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Saucier v. Allstate Ins. Co., revised 1-14-00
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 197
Docket:	Aro-99-48
Argued:	October 4, 1999
Decided:	December 30, 1999

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



ROBERT SAUCIER v. ALLSTATE INSURANCE COMPANY

DANA, J.

	[¶1]  Allstate Insurance Company appeals from a judgment entered in
favor of the plaintiff, Robert Saucier, in the Superior Court (Aroostook
County, Pierson, J.) following a bifurcated jury trial.  In the first portion of
the trial, the jury found that Saucier had suffered $200,000 in damages due
to the negligence of an underinsured driver.  In the second portion of the
trial, the jury found that Allstate knowingly misrepresented pertinent facts
of its policy provisions relating to Saucier's underinsurance coverage and
that Allstate failed to pay an undisputed portion of Saucier's claim.  As a
result, the court ordered that Allstate pay to Saucier the per person limit of
his underinsurance coverage minus the amount he actually received from
the negligent driver's insurance company,{1} interest pursuant to 24-A
M.R.S.A. § 2436-A(1)(A),{2} the amount of the undisputed medical payments
claim plus interest pursuant to 24-A M.R.S.A. § 2436(1) & (3),{3} and costs,
disbursements, and attorney's fees pursuant to 24-A M.R.S.A. § 2436-A(1). 
Allstate argues that the court erred:  (1) in its determination that as a matter
of law Allstate was not permitted to offset its coverage by the entire per
person limit of the tortfeasor's coverage; (2) in its denial of Allstate's motion
for judgment as a matter of law that it did not knowingly misrepresent its
coverage; (3) in the instructions it gave to the jury; (4) by admitting
evidence of Allstate's offer of $11,000 to Saucier in the second portion of
the bifurcated trial; and (5) in its award of attorney fees to Saucier in the
amount of $16,731.38.  Saucier requests a remand for a determination of
additional attorney fees associated with postjudgment proceedings and this
appeal.  We affirm the judgment and remand for a further determination of
attorney fees pursuant to 24-A M.R.S.A. § 2436-A(1).
I. BACKGROUND
	[¶2]  In 1994, Saucier was injured in an automobile accident as a
passenger in Alden Pelletier's vehicle.  Pelletier died as a result of the
accident.  Two other passengers riding in Pelletier's car were also injured,
as well as the driver of another vehicle hit by Pelletier's vehicle.
	[¶3]  Pelletier carried liability insurance with Progressive Insurance
Company that had a $25,000 per person limit and a $50,000 per accident
limit.{4}  Saucier, the two other passengers from Pelletier's vehicle, and the
driver of the other car settled with Progressive.  Saucier's share of the
settlement was $10,594.65.  Allstate, Saucier's insurance carrier, consented
to this settlement.
	[¶4]  Saucier's insurance with Allstate included uninsured motorist
coverage with a per person limit of $50,000 and a per accident limit of
$100,000.  Saucier provided documentation of his medical bills and lost
earnings to Allstate.  Ultimately Allstate offered Saucier $10,000 in
settlement of his claim, indicating that it was compelled to offset his
coverage by the $25,000 limit of Pelletier's per person liability coverage
with Progressive and by the $1000 medical payments coverage Saucier had
with Allstate.  Saucier did not accept this offer, but suggested that it
reflected the undisputed portion of his claim and that Allstate should
immediately pay that amount.  Allstate responded that both the $10,000 and
the $1000 were in dispute as it was disputing both damages and coverage.
	[¶5]  Unable to reach an agreement with Allstate, Saucier brought suit
against Allstate on three counts.  In his complaint, Saucier sought
$39,405.35 pursuant to the provisions of his policy with Allstate;{5} the
undisputed portion of his claim plus interest as provided in the late payment
statute, 24-A M.R.S.A. § 2436; and, alleging that Allstate knowingly
misrepresented the extent of his coverage, damages, interest, attorney fees,
and costs pursuant to the unfair claims settlement practices statute, 24-A
M.R.S.A. § 2436-A.
