Automobile Insurance SubrogationAutomobile Total Loss ThresholdsDeductible ReimbursementDiminution of ValueFirst Come, First Served: Subrogating Multiple Claims in Excess of Policy LimitsFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerLaws Regarding using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSlower Traffic Keep RightSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsContributory Negligence/Comparative FaultDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
Automobile Total Loss Thresholds
Total Loss Formula (TLF)
Vehicle is “salvage” when insurer declares it a total loss or salvage title is issued. Owner transfers vehicle to insurer due to damage or owner determines it has no marketable value. 29-A M.R.S. § 602(19).
Automobile and Property: No applicable statute, Administrative Code provision or case law exists.
Diminution of Value
First Party: An insurer’s liability for a loss under the policy extends only to the loss that can be repaired as that term is commonly understood. Because diminution in value is a loss that cannot be repaired, an ordinary person would reasonably conclude that a claim for diminished value is not covered by the policy. No coverage for DV because it is a loss that cannot be repaired, the principle being that a value that cannot be restored is uninsurable (e.g., akin to the sentimental value of a family heirloom). Hall v. Acadia Ins. Co., 801 A.2d 993 (Me. 2002). An owner or subrogated carrier may recover the difference in the value of auto before and after the accident. However, an auto insurance policy, which obligates the insurer to pay lesser of either actual cash value of vehicle at time of loss or amount necessary to repair or replace vehicle, does not mandate liability for diminution in vehicle’s value due to accident despite repair, given that policy’s use of term “repair” was unambiguous, and such diminution was not loss that could be repaired. Collins v. Kelley, 179 A. 65 (Me. 1935).
Third Party: No court decisions regarding recovery allowed for diminution in value of a damaged vehicle in a third-party claim.
First Come, First Served: Subrogating Multiple Claims in Excess of Policy Limits
Under Maine’s Unfair Claims Settlement Practices Act (UCSPA), an insurer, absent good cause, must pay claims clearly due even though other claims from the same incident are open to dispute, and even though litigation might be pending. Me. Rev. Stat. Ann. Tit. 24-A, § 2436; Rankin v. Allstate Ins. Co., 336 F.3d 8 (1st Cir. 2003).
Funeral Procession Traffic Laws
There are no state laws governing funeral processions.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Contributory negligence of driver is not imputed to owner seeking to recover from tortfeasor for property damage to vehicle. Tibbits v. Harbach, 198 A. 610 (Me. 1938). However, the opposite is true if the driver was operating the vehicle as the agent of the owner. Robinson v. Warren, 177 A. 237 (Me. 1935).
Vicarious Liability/Family Purpose Doctrine: Maine has three statutes which impose joint and several liability for entrustment of vehicles as follows (1) permissive user is a minor, Tit. 29, § 1651; (2) person in business of renting vehicles jointly and severally liable with driver, Tit. 29, § 1652; and (3) owner allows impaired person to drive (codifies common law negligent entrustment) Tit. 29, § 1653.
Maine does not recognize the Family Purpose Doctrine. Pelletier v. Mellon Bank, N.A., 485 A.2d 1002 (Me. 1985).
Sponsor Liability for Minor’s Driving: 29-A M.R.S.A. § 1651: An owner who knowingly permits a minor to operate that owner’s vehicle on a public way is jointly and severally liable with that minor for damages caused by the negligence of the minor in operating that vehicle.
14 M.R.S.A § 304: Parents are liable for willful/malicious damage to person or property.
Laws Regarding using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: Drivers who hold an instruction permit or are under 18 may not operate a vehicle and a cell phone. 29-A M.R.S.A. § 1311
No person may operate a motor vehicle while engaging in text messaging. 29-A M.R.S.A. § 2119
Other Prohibitions: No Applicable Laws.
Loss Of Use
Loss of Use: Yes. However, damages are limited to rental costs of a replacement vehicle, and for a reasonable amount of time (case law supports 30 days for a commercial vehicle). 14 M.S.R.A. § 1454; Flynn Const. Co. v. Poulin, 570 A.2d 1200 (Me. 1990). No case law information regarding whether a rental vehicle must actually be rented in order to use a rental value as a loss of use calculation. Reasonable rental costs for loss of use are recoverable even on destroyed vehicles. Flynn Const. Co. v. Poulin, supra.
