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SMITH v. VOISINE12/20/1994
Larry Smith appeals from the summary judgments entered in the Superior Court (York County, Cole and Fritzsche, JJ.) in favor of the defendants Normand Voisine and the Goodwin Mills Fire Department (Goodwin Mills). The judgments were based on Smith's failure to meet the notice requirements of the Maine Tort Claims Act. 14 M.R.S.A. § 8101-8118 (1980 & Supp. 1994). Because Smith did not file a notice of claim within 180 days of the injury and did not show good cause for that failure, we affirm the judgments.
On October 21, 1990, Smith, the City of Saco Fire Chief, and Voisine, a volunteer member of Goodwin Mills, were involved in an automobile accident as they were responding to a fire. After the accident, Smith filed a workers' compensation claim with the City of Saco Fire Department. Northern General Services, Inc., the insurance company handling Smith's claim for the City, contacted York Mutual Insurance Company, Voisine's automobile insurer, to notify it of Northern General's lien and to request information regarding Voisine's automobile policy limits. In March 1991, York Mutual informed Northern General that it did not consider itself responsible for the matter and provided Northern General with the name of the insurance agency that placed the coverage for Goodwin Mills. Northern General's letter to that agency described the accident and Smith's injuries, indicated York Mutual's opinion that coverage should be provided by the agency, and asserted Northern General's lien. All of this correspondence occurred within 180 days of the accident.
Some time in May 1991, more than 180 days after the accident, Smith's attorney first wrote to CIGNA, the insurance company providing Goodwin Mills's coverage, regarding his representation of Smith. He did not contact CIGNA again until September 1991. CIGNA responded in a November 1991 letter implying that either the CIGNA policy or the York Mutual policy would provide coverage for the accident.
In October 1992, Smith filed the present complaint against Voisine and Goodwin Mills alleging that Voisine's negligent and reckless operation of a motor vehicle caused Smith's injury. In their answers, both Voisine and Goodwin Mills raised as an affirmative defense Smith's failure to give notice pursuant to 14 M.R.S.A. § 8107. Goodwin Mills's motion for a summary judgment on the ground that Smith failed to provide timely
We review a trial court's summary judgment decision for errors of law, viewing the evidence in the light most favorable to the party against whom the judgment was entered. Kelly v. University of Maine, 623 A.2d 169, 171 (Me. 1993). "We will affirm a summary judgment when there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law." Smith v. School Admin. Dist. No. 58, 582 A.2d 247, 248 (Me. 1990).
The Maine Tort Claims Act governs tort claims brought against a governmental entity or its employees. In order to maintain a claim under the Act, a plaintiff must comply with the notice requirements set forth in section 8107. See Begin v. City of Auburn, 574 A.2d 888, 889 (Me. 1990). Smith first contends that Voisine is not entitled to notice under the Act because he was acting outside the scope of his employment. We find no merit to this argument. The Act explicitly includes volunteer firefighters in its definition of employee, see id. § 8102(1), and Voisine was proceeding to a fire in response to a call from Goodwin Mills when the accident occurred. Thus, if Smith did not comply with the Act's notice requirements, he may not proceed with his claim against either defendant. See Miller v. Szelenyi, 546 A.2d 1013, 1019 (Me. 1988).
Section 8107 requires that a plain
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