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Packgen, Inc. v. Bernstein, Shur, Sawyer & Nelson, P.A. , 2019 ME 90 ( 2019 )


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  • MAINE SUPREME JUDICIAL COURT                                                       Reporter of Decisions
    Decision: 
    2019 ME 90
    Docket:   Cum-18-58
    Argued:   September 11, 2018
    Decided:  June 6, 2019
    Revised:  November 19, 2019
    Panel:         SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
    Majority:      SAUFLEY, C.J., and MEAD, GORMAN, and HUMPHREY, JJ.
    Dissent:       HJELM, ALEXANDER, and JABAR, JJ.
    PACKGEN, INC.
    v.
    BERNSTEIN, SHUR, SAWYER & NELSON, P.A.
    HUMPHREY, J.
    [¶1]     In Maine, with exceptions not applicable to this appeal, the
    Legislature has spoken—a civil action against an attorney for professional
    negligence, malpractice, or breach of contract for legal services “shall be
    commenced within 6 years after the cause of action accrues,” 14 M.R.S. § 752
    (2018),1 and the cause of action accrues on “the date of the act or omission
    giving rise to the injury, not from the discovery of the [attorney] malpractice,
    negligence or breach of contract.” 14 M.R.S. § 753-B (2018).2 The question we
    1 Section 752 identifies those exceptions as “actions on a judgment or decree of any court of record
    of the United States, or of any state, or of a justice of the peace in this State, and except as otherwise
    specially provided.” 14 M.R.S. § 752 (2018).
    2 Section 753-B provides that only in actions alleging professional negligence “in the rendering of
    a real estate title opinion” and “in the drafting of a last will and testament that has been offered for
    2
    address in this appeal is whether the court-made doctrines of continuing
    representation and continuing negligence should apply in the determination of
    the date on which a cause of action for legal malpractice accrues under section
    753-B.
    [¶2] Packgen, Inc., appeals from a judgment entered by the Superior
    Court (Cumberland County, Warren, J.) granting the motion of Bernstein, Shur,
    Sawyer & Nelson, P.A. (Bernstein Shur), to dismiss Packgen’s complaint for
    legal malpractice because Packgen’s claim is barred by Maine’s six-year statutes
    of limitations for civil actions, 14 M.R.S. § 752, and attorney malpractice actions,
    14 M.R.S. § 753-B. Packgen argues that its claim is not barred because the
    doctrines of continuing representation3 and continuing negligence4 operate to
    bring the date of the act or omission “giving rise to [its] injury”—Bernstein
    Shur’s failure to serve a proper notice of claim or file a defective-products
    probate,” the limitation period commences upon the discovery of the cause of action. 14 M.R.S.
    § 753-B(2)-(3) (2018).
    3“The premise [of the doctrine of continuing representation] is that the cause of action in an
    attorney malpractice case should not accrue until the attorney’s representation concerning a
    particular transaction is terminated.” 3 Ronald E. Mallen, Legal Malpractice § 23:44 at 543 (2019 ed.
    2019) (quotation marks omitted).
    4 Under a continuing negligence theory, the statute of limitations period does “not begin to run
    until the date of the last act of negligence”—the date of last injury. See Baker v. Farrand, 
    2011 ME 91
    ,
    ¶ 20, 
    26 A.3d 806
    ; see also Dickey v. Vermette, 
    2008 ME 179
    , ¶ 9, 
    960 A.2d 1178
    ; 3 J.D. Lee & Barry A.
    Lindahl, Modern Tort Law: Liability and Litigation § 25:123, at 25-242 to -243 (2d ed. 2002) (“Under
    the continuing tort doctrine, if the negligence involves a continuing tort involving a continuing injury,
    the statute of limitations does not begin to run until the wrong terminates.”).
    3
    complaint—within the statute of limitations. 14 M.R.S. § 753-B(1). In the
    context of actions for attorney malpractice, we decline to adopt either doctrine
    and affirm the judgment dismissing the complaint as untimely pursuant to
    14 M.R.S. §§ 752, 753-B.
    I. BACKGROUND
    [¶3] The following facts are drawn from Packgen’s amended complaint
    and from documents attached to it whose authenticity is not challenged. See
    Andrews v. Sheepscot Island Co., 
    2016 ME 68
    , ¶ 8, 
    138 A.3d 1197
    ; see also Moody
    v. State Liquor & Lottery Comm’n, 
    2004 ME 20
    , ¶ 11, 
    843 A.2d 43
    . We view the
    facts alleged in the complaint as if they were admitted.                         See Andrews,
    