Lost Profits: No case law or statutory support for lost profits as a measure of loss of use damages.
Med Pay/PIP Subrogation
Med Pay: $2,000 in Med Pay coverage required. 29-M.R.S.A. § 2910-A. Limited subro allowed, less a prorated portion of recovery costs. 24-A M.R.S.A. § 2910-A. Subro clause must be in policy and must have insured’s prior written approval. York Ins. Group of Maine v. Van Hall, 704 A.2d 366 (Me. 1997).
PIP: Coverage not applicable.
Made Whole: Applies only when legislatively-mandated coverage is reduced by subrogation rights such as UM, PIP and/or no-fault. Wescott v. Allstate Ins. Co., 397 A.2d 156 (Me. 1979).
Statute of Limitations: The six (6) year personal injury statute of limitations runs from the date of insured’s accident. 16 M.R.S.A. § 752 (2001).
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: N/A
Common Law Rule: A vehicle owner will not be held liable when a vehicle is stolen by a thief and causes injury to a third party unless the negligent act of a third person should have been foreseen. Maine Courts have held that the proximate cause of the injury to a third party was the willful and illegal act of the thief or thieves, over whom the vehicle owner had no control, and for whose act he was not responsible. Curtis v. Jacobson, 54 A.2d 520 (1947).
Payment of Sales Tax After Vehicle Total Loss
First-Party Claims: “All contracts of motor vehicle casualty insurance … shall provide coverage for the value of the sales tax credit that would have been available upon trade thereof at the highest book value at the time of loss or destruction of the insured vehicle.” 24-A M.R.S.A. § 2907.
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax.
Pedestrian and Crosswalk Laws
29-A M.R.S.A. § 2056: When traffic control devices are not in operation, vehicle must yield to pedestrian. Even if pedestrian is not in crosswalk, vehicle must exercise due care to avoid pedestrians and exercise proper caution upon seeing any obviously confused, incapacitated, or intoxicated person.
29-A M.R.S.A. § 2056: Pedestrians must not cross diagonally, must yield to vehicles when crossing outside crosswalk, must use crosswalk at intersections with traffic control devices, and must not cross directly in front of vehicle if vehicle does not have time to stop.
Summary: Contributory negligence of pedestrian struck by vehicle outside crosswalk is a question for the jury. Drigotas v. Doyle, 85 F.Supp. 908 (D.C. Me. 1949).
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: Recovery of physical damage and loss of use are not prohibited or otherwise regulated. Terms of rental agreement control. Collision Damage Waivers not regulated.
Recovery From Third-Party: Damages are limited to rental costs of a replacement vehicle, and for a reasonable amount of time (case law supports 30 days for a commercial vehicle). 14 M.S.R.A. § 1454; Flynn Const. Co. v. Poulin, 570 A.2d 1200 (Me. 1990). No case law or statutory support for lost profits as a measure of loss of use damages.
Rental Car Company’s Liability Insurance Primary or Excess
Summary: A car rental company and the renter are both jointly and severally liable for any damage or injuries caused by the negligence of the renter or a permissive driver. Me. Stat. 29-A § 1652. However, this statute is preempted by the Graves Amendment. 49 U.S.C. § 30106(b). A personal auto policy must provide coverage for damage to a covered rental vehicle. Me. Stat. 24-A § 2927. In Enterprise Rent-A-Car Co. of Boston, LLC v. Maynard, 2012 WL 1681970 (D. Me.2012), Maynard rented car from Enterprise, declined supplemental liability insurance, and agreed in the rental contract to indemnify Enterprise from all losses. Maynard allowed Scotty Beausejour to drive the vehicle and Beausejour struck and injured Thomas Webster. Webster sued Beausejour and also demanded payment from Enterprise, who assumed the defense of the case. Enterprise demanded a defense and indemnity from Maynard, who had no other valid and collectible insurance. Enterprise settled with Webster for $260,000, after incurring $17,401.67 in attorneys’ fees. Enterprise then sought indemnity from Maynard and filed a Motion for Summary Judgment arguing that the simple rental contract required Maynard to indemnify it. Maynard claimed Enterprises’ settlement was made as a “volunteer” because they were not liable to Webster, but Enterprise claimed it was liable because under § 1611 it was self-insured. Maynard also argues that the rental contract was unconscionable. The federal judge ruled that even though the contract required Maynard to reimburse Enterprise, Enterprise must have “incurred” the loss in order to be reimbursed. Section 1652 doesn’t do that because it is preempted by the Graves Amendment.
