Appellate Practice: Coastal Property Rights in Kennebunkport
We represented coastal landowners in a high-profile appeal before the Maine Supreme Court, in which the Town of Kennebunkport claimed ownership of Goose Rocks Beach against numerous homeowners whose deeds described property down to the low water mark. The case turned on the interpretation of deeds and legal doctrines dating back to the 1600s, including the original land patents from the English Crown to Sir Fernando Gorges creating the Province of Maine. The Law Court affirmed the Superior Court judgment, finding that title to the disputed beach is held by the town. In doing so, the Court appeared to manifest its growing policy preference for greater public access to Maine’s coast, particularly its sandy beaches. Almeder v. Town of Kennebunkport, 2019 ME 151.
International and Constitutional Law: Representation of Government of Mexico Seeking Parens Patriae Standing
Verrill attorneys represented the Government of Mexico in this high-profile appeal involving civil rights claims by over 1,000 Mexican migrant workers at an egg production farm in Maine. Mexico sought parens patriae status, specifically the right to assert as a plaintiff a quasi-sovereign interest in the general health and well-being of and the protection against discrimination against of workers of Mexican descent employed by the defendants. The First Circuit Court of Appeals, after spirited briefing and argument surrounding federalism concerns and international law, noted that Mexico’s arguments were not insignificant, but that without clear direction from the Executive or Congressional branches, it must affirm the dismissal of Mexico. The Court of Appeals decision is Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332, 334 (1st Cir. 2000). The matter proceeded, however, to a landmark settlement on behalf of the class of Mexican and other Hispanic workers.
Professional Regulation and Constitutional Law: First Amendment Challenge to State Law
We represented the Massachusetts Board of Public Accountancy in defending against a First Amendment challenge to a state law that barred accountants who were not certified public accountants from describing themselves as “accountants,” with any modifier such as “expert” or “qualified,” or as “public accountants.” The Supreme Judicial Court upheld the constitutionality of the law in favor of our client. Volin v. Bd. Of Public Accountancy, 422 Mass. 75 (1996).
Taxation and Constitutional Law: Amicus Brief to U.S. Supreme Court regarding Sales Taxation by States
Verrill represented the National Auctioneers Association as amicus curiae in the U.S. Supreme Court case South Dakota v. Wayfair, Inc. The case presented the issue of whether states could require out-of-state sellers to collect and remit state sales taxes, even where the seller lacks any physical presence in the taxing state. 138 S.Ct. 2080 (2018).
Elections and Constitutional Law: Constitutionality of Ranked Choice Voting
Verrill Dana represented the League of Women Voters in two proceedings before the Maine Supreme Court relating to the constitutionality of Maine’s voter-approved ranked choice voting law. The first proceeding, Opinion of the Justices, 2017 ME 100, was a rare “solemn occasion” in which the Supreme Court is asked to render an opinion where a proceeding has not been commenced but the issue is of special significance. In Opinion of the Justices, the Supreme Court held that ranked choice voting was unconstitutional under Maine’s constitution, but permitted ranked choice voting in primaries and federal elections to proceed. In Maine Senate v. Secretary of State, 2018 ME 52, the Supreme Court held that it could not decide the authority of the Secretary of State to implement ranked choice voting under a separation of powers theory.
Elections and Constitutional Law: Certification of Initiative Petition to Ban Casino Gambling
Verrill successfully represented ten Massachusetts citizens who challenged the Attorney General’s refusal to certify an initiative petition under the state constitution that would have banned casino gambling in Massachusetts. In a unanimous opinion, the Massachusetts Supreme Judicial Court vacated the Attorney General’s decision and directed that the petition be placed on the ballot before voters. Abdow v. Attorney General, 468 Mass. 478 (2014).
Environmental & Land Use Law: Protection of Private Coastal Property Rights for Conservation of Intertidal Habitat
Verrill successfully represented coastal landowners in first-impression litigation against a Canadian seaweed harvesting company with global operations to determine who owns the sea plants that are growing on private intertidal property in Maine. In March 2019, the Maine Supreme Court ruled unanimously in our clients’ favor on appeal, holding that the public does not have the right to harvest the seaweed growing on private intertidal property without the landowner’s consent. The case addressed an open question that caused controversy on the Maine coast for decades as the commercial harvest of seaweed increased dramatically. The appeal drew significant public interest and the submission of 13 separate briefs from amici curiae. Ross v. Acadian Seaplants, Ltd., 2019 ME 45, 206 A.3d 283.
Real Estate and Mortgage Law: Sufficiency of Mortgagee’s Notice of Right to Cure to Borrower
Verrill filed an amicus brief on behalf of the Maine Association of Mortgage Professionals in a case involving an issue of first impression under Maine law regarding the sufficiency of a statutory notice of right to cure given by a mortgagee through its agent. As the Maine Supreme Judicial Court put it, the narrow interpretation proffered by the mortgagor would have prohibited even a mortgagee’s attorney from giving a notice of a right to cure on behalf of a mortgagee client. The Law Court adopted the more practical interpretation consistent with that proffered by the Maine Association of Mortgage Professionals and Verrill. The decision is Wilmington Savings Fund Society, FSB v. Needham, 2019 ME 42.