    2016 ME 68
    , ¶ 8, 
    138 A.3d 1197
    .
    A.       Underlying Federal Case—Packgen v. Covalence
    [¶4]    In 2008, Packgen retained Bernstein Shur to prosecute a
    defective-products claim against Covalence Specialty Coatings, LLC, and Berry
    Plastics Corporation.
    [¶5] On May 29, 2008, Bernstein Shur sent a letter to Covalence “to
    provide notice of [Packgen’s] claim against Covalence.”5 Although the letter
    Packgen’s amended complaint, from which we draw these facts, alleges only that Bernstein Shur
    5
    sent the letter to Covalence. It is unclear from the complaint whether Bernstein Shur also sent the
    letter to Berry Plastics.
    4
    was signed by a Bernstein Shur attorney, it did not set forth the cause of action
    under oath as is required by 14 M.R.S. § 1602-B(5) (2018). Bernstein Shur did
    not notice the missing oath, nor did it inform Packgen that a “proper notice of
    claim [was required] to start the accrual of prejudgment interest” or warn
    Packgen of “the adverse consequences of failing to serve such a notice” or the
    need to “promptly file suit . . . in order to protect Packgen’s prejudgment
    interest rights.” In the three years that followed, Bernstein Shur “made no
    attempt to serve a valid notice of claim that complied with section 1602-B,”
    “failed to file suit or otherwise diligently pursue the case,” and “failed to keep
    Packgen adequately informed about the status of its case.”
    [¶6] In 2011, Packgen retained new counsel and sued Covalence and
    Berry Plastics in the United States District Court for the District of Maine. On
    November 13, 2015, a jury rendered a verdict in favor of Packgen in the amount
    of $7,206,646.30, plus interest as allowed by law. Packgen filed an amended
    motion to alter or amend the judgment to allow post-judgment interest to
    accrue from May 29, 2008, the date that Covalence purportedly received
    Bernstein Shur’s letter on behalf of Packgen.
    [¶7] On December 11, 2015, while the parties were awaiting the court’s
    decision on the amended motion, Packgen and Bernstein Shur “entered into a
    5
    tolling agreement pursuant to which any and all legal defenses based on the
    passage of time and any limitations periods applicable to any claim or cause of
    action Packgen may possess against [Bernstein Shur] arising out of [Bernstein
    Shur’s] representation of Packgen on claims against [Covalence] and other
    responsible parties . . . were tolled and would be deemed suspended from
    running as of December 11, 2015.”
    [¶8] On March 7, 2016, the federal court (Torresen, J.) denied Packgen’s
    motion to alter or amend the judgment because Bernstein Shur’s letter to
    Covalence failed to comply with the oath requirement in 14 M.R.S. § 1602-B(5)
    and therefore did not constitute a valid notice of claim. As a result, Packgen was
    permitted to recover prejudgment interest dating only from the filing of the
    complaint in 2011 rather than from May 29, 2008, the date on which Bernstein
    Shur served the unsworn notice.
    B.    Packgen’s Claim Against Bernstein Shur
    [¶9] On May 23, 2017, Packgen filed a complaint against Bernstein Shur
    in the Superior Court alleging that the law firm’s failure to send a notice that
    complied with the requirements of section 1602-B caused Packgen to sustain
    an economic loss in the amount of $2,510,293.84—the difference between the
    prejudgment interest actually awarded by the federal court and the
    6
    prejudgment interest that would have been awarded but for Bernstein Shur’s
    negligence.
    [¶10] Bernstein Shur responded with a motion to dismiss the complaint
    on the grounds that Packgen’s claims were barred by the six-year statutes of
    limitations for civil actions, 14 M.R.S. § 752, and attorney malpractice actions,
    14 M.R.S. § 753-B. Bernstein Shur argued that the act giving rise to Packgen’s
    alleged injury—the basis for Packgen’s cause of action against it—occurred on
    May 29, 2008, the date the defective notice was sent to Covalence, and therefore
    the statute of limitations expired on May 29, 2014, three years before Packgen
    filed its complaint.
    [¶11] Packgen then filed an amended complaint, asserting that the
    December 2015 tolling agreement suspended the statute of limitations.
    Bernstein Shur countered in an amended motion to dismiss that the tolling
    agreement only saved claims that had not already expired. Bernstein Shur
    argued that, because the letter was sent on May 29, 2008, the suit alleging
    negligence in that letter was barred by the statute of limitations regardless of
    the tolling agreement, which only preserved claims accruing after
    December 11, 2009, six years prior to the signing of the agreement.
    7
    [¶12] The court concluded that section 753-B(1) barred Packgen’s claim
    and granted Bernstein Shur’s motion to dismiss the amended complaint “as to
    any claim for loss of prejudgment interest prior to the filing of [Packgen’s]
    federal complaint.”
    [¶13] The court noted that Packgen “appear[ed] to argue that its claim is
    not limited to the loss of prejudgment interest because of [Bernstein Shur’s]
    failure to diligently pursue the case and keep Packgen informed of its status
    constituted legal malpractice ‘which caused additional damage to Packgen.’
    Packgen’s amended complaint, however, in no way specifies what additional
    damage or losses were allegedly caused by [Bernstein Shur’s] lack of diligence.”
    (Citation omitted.) The court granted Packgen leave to file a motion to file an
    amended complaint if it alleged that Bernstein Shur committed professional
    negligence on or after December 11, 2009, that caused Packgen to incur
    financial losses other than the loss of prejudgment interest. Packgen did not
    file such a motion, and the court entered its final judgment dismissing the action
    on January 24, 2018.
    [¶14] The court rejected Packgen’s assertions that the doctrines of
    continuing representation and continuing negligence operate to save its claim
    from Bernstein Shur’s statute of limitations defense because it determined that
    8
    such a result would contravene the Legislature’s intent in rejecting the
    discovery rule and adopting the six year statute of limitations in 14 M.R.S.
    § 753-B(1). Packgen timely appealed. M.R. App. P. 2B(c).
    II. DISCUSSION
    [¶15] Packgen argues that the court erred when it dismissed its claim as
    untimely because the court limited its analysis to Bernstein Shur’s act of
    sending the defective notice of claim to Covalence on May 29, 2008. It is
    Packgen’s position that Bernstein Shur committed actionable, negligent
    omissions each day that it failed to send a valid notice or take other action in
    the case after December 11, 2009.6
    A.       Standard of Review
    [¶16] “A motion to dismiss tests the legal sufficiency of the complaint,”
    In re Wage Payment Litig., 
    2000 ME 162
    , ¶ 3, 
    759 A.2d 217
     (quotation marks
    omitted), the material allegations of which “must be taken as admitted,” Moody,
    
    2004 ME 20
    , ¶ 7, 
    843 A.2d 43
     (quotation marks omitted); see also Ramsey v.
    Baxter Title Co., 
    2012 ME 113
    , ¶ 2, 
    54 A.3d 710
    . When reviewing the grant of a
    motion to dismiss, “we examine the complaint in the light most favorable to the
    Packgen asserts that its claim against Bernstein Shur for negligent omissions after
    6
    December 11, 2009, was preserved by the parties’ December 11, 2015, tolling agreement.
    9
    plaintiff to determine whether it sets forth elements of a cause of action or
    alleges facts that would entitle the plaintiff to relief pursuant to some legal
    theory.” In re Wage Payment Litig., 
    2000 ME 162
    , ¶ 3, 
    759 A.2d 217
    ; see also
    McCormick v. Crane, 
    2012 ME 20
    , ¶ 5, 
    37 A.3d 295
    . A dismissal is only proper
    “when it appears beyond doubt that [the] plaintiff is entitled to no relief under
    any set of facts that [it] might prove in support of [its] claim.”         Moody,
    
    2004 ME 20
    , ¶ 7, 
    843 A.2d 43
     (quotation marks omitted).
    B.    Statute of Limitations
    [¶17] In this case, Packgen challenges the court’s interpretation and
    application of the statute of limitations in attorney malpractice cases. “Whether
    a claim is barred by the statute of limitations is a legal question subject to
    de novo review.” Estate of Weatherbee, 
    2014 ME 73
    , ¶ 14, 
    93 A.3d 248
    . “The
    statute of limitations is an affirmative defense. Unless it is clear on the face of
    the complaint that the action is barred by the relevant statute of limitations,
    dismissal on limitations grounds is improper.”            Jackson v. Borkowski,
    
    627 A.2d 1010
    , 1013 (Me. 1993) (citation omitted).
    [¶18] In a legal negligence or malpractice action, the six-year statute of
    limitations begins to run from the date the cause of action accrues, 14 M.R.S.
    § 752—that is, “from the date of the act or omission giving rise to the injury, not
    10
    from the discovery of the [attorney] malpractice, negligence or breach of
    contract,” id. § 753-B(1).
    [¶19] In general, “[w]e construe statutes of limitations narrowly.” White
    v. McTeague, Higbee, Case, Cohen, Whitney & Toker, P.A., 
    2002 ME 160
    , ¶ 8,
    
    809 A.2d 622
    . “When a statute already defines accrual . . . we are not free to
    re-define the term,” Musk v. Nelson, 
    647 A.2d 1198
    , 1201 (Me. 1994); however,
    “[a]bsent legislative direction, the decision of when a cause of action accrues is
    a judicial function,” White, 
    2002 ME 160
    , ¶ 7, 
    809 A.2d 622
    .
    [¶20] “In interpreting a statute, our single goal is to give effect to the
    Legislature’s intent in enacting the statute.”      Dickau v. Vt. Mut. Ins. Co.,
    
