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Mack v. Acadia Ins. Co.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 91
Docket:	Cum-97-217
Submitted
 on Briefs:	December 12, 1997
Decided:	April 30, 1998

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



COLIN MACK et al. v. ACADIA INSURANCE CO.
DANA, J.

	[¶1]  Colin and Marjorie Mack appeal from a judgment entered in the
Superior Court (Cumberland County, Calkins, J.) after a jury verdict in favor
of Acadia Insurance Company on the Macks' breach of contract claim.  The
Macks contend that the court's interpretation of an unambiguous insurance
contract was incorrect; that the court erred in granting portions of Acadia's
bill of costs and in denying a request for a hearing on the bill of costs; and
that the court erred in granting a summary judgment on four of the five
counts in the Macks' complaint.  We modify the court's order with respect
to Acadia's bill of costs and affirm the judgment in all other respects.
	[¶2]  On June 16, 1995, Colin Mack was driving his 1987 Audi 5000S
when smoke began to pour out of the dashboard, the dashboard lights began
to flash, and the vehicle began to buck violently.  He pulled the vehicle to
the side of the road and upon opening the hood saw smoke coming out of
the radiator fan.  The wires in the engine compartment had begun to melt,
so Mack disconnected the cables from his battery terminal and began
pulling fuses and relays in order to remove power from the fan, which he
thought was drawing too much current.  Mack had the automobile towed to
an Audi dealership where he was informed that the vehicle had sustained
extensive damage.  Mack filed a claim for the damage with Acadia pursuant
to his non-collision insurance coverage, and an Acadia claims representative
informed him that the company would have the vehicle inspected in order
to determine whether Acadia would pay his claim.  Within ten days of the
incident the representative wrote to Mack informing him that Acadia would
not honor the claim for his loss because the damage was caused by an
electrical breakdown not covered by the policy.
	[¶3]  The Macks filed a five-count complaint against Acadia alleging a
breach of contract, negligence, and an intentional infliction of emotional
distress, and seeking punitive damages and late payment costs pursuant to
24-A M.R.S.A. § 2436 (1990).{1}  The court granted a summary judgment in
Acadia's favor on each of the Macks' counts except the breach of contract
claim.  Prior to the trial, the court ruled that the insurance contract
provision at issue was unambiguous and that the list of "other than collision"
causes of damage in the policy was an exclusive list.  The ruling resulted in
the Macks having to prove that the car's damage was caused by fire, the only
possible cause of damage of those listed in the insurance policy.  The jury
found that the Macks did not prove that the damage to the engine was
caused by fire, and the court entered judgment in favor of Acadia.  The court
subsequently denied the Macks' motion for a new trial, awarded costs to
Acadia, and the Macks filed this appeal.
	[¶4]  The Macks' primary argument on appeal is that the court erred
when it ruled that the list of causes of damage that are considered "other
than collision" was an exclusive list.  The provision at issue reads:
COVERAGE FOR DAMAGE TO YOUR AUTO

A.We will pay for direct and accidental loss to "your covered
auto" or any "non-owned auto," including their
equipment, minus any applicable deductible shown in the
Declarations.  We will pay for loss to "your covered auto"
caused by:

1.Other than "collision" only if the Declarations
indicate that Other Than Collision Coverage is
provided for that auto.

2."Collision" only if the Declarations indicate that
Collision Coverage is provided for that auto.
* * *
B."Collision" means the upset of "your covered auto" or a
"non-owned auto" or their impact with another vehicle or
object.

Loss caused by the following is considered other than
"collision:"

