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Larochelle v. Cyr
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:1998 ME 52
Docket:Yor-97-127
Argued:December 2, 1997
Decided:March 10, 1998


Panel:WATHEN, C.J., and ROBERTS, CLIFFORD,{*} RUDMAN, DANA, LIPEZ, and
SAUFLEY, JJ.

LEO LAROCHELLE v. ROBERT CYR and STEPHEN HODSDON



WATHEN, C.J.


	[¶1]  Plaintiff Leo Larochelle appeals from judgments entered in the
Superior Court (York County, Brennan, J.) in favor of his former attorneys,
defendants Stephen Hodsdon and Robert Cyr, in a legal malpractice action. 
Larochelle argues on appeal that the court improperly denied both his
motion for judgment as a matter of law and his motion for a new trial. 
Finding no error, we affirm the judgments.
	[¶2] The evidence presented at trial may be briefly summarized as
follows: In 1988, Larochelle was sued by his neighbors for trespassing on
their property and removing timber, decorative trees, stones and loam.  The
civil action included one count of negligent trespass, one count of
intentional or willful trespass, and sought damages of $75,000.  Larochelle
retained his son-in-law, Hodsdon, to represent him in the lawsuit.  Although
Larochelle had liability insurance, Hodsdon did not investigate whether the
policy afforded coverage for the lawsuit.  Hodsdon testified that he
"implicitly" decided that a claim against the insurer would not be honored
because the lawsuit was for trespass and involved an intentional act. 
Hodsdon continued to represent Larochelle until their relationship soured,
and then withdrew from representation in October of 1989.
	[¶3] Larochelle was then referred to Cyr by a third attorney.  Cyr
testified that after failing to convince Larochelle to work out his
disagreement with Hodsdon, he agreed to represent him.  Cyr testified that
the referring attorney, since deceased, told him there was no insurance
coverage for the lawsuit and he made no further inquiry.
	[¶4] The trespass action was tried with Cyr defending, and a judgment
was entered against Larochelle for $46,904.29 in March of 1990.  No appeal
was taken in the trespass action, but Larochelle filed the present legal
malpractice action against Hodsdon and Cyr alleging a failure to investigate
and obtain insurance coverage for the underlying action.  He amended his
complaint later to include an allegation that both attorneys were negligent in
preparing his defense in the trespass action.
	[¶5] In the present action, the court bifurcated the trial, and first
heard the issue of liability.  At the close of Larochelle's case, the court
granted Hodsdon's motion and dismissed the claim of negligent preparation
against him.  The jury returned three separate verdict forms.  It found that
Hodsdon was negligent in failing to investigate and obtain insurance
coverage for the trespass action, but that his negligence was not a proximate
cause of harm to Larochelle.  With regard to Cyr, the jury found that he was
not negligent in failing to investigate the availability of insurance coverage,
nor was he negligent in preparing the defense of the trespass action. 
Larochelle now appeals solely with regard to the findings concerning each
attorneys' failure to investigate and obtain insurance coverage.
	[¶6]  At the conclusion of the presentation of evidence, Larochelle
moved for "a judgment for the plaintiff." After the verdict was returned, he
moved for "a judgment notwithstanding the verdict." Both motions were
appropriately referred to as "motions for judgment as a matter of law." M.R.
Civ. P. 50. The court denied both motions.  We review the denial of a motion
for judgment as a matter of law "to determine if any reasonable view of the
evidence and those inferences that are justifiably drawn from that evidence
supports the jury verdict."  Davis v. Currier, 1997 ME 199, ¶ 3,     A.2d    . 
	[¶7] As plaintiff, Larochelle had the burden of proof.  Defendants
presented credible expert testimony that, even if they had inquired into
insurance coverage during the course of their representation, at any time
prior to our opinion in Massachusetts Bay Ins. v. Ferraiolo Const.,{1} the
insurance company would have declined to provide a defense.  The defense
expert also testified that it was reasonable for Cyr to rely on another
attorney's statement regarding the availability of insurance coverage. 
Moreover, in the underlying trespass action, the jury had found that
Larochelle acted willfully and knowingly in trespassing on his neighbor's
land and even his own expert witness conceded that an insurer would have
no duty to indemnify such a judgment.  Considering all of the evidence in
the light most favorable to defendants, the jury was not rationally compelled
to conclude that Larochelle had established the essential elements of his
claims.  See Lewis v. Knowlton, 1997 ME 12, ¶ 8, 688 A.2d 912, 913.  The
court did not err in denying the motion for judgment as a matter of law.
	[¶8] Larochelle also moved for a new trial and argued unsuccessfully
that error committed in the course of the trial deprived him of substantial
justice.  He also argued that the verdicts were contrary to the evidence.  We
review a denial of a motion for a new trial for a clear and manifest abuse of
discretion.  Taylor v. Lapomarda, Jr., 1997 ME 216, ¶ 5, 707 A.2d 685, 687. 
It is proper for the "trial court to deny a motion for a new trial unless it is
reasonably clear that prejudicial error has been committed or that
substantial justice has not been done." Davis v. Currier, 1997 ME 199, ¶ 7,    
A.2d    . 
	[¶9] First, Larochelle contends that the court erred in bifurcating the
trial on the issues of liability and damages.  Contrary to his contention, he
fails to demonstrate that the limitation on evidence regarding damages in
phase one of the trial prejudiced his efforts to establish liability.  The jury
heard evidence of the amount of the judgment returned against him in the
underlying trespass action.  By deferring the presentation of evidence
concerning consequential damages other than the judgment, the court did