    2014 ME 158
    , ¶ 19, 
    107 A.3d 621
    . In general, a statute of limitations “should be
    construed strictly in favor of the bar which it was intended to create.” Harkness
    v. Fitzgerald, 
    1997 ME 207
    , ¶ 5, 
    701 A.2d 370
     (quotation marks omitted); see
    also Dickau, 
    2014 ME 158
    , ¶ 21, 
    107 A.3d 621
     (“Among [the principles of
    statutory construction] is the principle that we must interpret the plain
    language by taking into account the subject matter and purposes of the statute,
    and the consequences of a particular interpretation.”).
    [¶21] To determine that legislative intent, “we first look to the plain
    language of the provisions to determine their meaning.” MaineToday Media,
    11
    Inc. v. State, 
    2013 ME 100
    , ¶ 6, 
    82 A.3d 104
    . “We seek to discern from the plain
    language of the statute the real purpose of the legislation, avoiding results that
    are absurd, inconsistent, unreasonable, or illogical. If the statutory language is
    clear and unambiguous, we construe the statute in accordance with its plain
    meaning in the context of the whole statutory scheme.” Harrington v. State,
    
    2014 ME 88
    , ¶ 5, 
    96 A.3d 696
     (alteration, citation, and quotation marks
    omitted). “If the plain language of a statute is ambiguous—that is, susceptible
    of different meanings—we will then go on to consider the statute’s meaning in
    light of its legislative history and other indicia of legislative intent.”
    MaineToday Media, Inc., 
    2013 ME 100
    , ¶ 6, 
    82 A.3d 104
    .
    1.    The Occurrence Rule
    [¶22] Title 14 M.R.S. § 753-B provides the accrual date for actions against
    attorneys as follows:
    In actions alleging professional negligence, malpractice, or breach
    of contract for legal service by a licensed attorney, the statute of
    limitations starts to run from the date of the act or omission giving
    rise to the injury, not from the discovery of the malpractice,
    negligence or breach of contract, except as provided in this section
    or as the statute of limitations may be suspended by other laws.
    12
    By its plain language, section 753-B unambiguously divests itself of the
    discovery rule in attorney malpractice cases in all but two circumstances not
    applicable here7 and, instead, adopts an occurrence rule. 14 M.R.S. § 753-B.
    [¶23] Under the discovery rule, the statute of limitations is tolled until
    the injured party knows or should know of the harm caused. See 3 Ronald E.
    Mallen, Legal Malpractice § 23:54 at 604 (2019 ed. 2019). In contrast, under
    the occurrence rule, the statute of limitations begins to run on the date of the
    “occurrence of the essential facts that form the cause of action”—i.e., the date
    of the act or omission giving rise to the injury. See id. § 23:22 at 446-50. As a
    practical matter, because the clock begins to run on the date that the act or
    omission giving rise to the injury occurred, under the occurrence rule, the
    statute of limitations could begin to run before an injured party becomes aware
    of its injury. Id. § 23:22 at 454.
    [¶24]          Packgen argues that our analysis regarding negligence or
    malpractice actions against attorneys should not be limited to the strictures of
    the occurrence rule and urges us to adopt the doctrines of continuing
    representation and continuing negligence, which would save its claim against
    Bernstein Shur from dismissal resulting from the statute of limitations.
    7   See supra n.2.
    13
    2.    The Continuing Representation Doctrine
    [¶25] The doctrine of continuing representation has been adopted in
    some states. In those states, the doctrine is applied “only where there are clear
    indicia of an ongoing, continuous, developing and dependent relationship
    between the client and the attorney.” Smith v. Stacy, 
    482 S.E.2d 115
    , 121
    (W. Va. 1996) (quotation marks omitted). This doctrine is “designed to toll the
    statute of limitations during the continuation of the attorney/client
    relationship . . . until the professional relationship terminates with respect to
    the matter underlying the malpractice action.” 
    Id. at 120
    . The continuing
    representation doctrine was originally used in medical malpractice cases and
    applied in legal malpractice litigation as “a direct reaction to the illogical
    requirement of the occurrence rule, which compels clients to sue their
    attorneys though the relationship continues, and there has not been and may
    never be any injury.” 3 Ronald E. Mallen, Legal Malpractice § 23:44 at 543.
    Relying on this reasoning, Packgen asserts that we should adopt the continuing
    representation doctrine in legal malpractice cases and claims it had an ongoing,
    continuous, developing, and dependent relationship with Bernstein Shur.
    [¶26] Although we have not had the opportunity to determine whether
    the continuing representation doctrine has a place in attorney malpractice
    14
    litigation,8 we have had occasion to review the use of this doctrine in the context
    of medical malpractice claims.                See Dickey v. Vermette, 
    2008 ME 179
    ,
    
    960 A.2d 1178
    . In Dickey, we rejected the application of the continuing course
    of treatment doctrine—as it is called in medical malpractice litigation—
    pursuant to which the statute of limitations would not begin to run until the
    end of the doctor-patient relationship. Id. ¶ 7. We observed that, when the
    Legislature set “a three-year period of limitations, declaring that the cause of
    action accrues on the date of the act or omission giving rise to the injury and
    carving out a specific exception for foreign objects, the Legislature effectively
    declined to adopt the continuing course of treatment doctrine.” Id. (quotation
    marks omitted). Applying the continuous course of treatment doctrine to save
    the plaintiff’s claim would have required “imposing a judicially-created
    exception that is contrary to the plain meaning of [the statute of limitations].”
    Id.; see also Dasha v. Me. Med. Ctr., 
    665 A.2d 993
    , 996 (Me. 1995).
    [¶27] The legislative history of section 753-B similarly proscribes our
    ability to define when a legal negligence or malpractice cause of action accrues.
    In Nevin v. Union Tr. Co., 
    1999 ME 47
    , ¶ 37, 
    726 A.2d 694
    , we declined to determine whether the
    8
    continuing representation doctrine could ever apply in legal malpractice cases because the plaintiffs
    “stipulated away any such claims by waiving claims regarding any representation” in the unexpired
    limitations period.
    15
    The Legislature clearly defined the accrual date for actions for legal malpractice
    when it first adopted the occurrence rule, see P.L. 1985, ch. 804, § 2 (effective
    Aug. 1, 1988) (codified at 14 M.R.S. § 753-A (Supp. 1988)).9 This change to the
    legal malpractice statute of limitations was part of a substantial overhaul to the
    laws relating to professional liability generally, and was primarily an effort to
    respond to the high cost of liability insurance for medical practitioners. See L.D.
    2400 (112th Legis. 1986). The occurrence rule “comports with a legislative
    intent to limit stale claims against attorneys” and the “policy of repose
    mandated by the Legislature.” White, 
    2002 ME 160
    , ¶ 8, 
    809 A.2d 622
    . When
    the Legislature enacted the statute of limitations for actions involving
    attorneys, it articulated that this law “expands the current ‘discovery rule’ in
    actions . . . by extending it to malpractice actions involving wills as well as title
    searches. The ‘discovery rule’ will not apply in any other attorney malpractice
    actions.” L.D. 2400, Statement of Fact (112th Legis. 1986) (emphasis added);
    see also Nevin v. Union Tr. Co., 
    1999 ME 47
    , ¶¶ 31, 34-35, 
    726 A.2d 694
    . This
    Legislative action reveals an intent not only to provide repose, but to start the
    statutory clock at the earliest possible moment—when the act or omission
    9  Title 14 M.R.S. § 753-A has since been repealed and replaced by 14 M.R.S. § 753-B (2018). See
    P.L. 2001, ch. 114, §§ 1-2 (effective Sept. 21, 2001).
    16
    causing the injury occurs. The Legislature could have chosen to adopt a rule
    that triggered the running of the statute of limitations when the client became
    aware of his or her injury, but it did not. Instead, it determined that the
    limitations period begins when the act or omission giving rise to the cause of
    action occurs. 14 M.R.S. § 753-B. This suggests that the Legislature intended
    for legal malpractice claims to begin and be resolved without delay.
    [¶28] Further, as reasoned in Dickey, and correctly recognized by the
    trial court in this case, applying the doctrine of continuing representation in
    attorney negligence or malpractice actions would be tantamount to
    resurrecting the discovery rule, which is clearly foreclosed by the plain
    language of section 753-B. 
    2008 ME 179
    , ¶ 7, 
    960 A.2d 1178
    . Adoption of the
    continuing representation doctrine would defer accrual of a cause of action
    until the attorney-client relationship is terminated, potentially tolling the
    statute of limitations through years of trial and appellate review, which would
    contradict the “policy of repose mandated by the Legislature.”          White,
    
