Concord General Mutual Insurance Company v. Estate of Collette J. Boure

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 57Docket: Cum-21-79
Argued: October 5, 2021
Decided: November 16, 2021
Panel: STANFILL, C.J., and MEAD, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
CONCORD GENERAL MUTUAL INSURANCE COMPANY
v.
ESTATE OF COLLETTE J. BOURE et al.
CONNORS, J.
[¶1] Teenagers Collette J. Boure and Alexander F. Meyers took the car of
Meyers’s great aunt, fled Maine, drove across the country, and, while in
Oklahoma, crashed in a chase with police, resulting in Boure’s death. Boure’s
father, Michael Grindel, as personal representative of her Estate, sought
uninsured motorist coverage from Concord General Mutual Insurance
Company (Concord) on a personal auto policy issued to him, and from
21st Century Centennial Insurance Company and 21st Century Insurance and
Financial Services, Inc. (collectively 21st Century), on a personal auto policy
issued to Meyers’s great aunt. The insurers denied coverage. Concord then
brought a declaratory judgment action against the Estate in the Superior Court
(Cumberland County). The Estate counterclaimed against Concord and
2
brought a separate action against 21st Century and other insurers. Concord
and 21st Century separately moved for summary judgment. The court
(Warren, J.) granted summary judgments in the insurers’ favor based on
provisions in the insurance policies excluding coverage when the insured lacks
a reasonable belief that she is entitled to use the covered vehicle. The Estate
appeals from both judgments, and Concord cross-appeals to argue alternative
grounds. Because we conclude that the Estate’s appeal of the summary
judgment entered in favor of Concord was untimely, we dismiss that appeal and
Concord’s cross-appeal; because we conclude that the court properly entered
summary judgment in favor of 21st Century, we affirm that judgment.
I. FACTS AND PROCEDURAL HISTORY
[¶2] The following facts are drawn from the parties’ supported
statements of material facts, viewed in the light most favorable to the Estate.1
Boles v. White, 2021 ME 49, ¶ 2, --- A.3d ---.
[¶3] In the summer of 2016, Boure and Meyers, both seventeen years
old, were inseparable, living on Meyers’s lobster boat and camping on various
islands. In September 2016, they were arrested in connection with a missing
1Although the facts described herein are drawn from the statements of material facts in the
21st Century action, the statements of material facts contained in the Concord action are
substantially similar.
3
boat. A court order prohibited them from having contact with each other. But
Boure and Meyers wanted to be together and decided that they needed to leave
Maine to do so. On or about October 21, 2016, they went to the residence of
Meyers’s great aunt, Nancy Snow, who was not home. Boure helped Meyers
break into the home by boosting him through a window that they had forcibly
opened. Meyers then opened the front door to let Boure into the house and
took a set of Snow’s car keys, after which they left the house to wait for Snow
to return with her car. After Snow arrived home, Meyers and Boure took her
car. Snow had not spoken to Meyers since that summer, and she had only met
Boure once or twice. Neither Meyers nor Boure had ever driven Snow’s car—
in fact, neither of them had a driver’s license. Snow had never given them
permission to use her car and, when she found her car missing, reported it
stolen to the police.
[¶4] Meyers and Boure left Maine in Snow’s car and intentionally broke
their cell phones. They had no intention of returning. Two weeks later, in
Oklahoma, with Meyers driving and Boure in the front passenger seat, they
became engaged in a vehicle pursuit with police. While attempting to drive
around several police cars that had been set up as a roadblock, Meyers lost
4
control of the vehicle and hit a telephone pole. Boure died two days later as a
result of the injuries that she sustained in the accident.
[¶5] After Boure’s death, the Estate made a claim for uninsured motorist
coverage on a personal auto policy issued by Concord to Grindel. On
September 19, 2018, Concord filed a complaint, seeking a declaratory judgment
that coverage was unavailable because, inter alia, Boure did not have a
reasonable belief that she was entitled to use Snow’s vehicle. The following
month, the Estate answered and counterclaimed, seeking a declaratory
judgment and asserting claims for unfair claims practice, wrongful death
caused by an underinsured motorist, conscious pain and suffering, and
negligence. The Estate also filed a complaint seeking identical relief from eight
other insurance companies. The Estate twice amended its complaint,
eventually identifying only the policy issued by 21st Century to Snow.2 The
court consolidated the matters.
