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Berard v. McKinnis
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Decision:	1997 ME 186
Docket:	Ken-96-650
Argued:	April 10, 1997
Decided:	August 11, 1997




	[¶1]  Daniel McKinnis and China Rescue, Inc., defendants in a
defamation suit filed against them by Janet Berard, appeal from the
judgment of the Superior Court (Kennebec County, Alexander, J.) denying
their motion for a summary judgment.{1}  On appeal, they contend that they
are immune under the provisions of the Maine Tort Claims Act, 14 M.R.S.A.
§§ 8101-8118 (1980 and Supp. 1996).  We agree and vacate the judgment.
 	[¶2]  On January 29, 1993, Janet Berard, a member of China Rescue,
Inc., a volunteer emergency medical services (EMS) organization, was in her
private vehicle with her husband when the rescue service was dispatched to
a medical call at the home of Berard's uncle.  She responded to the call, as
did four other China Rescue crew members, including China Rescue's
president, Daniel McKinnis.  The four crew members later reported having
smelled alcohol on Berard's breath while at the call.  Two of the four also
reported that Berard's behavior seemed different than usual and that she
was talking loudly.
	[¶3]  On February 5, 1993, McKinnis wrote a letter to Berard advising
her of the allegations that she had alcohol on her breath at the January 29
call and placing her on suspension.  McKinnis sent a copy of the February 5
letter to Mark Belserene, regional coordinator for the Kennebec Valley EMS. 
Berard wrote a letter to Belserene on February 11 denying that she had
responded as a crew member to the January 29 call and asserting that she
responded "as a family member of the patient who is my uncle."{2}  She also
denied that she had alcohol on her breath and stated that she had taken
Nyquil before the call.
	[¶4]  Berard requested a hearing before the China Rescue executive
board.  At the March 1993 hearing, Berard was present and was represented
by counsel. Mark Belserene from the Kennebec County EMS Council was also
present.  At the meeting Berard reiterated her position that she was at the
January 29 call in a private capacity.
	[¶5]  On May 5, 1993, McKinnis sent a letter to Berard advising her
that China Rescue was withdrawing its sponsorship of her EMS license.  The
letter stated, in pertinent part:  "The reason for termination is as follows;
violation of MEMS Law, Sec. 12 Art. 6 (b){3}; less than truthful statements
were made to the China Rescue Executive Board and failure to comply with
the China Rescue Boards agreed solution to your problem situation." 
McKinnis sent a copy of the letter to Drexell White at Maine EMS. 
	[¶6] In September 1994 Berard filed the present action against
McKinnis and China Rescue alleging slander and slander per se against
McKinnis and the liability of China Rescue for McKinnis's actions pursuant
to the doctrine of respondeat superior.  Both defendants filed a motion for a
summary judgment, pleading, inter alia, immunity pursuant to the Maine
Tort Claims Act.{4}  The court denied the motion, and the defendants now
present this interlocutory appeal.
	[¶7]  McKinnis contends that he is immune from liability for acts that
were his discretionary function{5} as president of China Rescue.  Specifically,
he contends that it was a discretionary function to send to EMS{6} a copy of
his letter terminating Berard from the rescue service.
	[¶8]  China Rescue is required by Maine EMS Rules to notify Maine
EMS when it terminates sponsorship of one of its crew members:  "A
service who terminates the sponsorship of a licensee shall notify Maine EMS
of such termination as soon as possible."  Maine EMS Rules, § 6(F)(2). 
McKinnis attested in his affidavit that he forwarded to Drexell White of
Maine EMS a copy of the letter he had sent to Berard because he was
required to notify Maine EMS of the termination of China Rescue's
sponsorship of Berard's EMS license.  The question we must resolve is
whether by reporting China Rescue's termination of its sponsorship of
Berard's license to Maine EMS, including the reasons for that termination,
McKinnis was performing a discretionary function.
	[¶9]  We have recognized four factors for consideration in determining
whether an action is encompassed within a discretionary function:
(1)  Does the challenged act, omission, or decision necessarily
involve a basic governmental policy, program or objective?

(2)  Is the questioned act, omission, or decision essential to the
realization or accomplishment of that policy, program, or
objective as opposed to one which would not change the course
of direction of the policy, program or objective?

(3)  Does the act, omission, or decision require the exercise of
basic policy evaluation, judgment, and expertise on the part of
the governmental agency involved?

(4)  Does the governmental agent involved possess the requisite
constitutional, statutory, or lawful authority and duty to do or
make the challenged act, omission, or decision?  

