Diviney v. Univ. of Me. Sys.
| Decision Date | 28 March 2017 |
| Docket Number | Docket: Ken–16–274 |
| Citation | 158 A.3d 5 |
| Parties | Aleshia D. DIVINEY v. UNIVERSITY OF MAINE SYSTEM |
| Court | Maine Supreme Court |
William C. Herbert, Esq. (orally), Hardy, Wolf & Downing, P.A., Lewiston, for appellant Aleshia D. Diviney
Christopher C. Dinan, Esq. (orally), Monaghan Leahy, LLP, Portland, for appellee University of Maine System
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
[¶ 1] Aleshia D. Diviney appeals from the grant of summary judgment for the University of Maine System (UMS) by the Superior Court (Kennebec County, Mullen, J. ). The court concluded that Diviney's tort claim was time barred by the Maine Tort Claims Act, because it was not filed within the statutory 180–day filing period pursuant to 14 M.R.S. § 8107 (2016), and that the statutory "good cause" justification for the delay in filing could not be demonstrated.
[¶ 2] On appeal, Diviney argues that the court erred (1) because the issue of good cause presented a disputed material fact not appropriate for resolution on summary judgment; (2) in its "good cause" determination applying the plain language of section 8107 to the facts in the record; and (3) by failing to interpret section 8107's filing period to commence from the date the "good cause" for delay has been removed.1 We affirm the judgment.
[¶ 3] The following facts are viewed in the light most favorable to Diviney—the party against whom summary judgment was entered. See Remmes v. Mark Travel Corp. , 2015 ME 63, ¶ 18, 116 A.3d 466.
[¶ 4] On January 17, 2014, Aleshia D. Diviney was injured when she slipped and fell on ice outside of her dormitory, located on the University of Southern Maine (USM) Gorham campus. On February 3, 2014, Diviney's father emailed USM's risk management office about his daughter's injury. He explained that his daughter sustained a broken leg, torn ligaments, and required surgery because of the injuries. He also stated that he hoped the University would assume some degree of responsibility, because the incident stemmed from maintenance of walks, steps, and parking areas on the campus.
[¶ 5] William Wells, Associate Vice President of Operations and Risk Management for USM, responded to the father's email on February 6, 2014. In his email Wells expressed his sympathy for Diviney, and requested that she file an incident report. He also inquired as to whether she intended to file a claim. Diviney's father responded on February 9, 2014, explaining that he and his daughter would not be involving legal counsel "because of ... [their] faith that the University would be willing to satisfy the medical and other related expenses ... related to this incident without the need for legal counsel."
[¶ 6] Wells did not respond to the father's email or acknowledge receipt of Diviney's incident report until March 18, 2014. He explained that "for whatever reason," USM had not received the previous correspondence or the incident report, but he assured the father that the University was not ignoring the situation. Between March 20 and March 28, 2014, Diviney's father and Wells continued to email about documentation needed for the investigation of the incident, including medical releases and Diviney's incident report.
[¶ 7] On March 28, 2014, Wells referred Diviney's claim to the University of Maine System's risk management department, which referred the case to John Glover at Cross Insurance.2 That same day, Glover attempted to reach Diviney by phone and email to request a recorded statement about the incident and her treatment. Sometime between March 28 and April 2, 2014, Glover spoke with Diviney by phone to confirm a date to take her recorded statement. During that phone call Glover "advised [Diviney] that although she would probably not recover much from her claim, she would probably recover something," and further stated that he would "get this worked out for [her]."3
[¶ 8] By April 2, 2014, Glover had interviewed Diviney and also attempted to reach a witness who was with Diviney at the time of her fall. Due to "a series of issues," however, Glover did not get a statement from that witness until May 5, 2014. The delay was due, in part, to Glover's time out of the office.
[¶ 9] Between March 28, 2014, and May 8, 2014, Glover emailed Diviney four times and received two emails from her. Glover also received a letter and two emails from Diviney's father and emailed him twice between April 10 and May 8, 2014. In a May 4, 2014, email, Diviney's father asked for an update on his daughter's case, at which time Glover advised that none could be provided until the statement could be taken from the witness who was with Diviney at the time of her fall.