2Grindel filed the complaint, individually and as personal representative of the Estate, against
eight insurance companies alleged to have issued policies to Boure’s mother, including 21st Century
Insurance and Financial Services, Inc. He then amended the complaint to include only 21st Century
Premier Insurance Company, alleging that the company insured Boure’s mother. After amending the
complaint again, none of the alleged insurance policies involving the mother were included, and
Grindel instead named 21st Century Centennial Insurance Company and 21st Century Insurance and
Financial Services, Inc., as defendants, alleging that they insured Snow. The trial court noted that it
is not clear why 21st Century Insurance and Financial Services, Inc., was named as a defendant.
21st Century stated in its brief to us that “the distinction is not significant for purposes of this appeal.”
Furthermore, it is unclear from the record why Grindel filed the complaint against 21st Century as
5
[¶6] On August 20, 2019, Concord filed a motion for summary judgment.3
The Estate opposed Concord’s motion, claiming that there were genuine
disputes of material facts, and filed a cross-motion for summary judgment. On
March 3, 2020, the trial court signed an order granting Concord’s motion for
summary judgment, dismissing the Estate’s counterclaim and cross-motion,
and directing the clerk to enter the order in the docket and incorporate it by
reference pursuant to M.R. Civ. P. 79(a), which the clerk did on March 4, 2020.
[¶7] The summary judgment order included language stating that, “[i]f
any party contends that a final judgment should not enter,” then “that party
shall notify the court on or before March 16, 2020.” On April 6, 2020, the Estate
filed a “motion to defer entry of final judgment.” The Estate’s motion asserted
that the court should delay entering a final judgment for several reasons,
including that the cases involving Concord and 21st Century had been
consolidated and that entering a final judgment now would likely result in
an individual in addition to suing in his capacity as the personal representative of Boure’s estate.
Nevertheless, it appears that only the Estate—and not Grindel—has appealed.
3 Although Concord styled its motion as a “motion for partial summary judgment,” Concord sought
to dispense with all issues and claims.
6
separate appeals on nearly identical issues.4 Several months later, the court
issued an order granting the Estate’s motion.
[¶8] Approximately three months after summary judgment was entered
in favor of Concord, 21st Century filed a motion for summary judgment.
21st Century argued that the circumstances surrounding Boure’s death fell
within two of its policy’s exclusions—namely, that (1) Boure sustained injuries
while using Snow’s vehicle when she did not reasonably believe that she was
entitled to do so and that (2) Boure was not “legally entitled” to recover under
the policy because she had been participating in an illegal act. On
February 24, 2021, the court entered a summary judgment in favor of
21st Century based on the “unauthorized use” exclusion.
[¶9] On March 10, 2021, the Estate filed a notice of appeal, indicating that
it was appealing from the judgments entered on “03/03/20 & 02/23/21.”
Concord cross-appealed, “[o]ut of an abundance of caution,” to argue
alternative grounds on which we could affirm the summary judgment.5
4 In its motion, the Estate contemplated that the court’s order might be a final judgment as
evidenced by its request that the court “refrain from entry of a final judgment and/or stay or vacate
any such final judgment.”
5We note that when an appellee does not seek any change to the judgment that is on appeal, the
appellee need not file a cross-appeal to argue alternative grounds that support the judgment. See
M.R. App. P. 2C(a)(1).
7
II. DISCUSSION
A. Concord
[¶10] Although neither Concord nor the Estate raised the issue of
timeliness, we will consider it on our own initiative and dismiss an appeal if we
determine that it is untimely. Boulette v. Boulette, 2016 ME 177, ¶ 8,
152 A.3d 156. Generally, appeals in civil actions must be commenced by filing
a notice of appeal within twenty-one days after the entry of judgment. M.R.
App. P. 2B. Strict compliance with time limits is a prerequisite for our
consideration of an appeal. Collins v. Dep’t of Corr., 2015 ME 112, ¶ 10,
122 A.3d 955.
[¶11] Here, the court entered judgment in favor of Concord on
March 4, 2020, which gave the Estate until March 25, 2020, to file its notice of
appeal. Because the Estate failed to file a notice of appeal until
March 10, 2021—nearly a full year after the deadline—its appeal is untimely
and must be dismissed.6 See Flores v. Otis, 2015 ME 132, ¶¶ 8-10, 125 A.3d 721.
6 The language in the summary judgment order—inviting any party that contended that a final
judgment should not enter to notify the court—is perplexing given that the court had decided all the
issues in the Concord action and directed the clerk to enter the order in the docket pursuant to M.R.