Adriance v. Town of Standish, 687 A.2d 238, 240 (Me. 1996).  Discretionary
function immunity "insulates from personal liability a government employee
who has been legislatively authorized to perform some discretionary function
and 'has acted, or has failed to act, pursuant to that authorization.'"  Darling
v. Augusta Mental Health Inst. 535 A.2d 421, 425 (Me. 1987) (quoting True
v. Ladner, 513 A.2d 257, 260 (Me. 1986)).  
	[¶10] Reviewing these factors in the instant case, we conclude that
McKinnis is entitled to discretionary function immunity for the act of
reporting China Rescue's revocation of Berard's license sponsorship to
Maine EMS.  
	(1)  Disciplining ambulance crew members who violate Maine EMS
rules involves a basic governmental policy, program or objective.  The "key
elements" of the emergency medical services are "prompt, efficient and
effective emergency medical care, a well-coordinated trauma system,
effective communication between prehospital care providers and hospitals
and the safe handling and transportation of the sick and injured . . . ."  32
M.R.S.A. § 81-A (1988 & Supp. 1996) (Statement of Purpose, Maine
Emergency Medical Services Act of 1982).  The required reporting of the
withdrawal of sponsorship of a crew member's EMS license to Maine EMS
advances Maine EMS's policy goals.
	(2)  Because the provision of emergency medical care requires
competent care providers, Maine EMS requires EMS providers to report
withdrawal of sponsorship of EMS licenses in order to maintain a "well-
coordinated trauma system." Id.  McKinnis's report to Maine EMS of China
Rescue's withdrawal of Berard's sponsorship is a "decision essential to the
realization or accomplishment of that policy." See Adriance, 687 A.2d at
	(3)  The decision to report termination of license sponsorship because
of a violation of Maine EMS rules is a decision that requires "basic policy
evaluation, judgment, and expertise" on the part of McKinnis, acting on
behalf of China Rescue.  See id.
	(4)  McKinnis possessed the requisite statutory authority to make the
challenged decision.  Because Maine EMS rules require an application for a
Maine EMS license or for license renewal be "signed by the applicant and by
an authorized representative of the service sponsoring the applicant for
license," Maine EMS Rules § 6(D)(6)(a), and because the "[f]ailure to
maintain sponsorship invalidates the license," Maine EMS Rules § 6(F),
McKinnis was empowered to determine which EMS licenses China Rescue
would sponsor.  Further, McKinnis was required by Maine EMS rules to
report his decision to Maine EMS.   "A service who terminates the
sponsorship of a licensee shall notify Maine EMS of such termination as soon
as possible."  Maine EMS Rules § 6(F)(2).
	[¶11]  Although Maine law did not require McKinnis to provide Maine
EMS with the reasons for the termination of the sponsorship of Berard's
license, McKinnis's decision to state the reasons for the termination is so
closely tied to the discretionary function of reporting termination that
McKinnis is protected by discretionary function immunity.  In that sense his
conduct is distinguishable from the conduct at issue in Rippett v. Bemis,
672 A.2d 82 (Me. 1996).  In Rippett, we concluded that although a deputy
sheriff's investigation of a crime was a discretionary function, his "public
statements concerning the results of that investigation . . . were not
essential to accomplish any basic governmental policy, program or objective
and in fact violated a written policy of the York County Sheriff's
Department," and thus the deputy was not immune from a defamation suit. 
Id. at 88.  In the instant matter, McKinnis was required by law to report to
Maine EMS his decision to withdraw sponsorship of Berard's license.  His
decision to send to Maine EMS a copy of the letter he sent to Berard stating
the reasons for the withdrawal was "reasonably encompassed by the duties"
of his position as China Rescue's president.  See 14 M.R.S.A. § 8111.{7}  
	[¶12]  Berard does not dispute that China Rescue is a "governmental
entity" for purposes of the Act{8}; rather, she contends that China Rescue is
covered by the liability insurance policy procured by the Town of China and
thus has waived immunity provided by the Act.{9}  China Rescue did not, for
the time period pertinent to this matter, have its own liability insurance
coverage.{10}  China Rescue bears the burden of proving that it does not have
insurance coverage bearing upon Berard's claim.  Danforth v. Gottardi, 667
A.2d 847, 848 (Me. 1995).
	The Town's liability insurance policy read, in pertinent part:

Section II - Who is an Insured:

1. If you are designated in the Declarations as:

	. . .

c.  An organization other than a partnership or joint
venture, you are an insured.  Your executive officers and
directors are insureds, but only with respect to their
duties as your officers or directors.  Your stockholders are
also insureds, but only with respect to their liability as

2.  Each of the following is also an insured:

a.  Your employees, other than your executive officers, but
only for acts within the scope of their employment by you.  

. . . 

