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Dairyland Ins. Co. v. Christensen
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME  160 
Docket:	Wal-99-350
Argued:	November 1, 1999	
Decided:	November 15, 1999

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.


DAIRYLAND INSURANCE CO. v. DANIEL CHRISTENSEN et al. TAMMY CURTIS and ESTATE OF LORETTA RUMNEY v. ALLSTATE INSURANCE CO.

ALEXANDER, J.

	[¶1] Tammy Curtis and the Estate of Loretta Rumney appeal from
entry of summary judgment in favor of Allstate Insurance Co. by the Superior
Court (Waldo County, Marden, J.) on the third-party complaint of Curtis and
the Rumney Estate regarding the level of Allstate's responsibility for
uninsured motorist policy payments.  Because this appeal is interlocutory,
and not subject to any exception to the final judgment rule established by
the Rules of Civil Procedure or our precedents, we dismiss the appeal.
I. CASE HISTORY
	[¶2]  In June 1997, while riding in Tammy Curtis's automobile in
Belfast, Curtis and her passenger, Loretta Rumney were involved in a
collision with another automobile operated by Daniel Christensen that
contained five passengers.  The occupants of both vehicles were injured,Ms. Rumney fatally.  Christensen was insured under an automobile liability
policy by Dairyland Insurance Co. with statutory minimum coverage of
$20,000 per person and $40,000 per accident.  See 29-A M.R.S.A.
§ 1605(1)(C) (1996).{1}    Curtis's automobile was insured by an Allstate policy
including uninsured motorist coverage of $100,000 per person and
$300,000 per occurrence.  The stipulated injury claims of Curtis and the
Rumney Estate each exceed $100,000 in value.  It is also stipulated that the
collision was solely and exclusively due to Christensen's negligence.     
	[¶3] Curtis and the Rumney Estate each were paid $80,000 by Allstate
pursuant to its uninsured motorist policy on Curtis's automobile.  In
consideration of payment, Curtis and the Rumney Estate signed release and
indemnity agreements that reserved their right to seek the remaining
$20,000 per person plus interest.  
	[¶4]  Dairyland filed a complaint for interpleader and declaratory relief
seeking a determination as to how it should distribute the $40,000 available
under Christensen's liability insurance policy among the seven claimants. 
Curtis and the Rumney Estate then filed a third-party complaint against
Allstate demanding payment of the remaining $20,000 per person balance
under Allstate's uninsured motorist insurance policy.  Allstate, Curtis, and
the Rumney Estate filed cross motions for summary judgment.  The court
ruled in favor of Allstate; and Curtis and the Rumney Estate filed this appeal.
	[¶5]  The underlying action by Dairyland remains active, with
discovery ongoing.  Curtis and the Rumney Estate may recover additional
funds, in an amount not yet determined, from Dairyland.
II. DISCUSSION
	[¶6]  A summary judgment entered on the third-party complaint is an
interlocutory order:  "subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and liabilities of all the
parties."  M.R. Civ. P. 54(b)(1).{2}  The appeal by Curtis and the Rumney Estate
from the summary judgment was taken directly to this Court.  Neither
before, nor since filing the appeal, have the appellants attempted to
(i) secure a ruling under M.R. Civ. P. 54(b)(1) rendering the court's summary
judgment final for purposes of appeal, see e.g., Gafner v. Down East
Community Hosp., 1999 ME 130, ¶ 7, 735 A.2d 969, 972; (ii) sought to
report the matter under M.R. Civ. P. 72(c), see White v. Fleet Bank, 1999
ME 148, ¶ 3,       A.2d      ; or (iii) sever the third-party complaint from the
remaining action, which would have rendered the summary judgment on the
third-party complaint final, see M.R. Civ. P. 14.  In fact, when Dairyland filed
a motion to bifurcate its ongoing declaratory judgment action from the
third-party complaint action, appellants opposed that effort, asserting
significant interest in the ongoing action that might be prejudiced by
bifurcation or severance.  
	[¶7]  Having failed to avail themselves of any of the procedural choices
that could have assured consideration of the merits of their appeal,
appellants present themselves, essentially, as challenging a partial summary
judgment ruling that "is subject to revision at any time" before final
judgment in the underlying action.  The appellants argue that judicially
created exceptions to the final judgment rule justify consideration of the
merits of their appeal.  
	[¶8]  The appeal does not qualify under the "death knell" exception to
the final judgment rule, as the appellants' rights will not be irreparably lost
if review is delayed until final judgment.  See Tungate v. MacLean-Stevens
Studios, Inc., 1997 ME 113, ¶ 5, 695 A.2d 564, 565; Lewellyn v. Bell, 635
A.2d 945, 946-47 (Me. 1993).  The cost and delay of litigating the claims
involving Dairyland, which appellants cite as a justification for their death
knell exception claim, does not qualify as a loss of substantial rights or
permanent foreclosure of relief.  If it were otherwise, and the cost of further
litigation alone justified interlocutory appeals, a further cost of litigation
exception would swallow the final judgment rule, opening every
interlocutory ruling to appeal.
	[¶9]  Appellants also argue that the merits of their appeal should be
reached under the collateral order exception.  The collateral order
exception applies to permit immediate review of an interlocutory order
which:  (1) involves a claim separable from and collateral to the underlying
lawsuit; (2) presents a major and unsettled question of law; and (3) results
in an irreparable loss in the absence of immediate review.  See Lewellyn,
635 A.2d at 947; Pierce v. Grove Mfg. Co., Inc., 576 A.2d 196, 199-200 (Me.
1990).  Here, the issue of concern to the appellants is a claim separable
from and collateral to the underlying lawsuit, although appellants resisted
Dairyland's efforts to separate the underlying lawsuit.  However, lack of
immediate review would not appear to result in any irreparable loss to the
appellants.  The question may be preserved and addressed on appeal after
the entire case is resolved. 
	[¶10]  As noted above, the fact that the appellants may incur some
delay in resolution of the issue and some cost in pursuing the remainder of
the litigation, does not amount to such an irreparable loss as would justify
immediate review of the interlocutory order under the collateral order
exception.  Such is particularly the case where, as here, the appellants had
procedural options available to them, which they elected not to utilize, to
bring this matter to this Court on the merits.  
	[¶11]  This discussion also makes it evident that the issue presented
on appeal does not, in its present posture, qualify for the extraordinary
circumstances exception to the final judgment rule, see First Nat'l Bank of
Boston v. City of Lewiston, 617 A.2d 1029, 1030 (Me. 1992).
	The entry is:
			Appeal dismissed.

