Wescott v. Allstate Ins.

• Decision Date: 18 January 1979
• Citation: 397 A.2d 156
• Parties: Dorothy WESCOTT v. ALLSTATE INSURANCE.
• Court: Maine Supreme Court

Page 156

397 A.2d 156

18 A.L.R.4th 229

Dorothy WESCOTT v. ALLSTATE INSURANCE.

Supreme Judicial Court of Maine.

Jan. 18, 1979.

Lewellyn R. Michaud (orally), Bangor, for plaintiff.

Berman, Berman & Simmons, P. A., by Gary Goldberg (orally), Jack H. Simmons, Lewiston, for defendant.

Before WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ., and DUFRESNE, A. R. J.

DUFRESNE, ¹ Active Retired Justice.

Dorothy Wescott, the plaintiff-appellant, appeals from a summary judgment granted by a Justice of the Superior Court in favor of the defendant-appellee, Allstate Insurance Company (Allstate). The sources in the record, upon which the trial Court rested its decision that there existed no genuine issue as to any material fact and that Allstate was entitled to a judgment as a matter of law, consisted of the pleadings in the case, interrogatories and answers thereto, a copy of the insurance policy issued by Allstate to the appellant, together with the affidavit of one James Murray, District Claims Manager of Allstate, given in support of the motion for summary judgment. For the purpose of testing the propriety of rendering summary judgment, we accept as true the following uncontroverted facts disclosed by the reference record. See Levesque v. Fraser Paper Limited, 159 Me. 131, 132, 189 A.2d 375, 376 (1963); Steeves v. Irwin, Me., 233 A.2d 126, 130 (1967).

On September 1, 1973, Dorothy Wescott, the appellant, was a passenger in an insured automobile owned and operated by one Helen W. Brissette, when the Brissette auto collided with an uninsured automobile driven by one Richard W. Heath. As a result of the accident, Ms. Wescott claims that she suffered such severe and painful injuries, including a fractured jaw, a fractured left elbow, a fractured left hip, a broken finger, that she is now permanently incapacitated by reason thereof. She further maintains that she sustained substantial losses of earnings and incurred considerable expense for medical and hospital care.

Ms. Wescott negotiated an out-of-court settlement with Brissette's insurer, Commercial Union Assurance Company (Commercial). Commercial paid the appellant $20,000.00, the full amount of coverage in the uninsured motorist part of its policy covering the Brissette automobile. ² As part of the settlement, plaintiff executed a release and trust agreement in favor of Commercial only, reserving her rights against any other person or organization. ³

Subsequent to the settlement with Commercial, Ms. Wescott sought additional indemnification for her injuries from her own automobile insurance carrier, Allstate, under the uninsured motorist coverage provided in her policy. Allstate turned down Ms. Wescott's claim for additional compensation. This led to the appellant's instant complaint brought against Allstate on August 30, 1974 in the Superior Court, Penobscot County, for the recovery of $20,000.00, the top amount of coverage under Allstate's uninsured motorist policy to Ms. Wescott. ⁴

After the filing of its amended answer and the use of discovery procedures, Allstate moved for summary judgment pursuant to Rule 56, M.R.Civ.P. The presiding Justice granted Allstate's motion and Ms. Wescott appeals from the ensuing summary judgment entered on March 22, 1976. We sustain the appeal.

Defects in prosecution of appeal

Initially, Allstate contends that its motion for dismissal of the appeal for procedural errors in its prosecution should be granted by this Court. We disagree.

The appeal was seasonably taken within 30 days of the entry of the summary judgment, since the notice of appeal was filed with the Superior Court on April 20, 1976. Rule 73(a), M.R.Civ.P. True, on June 16, 1976, the appellant mistakenly filed in the Law Court a motion for enlargement of time in which to file the designation of the contents of the record on appeal. This error was not rectified until June 21, 1976, when the motion for enlargement of time was filed in the Superior Court and granted by the Justice below on June 22, 1976. Contending that the Superior Court Justice had no jurisdiction to enlarge the time, as he did on June 22, 1976, Allstate sought to have the order vacated by letter to the Justice on June 25, 1976. The Justice denied the request on June 28, 1976. On motion and order under date of August 16, 1976 a second extension to August 30, 1976 was obtained and the designation was filed on the final day of this extension.