    2002 ME 160
    , ¶ 8, 
    809 A.2d 622
    .
    [¶29]   The Legislature has provided a specific six-year period of
    limitations subject to two narrow exceptions. 14 M.R.S. § 753-B(2)-(3). We are
    not free to carve out additional exceptions to section 753-B and therefore do
    17
    not do so here. See Nevin, 
    1999 ME 47
    , ¶ 34, 
    726 A.2d 694
    . (“[W]hen the
    Legislature provides for enumerated exceptions to its definition, those
    exceptions implicitly deny the availability of any other.” (alteration and
    quotation marks omitted)). While it may seem uncomfortable to potentially
    require that a client, in order to preserve its claim, sue its attorney before the
    relationship has been severed, the Legislature clearly determined that the
    limitations period in legal malpractice cases begins to run on the date of the act
    or omission giving rise to the injury, not the date of the termination of the
    attorney-client relationship.
    C.    Continuing Negligence Doctrine
    [¶30]    Alternatively, Packgen urges that we apply the continuing
    negligence doctrine to its legal malpractice claim as we applied the doctrine to
    a medical malpractice claim in Baker v. Farrand, 
    2011 ME 91
    , ¶ 29, 
    26 A.3d 806
    .
    Under the continuing negligent treatment doctrine, the limitations period does
    not begin to run “until the date of the last act of negligence.” Id. ¶ 20. In Baker,
    we examined the plain language of 24 M.R.S. § 2902 (2018)—the medical
    malpractice statute of limitations—and relied, in part, on the rule of statutory
    18
    construction in 1 M.R.S. § 71(9) (2018),10 to determine that it was consonant
    with the plain meaning of the statute “to define the term ‘act or omission’ as
    used in section 2902 as referring to either a single act or omission, or a series of
    related acts or omissions that proximately cause a harm.”                    
    2011 ME 91
    ,
    ¶¶ 27-28, 
    26 A.3d 806
     (emphasis added). As a result, we held,
    pursuant to section 2902, a plaintiff may bring a single action
    alleging continuing negligent treatment that arises from two or
    more related acts or omissions by a single health care provider or
    practitioner where each act or omission deviated from the
    applicable standard of care and, to at least some demonstrable
    degree, proximately caused the harm complained of, as long as at
    least one of the alleged negligent acts or omissions occurred within
    three years of the notice of claim.
    Id. ¶ 29.
    [¶31] Packgen urges that this reasoning in Baker should also be applied
    to claims of legal malpractice under section 753-B because Bernstein Shur’s
    ongoing failure to send a proper notice of claim, in combination with its failure
    to file suit and adequately advise Packgen up to the date of the termination of
    its representation in 2011, proximately caused the loss of the full amount of
    prejudgment interest to which Packgen was entitled. See id. ¶¶ 24-25. In other
    words, Packgen asserts that its cause of action was preserved because the
    “Words of the singular number may include the plural; and words of the plural number may
    10
    include the singular.” 1 M.R.S. § 71(9) (2018).
    19
    limitations period did not begin to run until Bernstein Shur allegedly
    committed its last negligent omission. However, Baker does not control the
    application of the continuing negligence doctrine in legal malpractice actions.
    [¶32] In Baker, a primary care physician performed six annual tests on a
    patient’s prostate, only two of which fell within the applicable statute of
    limitations. Id. ¶¶ 3-4. The physician failed to refer the patient to a specialist
    after three of the tests, even though the results were abnormal and the need for
    further testing was indicated. Id. As a result, the patient’s prostate cancer was
    not detected until after it spread considerably and his treatment options were
    substantially limited. Id. Because the harm was caused by a continuing course
    of negligent treatment, the patient was permitted to bring a cause of action on
    the basis of each of the occasions on which the physician failed to adhere to the
    standard of care, even though only two of those acts or omissions fell within the
    limitations period. Id. ¶¶ 3, 29.
    [¶33] Unlike the continuing course of negligent treatment in Baker, the
    negligence Packgen alleges arises from a single act: Bernstein Shur’s failure to
    send a proper notice of claim on May 29, 2008. Here, the negligent action was
    singular—an isolated mistake severable from the remainder of Bernstein
    Shur’s representation of Packgen—and substantially dissimilar from the
    20
    ongoing treatment and annual testing in Baker. We understand Packgen’s
    argument that Bernstein Shur committed a new negligent omission each day it
    failed to provide a proper notice of claim or seek another remedy after
    May 29, 2008; however, we were clear in Baker that where it is “reasonably
    probable that one act or omission in a series of acts or omissions was the sole
    proximate cause of the injury complained of, a cause of action would accrue
    from the date of that act or omission, and not from the dates of any subsequent
    acts or omissions.” Id. ¶ 24. In this case, it is reasonably probable that the harm
    Packgen complains of occurred as a result of Bernstein Shur’s alleged failure to
    meet the oath requirements for the notice of claim on May 29, 2008. As such,
    the continuing negligence doctrine is inappropriate in this case.
    [¶34] Moreover, the applicability of the continuing negligence doctrine
    to the medical malpractice statute of limitations was based firmly “on the
    language and authority of the Health Security Act,” to which there are no
    analogous provisions in the attorney malpractice context. Id. ¶ 30. In Baker,
    we anchored our holding on two definitions particular to the Health Security
    Act: “action for professional negligence” and “professional negligence.” Id. ¶ 22
    (citing 24 M.R.S. § 2502(6)-(7) (2018)). These definitions provided the basis
    for our holding that the act or omission that triggers the statute of limitations
    21
    could be a combination of several related acts or omissions, including acts or
    omissions outside the statute of limitations. The definitions relevant to title 24
    specifically authorize the use of multiple acts or omissions to make out a claim
    of professional negligence; therefore, it was logical for us to conclude in the
    medical malpractice context that the precipitating event for a medical
    malpractice claim could be a series of related events, the combination of which
    proximately caused the patient’s injury. Id.; see also 24 M.R.S. § 2502(6)-(7).
    This same logic does not apply to claims for attorney malpractice pursuant to
    14 M.R.S. § 753-B.
    [¶35] There are no congruent definitions in title 14, generally, or in
    chapter 205, specifically. Without similar authorizing language on which to
    draw, we are unable to conclude that the continuing negligence doctrine is
    applicable to claims for legal malpractice. Moreover, considering the particular
    language and history of section 753-B, it is clear that the application of the
    continuing negligence doctrine is foreclosed by the Legislature’s intent to
    provide timely repose to claims against attorneys, as discussed above. White,
    
