [a plaintiff]'s claim"-an argument that the Law Court has not yet addressed.
Def.'s Mot. for Summ. J. at 6. While the court does not need to squarely resolve this question
because it concludes that MMG's notice was deficient in multiple respects, the applicable law
suggests that MDOT is correct. The plain language of section 8107 makes serving the Attorney
General mandatory. 14 M.R .S. § 8107(3)(A) . And while section 8107(4) expressly affords leeway
to plaintiffs who do not satisfy the form requirements of section 8107(1 )(A-E)-making it clear
that a claim "shall not be held invalid ... by reason of an inaccuracy in stating the time, place,
nature or cause of the claim, or otherwise"-the statute affords no similar leeway to those who fail
to notify the Attorney General. 14 M.R.S. § 8107(4). Moreover, in keeping with the language of
the statute, the Law Court has stated that the "substantial compliance" exception does not excuse
an untimely notice, but rather "is properly invoked only when the notice ... is defective in some
other respect such as the failure to satisfy the form requirements of§ 8107(1)(A-E)." Kelly, 623
A.2d at 172. Failing to timely notify the Attorney General constitutes a fundamental error that
deprives an entire entity of notice; it is not the type of error in "form" that may be excused by
substantial compliance. Thus, the court agrees with MDOT that the failure to notify the Attorney
General is a fundamental deficiency that warrants dismissal in and of itself.

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