1.	Missiles or falling objects;
2.Fire;
3.Theft or larceny;
4.Explosion or earthquake;
5.Windstorm;
6.Hail, water or flood;
7.Malicious mischief or vandalism;
8.Riot or civil commotion;
9.Contact with bird or animal; or
10.Breakage of glass.
The trial court concluded that the ten causes of loss set out in paragraph B
constituted an exclusive list of the causes of damage included in the
insurance policy's "other than collision" coverage.
	[¶5]  The interpretation of the terms of an unambiguous insurance
contract is a question of law.  Globe Indem. Co. v. Jordan, 634 A.2d 1279,
1282 (Me. 1993).  Comprehensive coverage traditionally included all aspects
of non-collision damage not specifically excluded by the policy.  It was not
limited to those causes set out in the policy as non-collision.  In Hughes v.
Great American Ins. Co., 427 S.W.2d 266 (Mo. Ct. App. 1968), the Missouri
Court of Appeals held that a list of causes that were not considered collision
was not meant to be an exclusive list, stating:  "[W]e think the
[comprehensive] coverage involved is not limited to these particular words
which specify 'what collision is not.'"  Id. at 269.  The contract provision in
Hughes was different than the provision in the Macks' policy, however.  The
Hughes provision read:
For the purpose of this coverage, breakage of glass and loss
caused by missiles, falling objects, fire, theft or larceny,
explosion, earthquake, windstorm, hail, water, flood, malicious
mischief or vandalism, riot or civil commotion, or colliding with
a bird or animal, shall not be deemed to be loss caused by
collision.
Id.  See also 5 John A. Appleman & Jean Appleman, Insurance Law and
Practice § 3222, at 692 (1970) (citing Hughes for the proposition that
"coverage under the clause agreeing to pay for losses caused other than by
collision and enumerating the types of losses that would not be deemed to
have been caused by collision is not limited to the enumerated risks").
	[¶6]  There is a distinct difference between a contract clause that
states what is not collision and a clause that states what is "other than
collision," as the provision in this case does.  The plain language of the
provision supports the court's determination that the listed causes of
damage constitutes an exclusive list.  The Macks' assertion that the word
"exclusive" or one of its synonyms must be present in order to find the list
exclusive is unsupported by any authority and is unpersuasive.
	[¶7]  The Macks' argument that the exclusions listed in the policy
would be unnecessary if the list of causes of damage was exclusive is
similarly unpersuasive.  The policy lists twelve exclusions from coverage,
including, among other things, losses to the auto while it is being used as a
public or livery conveyance, damage due to wear and tear and mechanical
breakdown, loss to radios, stereos, and other electronic equipment, and loss
to auto accessories such as special carpeting, facilities for cooking or
sleeping, and custom murals or painting.  These exclusions apply equally to
the collision and non-collision portions of the policy and simply limit the
coverage granted by those provisions in certain circumstances.  For
example, the "other than collision" provision covers damage caused by fire,
but the cost of custom painting damaged by fire could not be recovered
pursuant to the exclusion.  We conclude that the court correctly interpreted
the insurance contract.
	[¶8]  The Macks also argue that the court erred when it granted a
portion of Acadia's bill of costs and when it denied their request for a
hearing on the bill of costs.  Acadia concedes that the costs associated with
an inspection of the Macks' car by its expert witness one month after the
incident are not recoverable because they were not associated with the trial. 
See McCarthy v. U.S.I. Corp., 678 A.2d 48, 54 (Me. 1996).  The order on
defendant's bill of costs accordingly should be modified to reflect a
reduction in the amount of $385.54.
	[¶9]  We conclude, however, that the court acted within its discretion
when it declined to provide the Macks a hearing on the bill of costs.  The
statute governing taxing of costs provides:
Either side may request oral argument and submit affidavits and
briefs.  An evidentiary hearing on the reasonableness of costs or
interest will be held only when the judge determines that there
exists a substantial need for the hearing and the amount of
challenged costs or interest are substantial.  If the presiding
judge determines that the imposition of costs will cause a
significant financial hardship to any party, the judge may waive
all or part of the costs with respect to that party.
14 M.R.S.A. § 1502-D (Supp. 1997).  The language of the statute plainly
makes the determination of whether to hold a hearing on a contested bill of
costs discretionary on the part of the trial court.  The court acted within its
discretion when it refused to hold a hearing in this case when it had the
benefit of a three-page, single-spaced opposition to the bill of costs
submitted by the Macks and a two-page reply submitted by Acadia.  In these
circumstances it was reasonable to determine that there existed no
substantial need for the requested hearing.
	[¶10]  The Macks' other issues do not require discussion.
	The entry is:
Judgment modified in accordance with
the opinion herein to reduce the amount
of costs by $385.54, and as so modified,
affirmed.


Attorney for plaintiffs: James S. Hewes, Esq. 48 Free Street Portland, ME 04101 Attorneys for defendant: Elizabeth Knox Peck, Esq. Paul C. Catsos, Esq. Thompson & Bowie P O Box 4360 Portland, ME 04112 .
FOOTNOTES******************************** {1}. 24-A M.R.S.A. § 2436 allows an insured to recover attorneys fees and interest in the amount of 1 1/2% per month from an insurance company when the company fails to pay an undisputed claim within 30 days after the company receives proof of loss.