    2002 ME 160
    , ¶ 8, 
    809 A.2d 622
    . While it can be said that section 753-B, like
    any statute of limitations, provides an arbitrary cutoff after which a client’s
    22
    claim against his attorney is no longer viable, this was a deliberate choice the
    Legislature made, and we must defer to it.
    III. CONCLUSION
    [¶36] Given the legislative history underpinning the adoption of the
    occurrence rule in section 752, the plain language of section 753-B regarding
    actions against attorneys, and the strict construction we apply to statutes of
    limitations, we conclude that the Legislature intended to limit the accrual of a
    cause of action for attorney negligence or malpractice to the “act or omission
    giving rise to the injury”—that is, the attorney’s singular act or omission that
    proximately caused the harm to the client, 14 M.R.S. § 753-B, and not to the
    attorney’s ongoing failure to correct that singular act or omission. In this case,
    the act giving rise to Packgen’s alleged injury occurred on May 29, 2008, and
    Packgen’s claim expired on May 29, 2014, six years after the service of the
    defective notice letter, and it is now time barred, 14 M.R.S. §§ 752, 753-B. We
    must effectuate the Legislature’s language and we may not hold otherwise. See
    Myrick v. James, 
    444 A.2d 987
    , 992 (Me. 1982) (“That which we may not do is
    to change such a rule or policy once the Legislature has specifically taken that
    rule or policy out of the arena of the judicial prerogative . . . .”).
    23
    The entry is:
    Judgment affirmed.
    HJELM, J., with whom ALEXANDER and JABAR, JJ., join, dissenting.
    [¶37]    For two fundamental reasons, I disagree with the Court’s
    conclusion that Packgen, Inc.’s claim for professional negligence, filed against
    its former attorneys, Bernstein, Shur, Sawyer & Nelson, P.A., is barred by the
    statute of limitations. First, in my view, the complaint sufficiently alleges that
    some negligent omissions occurred within the period of limitations, and so that
    part of Packgen’s claim should survive for that reason alone. Second, the
    doctrine of continuing negligence, which we have adopted in cases involving
    medical negligence, should be applied to claims of legal malpractice and, at this
    very early phase of the case, entitles Packgen to pursue the entirety of its
    negligence claim. For these reasons, I respectfully dissent.
    [¶38] The narrow issue presented here is the legal viability of Packgen’s
    claim as pleaded in its amended complaint. The criterion for assessing the
    adequacy of a pleading is familiar and generous. For purposes of this analysis,
    we take the allegations to be true and “examine the complaint in the light most
    favorable to the plaintiff to determine whether it sets forth elements of a cause
    24
    of action or alleges facts that would entitle the plaintiff to relief pursuant to
    some legal theory.” Argereow v. Weisberg, 
    2018 ME 140
    , ¶ 2, 
    195 A.3d 1210
    (quotation marks omitted). Because Maine is a notice-pleading jurisdiction, the
    level of scrutiny used to assess the sufficiency of a pleading is “forgiving.” Howe
    v. MMG Ins. Co., 
    2014 ME 78
    , ¶ 9, 
    95 A.3d 79
     (quotation marks omitted). The
    statute of limitations—an affirmative defense—is the sole basis for Bernstein
    Shur’s motion to dismiss Packgen’s complaint, so dismissal is proper only if “it
    is clear on the face of the complaint” that the claim is time-barred. Jackson v.
    Borkowski, 
    627 A.2d 1010
    , 1013 (Me. 1993).
    [¶39] The relevant facts and chronology of events as alleged in Packgen’s
    amended complaint are not complicated. Packgen retained Bernstein Shur in
    2008 “to prosecute its legal claims” arising from a commercial dispute. In late
    May of 2008, Bernstein Shur sent the prospective defendant a notice of claim,
    but the form of the notice was insufficient to trigger the accrual of prejudgment
    interest, see 14 M.R.S. § 1602-B(5) (2018). Then, over the course of the next
    three years, Bernstein Shur continuously “failed to file suit,” failed to serve the
    prospective defendant with a proper notice of claim, and failed to “otherwise
    diligently pursue the case[,] which caused additional damage to Packgen.” In
    2011, Packgen terminated its relationship with Bernstein Shur and “retained
    25
    new counsel[,] who promptly brought suit on Packgen’s behalf,” resulting in a
    substantial money judgment for Packgen.
    [¶40] Packgen and Bernstein Shur entered into a tolling agreement,
    which, as of December 11, 2015, stopped the clock that would determine the
    timeliness of any claim that Packgen might later assert against Bernstein Shur.
    And, in fact, in May of 2017, Packgen commenced this action. Because, as the
    parties agree, Packgen’s claim against Bernstein Shur is subject to a six-year
    period of limitations, see 14 M.R.S. § 752 (2018), the tolling agreement renders
    as timely any part of Packgen’s claim that accrued on or after December 11,
    2009.
    [¶41] The interpretation and application of two interrelated statutes are
    integral to this appeal. The first statute, 14 M.R.S. § 752, applies broadly and
    provides,
    All civil actions shall be commenced within 6 years after the cause
    of action accrues and not afterwards, except actions on a judgment
    or decree of any court of record of the United States, or of any state,
    or of a justice of the peace in this State, and except as otherwise
    specially provided.
    The second, 14 M.R.S. § 753-B (2018), applies specifically to actions
    commenced against attorneys and states,
    In actions alleging professional negligence, malpractice or breach
    of contract for legal service by a licensed attorney, the statute of
    26
    limitations starts to run from the date of the act or omission giving
    rise to the injury, not from the discovery of the malpractice,
    negligence or breach of contract, except as provided in this section
    or as the statute of limitations may be suspended by other laws.
    [¶42] The facial reach of the six-year limitation period created by
    section 752 covers some, but not all, of the time that Bernstein Shur
    represented Packgen, which was from 2008 into 2011. Thus, in examining the
    timeliness of Packgen’s claims, there are two different periods to be considered:
    (1) the period beginning December 11, 2009, which is the six-year period that
    ended with the effective date of the parties’ tolling agreement; and (2) the
    period that predates December 11, 2009. Because the legal considerations
    differ as between these two timeframes, I address them separately.
    A.    Allegations of Negligence Occurring On and After December 11, 2009
    [¶43] As I note above, Packgen alleges that throughout the entire course
    of Bernstein Shur’s representation of its interests, which extended until
    sometime in 2011—and includes more than one year within the period of
    limitations prescribed in section 752—the firm was negligent in several
    different ways. Packgen’s claim includes allegations, not only that Bernstein
    Shur was negligent by issuing the statutorily defective notice of claim, but also
    that the firm negligently failed to file suit on Packgen’s underlying commercial
    claim, which also would have triggered the accrual of prejudgment interest
    27
    arising from that claim. Thus, although the Court focuses exclusively on the
    Bernstein Shur’s allegedly negligent act of issuing a deficient notice of claim in
    May of 2008, there is more to Packgen’s claim.
    [¶44] Although Bernstein Shur’s issuance of the defective notice of claim
    is a single allegedly negligent act with an ascertainable date,11 the failure to
    commence an action altogether is an allegedly negligent omission—something
    that never happened at all. And from the allegations contained in the amended
    complaint, it is not possible to assign a date certain to an event that did not
    occur; that omission is temporally indeterminate within the period when
    Bernstein Shur represented Packgen.                      In other words, for purposes of
    determining whether the amended complaint is time-barred on its face,
    Packgen’s allegation that Bernstein Shur committed legal malpractice by not
    filing suit does not inevitably lead to the conclusion that the alleged negligence
    associated with that omission necessarily falls entirely outside the period of
    11 Because the Court should apply the doctrine of continuing negligence in assessing the facial
    viability of Packgen’s complaint, the date of the defective notice may not be the date when Packgen’s
    cause of action itself accrued. For the reasons I discuss later in this dissent, that will need to be
    determined on the basis of an evidentiary presentation such as summary judgment motion practice.
    But even if—as the Court holds today—the doctrine of continuing negligence is unavailable, the
    amended complaint is still not untimely on its face because, as I explain in the text, it is impossible to
    assign a date outside of the period of limitations to a negligent omission in the form of failing to file
    suit. This means there is no need to consider whether, as a legal matter, Bernstein Shur could be
    found liable for its failure, continuing past December 11, 2009, to correct its allegedly negligent act
    of issuing the defective notice of claim in May of 2008.
    28
    limitations.   The bones of Packgen’s amended complaint are sufficient to
    encompass an assertion, which could only be fleshed out during the evidentiary
    phases of the case, that Bernstein Shur, in the exercise of due care, should have
    commenced the action in the commercial case on or after December 11, 2009.
    Based on this aspect of Packgen’s claim alone, its amended complaint was not
    facially untimely.
    [¶45] I also note that the trial court’s order dismissing the complaint was
    actually provisional. While concluding that Packgen’s claim was outside of the
    period of limitations, the court gave Packgen an opportunity to seek leave to
    further amend its amended complaint to allege damages other than those
    allegedly caused by the defective notice of claim sent in 2008. Although
    Packgen did not file any such motion, the absence of any supplemental filing by
    Packgen is inconsequential. In its amended complaint, Packgen had already
    alleged a sufficient basis—the failure to file suit, for example—on which
    Bernstein Shur could be determined liable based on negligent acts or omissions
    occurring directly within the six-year limitations period. Therefore, the court
    erred by requiring Packgen to do something more than it had already done in
    order to avoid dismissal of its complaint.
    29
    [¶46] Because Packgen’s amended complaint alleges negligence that
    occurred within the limitations period, which runs forward from December 11,
    2009, I conclude that the court erred by dismissing that portion of Packgen’s
    claim.
    B.        Allegations of Negligence Occurring Before December 11, 2009
    [¶47] In contrast to Packgen’s claim for negligence that occurred on or
    after December 11, 2009, its claim for negligent acts or omissions occurring
    before that date is time-barred pursuant to section 752 unless an appropriate
    legal mechanism brings that part of Packgen’s claim back within the period of
    limitations. Packgen asserts that two such legal theories preclude the dismissal
    of those older aspects of its claim against Bernstein Shur: continuing
    representation and continuing negligence.12
    [¶48] I agree with the Court’s conclusion that the mere continuation of
    an attorney’s representation of a client on an ongoing matter extending into the
    12There are other legal doctrines that can save an otherwise stale claim from dismissal. For
    example, in certain limited circumstances, a party may be estopped altogether from asserting the
    statute of limitations as a defense, see Dasha v. Maine Med. Ctr., 
    665 A.2d 993
    , 995 (Me. 1995), and a
    period of limitations may run, not for an absolute length of time beginning with the actionable
    conduct, but from the moment the injured party actually or constructively discovers the wrongful
    conduct, see, e.g., 14 M.R.S. § 753-B(2)-(3) (2018) (creating a discovery rule applicable to the statute
    of limitations governing certain types of actions against attorneys); 24 M.R.S. § 2902 (2018) (creating
    a discovery rule for the limitation period in claims of foreign-object surgical malpractice). Packgen
    has not sought to invoke any of those doctrines here.
    30
    limitations period does not preclude the statute of limitations from barring a
    claim based on a negligent act or omission that occurred outside of the
    limitation period. See Court’s Opinion at ¶¶ 25-29. We have reached that
    conclusion in the context of a medical malpractice claim, see Dickey v. Vermette,
    
