Picher v. Roman Catholic Bishop of Portland ( 2009 )

ALEXANDER, J.,

with whom CLIFFORD, J., joins, dissenting.

[¶ 40] The Court’s opinion provides an extensively documented policy discussion of the history of charitable immunity. That discussion begins with the observation that we recognized charitable immunity “as an affirmative defense available to non-profit organizations to bar negligence claims.” (Emphasis added.) In fact, we have emphasized the importance of charitable immunity to protect charitable resources from “invasion of these funds to satisfy tort claims.” Coulombe v. Salvation Amy, 2002 ME 25, ¶ 10, 790 A.2d 593, 596 (emphasis added) (quotation marks omitted); Mendall v. Pleasant Mountain Ski Dev., Inc., 159 Me. 285, 290, 191 A.2d 633, 636 (1963) (emphasis added).

[¶ 41] The Court employs this policy discussion to support the Court’s view that Maine’s common law of charitable immunity is an anachronism and that the Maine Legislature’s enactment of charitable immunity into law must be amended by judicial opinion to limit its application to torts involving only negligence. The result of the Court’s action today is that any charitable institution may be hauled into court and forced to expend its resources to defend a suit through trial any time a plaintiff pleads some intentional act or failure to act as part of its cause of action.

[¶ 42] The Court’s opinion, holding that charitable immunity protection may be avoided simply by pleading some intentional act or failure to act, effectively ends charitable immunity in Maine. I respectfully dissent from the Court’s opinion. The articulate policy arguments expressed by the Court should be addressed to the Legislature to support legislative action to amend the law that, without ambiguity, protects charities from suit “for negligence or any other tort.” 14 M.R.S. § 158 (2008).

[¶ 43] By invading the province of the Legislature and effectively striking “or any other tort” from our statute books, the Court fails to respect the separation of powers provision, article III, section 2, of the Maine Constitution and makes a policy judgment exposing all Maine charities to a wide range of lawsuits from which, until today, they have been protected by more than a century of legislative and judicial action.

[¶ 44] As the Court’s opinion amply demonstrates, charitable immunity has been an important fixture of our law affecting the planning, funding, operation, and governance of charitable institutions in Maine for more than a century. In Jensen v. Maine Eye & Ear Infirmary, 107 Me. 408, 410-11, 78 A. 898, 899 (1910), cited by the Court, we observed that:

No principle of law seems to be better established both upon reason and authority than that which declares that a purely charitable institution, supported by funds furnished by private and public charity, cannot be made liable in damages for the negligent acts of its servants. Were it not so, it is not difficult to discern that private gift and public aid would not long be contributed to feed the hungry maw of litigation, and charitable institutions of all kinds would ultimately cease or become greatly impaired in their usefulness.

[¶ 45] Jensen reminds us that by 1910, charitable immunity was well established in the common law of Maine. Anticipating today’s debates about the costs of litigation, Jensen also emphasizes that the purpose of charitable immunity was to protect the resources of Maine charities from both the recovery of damages and the costs of litigation, costs that, even if they prevail in litigation, can prove ruinous to small institutions. See id. The Jensen court did not contemplate that charitable immunity protection could be easily avoided by pleading an extra word like “intent” or “intentional” in stating a cause of action.

[¶ 46] Today’s opinion has great significance beyond this case. The existence of charitable immunity and the protection it creates is important to the planning and continued existence of many community-based organizations including local granges, arts organizations, fraternal groups, youth programs, churches, and some schools and health care providers. As we held in Jensen, such protection is important because funds donated for charitable purposes are held in trust to be used exclusively for those purposes and, without charitable immunity, resources could be sacrificed “to feed the hungry maw of litigation, and charitable institutions of all kinds would ultimately cease or become greatly impaired in their usefulness.” Id. at 411, 78 A. at 899.

[¶ 47] Just seven years ago, we confirmed our holding in Jensen, observing that, “to permit the invasion of these funds to satisfy tort claims would destroy the sources of charitable support upon which the enterprise depends.” Coulombe, 2002 ME 25, ¶ 10, 790 A.2d at 596 (quotation marks omitted); accord Mendall, 159 Me. at 290, 191 A.2d at 636.

[¶ 48] Two years after Mendall, the Legislature enacted 14 M.R.S. § 158, placing into Maine statutory law a broad-based charitable immunity protection, subject to an exception only for claims covered by insurance procured by the charity. P.L. 1965, ch. 383; P.L.1965, ch. 513, §§ 27-28 (effective Feb. 8, 1966). That law, unchanged until today, recognizes charitable immunity from liability “for negligence or any other tort,” that is subject to waiver only by purchase of insurance. 14 M.R.S. § 158.

[¶ 49] Two years after the Legislature’s action, in Rhoda v. Aroostook General Hospital, 226 A.2d 530, 531-33 (Me.1967), we recognized that while the Legislature could have abolished common law charitable immunity, it had instead enacted broad-based charitable immunity into statutory law, subject only to the purchase of insurance exception. In Rhoda, we emphasized the importance of deference to legislative, policy-based decision-making on this subject because “[w]hat the public policy of this State in such an important area of life and action should be may necessitate the conduct of a general investigation which this Court in litigated cases is ill-equipped to undertake.” Id. at 532.