Slower Traffic Keep Right
Statute: 29-A M.R.S.A. § 2053(2), 29-A M.R.S.A. § 2052 (6) and 29-A M.R.S.A. § 2070.
Summary: An operator of a vehicle moving slowly shall keep the vehicle as close as practicable to the right-hand boundary of the public way and allow faster moving vehicles reasonably free passage to the left. Where the speed limit is at least 65 MPH, motorists must keep right except to pass. An operator driving on a limited-access way with a speed limit of 65 MPH or more is restricted to the right-hand lane and may use adjacent lanes for overtaking and passing another vehicle but must return to the right-hand lane at the earliest opportunity. This requirement does not apply to an authorized emergency vehicle, or to a vehicle otherwise directed by posted signs, a law enforcement officer, or a highway maintenance crew. Except when passing on the right is permitted, the operator of passed vehicle, shall give way to the right in favor of the passing vehicle upon audible signal.
Sudden Medical Emergencies While Driving
Sudden Emergency Doctrine. One must act as an ordinarily prudent man might under the same or similar circumstances. However, no cases using the sudden emergency defense for a medical emergency. Smith v. Joe’s Sanitary Mkt., 169 A. 900 (Me. 1933).
No cases using the sudden emergency defense for a medical emergency.
Suspension of Drivers’ Licenses
Administrative Suspension: Thirty (30) days after receipt of an abstract of an adjudication of a violation of the financial responsibility law, the Secretary of State will suspend the driver’s license of that person. 29-A Me. Rev. Stat. Ann. § 1603(1). License will remain suspended until person can provide proof of financial responsibility. 29-A Me. Rev. Stat. Ann. § 1603(1).
Judgment: Upon receipt of a judgment against the owner or operator of a vehicle involved in an accident, the Secretary will immediately suspend the driver’s license of the judgment debtor. 29-A Me. Rev. Stat. Ann. § 1603(7). Suspension remains in effect until the owner or operator has obtained a written release, a discharge in bankruptcy or a judgment of no liability, has filed an installment payment of judgment agreement, or has fully satisfied the judgment. 29-A Me. Rev. Stat. Ann. § 1603.
Contact Information: State of Maine, Dept. of the Secretary of State, Bureau of Motor Vehicles, 29 State House Station, Augusta, ME 04333-0029, (207) 624-9000, http://www.maine.gov/sos/bmv/.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Summary: Insurers are not required to use OEM parts on used vehicles. The insured has the final choice as to which parts will be used to fix their vehicle, but the insurer is not obligated to pay for the more expensive OEM parts; the insured must pay the difference. In addition, replacing old parts with new is considered “betterment” by the Maine Department of Professional and Financial Regulation, as the insured is put in a better position after the repair than they were to begin with, and companies can deduct for this. As an example, consider a vehicle with 75,000 miles that is involved in an accident. Because of the accident damage, the transmission must be replaced. Assuming the standard life of a transmission is 150,000, replacing the damaged transmission with a new one is a betterment of 50%, thus an insurer may only pay for 50% of the cost of the new transmission.
Federal , State, and Local Governmental Entities
Municipal/County/Local Governmental Immunity and Tort Liability
Maine Tort Claims Act: M.R.S.A. Tit. 14, §§ 8101 – 8118 (1977). Except as otherwise provided in the statutes, all governmental entities are immune from suit on any and all tort claims seeking recovery of damages. If immunity is removed by the Tort Claims Act, a claim for damages must be brought subject to the limitations contained in the Act. M.R.S.A. Tit. 14, § 8103. “Governmental entity” political subdivisions. “Political subdivision” includes any city, town, or county. M.R.S.A. Tit. 14, § 8102(2)(3).
Notice Deadlines: Every claim against a governmental entity or its employees is forever barred unless an action therein is begun within two (2) years after the cause of action accrues. M.R.S.A. Tit. 14, § 8110. Written notice shall be filed within 180 days after any claim or cause. M.R.S.A. Tit. 14, § 8107.