    2008 ME 179
    , ¶¶ 4-8, 
    960 A.2d 1178
    ; see also Baker v. Farrand, 
    2011 ME 91
    ,
    ¶¶ 18-19, 
    26 A.3d 806
    , and the same analysis applies to legal malpractice
    claims.     In Dickey, we explained that the “act or omission” phraseology
    contained in 24 M.R.S. § 2902 (2018),13 which is the statute of limitations for
    actions against health care providers and practitioners, does not permit
    time-barred claims to become timely simply because of an ongoing professional
    relationship between the medical provider and the patient. 
    2008 ME 179
    ,
    ¶¶ 7-8, 
    960 A.2d 1178
    . That statutory language is identical to the “act or
    omission” language contained in section 753-B, which applies here. Therefore,
    our analysis in Dickey is fatal to Packgen’s argument that Bernstein Shur’s
    representation of its interests in the underlying matter within six years of the
    commencement of this action, by itself, precludes dismissal of the action as
    untimely.
    13Title 24 M.R.S. § 2902 was amended after our decision in Dickey, see P.L. 2013, ch. 329, § 2
    (effective Oct. 9, 2013), but not in any manner that affects my analysis.
    31
    [¶49] I part ways with the Court, however, when it concludes that this
    case does not allow for the application of a doctrine that is, in effect, a subsidiary
    of the continuing representation theory—namely, the continuing negligence
    doctrine.
    [¶50]     As the Court correctly describes, the continuing negligence
    doctrine prevents the limitations clock from beginning to tick until the date of
    the last negligent occurrence that proximately causes injury. See Court’s
    Opinion ¶ 2 n.4; see also Baker, 
    2011 ME 91
    , ¶ 20, 
    26 A.3d 806
    .14 The doctrine
    is a framework for viewing a series of actionable acts or omissions as an
    integrated whole that may be pursued in a single cause of action. So long as the
    last in that series is within the period of limitations, a claim based on the entire
    incorporated body of negligent acts or omissions is deemed to be timely. See
    Baker v. Farrand, 
    2011 ME 91
    , ¶ 25, 
    26 A.3d 806
     (“In such cases, the cause of
    action ‘accrues’ for the purposes of the . . . limitations period on the date of the
    last act or omission . . . that contributed to the proximate causation of the
    patient’s harm.”).
    14  Because the doctrine of continuing negligence is a way to determine when a cause of action
    accrues—that is, the time when the limitations clock starts—it does not implicate notions of tolling,
    which would mean stopping a limitations clock that was already ticking. See also supra n.12. Because
    of this important analytical distinction, we may have been less than precise in the way, even recently,
    we have characterized the continuing negligence doctrine. See York Cty. v. PropertyInfo Corp.,
    