[¶ 10] By letter dated May 14, 2014, Glover denied Diviney's claim and explained the reasons for doing so. At that point, there were sixty-three days remaining of the 180–day notice deadline. On October 31, 2014—well past the mid-July notice deadline and 170 days after Diviney's claim had been formally denied—Diviney, now represented by counsel, served a formal notice of claim pursuant to 14 M.R.S. § 8107.
[¶ 11] On September 14, 2015, Diviney filed a complaint in the Superior Court (Kennebec County) alleging premises liability against the University of Maine System, the University of Southern Maine, and the State of Maine.4 By answer dated September 30, 2015, UMS asserted several affirmative defenses, including noncompliance with the notice requirements of 14 M.R.S. § 8107, arguing that Diviney's notice was untimely. The UMS moved for summary judgment, asserting untimely notice on December 4, 2015. That same day, by agreement with Diviney, UMS filed a motion to stay deadlines associated with the case until the court ruled on the motion for summary judgment.
[¶ 12] On April 29, 2016, the court heard arguments on the motion. The court granted UMS's motion for summary judgment on May 17, 2016. The court concluded that the father's February 3, 2014, email did not comply with the notice requirements of the Maine Tort Claims Act; Diviney was unequivocally notified that her claim was denied with over sixty days remaining before the 180–day notice deadline; Diviney did not file notice satisfying the statutory requirements until after the 180–day deadline had passed; and Diviney could not show "good cause" to excuse her failure to timely file notice. Diviney brought this timely appeal. See M.R. App. P. 2(b)(3) ; 14 M.R.S. § 1851 (2016).
[¶ 13] Diviney argues that the trial court's grant of summary judgment was in error because the question of "good cause" justifying her filing of the notice outside the 180–day statutory filing period presented genuine issues of material fact, and further argues that the court erred in its application of the statute, 14 M.R.S. § 8107, to the facts in the record.
[¶ 14] We review the entry of summary judgment de novo for errors of law. See Brown v. Delta Tau Delta , 2015 ME 75, ¶¶ 8–9, 118 A.3d 789. We review the facts from the summary judgment record in the light most favorable to Diviney—the party against whom summary judgment was entered—to determine whether a genuine issue of material fact exists and whether UMS was entitled to judgment as a matter of law. See Remmes , 2015 ME 63, ¶ 18, 116 A.3d 466 ; Lockridge v. University of Maine Sys. , 597 F.3d 464, 469 (1st Cir. 2010). "When the defendant is the moving party, [it] must establish that there is no genuine dispute of fact and that the undisputed facts would entitle [it] to judgment as a matter of law." Estate of Cabatit v. Canders , 2014 ME 133, ¶ 8, 105 A.3d 439. "It then becomes the plaintiff's burden to make out the prima facie case and demonstrate that there are disputed facts." Id.
The statute defines "good cause" in the following manner:
"Good cause" as used in subsection 1 includes but is not limited to any cases in which any official of the governmental entity whose duties and authority include the settlement of tort claims or any tort liability insurer of the governmental entity makes direct oral or written contacts with the claimant or the claimant's personal representative or attorney, including payments to or on behalf of the claimant, that contain or imply a promise of coverage sufficient to cause a reasonable person to believe that the losses for which no timely notice claim is filed would be covered ....
[¶ 16] We have interpreted "good cause" to include situations where the plaintiff was unable to file a notice of claim or was "in some meaningful way prevented from learning of the information forming the basis of [her] complaint." Smith v. Voisine , 650 A.2d 1350, 1352 (Me. 1994). If "good cause" is shown for why notice reasonably could not have been filed within the 180–day filing period, notice may be filed within two years from when the cause of action accrued. 14 M.R.S. § 8110.
[¶ 17] "The good cause exception is interpreted narrowly since the Maine Tort Claims Act is a 'limited relaxation' of common-law sovereign immunity." Peters v. City of Westbrook , 2001 ME 179, ¶ 6, 787 A.2d 141. "The immunity exceptions are strictly construed so as to adhere to immunity as the general rule." Searle v. Town of Bucksport , 2010 ME 89, ¶ 9, 3 A.3d 390.
[¶ 18] Diviney argues that "good cause" presents a factual issue not proper for resolution on summary judgment and cites two Superior Court...
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