Picher v. Roman Catholic Bishop of Portland

• Decision Date: 07 July 2009
• Docket Number: Docket: Ken 08-81.
• Parties: William PICHER v. The ROMAN CATHOLIC BISHOP OF PORTLAND et al.
• Court: Maine Supreme Court

974 A.2d 286

2009 ME 67

William PICHER v. The ROMAN CATHOLIC BISHOP OF PORTLAND et al.

Docket: Ken 08-81.

Supreme Judicial Court of Maine.

Argued: September 16, 2008.

Decided: July 7, 2009.

Sumner H. Lipman, Esq. Keith R. Varner, Esq. (orally), Walter F. McKee, Esq., Lipman, Katz & McKee, P.A., Augusta, ME, for William Picher.

Gerald F. Petrucelli, Esq. (orally), Bradford A. Pattershall, Esq., Petruccelli, Martin & Haddow, LLP, Portland, ME, for the Roman Catholic Bishop of Portland.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.

Majority: SAUFLEY, C.J., and LEVY, SILVER, MEAD, and GORMAN, JJ.

Dissent: CLIFFORD and ALEXANDER, JJ.

Concurrence: SAUFLEY, C.J., and LEVY, JJ.

SILVER, J.

[¶ 1] William Picher appeals from a judgment of the Superior Court (Kennebec County, Marden, J.) granting a summary judgment to the Roman Catholic Bishop of Portland on its affirmative defense of charitable immunity. Picher argues that we should abrogate the doctrine of charitable immunity for acts of negligence associated with the sexual abuse of a minor, and that we should not extend the doctrine to intentional torts. We hold that the doctrine should not be abrogated as to Picher's negligence claims because we see no basis for permitting charitable immunity as a defense to some types of negligence claims but not others. However, we also decline to interpret the relevant statute, 14 M.R.S. § 158 (2008),¹ to extend the reach of charitable immunity to intentional torts. We therefore vacate the judgment as to the intentional tort claim of fraudulent concealment but affirm the judgment as to the remaining claims.

I. BACKGROUND

[¶ 2] Picher brought this suit against a former priest, Raymond Melville, and the Bishop, based on sexual abuse of Picher by Melville when Picher was a minor in the late 1980s. Picher asserted claims against Melville for negligence, sexual assault and battery, invasion of privacy, intentional infliction of emotional distress, clergy malpractice, and breach of fiduciary duty. Melville defaulted. Picher asserts claims against the Bishop for negligent supervision, breach of fiduciary duty, canonical agency, and fraudulent concealment of facts.

[¶ 3] Picher alleges that the Bishop was on notice that Melville had abused a child before he was ordained as a priest and before he was assigned to the parish where the abuse of Picher occurred. Picher further alleges that the Bishop failed to report Melville to law enforcement officials and concealed Melville's propensities from parishioners and the public. The Bishop denies these allegations.

[¶ 4] The Bishop is a corporation sole.² See Fortin v. Roman Catholic Bishop of Portland, 2005 ME 57, ¶ 3 & n. 1, 871 A.2d 1208, 1212. It operates as a non-profit organization and owns, maintains, and operates multiple churches, schools, and other properties. It has no capital stock and no provision for making dividends or profits, and it derives most of its revenues from charitable sources, although parochial school tuition and fees are not considered one of its charitable sources of revenue.

[¶ 5] From July 1, 1986, to July 1, 1988, during the period when the alleged acts occurred, the Bishop was insured by Lloyd's of London pursuant to two consecutive policies, each of which contained an endorsement entitled "Sexual Misconduct Exclusion." This endorsement provides that "[s]exual or physical abuse or molestation of any person by the Assured, any employee of the Assured or any volunteer worker does not constitute personal injury within the terms of this policy and as such any claim arising, directly or indirectly, from the aforementioned is excluded."

[¶ 6] The Bishop moved for summary judgment based on its affirmative defense of charitable immunity. The court granted the Bishop's motion, holding that the Bishop qualifies as a charitable organization and has not waived its charitable immunity pursuant to 14 M.R.S. § 158 because it has no insurance coverage for the claims made by Picher. The court also held that the doctrine of charitable immunity covers both intentional and negligent torts. After a damages hearing, a final judgment was entered against Melville in the amount of $4,227,875. Picher appealed the grant of a summary judgment in favor of the Bishop.