Rule 74(a), M.R.Civ.P., then, provided in pertinent part:

"Not later than 60 days after an appeal to the Law Court is taken, the appellant shall serve upon the appellee and file with the clerk a designation of the portions of the record, proceedings, and evidence to be contained in the record on appeal, unless the appellee has already served and filed a designation. In all cases the court in its discretion and with or without motion or notice may extend the time for serving and filing the designation, if its order for extension is made before the expiration of the period for serving and filing as originally prescribed or as extended by a previous order or by stipulation under Rule 76A(a)." (Emphasis supplied)

In this case, the sixtieth day following the filing of the notice of appeal fell on Saturday, June 19, 1976. Under Rule 6(a), M.R.Civ.P., the appellant could move for an extension of time through Monday, June 21, 1976. Although the appellant complied with the prescribed time period, the Superior Court failed to issue its order granting the motion until Tuesday, June 22, 1976.

It is apparent that the Superior Court acted improperly in granting the extension on a day beyond the permitted period of time under the rules. But the time transgression did not affect the validity of the appeal as it was not jurisdictional. And, we cannot agree with Allstate that this impropriety warrants dismissal of the appeal.

Rule 73(a), M.R.Civ.P., then, outlined the governing procedure for an appellee to follow in the event the appellant failed to abide by the applicable time limits for filing motions and other papers on appeal. It provided in pertinent part as follows:

"Failure of the appellant to take any of the further steps to secure the review of the judgment appealed from does not affect the validity of the appeal; but the appeal will be dismissed for appellant's failure to take any such further step within the time prescribed therefor unless the Law Court shall determine that exceptional circumstances excuse the failure and justice demands that the appeal be heard. The court on motion shall enter an order that the appeal be dismissed for such failure if the appellant does not within 10 days file with the court a motion seeking to be relieved from the consequences of such failure."

Allstate never addressed a motion for dismissal of the appeal at the Superior Court level pursuant to Rule 73(a), M.R.Civ.P. The Superior Court, and not the Law Court, had jurisdiction over the appeal at the time of this error, since it occurred prior to the transmission of the record to the Law Court. Indeed, Rule 74(p), M.R.Civ.P., then, provided in pertinent part:

"The clerk (of the Superior Court) shall thereupon transmit 12 copies of the record to the Clerk of the Law Court and furnish a copy of the record to counsel for each of the parties. The case shall be marked 'law' on the docket and no further action shall be taken thereon until certification of disposition thereof in the Law Court. The case shall be docketed in the Law Court upon receipt of the record on appeal."

See Isely v. Wilkins, Me., 253 A.2d 51, at 52 (1969), where we said that the vesting of jurisdiction in the Law Court under Rule 74(p) occurred only upon the filing of the record and designation of the case as "Law."

Should we sanction a competing procedure, contrary to the procedural requirements of Rule 73(a), M.R.Civ.P., permitting an appellee to address directly to the Law Court a motion for dismissal of an appeal for failure of the appellant to take any of the further steps procedurally required for review of the judgment appealed from, such as presented in the instant case by Allstate's motion to dismiss the appeal without previous action thereon at the trial level, we would be undermining the orderly procedures in the proper administration of justice promulgated by the Supreme Judicial Court. Thus, we hold that, in line with the mandatory directive to seek the just, speedy and inexpensive determination of every action as provided in Rule 1 of the Maine Rules of Civil Procedure, we must construe Rule 73(a), relating to the reference motion to dismiss an appeal for any breakdown in appellate procedures and requiring initial action thereon in the trial court, as the exclusive procedural device for remedial relief, save for exceptional circumstances meeting the "manifest error-serious injustice" standard. See Mandarelli v. McGovern, Me., 393 A.2d 533 (1978).

The same would be true respecting Allstate's objection to this appeal based on the appellant's failure to file a statement of points on appeal, as then required by Rule 74(d), M.R.Civ.P., when an appellant does not designate for inclusion the complete record and all the proceedings and evidence in the action. Absent exceptional circumstances, we need not consider on the merits Allstate's motion to dismiss the appellant's appeal.

Allstate, however, also asserts that, independently of any other procedural non-compliance with the rules of civil procedure, the appellant's tardy filing of her brief would warrant a dismissal of the appeal by the Law Court for failure of prosecution.

Rule 75, M.R.Civ.P., then read:

(a) "The appellant shall file his brief within 20 days after the date on which the record on appeal is docketed in the Law Court, the appellee shall file his brief within 20 days after service of the brief of the appellant, and the appellant may file a reply brief within 14 days after service of the brief of the appellee."

(c) "If an appellant...