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Doucette v. City of Lewiston
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME   157
Docket:	And-96-804
Argued:	May 12, 1997
Decided:	July 21, 1997

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




ANITA DOUCETTE v. CITY OF LEWISTON et al.

ROBERTS, J.

	[¶1]  Anita Doucette appeals from the summary judgment entered in
the Superior Court (Androscoggin County, Alexander, J.) in favor of the
defendants, the City of Lewiston and Terry Thomas, a dispatcher with the
Lewiston Police Department.  Doucette's complaint alleges Thomas failed to
follow standard procedures in her capacity as a police dispatcher, which
resulted in the death of John Doucette, Anita's husband.  She argues the
court erred by finding that Thomas was entitled to discretionary function
immunity, and in finding that the City had not waived immunity by
participating in the Maine Municipal Association Property & Casualty Pool. 
We affirm the judgment.  
	[¶2]  In the early morning hours of November 20, 1993, Lucien
Doucette, John's father, called the Lewiston police and reported the
following information to Thomas:  John had taken a car belonging to his
uncle; he was depressed because he had recently undergone a colostomy; he
was "full of" prescribed medication; neither Lucien nor John's wife, Anita,
knew where John had gone; and the car had an unloaded rifle in the trunk. 
Thomas ran a check on the vehicle identification number and the license
plate number Lucien had given to her, but neither number appeared to be
accurate.  Lucien asked to have John picked up and "put ... in a detox or
something like that," but Thomas told him the police could not do that
unless John volunteered to go or was arrested.  Lucien noted that the car
did not belong to John, but he also made it clear that the owner of the car
did not wish to press theft charges.  The conversation was thus concluded
and Thomas took no further action.  In particular, she did not enter
information about John or the vehicle into the National Crime Information
Center (NCIC) computer network.  
	[¶3]  Later that same day, John was involved in a traffic accident in
Wakefield, New Hampshire, and he encountered Officer Timothy Brackett of
the Wakefield Police Department.  Brackett thought John looked ill and sent
him to a nearby motel to rest.  Brackett also ran a check on John's driver's
license, which included a check of the NCIC database.  The check revealed
nothing.  The next day, November 21, 1993, John was found dead, having
committed suicide.  
	[¶4]  Anita Doucette alleges Thomas was negligent in failing to elicit
information from Lucien regarding John's potential for suicide and by failing
to send out a missing persons report over the NCIC.  She alleges that if
Thomas had properly entered the information into the NCIC, Officer
Brackett would have been alerted to the nature of John's situation "in time
to take appropriate actions which would have resulted in preventing [John's]
death by suicide."  She also alleges that the City of Lewiston is vicariously
liable for Thomas's negligence, and is independently liable on a theory of
negligent supervision.  
I.
	[¶5]  The court found that Thomas was entitled to discretionary
function immunity pursuant to 14 M.R.S.A. § 8111 (Supp. 1996), which
provides that employees of governmental entities "shall be absolutely
immune from personal civil liability" for certain categories of activities,
including "[p]erforming or failing to perform any discretionary function or
duty, whether or not the discretion is abused."  Id. § 8111(1)(C).  Doucette
contends that any discretion Thomas may have had in her role as dispatcher
was removed by virtue of the police department's standard operating
procedures (SOPs).  The SOPs require dispatchers to follow procedures
outlined in the "Dispatcher's Guide to Crimes/Incidents in Progress."  The
guide contains a checklist that directs dispatchers, when taking information
relating to a potential missing person, to inquire whether the person has
"[a]ny known problems:  mental, suicidal?  Suspect foul play?"  Doucette also
contends that Thomas's discretion was curtailed by the "Maine Metro
Manual," which governs the procedures used by dispatchers in entering
information onto the NCIC.  The manual provides that in the case of
"[p]ersons under 18 years of age, persons of any age mentally or physically
incompetent[,] or suspected victims of foul play," a missing persons report
should be entered onto the NCIC "immediately."  
	[¶6]  We agree that Thomas's activities as a dispatcher for the Lewiston
Police Department fall within the discretionary function immunity
provisions of section 8111(1)(C).  In her role as a dispatcher, Thomas was
called on to exercise judgment in evaluating incoming calls and determining
initially how those calls should be handled.  Her actions were essential to
the basic objectives of the department.  See Rippett v. Bemis, 672 A.2d 82,
88 (Me. 1996) (to qualify as a discretionary function, an action must be
essential to the realization or accomplishment of a basic governmental
policy, program, or objective).  We disagree with Doucette's contention that
the Dispatcher's Guide and the Maine Metro Manual deprived Thomas of
discretionary function immunity in this case.  These controls on Thomas's
behavior did not transform the basic discretionary nature of her duties.  
II.
	[¶7]  Doucette contends that even if Thomas is entitled to discretionary
function immunity, that immunity was waived because the City of Lewiston
had law enforcement liability insurance coverage through its participation in
the Maine Municipal Association (MMA) Property & Casualty Pool.  14
M.R.S.A. § 8116 (Supp. 1996) provides that "any political subdivision may
procure insurance against liability for any claim against it or its employees
for which immunity is waived," and "[i]f the insurance provides coverage in
areas where the governmental entity is immune, the governmental entity
shall be liable in those substantive areas but only to the limits of the
insurance coverage."  Section 8116 also provides that a governmental entity
that participates in a self-funded insurance pool, such as the MMA pool,
"shall maintain as part of its public records a written statement which shall
include a provision setting forth the financial limits of liability assumed by
the governmental entity ... and a provision setting forth the scope of the
liability assumed by the governmental entity, or the pool."  
	[¶8]  The insurance coverage provided to the City and its employees by
the MMA pool is described in the City's member coverage certificate.  The
second page of the certificate contains the following language intended to
"serve as the written statement required pursuant to [section 8116]:"

