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Hawkes v. CU, attorneys and footnotes

Attorneys for plaintiff:

James M. Fongemie, Esq., (orally)
Ralph L. Tucker, Esq.
McTeague, Higbee, Case, Cohen, Whitney & Toker, P.A.
P O Box 5000
Topsham, ME 04086-5000

Attorneys for defendants:

Mark G. Lavoie, Esq.
Christopher C. Taintor, Esq., (orally)
Arron K. Baltes, Esq.
Norman, Hanson & DeTroy, LLC
P O Box 4600
Portland, ME 04112-4600
(for Comercial Union)

James W. Strong, Esq.
P O Box 56
Thomaston, ME 04861
FOOTNOTES******************************** {1} . Hawkes brought a five-count complaint against PIS, Handcock, and Commercial Union alleging that: (1) they intentionally intruded upon his privacy; (2) they intentionally and maliciously trespassed upon his property; (3) Commercial Union breached its duty to act in good faith with respect to the workers' compensation insurance contract between it and Giberson Buick-Pontiac; (4) they intentionally and recklessly caused him severe emotional distress; and (5) they negligently caused severe emotional distress. The Superior Court granted summary judgment to Commercial Union on Counts 3 and 5 and, therefore, for this appeal we consider only the three remaining claims. {2} . Neither PIS nor Handcock joined the summary judgment motion, and they did not file separate motions. {3} . Section 104 provides in part: An employer who has secured the payment of compensation in conformity with sections 401 to 407 is exempt from civil actions . . . at common law . . . involving personal injuries sustained by an employee arising out of and in the course of employment, or for death resulting from those injuries. Section 408 provides in part: Except as provided in subsection 2, an employee of an employer who has secured the payment of compensation as provided in sections 401 to 407 is deemed to have waived the employee's right of action at common law and under section 104 to recover damages for the injuries sustained by the employee. {4} . Section 102(12) provides: "If the employer is insured, 'employer' includes the insurer, . . . unless the contrary intent is apparent from the context or is inconsistent with the purposes of this Act." An insurer can lose its immunity by stepping outside its role as an insurer. See Mills v. Travelers Ins. Co., 567 A.2d 446 (Me. 1989). Although Hawkes argues that Commercial Union stepped outside of its insurer role by hiring an investigator who gained access to Hawkes' home under false pretenses, we do not address the argument because we do not find Hawkes' claims barred by the exclusivity and immunity provisions even assuming that Commercial Union was acting in the role of insurer and thus entitled to the same immunity as an employer. {5} . In Breton v. Travelers Ins. Co., 147 F.3d 58, 61 (1st Cir. 1998), the First Circuit Court of Appeals suggests that in Procise we limited the holding of Gibson. Breton sued the workers' compensation insurer for intentionally delaying the payment of his benefits. Id. at 59. The First Circuit found that Breton's tort action, like Procise's action, arose from the handling of the workers' compensation claim. Id. at 62. In concluding that Breton's suit against the insurer was barred by the immunity and exclusivity provisions, the court found it significant that Breton had not alleged that there had been a final adjudication by the Workers' Compensation Board regarding his benefits. Id. The court also relied on the fact that the Act itself provides an administrative remedy for the delay of benefits. Id. at 63. See 39-A M.R.S.A. § 324(2)(A) (Pamph. 2000) (providing that an insurer who fails to pay can be assessed a penalty of $200 for each day of noncompliance, of which $50 goes to the employee). {6} . As the First Circuit emphasized in Breton, holdings in these cases are so fact specific, they must be limited to the particular cases. Breton, 147 F.3d at 64. {7} . A further distinguishing factor is that Hawkes, unlike Procise and Lavoie, has no remedy under the Workers' Compensation Act for his tort claims. Procise and Lavoie, who both claimed that they had been defrauded out of their workers' compensation benefits by their employers, could have followed the procedures under the Act to seek the benefits to which they believed they were entitled. There are no such remedies within the Act to benefit Hawkes. The Workers' Compensation Board is required to establish an abuse investigation unit which, when directed by the Board, investigates complaints of illegal or improper conduct of insurers relating to workers' compensation benefits. 39-A M.R.S.A. § 153(5) (Pamph. 2000). Reports of such investigations go to the Board, and if the Board determines that fraud or other violations of the Act occurred, it shall report such to the Attorney General. Id. § 153(5)(D), (E). The Board is also authorized to assess civil penalties, up to $10,000, upon finding that an employer or insurer "has engaged in a pattern of questionable claims-handling techniques." See id. § 359(2) (Pamph. 2000). Neither of these statutes provide any remedy to an individual claimant. Compare 39-A M.R.S.A. §§ 153, 359 with 39-A M.R.S.A. § 324(2)(A) (Pamph. 2000) (providing that an insurer who fails to pay benefits can be assessed a penalty of $200 for each day of noncompliance, of which $50 goes to the employee).

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