Devine v. Roche Biomedical Laboratories

• Decision Date: 15 June 1995
• Docket Number: Docket No. C,No. 7302,7302
• Citation: 659 A.2d 868
• Parties: 10 IER Cases 1196 Thomas DEVINE v. ROCHE BIOMEDICAL LABORATORIES, et al. DecisionLawum 94 608.
• Court: Maine Supreme Court

Page 868

659 A.2d 868

10 IER Cases 1196

Thomas DEVINE v. ROCHE BIOMEDICAL LABORATORIES, et al.

Decision No. 7302.

Law Docket No. Cum 94 608.

Supreme Judicial Court of Maine.

Argued March 1, 1995.

Decided June 15, 1995.

Robert H. Furbish (orally), Smith Elliott Smith & Garmey, P.A., Portland, for plaintiff.

Gerald P. Petruccelli (orally), James B. Haddow, Petruccelli & Martin, Portland, for Northern Diagnostic Lab.

Malcolm L. Lyons (orally), Benjamin Townsend, Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Augusta, for Roche Biomedical.

Constance P. O'Neil, Conley, Haley & O'Neil, Bath, for B.I.W.

Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

RUDMAN, Justice.

Thomas Devine appeals from summary judgments entered in the Superior Court (Cumberland County, Brodrick, J.) in favor of Northern Diagnostic Laboratories (NorDx) and Roche Biomedical Laboratories on Devine's third party beneficiary claim. Devine claims intended third party beneficiary status with respect to a contract for drug testing confirmation services between Bath Iron Works (BIW) and NorDx. NorDx provided courier service to Roche, with whom NorDx subcontracted for the actual testing services. We search the contract language and the circumstances surrounding the formation of the contract for a clear indication that BIW intended to give Devine an enforceable benefit under its contract with NorDx; we find none and therefore affirm.

The instant case returns following our remand to the Superior Court with instructions to consider Devine's third party beneficiary claim. Devine v. Roche Biomedical Laboratories, Inc., 637 A.2d 441 (Me.1994) (hereinafter Devine I ). Devine I described the underlying facts. In September 1988, BIW offered Devine a job contingent on his passing a drug test. Two urinalyses conducted by BIW on Devine tested positive for opiates. Roche confirmed the presence of opiates and Devine resigned. Devine later informed Wayne McFarland, BIW's Manager of Medical Administration and Clinical Services, that he had learned that his daily poppy seed muffin consumption may have caused the positive result. McFarland called Roche and spoke to a person who identified herself as a doctor and who said that while ingestion of poppy seeds can lead to a positive result, Devine's results were too high to suggest such a source. Based on this and on information provided by its own drug expert, BIW did not change its decision with respect to Devine's employment.

Devine brought a complaint sounding in tort and contract against BIW, Roche, and NorDx. On Devine's appeal in Devine I, we affirmed the summary judgments entered in favor of Roche and NorDx with respect to Devine's tort claims, and vacated the judgment against BIW on its claims in tort and for breach of contract against Roche and NorDx on the grounds that they raised genuine issues of material fact. Pertinent to this appeal, we vacated the judgment as to Devine's breach of contract claim against Roche and NorDx and remanded the case to the Superior Court with instructions for it to consider Devine's contract claim. On remand, the Superior Court entered summary judgments in favor of Roche and NorDx on Devine's claim to be a third party beneficiary of the BIW-NorDx contract. On Devine's motion pursuant to M.R.Civ.P. 54(b), the Superior Court ordered the entry of a final judgment in favor of Roche and NorDx against Devine.

We review the entry of the summary judgments entered in favor of NorDx and Roche by examining the evidence in the light most favorable to Devine to determine whether the Superior Court committed an error of law. See Devine I, 637 A.2d at 444.

In order for Devine to survive a summary judgment motion and proceed as a third party beneficiary on a contract theory, he must generate a genuine issue of material fact on the issue of BIW's intent that he receive an enforceable benefit under the contract. See F.O. Bailey Co., Inc. v. Ledgewood, Inc., 603 A.2d 466, 468 (Me.1992). This he fails to do. It is not enough that he benefitted or could have benefitted from the performance of the contract. The intent must be clear and definite, whether it is expressed in the contract itself or in the circumstances surrounding its execution. Id. If BIW did not intend to confer upon Devine an enforceable right, any benefit enjoyed by him as a result of the performance of the contract renders him a mere incidental beneficiary. "An incidental beneficiary cannot sue to enforce third party beneficiary rights." Id. ¹

No language in the contract indicates BIW's intent to benefit third parties. The contract provides that NorDx will provide courier service and that Roche will provide clinical laboratory services and report the results orally and in writing. While the contract acknowledges that BIW is relying on NorDx's special skills, knowledge and ability regarding the type of work to be performed, we read this language neither to expand the work contracted for nor to indicate an intent that the performance of that work benefit BIW employees.

In the...