Healthcare: Discoverability of Confidential Health Records
Verrill Dana filed two amicus briefs on behalf of the Maine Hospital Association and Maine Medical Association regarding the scope of permissible discovery of third party medical records in medical malpractice cases. The issue is one of first impression for the Maine Supreme Court and has the potential to significantly impact the extent to which hospitals and doctors can be required to produce medical records relating to patients who are not the subject of the malpractice action. The cases are McCain v. Vanadia, 2018 ME 1174 (appeal dismissed as unreviewable), and Kennelly v. Mid Coast Hosp., CUM-18-445 (pending).
Healthcare and Employment Law: Doctor’s Claims of Age Discrimination and Failure to Accommodate Mental Health Issues
Verrill Dana represented Penobscot Community Healthcare in an appeal to the Maine Supreme Court arising from an age discrimination complaint by one of its doctors. After the trial court granted summary judgment in favor of PCHC, the doctor complained that the trial court had failed to provide proper accommodations for his mental health issues in the context of the motion for summary judgment. The Supreme Court rejected the doctor’s appeal, affirming summary judgment in favor of PCHC. The case is Gallagher v. Penobscot Community Healthcare, 2019 ME 88.
Healthcare and Tort Liability: Second Circuit Affirms Dismissal of Doctor’s Libel and Tortious Interference Claims
Verrill Dana successfully represented Northwestern Medical Center and Quorum Health Resources in an appeal the United States Court of Appeals for the Second Circuit. Doctor Raymond Long alleged that Northwestern and Quorum had filed a false notice with the National Provider Review Database after Long had resigned from the hospital while under investigation. The District Court dismissed Long’s complaint against Northwestern and Quorum on the grounds that aspects of his complaint were barred by res judicata and that he invited the harm of which he complained. The Second Circuit affirmed on all grounds. The case is Long v. Quorum Health Resources, 590 Fed. Appx. 103 (2d Cir. 2015).
Tort Liability: Fiduciary Duty Law
In an action by a product manufacturer against its Distributing Agent in the United Kingdom, the Connecticut Superior Court granted summary judgment to the defendant on the plaintiff’s claim for breach of fiduciary duty, holding that the defendant was not a fiduciary. We successfully represented the plaintiff manufacturer on an appeal to the Connecticut Appellate Court, which held that, because the trial court had found the defendant to be an agent, it was necessarily a fiduciary as well. The appellate court remanded the case, which was settled on terms favorable to our client shortly before the scheduled trial date. Jolen, Inc. v. Brodie & Stone, PLC, 186 Conn. App. 516 (2018), cert. denied, 330 Conn. 972 (2019).
Taxation and Abatement: Double Taxation Is Error in Assessment, Not Error in Valuation
Verrill assisted the Maine State Chamber of Commerce with drafting its amicus brief in a case in which two Maine towns refused Emera Maine’s request for a tax abatement. The Town of Eddington and the Town of Bradley each assessed property taxes on both Emera Maine and Maine Electric Power Company for the same electric transmission line based upon an error in a list of property prepared by Emera’s accountant. When the mistake was discovered, Emera sought an abatement, which the towns refused to grant, claiming that there was an error in valuation of property, rather than an illegality, error, or irregularity in the assessment. Emera appealed to the Board of Property Tax Abatement, which granted the abatement. The towns appealed to the Superior Court, which affirmed the Board. On appeal to the Maine Supreme Judicial Court sitting as the Law Court, the abatement was upheld. The Law Court found that the towns taxing the same line twice constituted an illegality, error or irregularity in the assessment, which entitled Emera to an abatement. Town of Eddington, et al v. Emera Maine, 2017 ME 225
Taxation: Charges for Interstate and International Telecommunications Services Are Not Part of Sale Price
During an audit, Maine Revenue Services assessed a service provider tax on property tax recovery charges and carrier cost recovery charges that our client, a telecommunications company, charged its customers on calls that originated or terminated out of state. The tax statutes excluded or exempted (depending on the time period) charges in connection with interstate or international service. The State argued that the charges themselves were not telecommunications services and were neither interstate nor international in nature. The Law Court upheld the Bureau of Tax Appeals’ decision vacating the assessment, finding that anything that is part of the “sale price” of international or interstate telecommunications services is also part of the “sales of” those services, which clearly falls within the scope of the provisions excluding or exempting the sales from the service provider tax. State Tax Assessor v. MCI Communications Services, Inc., 2017 ME 119
Attorney/Judicial Misconduct: Defense against Legal Malpractice Claim
In Brooks v. Lemieux, 2017 ME 55, Maine’s Law Court upheld the award of summary judgment in favor of Verrill Dana’s client in a legal malpractice case arising from the dismissal by the federal court of the Plaintiff’s employment discrimination action. The Law Court found that the Plaintiff had failed to present prima facie evidence of causation flowing from the Defendant’s alleged malpractice. In reaching this decision, both the trial court and the Law Court found that the opinions of the Plaintiff’s expert were insufficient to create a trial-worthy issue.