Attorneys for appellants: David M. Glasser, Esq., (orally) P O Box 1212 Camden, ME 04843 Attorneys for appellees: Martica S. Douglass, Esq., (orally) James E. Fortin, Esq. Douglass, Denham, Rodgers & Hood P O Box 7108 Portland, ME 04112-7108 (for Allstate Ins. Co.) Richard D. Hewes, Esq. 48 Free Street Portland, ME 04101 (for Dairyland Ins. Co.) Stephen C. Whiting, Esq. 75 Pearl Street, Suite 207 Portland, ME 04101 (for Misty Temple) Stephen F. Wright, Esq. P O Box 7526 Portland, ME 04112 (for Mandi Gray) William P. Brady, pro se HCR 70, Box 428 Bucks Harbor, ME 04655
FOOTNOTES******************************** {1} . The Legislature revised the statutory minimum coverage upward in 1997 to $50,000 per person and $100,000 per accident. See P.L. 1997, ch. 176, § 5(1) as codified at 29-A M.R.S.A. § 1605(1)(C) (Pamph. 1998). {2} . M.R. Civ. P. 54(b)(1) provides: (b) Judgment Upon Multiple Claims or Involving Multiple Parties; Attorney Fees. (1) Except as otherwise provided in paragraph (2) of this subdivision and in Rule 80(d), when more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, except those enumerated in paragraph (2) of this subdivision and in the last sentence of Rule 80(d), which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.