671 F.3d 63 (1st Cir. 2012), 10-2370, Fortin v. Titcomb

Docket Nº:10-2370.
Citation:671 F.3d 63
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:Michael FORTIN, Plaintiff, Appellant, v. Jacob TITCOMB, Defendant, Appellee.
Attorney:Michael A. Feldman, with whom Leslie Feldman-Rumpler was on brief, for appellant. Douglas I. Louison, with whom Louison, Costello, Condon & Pfaff, LLP was on brief, for appellee.
Judge Panel:Before LYNCH, Chief Judge, LIPEZ and THOMPSON, Circuit Judges.
Case Date:January 26, 2012
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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671 F.3d 63 (1st Cir. 2012)

Michael FORTIN, Plaintiff, Appellant,


Jacob TITCOMB, Defendant, Appellee.

No. 10-2370.

United States Court of Appeals, First Circuit.

January 26, 2012

Heard June 6, 2011.

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Michael A. Feldman, with whom Leslie Feldman-Rumpler was on brief, for appellant.

Douglas I. Louison, with whom Louison, Costello, Condon & Pfaff, LLP was on brief, for appellee.

Before LYNCH, Chief Judge, LIPEZ and THOMPSON, Circuit Judges.

LIPEZ, Circuit Judge.

A federal jury awarded appellant Michael Fortin $125,000 in damages against a Wells, Maine police officer after finding that the officer negligently used force in arresting Fortin in 2007. In a post-judgment ruling, the district court reduced the award to $10,000— the maximum set by the Maine Tort Claims Act (" MTCA" or " Act" ) for the personal liability of government employees. See Me.Rev.Stat. Ann. tit. 14, § 8104-D. On appeal, Fortin argues that the MTCA's personal-liability cap is inapplicable here because the officer was covered by an insurance policy that triggered a higher limit under the Act.

After carefully examining the statutory scheme, cases interpreting the MTCA, and the insurance policy, we have determined that the appeal turns on two unresolved questions of Maine law. Specifically, whether Fortin is limited to recovery of a $10,000 award depends on the unexplored relationship among several provisions of the MTCA governing damage awards against government employees. Our analysis may also require determining what interpretive rule should be applied to ambiguous insurance policies providing MTCA liability coverage. We have found " no clear controlling precedents" in Maine law to guide us on these issues, which require policy choices we believe are properly reserved for the state's courts. Me.Rev.Stat. Ann. tit. 4, § 57. Hence, we certify the two questions identified below to the Maine Supreme Judicial Court (" the Law Court" ). See id .; Me. R.App. P. 25(a).

I. Background

The facts surrounding Fortin's arrest are immaterial to the legal issues, and we thus recite only the procedural background of the case. Fortin filed this action in May 2009 against appellee Jacob Titcomb, a Wells police officer, and six other defendants, asserting federal and state civil rights violations and a state-law negligence cause of action stemming from the alleged use of excessive force to arrest him two years earlier.1 In September 2010, at the end of a three-day trial, the jury rejected

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the civil rights claims but found Titcomb liable under state negligence law for injuring Fortin. The court had instructed the jury that an arrest is a discretionary act for which police officers are entitled to immunity under Maine tort law " unless the officer's conduct was so egregious that it clearly exceeded the scope of any discretion an officer could have possessed in his or her capacity as a police officer." See Richards v. Town of Eliot, 780 A.2d 281, 292 (Me.2001); Polley v. Atwell, 581 A.2d 410, 413-14 (Me.1990). The jury's judgment thus incorporated a finding that Titcomb was not entitled to immunity; the jury assessed $125,000 in damages against him.

Titcomb subsequently filed a motion under Federal Rule of Civil Procedure 59(e) asking the court to amend the judgment to conform to § 8104-D of the MTCA, which expressly limits the personal liability of government employees for negligence to $10,000.2 Although insurance coverage may affect the availability and amount of damages under the MTCA, see Me.Rev.Stat. Ann. tit. 14, § 8116, Titcomb argued that the Town's insurance policy, which provided coverage for the officer, did not affect the applicability of § 8104-D. Titcomb further asserted that, even if the policy limits governed the damages award, Fortin's recovery was limited to $10,000 by the policy's express terms.

The district court granted the motion to amend. It sidestepped Fortin's contention that Titcomb had not submitted proper evidence of insurance coverage showing eligibility for the statutory cap,3 holding that the officer was entitled to an amended judgment under § 8104-D whether or not the insurance policy was considered. The court stated that Fortin bore, and failed to meet, the burden to proffer evidence showing that the statutory cap on the officer's liability was superseded by an insurance policy providing greater coverage. Moreover, the court read the policy excerpts that the defendant submitted to expressly retain the § 8104-D cap. Thus, in the district court's view, the result was the same— i.e., a statutory limitation of $10,000 was placed on Fortin's recovery— whether or not the court relied on the defendants' policy evidence.

