Hawkes v. Commercial Union Ins. Co.

• Decision Date: 16 January 2001
• Citation: 764 A.2d 258,2001 ME 8
• Parties: Karl HAWKES v. COMMERCIAL UNION INSURANCE COMPANY.
• Court: Maine Supreme Court

764 A.2d 258

2001 ME 8

Karl HAWKES v. COMMERCIAL UNION INSURANCE COMPANY.

Supreme Judicial Court of Maine.

Argued September 8, 2000.

Decided January 16, 2001.

James M. Fongemie, Ralph L. Tucker, McTeague, Higbee, Case, Cohen, Whiteny & Toker, P.A., Topsham, for plaintiff.

Mark G. Lavoie, Christopher C. Taintor, Aaron K. Baltes, Norman, Hanson & De-Troy, LLC, Portland, for Commercial Union.

James W. Strong, Thomaston, for defendant.

Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

CALKINS, J.

[¶ 1] Commercial Union Insurance Company appeals from a judgment entered in the Superior Court (Cumberland County, Warren, J.) denying its motion for summary judgment. Commercial Union argues that Karl Hawkes' claims are barred by the immunity and exclusivity provisions of the Workers' Compensation Act, 39-A M.R.S.A. §§ 104, 408 (Pamph.2000), or, alternatively, by settlement documents. We agree with the Superior Court that the Workers' Compensation Act does not foreclose Hawkes' tort claims against Commercial Union. We also affirm that portion of the Superior Court's order denying summary judgment on the basis of the settlement documents, because we agree that the three documents, read together, are ambiguous.

[¶ 2] Hawkes brought this action against Commercial Union, Private Investigation Services of Maine and New England, Inc., (PIS), and Steven Handcock. Commercial Union was the workers' compensation insurer for Hawkes' former employer, Giberson Buick-Pontiac. Hawkes suffered a workplace injury to his back on April 16, 1984, and Commercial Union paid weekly workers' compensation benefits to Hawkes from 1984 until 1996. In 1997 Hawkes settled his workers' compensation claim against Commercial Union and Giberson Buick-Pontiac and received a lump sum payment.

[¶ 3] In 1992, while Hawkes was receiving weekly workers' compensation benefits, Commercial Union hired PIS to investigate Hawkes' continuing incapacity. Steven Handcock was a private investigator assigned by PIS to investigate Hawkes. Handcock visited Hawkes' home under false pretenses on two occasions in 1992. During the first visit, Handcock said he was building a house and was interested in the layout of Hawkes' home. Hawkes gave Handcock a tour of the house, and Handcock asked if he could return at a later date and bring his wife. Handcock returned later with a woman. Hawkes invited the couple into his house and showed them receipts from contractors who had worked on his house. Handcock learned that Hawkes had hired contractors to construct his home, but had planted some trees and bushes on his own. In May 1993, Handcock observed and videotaped Hawkes painting, shoveling manure, and mowing his lawn with a riding lawnmower. Hawkes did not learn that he had been under investigation until 1994 when Commercial Union sent surveillance photos and documents to his attorney prior to a workers' compensation hearing. Hawkes alleges that he continues to be stalked by Commercial Union and that the surveillance activities caused him to suffer from various symptoms and from a delusional disorder which significantly impairs his enjoyment of life.

[¶ 4] On June 5, 1997, Hawkes signed a lump sum settlement document, a release and resignation document, and an affidavit regarding the settlement. The lump sum settlement document, referring to the April 1984 back injury, states in pertinent part:

When I receive the amount shown above and this settlement is approved by the hearing officer, I release the employer and insurer named above from all further liability for this injury.

The release and resignation document provides in relevant part:

I, Karl Hawkes, for the sole consideration of $179,000.00 ... release and forever discharge ... [Commercial Union]... from all claims ... under the Workers' Compensation Act ... which I now have or which may hereafter accrue, on account of all injuries, personal or otherwise, resulting from my employment with Giberson Buick at any time, including, but not limited to, any claims resulting from an injury on or about April 16, 1984, or any other gradual or specific injury date on which my employer was insured by [Commercial Union].... Hawkes' affidavit, consisting of twelve paragraphs, states that he makes the affidavit in support of his petition for the lump sum settlement and:

I further understand that upon approval of this lump sum settlement, I will have no further right to make any claims for wage compensation, for medical or medically related expenses, for permanent impairment, for vocational rehabilitation, for discrimination, or any other claim under the Workers' Compensation Act.

Hawkes also states in his affidavit:

I ... fully understand, that upon approval of my lump sum petition by the Workers' Compensation Commission, I will no longer be able to make any claim against ... [Commercial Union].

Commercial Union promptly paid the settlement amount.