Claims/Actions Allowed: There are four exceptions to governmental immunity. A governmental entity is liable for its negligent acts or omissions with regard to: (1) ownership, maintenance or use of motor vehicle, aircraft, or similar equipment; (2) construction, cleaning or repair of any highway, sidewalk, parking area, bridge, including street signs, traffic lights, guardrails; (3) discharge of pollutants; and (4) Public buildings/land: construction, maintenance, ownership or use of unimproved land, historic sites, or land, buildings, structures or facilities designed for use by public in connection with outdoor recreation. M.R.S.A. Tit. 14, § 8104-A.
Comments/Exceptions: A governmental entity is not liable for any claim which results from: (1) legislative acts; (2) judicial acts; and (3) discretionary acts (except if the act involves operating a motor vehicle). See M.R.S.A. Tit. 14, § 8104-B for more exceptions. Four-part test for discretionary act: (1) Does it involve policy? (2) Is it essential to the realization that policy? (3) Does act require basic policy evaluation, judgment, and expertise? (4) Does municipality possess the lawful authority and duty to do or make the decision? Darling v. Augusta Mental Health Inst., 535 A.2d 421 (Me. 1987). Governmental entity not liable for any defect, lack of repair or lack of sufficient railing in any highway, town way, sidewalk, parking area, etc. M.R.S.A. Tit. 14, § 8104-A(4).
Damage Caps: $400,000 per single occurrence. M.R.S.A. Tit. 14, § 8105. Except as otherwise provided, personal liability of a governmental employee shall be subject to a limit of $10,000 for any such claims arising out of a single occurrence. M.R.S.A. Tit. 14, § 8104-D. No judgment against governmental entity shall include punitive damages. M.R.S.A. Tit. 14, § 8105. If governmental entity immune but covered by insurance, it is liable (immunity waived) up to the limits of the insurance coverage. M.R.S.A. Tit. 14, § 8116.
State Sovereign Immunity And Tort Liability
Tort Claims Act: Maine Tort Claims Act. M.R.S.A., Tit. 14, §§ 8101 – 8118 (1977). Except as otherwise provided in the statutes, all governmental entities are immune from suit on any and all tort claims seeking recovery of damages. If immunity is removed by the Tort Claims Act, a claim for damages must be brought subject to the limitations contained in the Act. M.R.S.A., Tit. 14, § 8103.
Notice Deadlines: Every claim against a governmental entity or its employees is forever barred unless an action therein is begun within two years after the cause of action accrues. M.R.S.A., Tit. 14, § 8110. Written notice shall be filed within 180 days after any claim or cause. M.R.S.A., Tit. 14, § 8107.
Claims/Actions Allowed: A governmental entity is liable for its negligent acts or omissions in its ownership, maintenance or operation of:
(1) motor vehicle;
(2) unimproved land; and
(3) land, buildings, structures, facilities or equipment designed for use primarily by the public.
See M.R.S.A., Tit. 14, § 8104-A.
Comments/Exceptions: Except as otherwise expressly provided by statute, all governmental entities shall be immune from suit on any and all tort claims. Me. Rev. Stat. Tit. 14, § 8103.
A governmental entity is not liable for any claim which results from:
(1) legislative acts;
(2) judicial acts;
(3) discretionary acts (except if the act involves operating a motor vehicle).
See M.R.S.A., Tit. 14, § 8104-B for more exceptions.
Damage Caps: $400,000 per single occurrence. M.R.S.A., Tit. 14, § 8105. Except as otherwise provided, personal liability of an employee is limited to $10,000 for any such claims arising out of a single occurrence. M.R.S.A., Tit. 14, § 8104-D. No judgment against governmental entity shall include punitive damages. M.R.S.A., Tit. 14, § 8105.
General Tort Laws/Statutes
Modified Joint and Several Liability. Defendants are jointly and severally liable for total amount of judgment to the plaintiff. 14 M.R.S.A. § 156-A; Peerless Div. v. United States Special Hydraulic Cylinders Corp., 742 A.2d 906 (Me. 1999).
Joint tortfeasors have a right to contribution which may be enforced through a separate action. It is an equitable right, founded on the principles of natural justice, as opposed to a statutory right. 14 M.R.S.A. § 156-A; Otis Elevator Co. v. F.W. Cunningham & Sons, 454 A.2d 335 (Me. 1983).