	LIABILITY LIMITS:  

... Coverage is limited to those areas for which governmental
immunity has been expressly waived by 14 M.R.S.A. § 8104-A, as
limited by 14 M.R.S.A. § 8104-B, and 14 M.R.S.A. § 8111.  ...{1} 
Liability coverage shall not be deemed a waiver of any immunities
or limitation of damages available under the Maine Tort Claims
Act, other Maine statutory law, judicial precedent, or common
law.  

The presence of a statement limiting liability distinguishes this case from
Stretton v. City of Lewiston, 588 A.2d 739 (Me. 1991).  In Stretton, the City
purchased insurance through the MMA pool, but its member certificate did
not contain language limiting coverage to claims for which immunity had
expressly been waived pursuant to the tort claims act.  Thus we concluded
there existed a genuine issue of fact regarding the scope of liability coverage
provided by the pool.  Id. at 741.  
	[¶9]  Our analysis of the instant case must take account of the limitation
of liability statement.  Our recent decisions in Webb v. Haas, 665 A.2d 1005
(Me. 1995), and Maynard v. Commissioner of Corrections, 681 A.2d 19 Me.
1996), are controlling.  In Webb, the plaintiffs brought an action against the
State pursuant to the Maine Tort Claims Act, and the State raised the
defense of immunity.  Notwithstanding that the State had purchased liability
insurance, we concluded it had not waived its immunity.  Our decision relied
on language in the policy that excluded coverage for any claim "for which
the insured has immunity pursuant to the [tort claims act]."  Webb, 665 A.2d
at 1011.  In Maynard, we concluded that participation by the Department of
Corrections in a form of state-sponsored self-insurance did not amount to a
waiver of the department's governmental immunity.  The policy at issue in
that case recited that coverage was excluded for "any claims for which there
would otherwise be immunity under the Maine Tort Claims Act, under any
other statute, or under the common law."  Maynard, 681 A.2d at 23.  Relying
on that language, and referring to our analysis in Webb, we concluded that
"the express terms of the self-insurance coverage provided to the
Department ... preserved the State's immunity."  Maynard, 681 A.2d at 24.  
	[¶10]  In the instant case, the limitation of liability statement contained
in the City's member coverage certificate has an impact equivalent to the
disclaimer language in Webb and Maynard.  By limiting coverage to "those
areas for which governmental immunity has been expressly waived," and by
stating that coverage "shall not be deemed a waiver of any immunities or
limitation of damages available under the Maine Tort Claims Act, other
Maine statutory law, judicial precedent, or common law," the City has
preserved its immunity from suit.  
	The entry is:
				Judgment affirmed.
                 
Attorneys for plaintiff: Jennifer Nichols Ferguson, Esq. (orally) Fales & Fales, P.A. P O Box 889 Lewiston, ME 04243-0889 Attorneys for defendants: Edward R. Benjamin, Jr., Esq. (orally) Preti, Flaherty, Beliveau, Pachios, LLC P O Box 11410 Portland, ME 04104-7410 (for City of Lewiston) Martha C. Gaythwaite, Esq. (orally) Friedman & Babcock P O Box 4726 Portland, ME 04112-4726 (for Terry Thomas)
FOOTNOTES******************************** {1}. The Maine Tort Claims Act exempts governmental entities from suit on "any and all tort claims" except as otherwise provided. 14 M.R.S.A. § 8103 (1980 & Supp. 1996). Section 8104-A (Supp. 1996) waives immunity for four categories of activities; however, section 8104-B (Supp. 1996) limits that waiver with respect to certain governmental functions. Section 8111, as discussed above, provides personal immunity for certain categories of activities conducted by government employees.