    2019 ME 12
    , ¶ 24, 
    200 A.3d 803
    .
    32
    [¶51] We have endorsed the application of the continuing negligence
    doctrine in medical negligence cases.15 In such actions, the plaintiff is entitled
    to
    bring a single action alleging continuing negligent treatment that
    arises from two or more related acts or omissions by a single health
    care provider or practitioner where each act or omission deviated
    from the applicable standard of care and, to at least some
    demonstrable degree, proximately caused the harm complained of,
    as long as at least one of the alleged negligent acts or omissions
    occurred within three years of the notice of claim.16
    Baker, 
    2011 ME 91
    , ¶ 29, 
    26 A.3d 806
     (emphasis added). In other words, where
    at least one negligent act or omission that demonstrably and proximately
    contributed to the harm occurred within the period of limitations, but other
    related acts or omissions occurred outside the period of limitations, the
    entirety of the claim may be prosecuted.
    [¶52] Our adoption of the continuing negligence doctrine in Baker
    resulted from two separate analytical strands.                        The first draws on an
    examination of statutes that are specific to medical negligence claims. In
    15We did so notwithstanding the general principle that a statute of limitations “should be
    construed strictly in favor of the bar which it was intended to create.” Harkness v. Fitzgerald, 
    1997 ME 207
    , ¶ 5, 
    701 A.2d 370
     (quotation marks omitted). As is demonstrated by the very outcome in
    Baker, that principle of statutory construction does not by itself foreclose adoption of the continuing
    negligence principle.
    Baker’s claim was governed by a three-year period of limitations. See 24 M.R.S. § 2902. Here,
    16
    the applicable statute of limitations is six years. See 14 M.R.S. § 752.
    33
    particular, we noted that 24 M.R.S. § 2902—the statute of limitations for
    “actions for professional negligence” against medical providers and
    practitioners—identifies the event giving rise to the claim as an “act or
    omission” but that the Health Security Act, of which section 2902 is a part, does
    not define the term. Baker, 
    2011 ME 91
    , ¶ 22, 
    26 A.3d 806
    . Elsewhere,
    however, the Act defines “professional negligence” as encompassing the
    pluralized “acts or omissions.” 24 M.R.S. § 2502(7)(A)-(B) (2018). Partly on
    that basis, we concluded that these statutes reflect a legislative recognition that
    a single cause of action can arise from multiple acts or omissions that contribute
    to an overall harm. Baker, 
    2011 ME 91
    , ¶¶ 23, 29, 
    26 A.3d 806
    . This recognition
    in turn supports the application of the continuing negligence doctrine. Id.
    ¶¶ 23-24. But, because this portion of the discussion in Baker rests on statutory
    provisions that do not extend to or have analogous counterparts in the statutes
    that govern legal malpractice claims, Packgen does not benefit from it.
    [¶53] That is not true with respect to the second reason why we adopted
    the principle of continuing negligence in Baker. Our second line of reasoning
    draws on both rules of statutory construction and on jurisprudential principles
    that are of more universal application and persuasively extend to this action for
    legal malpractice. See id. ¶ 27.
    34
    [¶54] The construction of the phrase “act or omission” was at issue in
    Baker, just as it is here. As we discussed in that case, the Legislature has
    explicitly stated that “[w]ords of the singular number may include the plural,”
    1 M.R.S. § 71(9) (2018), so the use of “act or omission”—presented in the
    singular—in section 2902 cannot properly be limited to each individual act or
    omission. Baker, 
    2011 ME 91
    , ¶¶ 27-28, 
    26 A.3d 806
    . Rather, as we concluded,
    section 2902’s “plain meaning”—the gold standard of statutory construction,
    see Schwartz v. Unemployment Ins. Comm’n, 
    2006 ME 41
    , ¶ 15, 
    895 A.2d 96517
    —
    encompasses multiple acts and omissions. Baker, 
    2011 ME 91
    , ¶ 28, 
    26 A.3d 806
    . This construction accommodates the legal principle that “a single cause of
    action may arise from multiple acts or omissions even if each independent act
    or omission, viewed in isolation from the other acts or omissions, constitutes
    an independent deviation from the applicable standard of care.” Id. ¶ 24.
    Correspondingly, this construction avoids creating a separate cause of action
    based on each and every negligent act or omission arising from an ongoing
    In Schwartz, we stated that “[t]he cardinal rule of statutory construction is that when the words
    17
    of the Legislature are clear, they are to be given their plain meaning and further judicial
    interpretation is not necessary.” Schwartz v. Unemployment Ins. Comm’n, 
    2006 ME 41
    , ¶ 15,
    
    895 A.2d 965
     (quotation marks omitted).
    35
    professional relationship, which could be—or would need to be—pursued
    through splintered claims. Id. ¶¶ 25-26.
    [¶55] This part of Baker’s analysis, which is sufficient to support its
    holding,18 carries over seamlessly to Packgen’s legal malpractice claim against
    Bernstein Shur and the statutes that apply here. This is true with both the close
    examination in Baker of the words in the phrase “act or omission” and our
    broader discussion in that case of principles governing the way causes of action
    are properly framed.
    [¶56] First, as to the statutory language itself, Title 14, section 753-B
    contains language defining the event giving rise to Packgen’s claim—an “act or
    omission”—that is identical to the language in 24 M.RS. § 2902, which we
    analyzed in Baker.          There, we applied the rule of statutory construction
    providing that a word in a statute presented in the singular also includes the
    plural, 1 M.R.S. § 71(9), a principle of construction that spans the entirety of
    18 The Court rejects the applicability of Baker to section 753-B by reading our opinion in that case
    narrowly to say that it is the Health Security Act that allows a single claim to be based on multiple
    acts or omissions. Court’s Opinion ¶¶ 33, 34. Although—as I have discussed in the text—Baker rests
    in part on an analysis of provisions contained in the Health Security Act that are not applicable here,
    Baker also makes clear that our rationale for adopting the continuing negligence doctrine is not as
    limited as the Court suggests here. 
    2011 ME 91
    , ¶¶ 26-27, 
    26 A.3d 806
     (stating that “our reading of
    the statute must be squared with all applicable rules of statutory construction” (emphasis added)
    (quotation marks omitted)). And beyond this, as I explain in the text, much of the conceptual
    reasoning that warrants application of the continuing negligence doctrine to medical malpractice
    cases applies with equal persuasiveness to the case at bar.
    36
    Maine’s statutory code and informs our construction of section 753-B just as
    much as it did our construction of 24 M.R.S. § 2902. Therefore, section 753-B
    must be read to encompass multiple acts or omissions to the extent that such
    multiple related occurrences may give rise to a single cause of action.
    [¶57] Second, and more broadly, the conceptual observations we made
    in Baker apply with equal force in the present context. As a substantive legal
    principle, multiple acts or omissions that comprise individual deviations from
    the standard of care can combine to proximately cause a discrete harm and give
    rise to a single cause of action. Baker, 
    2011 ME 91
    , ¶ 24, 
    26 A.3d 806
    . Relatedly,
    a plaintiff should not be required to litigate those separate negligent acts or
    omissions in a piecemeal manner. See id. ¶ 25. These principles apply directly
    to claims for legal malpractice every bit as much as they do to claims for medical
    negligence.
    [¶58] All of this—the dry process of statutory interpretation and a
    conceptual consideration of the nature of a professional negligence claim—
    demonstrates that, for many of the same reasons we stated in Baker, the
    principle of continuing negligence is readily accommodated by sections 752
    and 753-B in this legal malpractice action. I would therefore apply Baker’s
    conclusion to this case and—to paraphrase the language in Baker—hold that,
    37
    when a single cause of action arises from an attorney’s multiple acts or
    omissions while representing a client, and when the combination of those
    multiple acts or omissions proximately causes the alleged injury, the single
    resulting cause of action accrues on the date of the last act or omission that
    contributed to the alleged injury, because that is when the alleged negligence is
    complete. See Baker, 
    2011 ME 91
    , ¶ 24, 
    26 A.3d 806
    .
    [¶59]      This statement of the continuing negligence doctrine also
    illuminates its limiting principle—that the claim will be time-barred if the last
    of the negligent acts or omissions that demonstrably and proximately
    contributed to the injury occurred outside of the period of limitations. 19
    Consequently, if the case were to proceed on remand, as I believe it should, in
    order for Packgen to recover for negligent acts or omissions that occurred
    before December 11, 2009, Packgen would be required to demonstrate that at
    least    one     negligent      act    or    omission       that     occurred       on    or    after
    December 11, 2009, demonstrably and proximately contributed to the harm
    also caused by those earlier related acts or omissions.
    19  This limitation was illustrated in Dickey v. Vermette, which we decided before Baker. See
    