Contribution actions brought within a reasonable period of time not subject to affirmative defense of laches for statute of limitations.
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 50% Bar. Damaged party cannot recover if it is 50% or more at fault. If 49% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Damages attributed to defendants will be reduced by plaintiff’s negligence. 14 M.R.S.A. § 156.
Dog Bite Laws
Dog owner will be liable for damages which occurred when victim was not on the owner’s/keeper’s premises. Me. Rev. Stat. Ann. § 3961.
Economic Loss Doctrine
Majority Rule. Maine strictly adheres to the ELD. Oceanside at Pine Point Condominiums v. Peachtree Doors, Inc., 659 A.2d 267 (Me. 1995). With regard to component parts, Maine follows the “Integrated Products Rule”, which is premised on the view that one must look to the product purchased or bargained for by the plaintiff rather than to the particular product sold by the defendant. Fireman’s Fund v. Childs, 52 F.Supp.2d 139 (D. Me. 1999). The relevant product is the product as it is viewed from the purchaser’s prospective. Maine includes service contracts (not including fiduciary relationships) within the purview of the ELD. Maine Rubber Int’l v. Environmental Mgmt. Group, 298 F.Supp.2d 133 (D. Me. 2004). Maine applies the “Integrated Product Rule” to the “other property” exception to the ELD. Childs, supra.
Willful Misconduct. Parents liable for willful/malicious damage to person or property. 14 M.R.S.A § 304.
Minor’s Driving. Any owner who allows a minor to operate their vehicle will be jointly and severally liable for any damage resulting from minor’s negligence. 29-A M.R.S.A. § 1651.
The limit of liability is $800.00. Child must be between 7 and 17.
Tort of Spoliation: The Maine Law Court has apparently never recognized such a cause of action, for spoliation of evidence. Gagne v. D.E. Jonsen, Inc., 298 F.Supp.2d 145, 147 (D. Me. 2003); citing Butler v. Mooers, 2001 WL 1708836 (Me. Super., June 13, 2001), at 1. In addition, federal courts sitting in Maine have identified spoliation as a doctrine intended “to rectify any prejudice the non-offending party may have suffered as a result of the loss of evidence and to deter any future conduct, particularly deliberate conduct, leading to such loss of evidence.” Driggin v. American Sec. Alarm Co., 141 F.Supp.2d 113, 120 (D. Me. 2000).
Sanctions: The remedy for spoliation of evidence is sanctions, including “dismissal of the case, the exclusion of evidence, or a jury instruction on the spoliation inference.” Id. This view of the doctrine is not consistent with the existence of an independent cause of action arising out of such deliberate conduct. Rather, the injured party may seek sanctions that will affect its claims or defenses. Pelletier v. Magnusson, 195 F.Supp.2d 214, 233-37 (D. Me. 2002); Elwell v. Conair, Inc., 145 F.Supp.2d 79, 87-88 (D. Me. 2001).
Statute of Limitations
Personal Property6 Years14 M.R.S.A. § 752
Personal Injury/Death6 Years14 M.R.S.A. § 752
Personal Injury/Wrongful Death2 Years18-A M.R.S.A. § 2-804(b)
Personal Injury/Medical Malpractice3 Years24 M.R.S.A. § 2902
Breach of Contract/Written6 Years12 M.R.S.A. § 752
Breach of Contract/Oral6 Years12 M.R.S.A. § 752
Breach of Contract/Sale of Goods4 Years11 M.R.S.A. § 2-725
Statute of Repose/ProductsN/AN/A
Statute of Repose/Real Property10/4 Years14 M.R.S.A. § 752-A*
Breach of Warranty/U.C.C./Personal Injury6 Years14 M.R.S.A. § 752
Breach of Warranty/U.C.C./Property Damage4 Years11 M.R.S.A. § 725
Workers’ Comp Third Party Case6 YearsMe. Rev. Stat. Ann. Tit. 39-A § 107
Strict Product Liability6 Years14 M.R.S.A. § 752
Statute of Limitations Exceptions
*10 Years after “substantial completion” of the project or services rendered, but no more than 4 Years after discovery of malpractice or negligence of architect or engineer. 14 M.R.S.A. §752-A.