not prejudice Larochelle's ability to prove a breach of duty and causation. 
The court committed no error in bifurcating the trial.  
	[¶10]  Larochelle next argues that the court erroneously instructed the
jury that "the law was 'unclear' as to coverage as of 1990." He misstates the
court's language.  The court stated that the issue of insurance coverage in
cases of trespass was "undecided" at the time Hodsdon and Cyr were
involved in representing Larochelle.  We first found a duty to defend a
trespass action in Massachusetts Bay Ins. v. Ferraiolo Const., 584 A.2d 608,
610 (Me. 1990) and noted that we had never before been called on to
decide whether an alleged trespass could be an "occurrence" covered by a
liability insurance policy.  Our opinion in Ferraiolo was issued nearly ten
months after the trial in the underlying trespass action.  The court did not
err. 
	[¶11] Larochelle argues that the court's jury instructions improperly
required him to prove that the insurer would have immediately provided a
defense or indemnity at the time either defendant placed it on notice.  The
court did not require the jury the conclude that insurance be immediately
recoverable.  Rather, it instructed the jury to consider whether defense or
indemnification would have been provided "at the time the defendant in
question had an opportunity to place the insurer on notice of [the trespass]
claim." The instruction reflects the fact, established by the evidence, that
indemnity was no longer a possibility after the jury in the trespass action
found that Larochelle willfully and knowingly trespassed on his neighbor's
land.  Whatever counsel might have done in obtaining coverage would have
required notice to the insurer before this event.  An insured who mistakenly
trespasses on his neighbor's land may be entitled to a defense and
indemnity, even though his acts were intentional.  On the other hand, an
insured who is found to have willfully and knowingly trespassed on his
neighbor's land would not be entitled at that point to either a defense or
indemnity.
	[¶12]  Although Larochelle objected to the instructions given by the
court, he failed to clearly articulate the basis for his objection.  He requested
an instruction that "our claim also relates to successfully obtaining coverage
for a declaratory judgment action.  In other words, he can recover damages
at a subsequent time."  On appeal, he explains for the first time that he
wanted the jury to consider whether "defendants were negligent in their
failure to pursue coverage, even if it merely would result in a settlement or
prompt the insurance company to defend under a reservation of rights."
Having failed to state this objection distinctly at the trial, it is unpreserved. 
M.R. Civ. P. 51(b).  The court's instruction, as given, was substantially
correct and the court did not abuse its discretion in refusing to amplify the
instruction in the manner requested by Larochelle.  See Rich v. Fuller, 666
A.2d 71, 76 (Me. 1995) (citing Pelkey v. Canadian Pac. Ltd., 586 A.2d 1248,
1251 (Me. 1991)).  
	[¶13] The jury was provided with three general verdict forms.  Each
form asked if the named defendant was negligent, and if so, whether that
negligence was a proximate cause of harm.  Initially, the jurors sent out
three unsigned forms and a note asking: "Do we need to do anything else?"
Although the form concerning Cyr's negligence in failing to investigate
insurance coverage was neither signed nor filled out properly, it suggested
that six of the eight jurors found him negligent and five of the eight found
that his negligence was not the proximate cause of any harm.  After
consulting with counsel and without objection, the court reinstructed the
jury, reminding them that the verdict forms must be signed and that six
affirmative votes were required to reach a final verdict.  After further
deliberations, the jury returned with three signed verdict forms properly
marked.  On Cyr's verdict form, by a vote of six to two, the jury found that he
was not negligent in investigating insurance coverage, and thus, did not
reach the question concerning causation.
	[¶14] Larochelle contends that the incomplete verdict form and the
actual verdict form pertaining to Cyr's negligence are so "dramatically
contrary to one another" that a new trial is required.  We have recently
rejected the argument that multiple jury verdicts in a particular case must
be internally consistent.  State v. Finnemore, 1997 ME 44, ¶ 7, 690 A.2d
979, 981.  It follows logically that inconsistency between an incomplete
form and the actual verdict of the jury, does not mandate the granting of a
motion for a new trial.  Taylor v. Lapomarda, 1997 ME 216, ¶ 6, 702 A.2d
685, 687.
	[¶15] Finally, as previously noted, the verdicts in this case were not
contrary to the evidence.  The jury was presented with competing expert
testimony and chose to credit that offered by the defense.  The court did not
abuse its discretion in denying Larochelle's motion for a new trial.  
	[¶16] Because we affirm the judgments, we need not address Cyr's
cross-appeal.
	The entry is:
					Judgments affirmed.
                    
Attorney for plaintiff: John S. Campbell, Esq., (orally) Poulos & Campbell, P.A. P O Box 369 Portland, ME 04112 Attorneys for defendants: Theodore H. Kirchner, Esq., (orally) Norman, Hanson & DeTroy P O Box 4600 Portland, Me 04112-4600 (for Hodsdon) Kevin J. Beal. Esq., (orally) Keith A. Powers, Esq. Preti, Flaherty, Beliveau & Pachios, LLC P O Box 11410 Portland, ME 04104-7410 (for Cyr)
FOOTNOTES******************************** {*} Sat at oral argument but did not participate in the opinion. {1} In Ferraiolo we held that it is possible that "property damage from intentional acts performed under a mistake as to ownership" could be "neither expected nor intended from the standpoint of the insured." Massachusetts Bay Ins. v. Ferraiolo Const., 584 A.2d 608, 610 (Me. 1990). Thus, we found a duty to defend what might otherwise have been excluded as an intentional act.