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Pine Ridge v. Mass. Bay, attorneys and footnotes

Attorneys for plaintiff:

Richard L. Suter, Esq., (orally)
Suter & Assoc., P.A.
251 U.S. Route One
Falmouth, ME 04105

Douglas F. Jennings, Esq.
150 State Street
Augusta, ME 04330

Frank J. Kolb, Esq.
Kolb Crisci & Eisenhandler
49 High Street
East Haven, CT 06512-2315

Attorneys for defendants:

John S. Whitman, Esq., (orally)
Richardson, Whitman, Large & Badger, P.C.
P O Box 9545
Portland, ME 04112-9545
(for Mass Bay Ins Co.)

Russell F. Hilliard, Esq., (orally)
Upton, Sanders & Smith
P O Box 1090
Concord, NH 03303-1090
(for Anderson-Watkins Assoc. and St. Angelo)
FOOTNOTES******************************** {1} . The complaint named Pine Ridge Realty, Inc., (sometimes referred to by the plaintiff as Pine Ridge Realty Corp.), the Dunegrass Golf Course (not a legal entity), and Ronald Boutet (an owner of Pine Ridge Realty, Inc.) as plaintiffs. As the Superior Court correctly noted, the proper plaintiff is Pine Ridge Realty, Inc., and we have recaptioned the case to reflect this fact. {2} . Although there was some question as to whether the rains were an actual part of the hurricane or a meteorological consequence of the proximity of the storm, there is no doubt that the ensuing rains were unprecedented. Approximately nineteen inches fell during a 36-hour period beginning on October 20, 1996. {3} . Eventually, a discovery master was appointed to resolve disputes. {4} . There was some confusion in terminology throughout the trial. It appears that there was a single policy in place that originally covered the existing nine-hole course, with a number of subsequent endorsements regarding the new course, the relevant ones being for "builder's risk" and "tees and greens." {5} . For example, the court found that: "[Boutet's] recollection of his dealings regarding insurance coverage was spotty. His damage estimates were evolving, hard to follow and included some excessive costs. His recollection of when seeding was done was questionable as was his recollection of his inquiry at the town hall regarding flood zones in the town." It also found that "[s]ome of the expert witnesses either had an obvious bias, had not adequately prepared or had been assigned only a limited task." {6} . The court specifically found that "[d]espite his protests to the contrary Boutet had only a passing interest in the details of his insurance coverage. . . . It was clear, given the inattention over substantial periods followed by the need for immediate action, the lack of response to many questions from the agent, the starting of construction before insurance coverage was in place and the purchasing of coverage that was not fully appropriate, that the lenders dictated the coverage." {7} . The court noted that this type of insurance would not have been available at any rate because the National Flood Insurance Program is generally limited to improved real estate. {8} . Pine Ridge also contends that the builder's risk policy is ambiguous and should be construed to provide flood coverage. This argument, however, is not persuasive. Pine Ridge argues that an ambiguity arises because the policy only covers "structures" and a golf course is not a "structure." Although Pine Ridge may be correct that this creates an ambiguity, the resolution is to interpret the term "structure" to include the course, see Union Mut. Fire Ins. Co. v. Commercial Union Ins. Co., 521 A.2d 308, 311 (Me. 1987) (noting when ambiguity exists court will interpret strictly against insurer), and not to interpret the policy to provide coverage not intended by the parties. {9} . Contrary to Pine Ridge's contention, the fact that it was eventually able to purchase all-risk coverage that included coverage for flood or groundwater damage does not establish that it is customary in the industry to include flood coverage in standard all-risk tees and greens policies. {10} . Even Pine Ridge's expert testified that Massachusetts Bay would have had no reason to issue flood coverage without a specific request. {11} . If a contract is ambiguous, the court may consider extrinsic evidence regarding the intent of the parties. See Handy Boat Serv., Inc. v. Professional Servs., Inc., 1998 ME 134, ¶ 13, 711 A.2d 1306, 1311. {12} . Many of Pine Ridge's arguments challenge the credibility determinations of the court. Arguments that evidence should be viewed in one light rather than another are properly made to the trial court, and have no efficacy in an appellate review. See Estate of Seibert, 1999 ME 156, ¶ 10, 739 A.2d 365, 368. We will not set aside findings of fact unless they are clearly erroneous, and we give due regard to the opportunity of the trial court to judge the credibility of the witnesses. See id.; see also M.R. Civ. P. 52(a). {13} . Pine Ridge argues that some of the damage may have been caused by the mere presence of rain without the consequent flooding or, alternatively, by wind alone. The court rejected Boutet's effort to change the characterization of the damage, finding that Boutet attempted to describe the loss "in a way that would fit his evolving knowledge of his coverage." The record fully supports the court's findings and demonstrates a constantly changing approach to damages by Boutet, demonstrated in part by his damage estimate of approximately $120,000 during discovery that became $1.2 million at trial. The court, concerned that Boutet's damage estimates were "hard to follow and included some excessive costs" eventually required Boutet to take a recess during his testimony to obtain some perspective before he continued to testify under oath. On this record, we cannot say that the court's finding is clearly erroneous. {14} . In the strongest terms, the court swept aside Pine Ridge's argument that the insurance company had engaged in fraud or bad faith, finding that the issuance of the named peril policy, rather than an all-risk policy was an unintended error. {15} . Because we find no error, we do not consider whether section 2186 is applicable to the current claim. Section 2186, enacted as emergency legislation on March 11, 1999, was made retroactive to June 30, 1998. The complaint was filed on January 17, 1997.

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