Health Insurance Subrogation
Health and Disability Insurance
Statute of Limitations: 6 Years (Unless Exception Applies). 14 M.R.S.A. § 752. Wrongful Death: 2 Years. 18-A M.R.S.A. § 2-804(b). Medical Malpractice: 3 Years. 24 M.R.S.A. § 2902.
Subrogation of Medical and Disability Benefits are allowed. 24-A M.R.S.A. §§ 2729-A & 2836; Made Whole Doctrine does not apply. Disallows a first priority lien but provides for “equitable reduction” based on questions of liability, “exigencies of trial” and limits of liability coverages. Common Fund Doctrine applies. York Ins. Group of Maine v. Van Hall, 704 A.2d 366 (Me. 1997).
Admissibility of Expert Testimony
Admissibility Standards: Other
Case/Statutory Law: State v. Williams, 388 A.2d 500 (Me. 1978); Searles v. Fleetwood Homes of Pennsylvania, Inc., 878 A.2d 509 (Me. 2005).
Comments: Maine uses a test substantially similar to Daubert resulting in a fairly liberal standard for the admission of expert testimony: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a face in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: Yes. e. Rev. Stat. tit. 24-A, § 2164-E.
Failure To Disclose A Basis For Bad Faith: Doubtful; split in authority as to whether bad faith failure to settle tort exists. State Farm Fire & Cas. Co. v. Haley, 916 A.2d 952 (Maine 2007). 24-A M.R.S. § 2164-E requires insurers doing business in Maine to respond to written requests for liability coverage limits of their insureds within 60 days of receipt of request. The statute provides a penalty of $500 and reasonable attorney’s fees and expenses incurred in obtaining the liability coverage limits.
One-Party Consent: Maine law bars the interception, recording and or disclosure of any oral or telephonic communication by the means of an electronic recording device without the consent of at least one party or if they are a party to said communication. Me. Rev. Stat. Ann. tit. 15, § 710.
Product Liability Subrogation
Product Liability Law
Statute of Limitations/Repose: 6 years for personal injury. 14 M.R.S.A. § 752. Wrongful death is 2 years. 18-A M.R.S.A. § 2-804(b).
Liability Standards: Negligence, Strict Liability, Warranty, Other.
Fault Allocations: Modified Comparative. 14 M.R.S.A. § 156.
Non-Economic Caps/Limits On Actual Damages: Yes.
Punitive Y/N and Limits: Yes.
Heeding Presumption?: No.
Innocent Seller Statute: No.
Joint and Several Liability: Yes. 14 M.R.S.A. § 156-A.
Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; State of the Art; Government Contractor Defense; Sophisticated User.
Restatement 2nd or 3rd?: Restatement 3rd
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Condominium/Co-Op Waiver of Subrogation Laws
Associations must maintain property and liability insurance for the common elements. Additionally, it is required that the insurer waive its right to subrogation under the policy against any unity owner of the condo or members of their household. 33 M.R.S.A. § 1603-113.
Damage to Property Without Market Value
Service Value: Trees have intrinsic, estimable value other than their presence. Owner may treat them as personal property and sue for their value as if they were detached from real property. Nyzio v. Vaillancourt, 382 A.2d 856 (Me. 1978).
Intrinsic Value: No Case Law
Sentimental Value: If the property has personal value to the plaintiff, then damages up to and including restoration costs are appropriate. Leavitt v. Cont’l Tel. Co. of Maine, 559 A.2d 786 (Me. 1989).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment And Depreciation Of GCOP/Sales Tax: No applicable case law, statutes, administrative rules, or other guidance with regard to the calculation and/or depreciation of GCOP.
Fire insurer is not entitled, as subrogee, to bring action against tenant to recover for amounts paid to landlord for fire damage to rental premises caused by tenant’s negligence in absence of express agreement between the landlord and tenant to contrary. The landlord and tenant are co-insureds under the fire policy. N. River Ins. Co. v. Snyder, 804 A.2d 399, 403-04 (Me. 2002).