4. Any organization you newly acquire or form . . . over which you
maintain ownership or majority interest . . . .

The policy also contained a "governmental subdivisions" modification to the
definitions section:
1. Who is an insured (Section II) is amended to include as an
insured any elective or appointive officer or a member of any
board or commission or agency of yours while acting within the
scope of their duties as such.

	[¶13]  When a contract is unambiguous, the construction of contract
language is a question of law.  Maine Mutual Fire Ins. Co. v. Grant, 674 A.2d
503, 505 (Me. 1996).  It is clear from the Town's 1993 policy that China
Rescue is not an "insured."  China Rescue is an independent, incorporated,
non-profit emergency medical service licensed by the State.  Its volunteers
are not employees of the Town, and the service is not dispatched by the
Town.  Although Berard contends that China Rescue can be considered as an
"agent" of the Town, the fact that the Town provides financial support for
China Rescue does not involve the exercise of such control by the Town that
would make China Rescue its agent.  See Bonk v. McPherson, 605 A.2d 74,
78-79 (Me. 1992); Restatement (Second) of Agency § 1 (1958).  China
Rescue was not, in 1993 and 1994, covered by the Town of China's liability
insurance, and thus China Rescue is immune from suit.
	[¶14]  "In the absence of [a] factual contradiction, summary judgment
is 'intended to permit prompt disposition of cases in which the dispute is
solely dependent on the resolution of an issue of law,' Tinsei v. Town of
Ogunquit, 491 A.2d 564, 568 (Me. 1985), and entitlement to discretionary
immunity is such an issue of law."  Polley v. Atwell, 581 A.2d 410, 413 (Me.
1990).  Because we have determined that both McKinnis and China Rescue
are immune under the MTCA, we conclude that the Superior Court erred as
a matter of law by denying the defendants' motion for a summary judgment.
	The entry is:
		Judgment vacated.  Remanded to the Superior
Court with direction to enter a judgment in
favor of Daniel McKinnis and China Rescue,
Attorney for plaintiff: Mark S. Kierstead, Esq. (orally) 97A Western Avenue Waterville, ME 04901 Attorneys for defendants: Frederick C. Moore, Esq. (orally) Thomas R. Kelly, Esq. Robinson, Kriger & McCallum P O Box 568 Portland, ME 04112-0568
FOOTNOTES******************************** {1} Denial of a motion for a summary judgment on the ground of immunity is appealable as an exception to the final judgment rule. Pepperman v. Barrett, 661 A.2d 1124, 1126 n.1 (Me. 1995). {2} Berard signed the ambulance run report as the "crew member in charge." Her EMS license number, 12922, is also listed on the report under the heading "crew license numbers." {3} Maine EMS Rules, section 12 (A) (1992) reads in pertinent part: The Board may refuse to issue or renew a license, or may modify, suspend, or revoke a license, if an applicant or licensee engages in any of the following conduct: . . . 6. Acting unprofessionally. Unprofessional conduct includes: . . . (b) Addiction to a drug, including alcohol or responding to the scene of a call while under the influence of intoxicating, narcotic, hypnotic or other substances, whether or not the use of such substances is habitual. {4} Because we conclude that both McKinnis and China Rescue are immune pursuant to the Maine Tort Claims Act, we do not address the remainder of their contentions. {5} 14 M.R.S.A. § 8111 provides, in pertinent part: 1. Immunity. Notwithstanding any liability that may have existed at common law, employees of governmental entities shall be absolutely immune from personal civil liability for the following: . . . C. Performing or failing to perform any discretionary function or duty, whether or not the discretion is abused; and whether or not any statute, charter, ordinance, order, resolution, rule or resolve under which the discretionary function or duty is performed is valid; . . . . The absolute immunity provided by paragraph C shall be applicable whenever a discretionary act is reasonably encompassed by the duties of the governmental employee in question, regardless of whether the exercise of discretion is specifically authorized by statute, charter, ordinance, order, resolution, rule or resolve and shall be available to all governmental employees, including police officers and governmental employees involved in child welfare cases, who are required to exercise judgment or discretion in performing their official duties. {6} "Maine EMS" refers to Maine Emergency Medical Services, which consists of the Emergency Medical Services Board, the emergency medical services director and Maine EMS staff, all under the auspices of the Department of Public Safety. The board is "responsible for carrying out the purpose" of the Maine Emergency Medical Services Act of 1982, 32 M.R.S.A. §§ 81-94. 32 M.R.S.A. § 83 (16-A) (Supp. 1996). "The board shall adopt the forms, rules, procedures, testing requirements, policies and records appropriate to carry out the purposes, requirements and goals of this chapter." 32 M.R.S.A. § 84 (1) (A) (Supp. 1996). {7} B