On appeal, Fortin argues that the district court misapprehended both the MTCA and the insurance policy. He asserts that, under Maine case law, Titcomb bore the burden to show a lack of coverage for damages exceeding the $10,000 limit of § 8104-D and that the officer failed to satisfy that obligation. Fortin contends that, in fact, the Town of Wells' policy endorsement expressly provides coverage in excess of that cap.

We begin our discussion with a review of the relevant provisions of the

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MTCA before examining whether the statute commands a particular outcome here. Because that examination raises significant and difficult issues of Maine law on which there is no controlling precedent, we have decided to certify a question concerning the MTCA's construction to the Law Court. We have recognized that certification may be an appropriate option even where, as here, the parties have not requested it. See Real Estate Bar Ass'n for Mass., Inc. v. Nat'l Real Estate Info. Servs., 608 F.3d 110, 119 n. 2 (1st Cir.2010) (holding that " [t]his court has discretion to certify questions to the SJC when a party fails to move for certification in the district court, or to do so sua sponte" ); Me. Drilling & Blasting, Inc. v. Ins. Co. of N. Am., 34 F.3d 1, 3 (1st Cir.1994) (noting that the court on occasion certifies " questions to a state's highest court upon our own motion" ).

If the Law Court determines that Fortin's right to recover the full jury award is not limited by the MTCA, the coverage provided by the town's insurance policy will become the centerpiece of the parties' dispute. We thus describe the parties' debate over the policy language and explain why the policy interpretation also raises a question of state law requiring guidance from the Law Court.

II. The Maine Tort Claims Act

A. Limitation of Liability under the MTCA

The MTCA contains several provisions that speak to the amount of damages available to a plaintiff who brings a successful claim against a governmental entity or its employees. The provision at the core of this case, § 8104-D, is titled " Personal liability of employees of a governmental entity," and it limits the out-of-pocket exposure of a government employee to $10,000 for any claims arising out of a single occurrence. Me.Rev.Stat. Ann. tit. 14, § 8104-D; see supra note 2. Another provision of the Act, titled " Limitation on damages," sets a $400,000 cap on the award of damages that may be obtained " against either a governmental entity or its employees, or both ... for any and all claims arising out of a single occurrence." Me.Rev.Stat. Ann. tit. 14, § 8105(1). The § 8105 limit is explicitly superseded in certain instances, however, when a governmental entity procures liability insurance: " If the insurance provides protection in excess of the limit of liability imposed by section 8105, then the limits provided in the insurance policy shall replace the limit imposed by section 8105." Id. § 8116.4

B. Personal Liability vs. Limitation of Damages

Appellee Titcomb argues that this case is easily resolved by reference to the terms of § 8104-D, which he reads to impose a $10,000 ceiling whenever damages are awarded against a government employee in his personal capacity. He argues that § 8105, which allows damages up to $400,000 against a governmental entity or an employee, must apply only to employees in their official capacity because that provision otherwise would be inconsistent with § 8104-D's much lower cap. He points out that official-capacity suits are, in essence, suits against the employing governmental entities. Hence, narrowly construing the word " employee" in § 8105

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retains the distinction between the government's liability— capped at $400,000 under § 8105— and the individual's liability— capped at $10,000 under § 8104-D.

No Maine cases address the relationship between §§ 8104-D and 8105, and Titcomb's depiction of the statutory scheme presents one plausible interpretation of the MTCA. Section 8104-D explicitly caps the recovery of damages from individual employees at $10,000, and that clear limitation would be inconsistent with § 8105 if the latter provision were construed to allow up to $400,000 in damages against such individuals. Arguably, then, the reference in § 8105 to " employees" cannot refer to the category of employees covered by § 8104-D, i.e., those sued in their personal capacity.

That construction is reinforced by the language of § 8116, which allows governmental bodies to procure insurance coverage " against liability for any claim against it or its employees for which immunity is waived." Me.Rev.Stat. Ann. tit. 14, § 8116. Section 8116 makes no reference to § 8104-D. Rather, it states: " If the insurance provides protection in excess of the limit of liability imposed by section 8105, then the limits provided in the insurance policy shall replace the limit imposed by section 8105." A fair reading of § 8116, in the context of §§ 8104-D and 8105, could lead to the conclusion that § 8104-D is...

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