[¶ 50] Legislative enactment of broad-based charitable immunity, now more than forty years in the past, allows many poorly funded organizations to provide important community services using facilities such as grange halls, art museums, Little League ball fields, or houses of worship. These organizations serve their communities without facing the Hobson’s choice of shutting down because they cannot afford the cost of insurance or remaining open to face the risk of lawsuits which, even if successfully defended, may cost more than the organization can afford.

[¶ 51] Today the Court sweeps away the protection enacted by the Legislature. In so doing, the Court invades the province of the Legislature in an area where, in Rhoda and Mendall, we acknowledged that the Legislature had primary authority to act to adopt, reject, expand, or modify the doctrine of charitable immunity. Rhoda, 226 A.2d at 532-33; Mendall, 159 Me. at 290, 191 A.2d at 636. In Mendall, addressing a proposal to abolish charitable immunity, we stated words that ring true today: “[S]uch as a far reaching change in policy should be initiated in the Legislature and receive careful legislative consideration.” 159 Me. at 290, 191 A.2d at 636.

[¶ 52] To justify its invasion of the Legislature’s province to amend 14 M.R.S. § 158, the Court appears to conduct a referendum of actions by other state supreme courts to conclude that since those courts appear to be cutting back on charitable immunity, we should follow suit. The Court’s referendum, however, lacks citations to other state statutes similar to section 158.⁶ It is that statute, and our obligation to respect it until amended by the Legislature, that necessarily separates Maine from other states in our approach to charitable immunity.

[¶ 53] The Court also cites two of our past opinions in which, the Court suggests, we reserved to ourselves the capacity to change or abolish the doctrine of charitable immunity despite legislative enactment of section 158. Each of those opinions, Child v. Central Maine Medical Center; 575 A.2d 318 (Me.1990) and Thompson v. Mercy Hospital, 483 A.2d 706 (Me.1984), involved attempts by hospitals to expand the protections in section 158 to cover all activities of entities that receive only a portion of their incomes from charitable sources. In each instance, we rejected the attempts to have us amend section 158 to expand its coverage from primarily charitable organizations to any organization that performs charitable-like functions and derives a small portion of its income from charitable sources. Child, 575 A.2d at 320; Thompson, 483 A.2d at 708.

[¶ 54] Those precedents, refusing to expand the applicability of the charitable immunity enacted by the Legislature from “a charitable organization” to any organization that performs some charitable functions, do not support the proposition that we may, at will, amend or repeal section 158.

[¶ 55] The Court concludes that section 158, recognizing immunity from liability for “negligence or any other tort,” does not include intentional torts. This view violates our basic rule of statutory construction that a statute, if it is not ambiguous, must be given its common, ordinary meaning, without resort to rules of construction. Ashe v. Enter. Rent-A-Car, 2003 ME 147, ¶ 7, 838 A.2d 1157, 1159. The protection from liability for “negligence or any other tori ” must mean protection from suit for torts in addition to negligence, including intentional torts. Limiting application of section 158 to negligence torts, as the Court does, renders the “or any other tort” phrase superfluous. Such a limiting interpretation violates another basic rule of statutory construction that no language in a statute may be viewed as superfluous if a construction supplying meaning to a phrase is possible. Struck v. Hackett, 668 A.2d 411, 417 (Me.1995); Labbe v. Nissen Corp., 404 A.2d 564, 567 (Me.1979).

[¶ 56] A claim of fraud, fraudulent misrepresentation, or fraudulent concealment is a tort like any other, although one that must be proved by clear and convincing evidence. See Rand v. Bath Iron Works Corp., 2003 ME 122, ¶ 9, 832 A.2d 771, 773. It is a tort easily pled, but difficult to prove. Nothing in legislation or our prior precedents creates a charitable immunity exception to blow open the courthouse door for those who employ the tactic of adding a fraud or intentional inaction claim to a negligence claim to force charities to defend against tort actions and confront all of the attendant costs and risks to the trust resources that we have stated must be protected from such actions.

[¶ 57] Forty-six years ago, in Mendall, we stated that changes in the doctrine of charitable immunity have far-reaching policy implications that should be initiated in the Legislature and receive careful legislative consideration. 159 Me. at 290, 191 A.2d at 636. That is as true today as it was then. The Court should leave amendment or abolition of the doctrine of charitable immunity and section 158 to the Maine Legislature. I would affirm the judgment of the Superior Court.

6 . The Court’s opinion also may overstate the extent to which charitable immunity has been limited in other states. It correctly quotes Prosser's observation that "virtually all states" have "rejected the complete immunity of charities,” and that only two or three states have retained "full immunity in the absence of legislation to the contrary.” W. Page Keeton et al., Prosser arid Keeton on the Law of Torts § 133 at 1070 (W. Page Keeton ed., 5th ed.1984). But the Court's authority for these observations, Prosser, qualifies those broad observations, noting that some states, like Maine, “permit a recovery against a charity’s non-trust fund assets — usually insurance — but not otherwise," and that in some states "immunity has been retained or reinstituted by statute, but only for certain particular cases,” id., including protection for religious institutions, id. at 1070 n. 15. The Court also counts Massachusetts among the states to have abolished charitable immunity. But with today’s costs of litigation, Massachusetts' “abolition” of immunity that imposes a $20,000 limit on damages seems more like a qualified acceptance of charitable immunity than an abolition of it.