II. DISCUSSION

A. Standard of Review

[¶ 7] We review a grant of a summary judgment de novo, considering "the evidence in the light most favorable to the party against whom judgment has been granted to decide whether the parties' statements of material facts and the referenced record material reveal a genuine issue of material fact." Brawn v. Oral Surgery Assocs., 2003 ME 11, ¶ 15, 819 A.2d 1014, 1022 (quotation marks omitted). "We will affirm a grant of summary judgment if the record reflects that there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law." Burdzel v. Sobus, 2000 ME 84, ¶ 6, 750 A.2d 573, 575. "A genuine issue of material fact exists when there is sufficient evidence to require a fact-finder to choose between competing versions of the truth at trial." Lever v. Acadia Hosp. Corp., 2004 ME 35, ¶ 2, 845 A.2d 1178, 1179. Interpretation of a statute is reviewed de novo. Ashe v. Enter. Rent-A-Car, 2003 ME 147, ¶ 7, 838 A.2d 1157, 1159.

[¶ 8] The Bishop asserts a charitable immunity defense as to Picher's claims for negligent supervision, breach of fiduciary duty, and fraudulent concealment. Because we treat the intentional tort claim of fraudulent concealment differently from the negligence claims, we discuss them separately, after we explain the history of the doctrine of charitable immunity.

B. History and Current Status of Charitable Immunity

[¶ 9] Picher does not explicitly argue that charitable immunity should be abrogated for all acts of negligence, but he does contend that it should be abrogated for acts of negligence in cases, such as this, involving the sexual abuse of a minor. The policy rationale supporting charitable immunity is the protection of charitable funds. See Jensen v. Me. Eye & Ear Infirmary, 107 Me. 408, 410-11, 78 A. 898, 899 (1910). Although the rationale itself may be challenged as outdated, as we discuss below, we would need persuasive grounds to hold that charitable funds should be protected against certain types of negligence claims but not others. Without any such grounds, we decline Picher's invitation and do not address the issue further.

[¶ 10] Picher has, however, directly challenged the application of charitable immunity to all intentional torts, an issue we have not previously had occasion to consider. Our decision not to extend the doctrine to intentional torts is based on three aspects of its history: (1) charitable immunity is discredited and has been abandoned in the majority of jurisdictions; (2) the Legislature did not intend to expand the scope of the common law doctrine of charitable immunity when it enacted section 158; and (3) we have previously held that we would maintain, but not expand, the doctrine, and we would leave it to the Legislature to decide whether to abolish it. We address each of these in turn.

1. Charitable Immunity Is a Discredited Doctrine

[¶ 11] This Court introduced charitable immunity as a judicial doctrine almost one hundred years ago and adopted it as an affirmative defense available to non-profit organizations to bar negligence claims. Jensen, 107 Me. at 410-11, 78 A. at 899. In Mendall v. Pleasant Mountain Ski Development, Inc., 159 Me. 285, 290, 191 A.2d 633, 636 (1963), we acknowledged, for historical purposes, the two policy justifications for charitable immunity that had been advanced in Jensen. These were "(1) that funds donated for charitable purposes are held in trust to be used exclusively for those purposes, and (2) that to permit the invasion of these funds to satisfy tort claims would destroy the sources of charitable support upon which the enterprise depends." Id. We upheld charitable immunity in Mendall, not because we concluded that these policy reasons were sound, but rather because non-profit organizations had relied upon charitable immunity for so long that abrogation of the doctrine would be far-reaching and should be undertaken by the Legislature. Id.

[¶ 12] Since Mendall, we have explicitly acknowledged that the rationale for charitable immunity has been severely criticized. Thompson v. Mercy Hosp., 483 A.2d 706, 708 (Me.1984); Rhoda v. Aroostook Gen. Hosp., 226 A.2d 530, 532 (Me. 1967). This criticism has been explained in the Restatement (Second) of Torts:

[T]here has been resort to ideas of "public policy" for the encouragement of charities and mention of the fear that they may be stifled if donors are discouraged from making gifts because their money may go to pay tort claims. The development of liability insurance has made it quite unlikely that donors would fail to recognize it as a legitimate expense of operation. In fact, all of the supposed reasons for the immunity fail when the charity can insure against liability.

Restatement (Second) of Torts § 895E cmt. c (1979).

[¶ 13] A review of the history of charitable immunity and its widespread rejection in other jurisdictions confirms that it remains a doctrine in general disrepute. Charitable immunity had a precarious start in this country after it had been tried and rejected in Great Britain. It was first adopted in the United States in McDonald v. Massachusetts General Hospital, 120 Mass. 432 (1876). The court relied on a line of English cases, originating in 1846 from The Feoffes of Heriot's Hospital v. Ross, (1846) 8 Eng. Rep. 1508 (H.L.). See Restatement (Second) of Torts § 895E cmt. b (1979) (discussing the history of charitable immunity). However, even before McDonald was decided, this line of cases had already been repudiated. See id. (citing Mersey Docks v. Gibbs, (1866) 11 Eng. Rep. 1500 (H.L.)). Eventually, however, most states recognized the doctrine....