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

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 90Docket: 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