	[¶6]  Allstate made a motion for a summary judgment and sought a
declaratory judgment regarding the amount of the offset to which it was
entitled.  The trial court denied Allstate's motion for a summary judgment
and declared that pursuant to the terms of Saucier's policy, Allstate was only
able to reduce Saucier's coverage by the amount he was actually paid by
Pelletier, the underinsured motorist.  Allstate then made a successful
motion for a bifurcated trial in which the jury first determined liability and
damages, and then proceeded to the claims regarding Allstate's failure to
pay an undisputed portion of a claim and the knowing misrepresentation of
pertinent facts of Allstate's policy.
	[¶7]  In the first portion of the jury trial, Saucier presented evidence
regarding the circumstances of the accident and his resulting injuries,
which included fractured vertebrae and other injuries to his back.  Saucier
also presented evidence of the damages he incurred as a result of the
accident, including approximately $17,000 in medical bills and lost wages
because he was unable to continue work as a mill supervisor.  He had to find
less physically demanding work that paid substantially less.  Saucier also
presented evidence of his expected future lost wages and medical expenses,
which included expenses for continuing physical therapy as well as
medications that he would need throughout the course of his life.  The jury
found that the car accident was the result of Pelletier's negligence and that
Saucier suffered past and prospective damages in the amount of $200,000.
	[¶8]  In the second portion of the trial, both parties produced
evidence regarding the exchange of communications that ensued from
Saucier's attempt to collect on his uninsured motorist coverage with
Allstate.  Over Allstate's objection, Saucier was permitted to introduce
evidence of Allstate's settlement offer of $11,000, which represented the
$1000 worth of medical payments coverage (that was not dependent on a
finding of liability), and $10,000 worth of uninsured motorist coverage.  The
jury found that Allstate failed to pay an undisputed portion of Saucier's
claim-the $1000 medical payment benefit, and that Allstate
misrepresented pertinent facts of its policy provisions.
	[¶9]  Allstate filed a motion for a judgment as a matter of law regarding
the claim that it misrepresented the extent of Saucier's coverage.  The court
denied the motion and entered a judgment in favor of Saucier on all claims. 
Allstate appeals from that judgment.
II. DISCUSSION
A.  Allstate's Offset

	[¶10]  Saucier's policy with Allstate provides that, with respect to
payments pursuant to its uninsured motorist policy, "[d]amages payable will
be reduced by . . . all amounts paid by the owner or operator of the
uninsured auto or anyone else responsible."  Allstate argues that this
language should be construed to mean reduced by the entire amount
available to Saucier but paid out by the underinsured motorist (or the
underinsured's insurance company) to all claimants, and not just by that
paid to its insured, Saucier.{6}  Allstate contends that the trial court erred in
holding that, as a matter of law, it could only offset its coverage by the
amount actually paid to Saucier by Pelletier's insurance carrier and not by
amounts paid to other claimants.  In making this argument, Allstate notes
that the quoted provision "does not specify who, or to how many claimants,
the amount is paid to [sic]."
	[¶11]  The meaning of the language used in an insurance contract is a
question of law.  See Jack v. Tracy, 1999 ME 13, ¶ 8, 722 A.2d 869, 871; 
Peerless Ins. Co. v. Wood, 685 A.2d 1173, 1174 (Me. 1996).  We construe
insurance policies liberally in favor of the insured and any ambiguity in the
contract is resolved against the insurer.  See Peerless, 685 A.2d at 1174. 
We view the language from the perspective of an average person.  See id. 
	[¶12]  Notwithstanding Allstate's observation that the policy provision
regarding its offset does not specify to whom "amounts paid" refers, the
language is not ambiguous.  The court did not err when it determined that
pursuant to Allstate's own policy provision, Saucier's coverage could only be
offset by the amount that he was paid by Progressive, and therefore Allstate's
maximum exposure was the difference between the $50,000 per person
limit and the $10,594.65 Saucier received from Progressive.