[¶ 5] Hawkes alleges that the three defendants intruded on his privacy, committed trespass, and intentionally inflicted emotional distress.¹ Commercial Union moved for summary judgment contending that it is immune from suit because of the exclusivity and immunity provisions of the Workers' Compensation Act. See 39-A M.R.S.A. §§ 104, 408. It also argued that it is entitled to summary judgment because Hawkes released it from all liability in the lump sum settlement. The Superior Court denied summary judgment determining that the Workers' Compensation Act does not bar Hawkes' claims against Commercial Union. The court also held that the three lump sum settlement documents are ambiguous and do not appear to cover common law claims. Commercial Union appeals from the denial of summary judgment.²

I. APPLICABILITY OF FINAL JUDGMENT RULE TO WORKERS' COMPENSATION IMMUNITY AND EXCLUSIVITY DEFENSE

[¶ 6] The first issue is whether Commercial Union may appeal from the denial of its summary judgment motion. We have held that the denial of an employer's motion for summary judgment, based on a claim of immunity pursuant to the exclusivity portion of the Workers' Compensation Act, is immediately reviewable. See Hebert v. Int'l Paper Co., 638 A.2d 1161, 1162 (Me.1994)

. The immunity provision of the Workers' Compensation Act confers immunity from suit which "is effectively lost if a case is erroneously permitted to go to trial." Smith v. Yankee Constr. Corp., 625 A.2d 904, 906 (Me. 1993) (citation and quotation omitted). Commercial Union is in the same position in this case as the employer was in the Hebert case, and we conclude that Commercial Union is entitled to appeal immediately from the denial of its summary judgment motion with regard to its claim of immunity and exclusivity pursuant to the Workers' Compensation Act.

II. IMMUNITY AND EXCLUSIVITY PROVISIONS OF WORKERS' COMPENSATION ACT

[¶ 7] The immunity and exclusivity provisions of the Workers' Compensation Act generally provide that employers are exempt from civil actions for "personal injuries sustained by an employee arising out of and in the course of employment," 39-A M.R.S.A. § 104, and that employees who have secured compensation under the Act are deemed to have waived any common law action against the employer, 39-A M.R.S.A. § 408.³ The former provision is considered to be the immunity provision, and the latter is the exclusivity provision. Because of the cross-reference in section 408 to section 104, the provision are interrelated and, for the purposes of this case, coextensive. In the context of this case the term "employer" includes the insurer. See 39-A M.R.S.A. § 102(12) (Pamph.2000).⁴

[¶ 8] When we examine whether the defense of immunity is available to an employer or an insurer, "we look to the gist of the action and the nature of the damages sought to determine whether the claim for injury is excluded" by the exclusivity provision. Cole v. Chandler, 2000 ME 104, ¶ 13, 752 A.2d 1189, 1196. Personal injuries that arise out of and in the course of employment are covered by the Workers' Compensation Act, and insurers are immune from liability for such injuries. See id. ¶ 9, 752 A.2d at 1195. To come within the coverage of the Act, an injury must be "sufficiently work-related, so it can be said to have been suffered both while and because the employee was at work." Knox v. Combined Ins. Co. of Am., 542 A.2d 363, 366 (Me.1988) (citation, quotation, and emphasis omitted).

A. Nature of the Injury

[¶ 9] Because only personal injuries come within the Act, we first look to the nature of the injury suffered by Hawkes to determine if it is a personal injury. Following the trial court's decision on summary judgment, the claims remaining against Commercial Union are trespass to property, intrusion of privacy, and intentional infliction of emotional distress. The last claim is for a personal injury. In Cole we noted that we have previously held that mental injuries are personal injuries. See Cole, 2000 ME 104, ¶ 13,

752 A.2d at 1196.

[¶ 10] Trespass, however, is not a personal injury; rather, an action for trespass seeks recompense for damages to property. "Trespass protects possession of land." JACK H. SIMMONS, ET AL., MAINE TORT LAW 77 (1999). The Workers' Compensation Act is not applicable to Hawkes' trespass claim.

[¶ 11] Intrusion of privacy, a tort which we adopted in Estate of Berthiaume v. Pratt, 365 A.2d 792, 794-95 (Me.1976), is a claim that is "broad enough to include recovery for economic injuries, as well as mental or physical injuries." Cole, 2000 ME 104, ¶ 13, 752 A.2d at 1196. Insofar as it covers economic injuries, intrusion of privacy is not a personal injury and not within the ambit of the Workers' Compensation Act. Because neither trespass nor economic injuries from intrusion of privacy are personal injuries, Hawkes' action for damages for these two torts is not barred by the exclusivity provision of the Workers' Compensation Act.

B. Arising out of and in the Course of...