    2008 ME 179
    , 
    960 A.2d 1178
    . In Dickey, we concluded that that case did not present the occasion for
    us to decide whether to adopt the doctrine of continuing negligence because the plaintiffs stipulated
    that they had not sustained any injury from any act or omission occurring within the period of
    limitations. Id. ¶ 9. Therefore, a claim for any and all actionable negligence fully accrued outside of
    the limitations period, and adoption of the doctrine would have been unavailing for the plaintiffs.
    38
    [¶60] Based on the amended complaint alone and without the benefit of
    a record, the Court is willing to jump to the conclusion that Packgen will be
    unable to present any evidence sufficient to meet this requirement. See Court’s
    Opinion ¶ 33. There, the Court states that Packgen’s claim arose from a single
    act, namely, the defective notice of claim sent in 2008, and that it is “reasonably
    probable” that Packgen’s injury is attributable entirely to that act. Id. ¶ 33. This
    is an inappropriately narrow reading of the amended complaint, which alleges
    negligence that continued throughout the period of representation, from 2008
    into 2011. As is demonstrated by the use of the phrase “reasonably probable,”
    the Court’s assertion embodies a factual assessment that is wholly out of place
    in the procedural context where this case now stands.20 Packgen’s ability to
    present evidence to defeat Bernstein Shur’s limitations defense remains to be
    seen—it is something that is impossible to determine until after Packgen has
    20 The Court’s reliance on Baker to reach that conclusion is similarly misplaced because the
    judgment appealed in Baker was a summary judgment, issued on the basis of a developed factual
    record. See 
    2011 ME 91
    , ¶ 1, 
    26 A.3d 806
    . Here, there is no record on which to draw the fact-based
    conclusions that the Court reaches in its opinion. See Bean v. Cummings, 
    2008 ME 18
    , ¶ 7, 
    939 A.2d 676
     (stating that a dismissal pursuant to M.R. Civ. P. 12(b)(6) is appropriate only “when it appears
    beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support
    of his claim” (emphasis added)); Houde v. Millett, 
    2001 ME 183
    , ¶ 11, 
    787 A.2d 757
     (stating that “[t]he
    question of whether a defendant’s acts or omissions were the proximate cause of a plaintiff’s injuries
    is generally a question of fact . . . .”).
    39
    the opportunity to present evidence that will put substance on the bones of its
    amended complaint.
    C.    Conclusion
    [¶61] For now, the only question before us is whether the allegations in
    Packgen’s amended complaint make clear that the claim is time-barred. See
    Jackson, 
    627 A.2d at 1013
    . In my view, the amended complaint withstands that
    facial review, particularly given the “forgiving” notice-pleading standard by
    which the sufficiency of a complaint is reviewed, see Howe, 
    2014 ME 78
    , ¶ 9, 
    95 A.3d 79
    . Packgen has alleged negligence within the period of limitations itself,
    through sometime in 2011 when Packgen terminated its relationship with the
    firm. Further, for purposes of the present pleading stage of the case, pursuant
    to the continuing negligence doctrine the allegations of Bernstein Shur’s
    negligent acts or omissions occurring before December 11, 2009, can properly
    be treated as an integrated part of a claim that did not accrue until on or after
    December 11, 2009—within the period of limitations. Accordingly, I would
    vacate the judgment and remand for the trial court proceedings to continue.
    40
    Phillip E. Johnson, Esq. (orally), Johnson, Webbert & Young, LLP, Augusta, for
    appellant Packgen, Inc.
    George T. Dilworth, Esq. (orally), and Jeana M. McCormick, Esq., Drummond
    Woodsum, Portland, for appellee Bernstein, Shur, Sawyer & Nelson, P.A.
    Cumberland County Superior Court docket number CV-2017-208
    FOR CLERK REFERENCE ONLY
    

Document Info

Citation Numbers: 2019 ME 90

Filed Date: 6/6/2019

Precedential Status: Precedential

Modified Date: 4/1/2021

Authorities (24)

Moody v. State Liquor & Lottery Commission , 2004 Me. LEXIS 19 ( 2004 )

Ramsey v. Baxter Title Co. , 2012 Me. LEXIS 114 ( 2012 )

White v. McTeague, Higbee, Case, Cohen, Whitney & Toker, P.... , 2002 Me. LEXIS 184 ( 2002 )

Dickey v. Vermette , 2008 Me. LEXIS 183 ( 2008 )

McCormick v. Crane , 2012 Me. LEXIS 20 ( 2012 )

Pamela G. Argereow v. Verne M. Weisberg, M.D. , 195 A.3d 1210 ( 2018 )

Smith v. Stacy , 198 W. Va. 498 ( 1996 )

In Re Wage Payment Litigation , 2000 Me. LEXIS 165 ( 2000 )

Musk v. Nelson , 1994 Me. LEXIS 187 ( 1994 )

Myrick v. James , 1982 Me. LEXIS 670 ( 1982 )

Nathalie Taft Andrews v. Sheepscot Island Company , 2016 Me. LEXIS 75 ( 2016 )

Bean v. Cummings , 2008 Me. LEXIS 16 ( 2008 )

Houde v. Millett , 2001 Me. 183 ( 2001 )

York County v. PropertyInfo Corporation, Inc. , 2019 ME 12 ( 2019 )

Baker v. Farrand , 2011 Me. LEXIS 90 ( 2011 )

Glen C. Harrington III v. State of Maine , 2014 Me. LEXIS 95 ( 2014 )

Janet Howe v. MMG Insurance Company , 2014 Me. LEXIS 87 ( 2014 )

Jackson v. Borkowski , 1993 Me. LEXIS 118 ( 1993 )

Schwartz v. Unemployment Insurance Commission , 2006 Me. LEXIS 41 ( 2006 )

Nevin v. Union Trust Co. , 726 A.2d 694 ( 1999 )

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