An insurance company cannot subrogate against its own insured. Willis Realty Assoc. v. Cimino Constr. Co., 623 A.2d 1287 (Me. 1993). If a party is covered by the liability portion of a policy, but not the property damage portion, subrogation can proceed against the party for damages related to the property damage portion. Philadelphia Indem. Ins. Co. v. Farrington, 37 A.3d 305 (Me. 2012) (court ruled subrogation against renter of rental car could proceed after the court determined the renter was an insured under the liability portion of the policy, but not the property damage portion).
Maine allows for restitution to victims, who may recover against a liable criminal defendant per the statute. 17 M.R.S.A.§ 1321. Maine case law also expressly provides that an insurer qualifies as a victim. State v. Miller, 669 A.2d 164, 164 n.2 (Me. 1995).
Made Whole Doctrine
In addition to the limits on priority liens mandated of health insurers in § 2729-A, which applies generally to health insurance policies, similar limitations apply in another statute which applies to group or blanket policies. Me. Rev. Stat. Ann. Tit. 24-A, § 2836 (1976). Maine does not appear to have any case law which discusses application of the Made Whole Doctrine, except for an allusion to the fact that with regard to uninsured motorist subrogation, Maine favors full satisfaction by the insured victim of his damages to which he is legally entitled to recover from the owners or operators of the uninsured vehicle before the right of subrogation attaches. Wescott v. Allstate Ins. Co., 397 A.2d 156 (Me. 1979).
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: Follows common law CSR. Medical expenses paid by collateral source can be recovered in damages, and no evidence allowed. Barday v. Donnelly, 2006 WL 381876 (Me. Super. 2006). Plaintiff who recovers collateral source payments from sources independent of the tortfeasor remains entitled to a full recovery. Grover v. Boise Cascade Corp., 860 A.2d 851 (Me. 2004).
Recovery Of Medical Expenses Rule:
Private Insurance: Write-offs and/or gratuitous medical care by insurer covered under CSR. Evidence of them not allowed and they may be recovered by plaintiff. Barday v. Donnelly, 2006 WL 381876 (Me. Super. 2006).
Medicare/Medicaid: Same as above. Barday v. Donnelly, 2006 WL 381876 (Me. Super. 2006).
Medical Malpractice: Section 2906 provides for awards in professional negligence actions to be offset by collateral source payments, where the collateral sources have not exercised subrogation rights within 10 days after a verdict for the plaintiff. The court will reduce an award for damages by the amount paid by the collateral source. Maine Revised Statute § 2906.
Employee Leasing Laws
Maine has a special statute dealing with employee leasing companies, located in Title 32, Chapter 125: Employee Leasing Companies. Provided that the employee leasing company or the client company secures workers’ compensation coverage, both entities are considered employers and immune from third-party suits under the Exclusive Remedy Rule. Me. Rev. Stat. Ann. Tit. 32 § 14055(1).
Hospital Lien Laws
Statute: Maine Revised Statutes §§ 10:3411 – 3415. Hospital Services.
Perfecting Lien: To perfect notice in Maine:
(1) A written notice containing name and address of injured person, as it shall appear on the records of the hospital, date of accident, name and location of hospital, and name of person or persons, firm or firms, corporation or corporations alleged to be liable to the injured party for injuries received, shall be filed under the name of the patient and under the name of all persons, firms or corporations liable for damages arising from such injuries with the clerk of the municipality in which such hospital is located not later than 10 days after the patient has been discharged from hospital and prior to payment of any moneys to such injured person, his attorneys or legal representatives as compensation for such injuries; nor unless the hospital shall mail, registered mail, return receipt requested, a copy of such notice with a statement of the date of filing thereof to:
I. Persons alleged to be liable. The person or persons, firm or firms, corporation, or corporations, alleged to be liable to the injured patient for the injuries sustained prior to the payment of any moneys to such injured person, his attorneys or legal representatives, as compensation for such injuries; and
II. Insurance carrier. To the home office, or district office handling carrier’s business within the State, of any insurance carrier which has insured such person, firm or corporation against such liability. The person or persons, firm or firms, corporation or corporations alleged to be liable to the injured patient shall upon written request of the hospital disclose the name of his or its insurance carrier which has insured such person, firm or corporation against such liability. § 3412.