Attorney/Judicial Misconduct: Investigation and Removal of Clerk Magistrate
The Massachusetts Supreme Judicial Court appointed us to investigate and, if appropriate, prosecute a Clerk-Magistrate for wrongdoing. After a six-day trial and appeal to the state supreme court, the court, for the first time in fifteen years, ordered the removal of a Clerk Magistrate from office. In re Powers, 465 Mass. 63 (2013).
Utilities and Arbitration Law: Affirmance of Arbitration Award to Paper Mill regarding Natural Gas Pipeline Capacity
Verrill successfully represented a large paper mill in an arbitration proceeding involving a dispute over the operation of our client’s private natural gas pipeline. Verrill received a favorable decision from the arbitrator, including recovery of our attorneys’ fees. On appeal, the Maine Law Court unanimously affirmed the arbitrator’s decision. Xpress Natural Gas, LLC v. Woodland Pulp, LLC, 2017 ME 106.
Civil Procedure: Amending Away Federal Class Action Subject Matter Jurisdiction
A Connecticut lawyer and his firm were the plaintiffs in a class action in United States District Court against several title insurance companies, alleging that the title insurance companies’ use of so-called “national agents” to perform title agent functions was barred by a Connecticut statute stating that such work could only be performed by Connecticut attorneys. Verrill represented one of the title insurers. Federal jurisdiction was premised on the Class Action Fairness Act. After the class was certified and then de-certified without prejudice, the plaintiffs dropped their class action allegations in an amended complaint that premised federal subject matter jurisdiction solely on the former CAFA allegations. We developed an argument that the amendment to the complaint eliminated the sole basis for federal jurisdiction. The trial court dismissed the case and the United States Court of Appeal for the Second Circuit affirmed. Gale v. Chicago Title Ins. Co., 929 F.3d 74 (2d Cir. 2019).
Insurance Law: No Duty to Indemnify Owner/Employee for Assault on Motorist
We represented an insurer before the Maine Supreme Judicial Court sitting as the Law Court in an insurance coverage matter in which an owner and employee of a partnership sought indemnification for injuries he caused in an apparent road rage incident. While stopped at a traffic light on the way home from a camping trip with his son (though he claimed that he was on his way to the business), the owner/employee exited his truck, struck the victim repeatedly in his head and chest, told the victim that his driving was endangering other drivers, and informed the victim that the owner/employee was taking it upon himself to set the victim straight. The Law Court determined that even if the owner/employee was on his way to the business at the time of the incident, the assault was not “with respect to the conduct” of the business and not “within the scope of [his] employment.” As such, the owner/employee was not entitled to indemnification under the policy because he did not fall within the policy’s definition of insured at the time of the incident. Travelers Indem. Co. v. Bryant, 2012 ME 38
Contract Liability and Admission of Evidence: Improper Application of Rule of Evidence 403
We were engaged to represent the installer of a fire alarm system on an appeal to the Maine Supreme Judicial Court sitting as the Law Court following a $2,700,000 jury verdict in the trial court. During discovery, a contract was produced that inadvertently omitted the reverse side of one of the pages. That page included limitations on the installer’s liability. The mistake was ultimately uncovered and the page was produced prior to the close of discovery and prior to the completion of the installer’s employees’ depositions. On summary judgment, the trial court found that there was no discovery violation that required the court to strike the subject page, but omitted the page from the summary judgment record on the grounds that it might not be admissible at trial. At trial, the court excluded the page based on the balancing test found in Rule 403, finding that the late disclosure prejudiced the plaintiff camp and that the prejudice outweighed the probative value of the limitation on liability. On appeal, the Law Court found that the court did not abuse its discretion in refusing to strike the page as a discovery violation, but that it erred by excluding the document pursuant to Rule 403. In so holding, the Law Court noted the distinction between the prejudice required to strike evidence as a discovery violation and the prejudice required to exclude evidence pursuant to Rule 403. For a discovery violation, the prejudice looks to the opposing party’s capacity to respond to the evidence. For Rule 403, the prejudice is based on the specific nature of the evidence itself. As such, prejudice caused by unfair surprise during discovery is not, standing alone, grounds for finding prejudice under Rule 403. As a result, the Law Court vacated the $2,700,000 verdict and remanded the case to the trial court. Camp Takajo, Inc. v. SimplexGrinnell, L.P., 2008 ME 153
Freedom of Information Law: Protection of Confidential Business Information from Public Disclosure
Verrill represented Blue Sky West, LLC, owner of the 185-MW Bingham Wind Power Project, in appeals to Maine Superior Court and the Maine Supreme Court, which revolved around the potential disclosure of confidential business information implicated in a Freedom of Access Act request made by Somerset County, Maine. On appeal, the Law Court held that the data of primary concern to our client was not a public record and therefore was shielded from disclosure. Blue Sky West, LLC v. Maine Revenue Services, 2019 ME 137.