Devine v. Roche Biomedical Laboratories, Inc.
| Decision Date | 14 March 1994 |
| Docket Number | No. 6754,6754 |
| Citation | 637 A.2d 441 |
| Parties | 127 Lab.Cas. P 57,633, 9 IER Cases 167 Thomas DEVINE v. ROCHE BIOMEDICAL LABORATORIES, INC., et al. Decision |
| Court | Maine Supreme Court |
Terrence D. Garmey (orally), Roberts H. Furbish (orally), Smith & Elliott, Portland, for plaintiff.
Arlyn H. Weeks (orally), Constance P. O'Neil, Conley, Haley & O'Neil, Bath, Gerald Petruccelli (orally), James B. Haddow, Petruccelli & Martin, Portland, Malcolm L. Lyons (orally), Benjamin P. Townsend, Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Augusta, for defendants.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS, RUDMAN and DANA, JJ.
Plaintiff Thomas Devine and Defendant Bath Iron Works Corporation (BIW) appeal from summary judgments entered in the Superior Court (Cumberland County, Fritzsche, J.) in favor of Defendants Roche Biomedical Laboratories, Inc. and Northern Diagnostic Laboratories, Inc. (NorDx) (collectively "the labs"). Based upon the record before us, there are no material issues of fact as to Devine's tort claims against the labs. We therefore affirm the judgment of the Superior Court in that regard. Devine's claim for breach of contract was not considered by the Superior Court and BIW's claims in tort and for breach of contract raise genuine issues of material fact. We therefore vacate those judgments.
In September 1988, Thomas Devine, a 53-year-old ship designer who had been a contract employee for approximately one year, applied for a permanent position at BIW. Although BIW immediately offered him a position, Devine was required, pursuant to BIW's then written policy, to pass a drug test prior to beginning his employment. The urinalysis conducted by BIW for screening purposes revealed the presence of opiates. A second urinalysis conducted two days later also tested positive for opiates. Because these results seemed implausible, BIW, in a deviation from its policy, allowed Devine to begin work on the condition that he would resign if a confirmation test of the second sample was positive for opiates.
BIW forwarded the sample to NorDx with which it had contracted for confirmation testing. NorDx in turn forwarded the sample to its subcontractor, Roche, to perform the actual testing. BIW was aware that NorDx was subcontracting this work to Roche. Roche's testing confirmed the presence of opiates in a concentration of 2,174 nanograms per milliliter (ng/ml). In accordance with his commitment, Devine resigned on receipt of the positive test result. Shortly thereafter, Devine contacted Wayne McFarland, BIW's Manager of Medical Administration and Clinical Services, to suggest that his positive test result could have been caused by the poppy seed muffin he ate each morning. McFarland then telephoned Roche and asked to speak to the laboratory director. In response to McFarland's questions, a woman identifying herself as a doctor stated that while the ingestion of poppy seeds could lead to a positive test result for opiates, the level shown by Devine's test was too high to be the result of poppy seed ingestion. 1 In light of this information, later confirmed to BIW by an independent drug treatment expert, BIW decided not to change its employment decision.
Devine commenced this action against Roche, NorDx, and BIW seeking recovery in both tort and contract. Devine and BIW In reviewing the entry of a summary judgment, we examine the evidence in the light most favorable to the party against whom the judgment was entered to determine whether the trial court committed an error of law. See Guiggey v. Bombardier, 615 A.2d 1169, 1171 (Me.1992). "We will affirm a summary judgment if the record discloses that there is no genuine issue of material fact and that ... [the] party is entitled to a judgment as a matter of law." Bahre v. Pearl, 595 A.2d 1027, 1032 (Me.1991).
subsequently settled. Thereafter, the labs were granted leave to amend their answers to assert cross-claims against BIW. BIW then asserted a cross-claim for breach of contract, negligence and indemnification against the labs. The labs filed motions for summary judgments in which they argued that they owed Devine no duty in either contract or tort, and that BIW was not entitled to damages for breach of contract, negligence or indemnification for its losses. The court granted summary judgments in favor of the labs and these appeals followed.
