Vincent L. McKusick

In Burton v. Merrill, a client sued his former attorney for professional negligence after the attorney failed to file a counterclaim or aggressively defend against a city's enforcement action for illegal operation of a rooming house, resulting in the loss of the property. The jury found the attorney liable and awarded damages of approximately $50,000 on a general verdict. The Maine Supreme Court affirmed the judgment, holding that the evidence was sufficient to establish the elements of negligence, causation, and damages, and that the trial court did not err in its jury instructions or by refusing to direct a verdict on certain claims.

torts & liabilityproperty

In Paine v. Spottiswoode, homeowners sued their unlicensed designer, unlicensed engineers, and general contractor for negligence and breach of warranties after their custom-built house suffered extensive defects, including leaks and inadequate heating that rendered it uninhabitable and led to its sale at a loss. The Superior Court accepted a referee's report finding the contractor liable for multiple construction defects and awarding damages based on repair costs, with joint and several liability for some defects shared among defendants; it also rejected a cross-appeal seeking to extend joint liability to the designer. The Maine Supreme Court affirmed, holding that the referee's factual findings were supported by competent evidence, that the contractor could be held responsible for construction shortcomings even where design flaws contributed, that the cost-of-repair measure was appropriate, and that joint liability applied under the single-injury rule when defendants failed to prove apportionment. The cross-appeal was dismissed because the plaintiffs had not preserved the issue by objecting to the referee's report.

torts & liabilityprocedure

In Cameron v. Pepin, the parents of a young man seriously injured in a car accident sued the defendant driver for negligent infliction of emotional distress after they arrived at the hospital and witnessed their son's condition over the six days until his death. The trial court awarded the plaintiffs damages, but the Maine Supreme Judicial Court vacated the judgment. The court held that indirect victims like the parents, who were not present at the accident scene, cannot recover for NIED. It reaffirmed the three-factor foreseeability test from Culbert v. Sampson’s Supermarkets, requiring that a plaintiff be present at the scene, suffer distress from contemporaneously perceiving the accident, and be closely related to the victim, rejecting a broader pure-foreseeability standard that would allow recovery based solely on later observations of the victim's suffering.

torts & liability

In this case, plaintiff Jacques obtained a default judgment against attorney Mackey for legal malpractice after Mackey failed to timely file a wrongful discharge suit, then sought to reach and apply the proceeds of Mackey's legal malpractice insurance policy issued by defendant American Home Assurance Company under Maine's reach-and-apply statute. The Superior Court granted summary judgment to the insurer, and the Supreme Judicial Court affirmed. The court held that the insurer received constitutionally insufficient notice of the malpractice action, depriving it of a meaningful opportunity to defend as required by due process, and that the insurer had not clearly waived this right. Although the insurer had earlier received notice of a potential claim, it was not informed of the actual lawsuit until after the default judgment was entered. The court did not decide whether the statute applies to claims for purely economic loss from legal malpractice.

proceduretorts & liability

The case involved the Estate of Ronald Althenn seeking life insurance proceeds from his ex-wife Cynthia Althenn, alleging that Ronald had changed the beneficiary to the Estate or that Cynthia had agreed to convey the proceeds to the Estate or use them for their minor son's benefit. The Superior Court granted summary judgment to Cynthia, and the Maine Supreme Judicial Court affirmed. The court found no genuine issues of material fact because the beneficiary was never changed in accordance with the policy and statutory requirements, and there was no evidence that Cynthia knew about the policy or made any promises regarding the proceeds. The affidavits submitted by the Estate were insufficient to support its claims.

family lawpropertyprocedure

The case involved Thelma Bowen suing the Department of Human Services and her supervisor Dolores Bartley for sexual discrimination via hostile work environment harassment, retaliatory discharge, and related tort claims after resigning from her probationary position due to vulgar language and offensive conduct in the office. The Superior Court granted summary judgment to the defendants, and the Maine Supreme Court affirmed. The court reasoned that Bowen failed to show the offensive conduct occurred because of her sex, as it was used by and directed at both men and women; there was no evidence of retaliation for opposing discrimination; and the supervisor was immune from tort claims for discretionary supervisory decisions.

civil rightslabor & employmenttorts & liability