Civ. P. 79(a). See Murphy v. Maddaus, 2002 ME 24, ¶¶ 9-14, 789 A.2d 1281 (employing a two-step
analysis for determining whether a judgment is final); see also M.R. Civ. P. 79 Advisory Committee’s
Note April 15, 1975. The consolidation of the Concord and 21st Century actions under M.R. Civ. P. 42
did not merge the two actions for purposes of appeal. See Marks v. Marks, 2021 ME 55, ¶ 13,
--- A.3d ---. When the order was entered in the docket on March 4, 2020, the clock for filing a notice
of appeal started. See M.R. Civ. P. 58 (“The notation of a judgment in the civil docket in accordance
8
Accordingly, we dismiss Concord’s cross-appeal as moot. See Collins,
2015 ME 112, ¶ 13, 122 A.3d 955.
[¶12] We now turn to the summary judgment entered in favor of
21st Century, which the Estate timely appealed.
B. 21st Century
[¶13] 21st Century’s policy excludes uninsured motorist coverage for
“bodily injury sustained by an insured . . . [u]sing a vehicle without a reasonable
belief that that insured is entitled to do so.” (Emphasis omitted.) The Estate
asserts two arguments as to why summary judgment should have been denied:
(1) Boure could not be simultaneously occupying the vehicle as a passenger and
using the vehicle within the meaning of the policy, and (2) there is a genuine
with Rule 79(a) constitutes the entry of the judgment. . . . The date of entry of the judgment or order
shall govern time calculations pursuant to these rules or applicable statutes.”). Although certain
post-judgment motions, including motions filed pursuant to M.R. Civ. P. 59, can extend the time to file
an appeal, a “motion to defer entry of judgment” is not one of them. See M.R. App. P. 2B(c)(2). And
treating the Estate’s filing as a motion to alter or amend the judgment would not have tolled the time
to appeal because the motion was filed after the fourteen-day deadline prescribed by M.R. Civ. P. 59.
See M.R. App. P. 2B(c)(1). The Estate’s motion was also filed well after the deadline set by the court
within which to file any contention that the judgment should not be final.
We note that, even if the Estate’s appeal had been timely filed, we would have affirmed the
judgment entered in favor of Concord for the same reasons that we affirm the judgment entered in
favor of 21st Century.
9
dispute of material fact as to whether Boure had a reasonable belief that she
was entitled to use the vehicle.7
[¶14] “We review the entry of a summary judgment de novo, considering
the evidence in the light most favorable to the nonprevailing party to determine
whether the parties’ statements of material facts and the record evidence to
which the statements refer demonstrate that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.”
Connary v. Shea, 2021 ME 44, ¶ 11, 259 A.3d 118 (quotation marks omitted);
see also M.R. Civ. P. 56. “A material fact is one that can affect the outcome of the
case, and there is a ‘genuine issue’ when there is sufficient evidence for a
fact-finder to choose between competing versions of the fact.” Connary,
2021 ME 44, ¶ 11, 259 A.3d 118 (quotation marks omitted). When the material
facts are not in dispute, we limit our review to whether the prevailing party was
entitled to judgment as a matter of law. Langevin v. Allstate Ins. Co., 2013 ME 55,
¶ 7, 66 A.3d 585.
[¶15] “The meaning of language contained in an insurance contract is a
question of law that we review de novo.” Haskell v. State Farm Fire & Cas. Co.,
7 Because we affirm the judgment based on the “unauthorized use” exclusion, we decline to reach
21st Century’s alternative argument based on the “illegal act” exclusion.
10
2020 ME 88, ¶ 15, 236 A.3d 458 (quotation marks omitted). “If the language of
an insurance policy is unambiguous, we interpret it in accordance with its plain
meaning, but we construe ambiguous policy language strictly against the
insurance company and liberally in favor of the policyholder.” Id. (quotation
marks omitted). “We read the policy’s language from the perspective of an
average person untrained in either the law or the insurance field in light of what
a more than casual reading of the policy would reveal to an ordinarily
intelligent insured.” Id. (quotation marks omitted).