	[¶13]  In support of its construction, however, Allstate cites cases in
which the negligent motorist's underinsured status was at issue.  The two
cases on which Allstate principally relies, Mullen v. Liberty Mut. Ins. Co., 589
A.2d 1275 (Me. 1991), and Day v. Allstate Ins. Co., 1998 ME 278, 721 A.2d
983, indicate that "[t]o determine if a tortfeasor is underinsured, the court
compares the relevant face amounts recited on the insurance policies
without considering such factors as the amount of the insured's actual
damages, the number of other claimants, or their recoveries."  Day, 1998
ME 278 at ¶ 7, 721 A.2d at 985 (citations omitted) (emphasis added).{7}  In
other words, when determining the negligent motorist's coverage for
purposes of determining his status as an uninsured motorist pursuant to
24-A M.R.S.A. § 2902(1), other claimants' actual recoveries, as well as that
of the injured party, are disregarded.  These cases, however, do not stand
for the proposition that, when determining the coverage of the injured party
pursuant to the contract provisions of that individual's uninsured motorist
policy, the actual amount of money recovered from the uninsured individual
is to be disregarded.{8}
	[¶14]  Additionally, the construction given to the provision by Saucier
and the Superior Court is consistent with observations made by this Court in
other cases involving underinsurance coverage.  In Tibbetts v. Maine
Bonding and Cas. Co., 618 A.2d 731 (Me. 1992), Maine Bonding argued that
it was entitled to an offset pursuant to a clause in its policy similar to the
one at issue in this case for sums paid to the insured by a motorist other
than the uninsured motorist for injuries not attributable to the uninsured
motorist.  Id. at 733.  We held that the insurer was not entitled to an offset
for those sums, stating:
the clause in Maine Bonding's policy effects a reduction only for
amounts recovered from [the underinsured motorist] or her
insurer.  Accordingly, to the amount of its policy limits, Maine
Bonding's contractual obligation to the Tibbettses is determined
by the amount of the Tibbettses' damages that are attributable to
[the underinsured motorist], reduced by any recovery received
from [her] or her insurer.
Id. at 734 (emphasis added).
	[¶15]  In Cobb v. Allstate Ins. Co., 663 A.2d 38, 40 (Me. 1995), we held
that an offset for $25,000 paid to an insured by the tortfeasor applied
entirely to the primary insurer whose liability limit was $40,000, and should
not be prorated between the primary and secondary insurers.  If a secondary
insurer is not allowed to reduce its liability by amounts actually paid to the
insured when those amounts have already been used as an offset by a primary
insurer to reduce liability, it would be incongruous to allow an insurer to use
amounts that were never paid to its insured as an offset to reduce its
liability.{9}
	[¶16]  The Superior Court did not err when it held as a matter of
contract law that Allstate was required to pay $39,405.35 to Saucier.  Cf.
Buell v. American Universal Ins. Co., 621 A.2d 262, 265 (Conn. 1993)
(addressing similar language in a policy, court held that trial court
improperly reduced amount payable to insured by full amount of
underinsured's liability limit when a portion of it was paid to someone else).
B.  Allstate's Motion for a Judgment as a Matter of Law
	[¶17]  Allstate made two motions for a judgment as a matter of law
pursuant to M.R. Civ. P. 50(a) and (b){10} on Saucier's claim that it knowingly
misrepresented the extent of its coverage.  The court denied both motions. 
Allstate argues that the court erred by allowing the issue to go before the
jury and by not setting aside the jury's verdict that Allstate knowingly
misrepresented pertinent facts relating to Saucier's coverage.
	[¶18]  A motion for a judgment as a matter of law "should not be
granted if 'any reasonable view of the evidence could sustain a verdict for the
opposing party pursuant to the substantive law that is an essential element of
the claim.'"  Lewis v. Knowlton, 1997 ME 12, ¶ 6, 688 A.2d 912, 913
(quoting Currier v. Toys 'R' Us, Inc., 680 A.2d 453, 455 (Me. 1996)). 