It is undisputed that BIW contracted with NorDx to provide confirmation drug testing, and that Roche participated in the negotiations leading to the contract and subcontracted to perform the actual laboratory work. The extent of NorDx's obligations under the prime contract, however, is disputed. The contract provided:
ARTICLE I--STATEMENT
[The Contractor] ... shall render all the services specified in Attachment A, ... shall furnish all necessary materials, supplies and equipment, shall complete the work within the time periods specified herein and shall perform any other services required to complete the work in accordance with the terms and conditions of this Contract. All work performed by [the Contractor] shall be completed in accordance with the applicable professional standards and to the complete satisfaction of BIW.
....
The parties acknowledge that [the Contractor has] and BIW is relying on [the Contractor's] special skills, knowledge and ability regarding the type of work to be performed under this Contract and accordingly, [the Contractor] will use [its] special skills, knowledge, ability, best efforts, ingenuity and due diligence in performing the services set forth in Attachment A ... of this Contract. [The Contractor] shall be responsible for the professional quality, technical accuracy and completeness of all work and services furnished under this Contract.
....
I. [The Contractor] shall provide clinical laboratory services to the BIW Medical Department in accordance with the terms and conditions of the contract and the specific requirements set forth in this Attachment A.
....
III. ... Test results provided by [the Contractor] to BIW shall include but not be limited to the following: appropriate normal range; test methodology and respective assay sensitivity.
In their respective motions for a summary judgment, NorDx and Roche argued that the prime contract was unambiguous and that NorDx was not contractually obligated to provide scientific information about poppy seed ingestion. They contended that the only contractual obligations to BIW were to provide confirmation testing on urine samples submitted by BIW, to notify BIW of any test disclosing an opiate level in excess of 300 ng/ml and to provide courier service. BIW contended that the laboratories were contractually obligated to help BIW correctly analyze test results and to provide BIW with information known to both Roche and NorDx relating to the effects of dietary intake on test results.
"A threshold question in contract interpretation is whether the contract is ambiguous in any material respect." Horton & McGehee, Maine Civil Remedies § 10.10 at 10-7 (1992). The issue of whether a contract is ambiguous is one of law that we review de novo. Hopewell v. Langdon, 537 A.2d 602, 604 (Me.1988). See also Bliss v. Bliss, 583 A.2d 208, 210 (Me.1990) ( divorce judgment). Contract language is ambiguous when it is reasonably susceptible of different interpretations. American Policyholders Ins. Co. v. Kyes, 483 A.2d 337, 340 (Me.1984). The proper interpretation of the ambiguous language is to be determined by the trier of fact on the basis of evidence presented to it at the time of trial. Titcomb v. Saco Mobile Home Sales, Inc., 544 A.2d 754, 757 (Me.1988).
Here, NorDx contracted to provide "clinical laboratory services." The test results were to "include but not be limited to the following: appropriate normal range; test methodology and respective assay sensitivity." The contract further recited the acknowledgement of the parties that BIW was "relying on [the Contractor's] special skills, knowledge and ability regarding the work to be performed" and the Contractor would use its "special skills, knowledge, ability, best efforts, ingenuity and due diligence" in fulfilling its responsibility for the "professional quality, technical accuracy and completeness of all work and services furnished under [the] Contract." Finally, the contract obligated the Contractor to "furnish [BIW] all necessary materials, supplies and equipment" and "perform any other services required to complete the work ... in accordance with the applicable professional standards and to the complete satisfaction of BIW."
It is apparent that the undertakings of the Contractor are reasonably susceptible of different interpretations. Whether they required, inter alia, that the laboratories furnish to BIW information known to the laboratories relating to the effects of dietary intake on test results is a question of fact. The proper interpretation of the ambiguous language must be left to the resolution of the fact finder on the basis of evidence adduced on these issues at the time of a trial of this case. There is a question of fact as to whether Roche is liable to BIW on a theory of implied contract. Roche, although not a party, was informed as to the prime contract. It is claimed that Roche undertook to respond directly to BIW's inquiry. Accordingly, the trial court was precluded from granting a summary judgment on this record in favor of both NorDx and Roche on BIW's claim for a breach of contract.
The record also supports BIW's claim for negligent misrepresentation. In Chapman v. Rideout, 568 A.2d 829, 830 (Me.1990), we adopted the definition of negligent misrepresentation set forth in section 552(1) of the Restatement (Second)...
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