1. “Use”
[¶16] 21st Century’s policy does not define the term “use.” We have
previously concluded that the term “use” is a “general catch-all term,
encompassing all proper uses of a vehicle.” Union Mut. Fire Ins. Co. v. Com. Union
Ins. Co., 521 A.2d 308, 310 (Me. 1987). In distinguishing “use” from “operate,”
we stated that “[t]he use of an automobile denotes its employment for some
purpose of the user; the word operation denotes the manipulation of the car’s
controls in order to propel it as a vehicle.” Id. (quoting Allstate Ins. Co. v. Lyons,
400 A.2d 349, 352 (Me. 1979)). We further stated that “[u]se is broader than
operation” because “[o]ne who operates a car uses it, but one can use a car
without operating it.” Id. (alteration and quotation marks omitted); see also
11
Craig v. Barnes, 1998 ME 110, ¶¶ 11-13, 710 A.2d 258 (“[A] person may have
an objectively reasonable belief that he or she is entitled to use a motor vehicle
as a passenger.”); Genthner v. Progressive Cas. Ins. Co., 681 A.2d 479, 480-82
(Me. 1996) (concluding that a passenger who was injured outside of the vehicle
was covered under the policy where his injuries were reasonably related to the
use of the vehicle); Union Mut. Fire Ins. Co., 521 A.2d at 311 (providing that
utilizing a vehicle to transport people and weapons for a hunting trip
constituted a proper “use” of a vehicle).
[¶17] Here, although 21st Century’s policy does not define the term
“use,” an average person reading the policy would conclude that one who is
“occupying” the front seat of a vehicle as a passenger is also “using” that vehicle.
The actions are not mutually exclusive. The undisputed facts establish that, at
the time of the accident, Boure was a passenger in the car and was therefore
“using” the vehicle in the ordinary sense of that term.
2. “Reasonable Belief”
[¶18] “A person lacks a reasonable belief that he or she is entitled to use
a vehicle if that person: (i) knows that he or she is not entitled to use the vehicle;
or (ii) lacks objectively reasonable grounds for believing that he or she is
entitled to use the vehicle.” Barnes, 1998 ME 110, ¶ 7, 710 A.2d 258. In
12
assessing whether a person had an objectively reasonable belief that she was
entitled to use a vehicle, we stated that a trial court “must consider any fact
relevant to the objective reasonableness of that person’s belief,” including
ownership of the vehicle, permission to use the vehicle, relationship to the
insured, prior use of the vehicle, and legal entitlement to drive. Id. ¶ 8. “This
list of relevant factors is, however, not exhaustive.” Patrons Oxford Ins. Co. v.
Harris, 2006 ME 72, ¶ 9, 905 A.2d 819.
[¶19] Meyers and Boure, minors without driver’s licenses, hatched a plan
to leave the state to be together despite a court order prohibiting contact
between them. They worked in concert to break into the home of Meyers’s
great aunt—whom Meyers had not seen in months and whom Boure had only
met once or twice—with Boure boosting Meyers through a window. After
acquiring a spare set of car keys, Meyers and Boure lay in wait for Snow to
return with her car. Upon Snow’s return, they took Snow’s car, destroyed their
phones—presumably to avoid detection—and embarked on their ill-fated ride
across the country, which ended tragically when they crashed while fleeing
from police. The circumstances under which Meyers and Boure unlawfully
gained possession of the vehicle alone are sufficient to establish that Boure did
not have an objectively reasonable belief that she was entitled to be a passenger
13
in Snow’s car, and the totality of the undisputed facts satisfies the requisite
standard beyond any doubt.8 See Taylor v. U.S. Fid. & Guar. Co., 519 A.2d 182,
183 (Me. 1986); Am. Motorists Ins. Co. v. LaCourse, 314 A.2d 813, 817 n.1
(Me. 1974).
The entry is:
The appeal of the judgment entered in favor of
Concord is dismissed. The judgment entered in
favor of 21st Century is affirmed.
Peter Clifford, Esq. (orally), Clifford & Clifford, LLC, Kennebunk, for appellant
Estate of Collette J. Boure
Matthew T. Mehalic, Esq. (orally), Norman Hanson & DeTroy, LLC, Portland, for
appellee Concord General Mutual Insurance Company
Jonathan P. Hunter, Esq. (orally), and David C. King, Esq., Rudman Winchell,
Bangor, for appellees 21st Century Insurance & Financial Services, Inc., and
21st Century Centennial Insurance Company
Cumberland County Superior Court docket numbers CV-2018-426 & CV-2018-502
FOR CLERK REFERENCE ONLY
8 The Estate’s argument that 21st Century failed to establish that Boure was “capable of making
rational decisions” and that she actually believed that she was not entitled to use Snow’s car ignores
the fact that the second prong of the test is objective—not subjective. See Craig v. Barnes,
1998 ME 110, ¶ 7, 710 A.2d 258.