Furthermore, we review the denial of a motion for a judgment as a matter of
law, "to determine whether 'by any reasonable view of the evidence,
including the inferences to be drawn therefrom, taken in the light most
favorable to the non-moving party, the verdict can be sustained.'"  Colvin v.
A R Cable Services-ME, Inc., 1997 ME 163, ¶ 6, 697 A.2d 1289, 1290
(quoting Williams v. Inverness Corp., 664 A.2d 1244, 1246 (Me. 1995)).  We
have recently stated with regard to M.R. Civ. P. 50(b), "a party seeking a
judgment as a matter of law after trial has the burden of establishing that the
adverse jury verdict was 'clearly and manifestly wrong.'"  Maine Energy
Recovery Co. v. United Steel Structures, Inc., 1999 ME 31, ¶5, 724 A.2d
1248, 1250 (quoting Townsend v. Chute Chem. Co., 1997 ME 46, ¶ 8, 691
A.2d 199, 202).
	[¶19]  Taken in the light most favorable to Saucier, the facts can and
do support the jury's determination that Allstate, through its claim analyst
knowingly misrepresented its obligations pursuant to the terms
of its policy.  The jury could reasonably conclude that the claim analyst had been
directed by Allstate to disregard its policy provisions and reduce claimant's
damages by the full liability limit of the underinsured's policy, regardless of
the amount paid to the claimant.{11}  Although the claim analyst testified that she had
been instructed by Allstate that case law, specifically Mullen, had somehow
abrogated the terms of its policies regarding the measure of offsets, the jury
could have rejected this as a credible explanation of Allstate's approach and
instead concluded that Allstate was aware of its obligations pursuant to the
terms of its policy, but was simply representing otherwise to Saucier.
	[¶20]  Allstate argues that its claim analyst did not consciously misrepresent the
terms of Saucier's policy because she was relying on directions from Allstate
and its representatives.  However, this reasoning would enable an insurer to
avoid liability for misrepresentations as long as the spokesperson for the
company was kept ignorant of the basis of the representations.  This is
clearly in contravention of the statute.  Allstate is responsible for the actions
of all its representatives, even when one is merely repeating what another
has told her regarding Allstate's policy provisions.
	[¶21]  Allstate also argues that because its representations were based
on its interpretation of a question of law, the jury could not have found that
it knowingly misrepresented the extent of its coverage.  But, as noted above,
the jury was not bound to accept Allstate's explanation of its representations. 
The trial court correctly instructed the jury on the issue of knowing
misrepresentation:
Knowing misrepresentation means to be aware that you are
misrepresenting something.  In other words, you know the
policy says one thing and means one thing but you tell the
insured something else. . . .  And in this case, also, the question
isn't who is right or wrong or whether Allstate took a position
that was different from Mr. Saucier's. . . .  So this has to be a
knowledgeable misrepresentation and awareness that there was
a misrepresentation, not a dispute as to what something says.
Having been correctly instructed on Allstate's obligations pursuant to its
contract with Saucier, a jury could have found that it knowingly
misrepresented the extent of its coverage, notwithstanding the fact that
Allstate sought to justify its representations with case law.
	[¶22]  Additionally, because the meaning of policy provisions is always
a question of law, Allstate's argument would, in effect, preclude any insurer
from being held accountable for its misrepresentations unless the very same
policy provisions had been previously construed by this Court.  Until that
point, the insurer could argue that its policy provisions all involved
unresolved questions of law.  But see Seabury  Hous. Assocs v. Home Ins. Co.,
695 F. Supp. 1244, 1248 (D. Me. 1988) (after finding that contract
governing coverage was ambiguous, court granted defendant insurer a
summary judgment on claim that it failed to pay an undisputed portion of a
claim when plaintiff argued that to be disputed, claim had to be disputed in
good faith:  because language was ambiguous, dispute could not be in bad
faith).
	[¶23]  Because Allstate has failed to demonstrate that no reasonable
view of the evidence could sustain a jury verdict on Saucier's claim or that
the jury's verdict is clearly and manifestly wrong, the trial court properly
denied both its motions for a judgment as a matter of law.



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