Comments: Every licensed hospital is entitled to a lien for reasonable charges for care, treatment, and maintenance of an injured person upon any and all causes of action, suits, claims, counterclaims or demands accruing to the person to whom such care, treatment or maintenance was furnished, or to the legal representatives of such person, on account of injuries giving rise to such causes of action and which necessitated such hospital care, treatment and maintenance. § 3411. No lien is allowed against any person who is eligible for financial assistance under the catastrophic illness program, Title 22, § 3185. § 3411. The lien does not attach to any workers’ compensation benefits. § 3411. For the purposes of determining the reasonableness of the hospital charges, the hospital shall, at the written request of the person alleged to be liable, or his insurance carrier, make available any hospital records which may be pertinent to determining the reasonableness of the hospital charge, but in no event shall they disclose any other records which it may have; including but not limited to, records or reports with regard to the nature of the injury of the patient, the nature of his condition or the state of his recovery. § 3412.
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: No statute or case law specifically dealing with effect of OCIP/CCIP.
Statutory Employer Law: Any owner or contractor contracting for any work which is part of its usual trade, occupation, profession, or business, is deemed to be an employer for purposes of providing workers’ compensation benefits to each employee of any contractor or subcontractor underneath it. Me. Rev. Stat. Ann. Tit. 26, § 1043(10). Nonetheless, the owner or general contractor provides such workers’ compensation benefits will not be immune from a third-party action due to the Exclusive Remedy Rule. Me. Rev. Stat. Ann. Tit. 39-A, § 906
Comments: Any owner or contractor contracting for any work which is part of its usual trade, occupation, profession, or business, is deemed to be an employer for purposes of providing workers’ compensation benefits to each employee of any contractor or subcontractor underneath it. Me. Rev. Stat. Ann. Tit. 26, § 1043(10). Nonetheless, the owner or general contractor provides such workers’ compensation benefits will not be immune from a third-party action due to the Exclusive Remedy Rule. Me. Rev. Stat. Ann. Tit. 39-A, § 906.
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? Undecided.
Statute/Case Law: None.
Rule Summary: There is no authority or precedent regarding the attempted recovery of damages for increased workers’ compensation insurance premiums by an employer from a third-party tortfeasor.
Which Workers’ Compensation “Benefits” Can Be Subrogated?
There is no precedent or discussion in case law regarding whether nurse case management fees or other allocated costs which may benefit the employer and/or employee can be recovered in subrogation. Section 107 describes a workers’ compensation carrier’s subrogation interest as follows:
… any employer having paid the compensation or benefits or having become liable for compensation or benefits under any compensation payment scheme has a lien for the value of compensation paid on any damages subsequently recovered against the 3rd person liable for the injury.… 39-A M.R.S.A. § 107.
Section 1 of the General Provisions says, “Treatment does not include expenses related to managed care services such as utilization review, case management, and bill review or to examinations performed pursuant to 39-A M.R.S.A. §§ 207 and 312.” Code Me. R. tit. 90-351 Ch. 5, § 1.
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: 39-A M.R.S.A. § 107
Waiver Allowed? Yes.
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: An insurer is allowed to enforce a workers’ compensation lien against the employee that sued the responsible third party, even though a contract with the third party contained a waiver of subrogation. Fowler v. Boise Cascade Corp., 948 F.2d 49 (1st Cir. 1991).
Other Applicable Law: Maine does not consider the right of reimbursement to be subrogation which can be waived, but instead recognizes a statutory right of reimbursement. 39-A M.R.S.A. § 107.
Statute of Limitations: 6 Years. Me. Rev. Stat. Ann. Tit. 39-A § 107.
Can Carrier Sue Third Party Directly: Yes, after 30-day demand.
Recovery from UM/UIM Benefits: Employer Policy: Yes. Employee Policy: ?
Subrogation Against Medical Malpractice: Yes?
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: Carrier gets first money, less fees and costs.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: Pro-rata, if the plaintiff files suit.
Future Credit: Yes.
Auto No-Fault: No.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute is silent on “illegal” or “legal” aliens, but it states broadly “every person” under any contract of hire. Me. Rev. Stat. Ann. Tit. 39-A, § 102-11(B).
Case Law: Undecided
Comments/Explanation/Other: *Allows for reduction in benefits because of an inability of an illegal alien to accept modified employment equates to refusal of the offer. Me. Rev. Stat. Ann. tit. 39-A, § 218-8.