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Curtis v. Allstate, part 2

4.	Failure to Effectuate a Prompt Settlement

	[¶32]  The UCSPA provides that an insurer is liable if, without just
cause, it fails "to effectuate a prompt, fair and equitable settlement of claims
submitted in which liability has become reasonably clear." Id.
§ 2436­p;A(1)(E).  "[A]n insurer acts without just cause if it refuses to settle
claims without a reasonable basis to contest liability, the amount of any
damages or the extent of the injuries claimed."  Id. § 2436-A(2).  The
plaintiffs argue that Allstate's failure to pay the remaining $40,000 UM
benefits after the Saucier decision constitutes a violation of this section.  
	[¶33]  Contrary to the plaintiffs' assertion, Saucier did not compel
Allstate to immediately render payment to the plaintiffs in the full amount of
its liability limits.  We held in Saucier that, pursuant to its policy, Allstate
was entitled to deduct only the amounts paid to the insured by the
underinsured's carrier.  Saucier, 1999 ME 197, ¶ 12, 742 A.2d at 486.  The
basis that Allstate's attorney asserted in the post-Saucier letters for not
immediately offering the entire $20,000 per person, was that a settlement
was pending in the underlying interpleader action, which would allow
Allstate to offset from its liability limits the amounts received by the
plaintiffs.  This was a reasonable basis for contesting liability, and there is
nothing in the record to contradict that basis.  Accordingly, the Superior
Court did not err in entering summary judgment for Allstate on this issue.{7}

C.  Late Pay Statute

	[¶34]  The late pay statute provides that a "claim for payment of
benefits under a policy or certificate of insurance delivered or issued for
delivery in this State is payable within 30 days after proof of loss is received
by the insurer."  24-A M.R.S.A. § 2436(1).  The 30 day period is tolled,
however, if the insurer notifies the insured, orally or in writing, that it
disputes the claim.  See id.; Depositors Trust Co. v. Farm Family Life Ins. Co.,
445 A.2d 1014, 1018 (Me. 1982). The plaintiffs argue that because the
dispute was not based upon a reasonable investigation of the claim as
required by 24-A M.R.S.A. § 2436(2), the $20,000 in payments were
overdue and the plaintiffs are entitled to interest and attorney fees pursuant
to sections 3 and 4 of the statute.
	[¶35]  The existence of a legitimate controversy between the parties
tolled the 30-day time period for payment.  The record reveals that
Allstate's position regarding the disputed amounts was based upon an
interpretation of the insurance policy and Maine case law, an interpretation
later accepted by the Superior Court when it granted Allstate's first motion
for summary judgment.  Allstate's conduct was, therefore, not a violation of
the late pay statute.

D.  Fraud

	[¶36] Allstate would be liable for fraud if it: (1) made a false
representation; (2) of a material fact; (3) with knowledge of its falsity or in
reckless disregard of  its truth or falsity; (4) for the purpose of inducing the
plaintiffs to act or to refrain from acting in reliance upon the representation;
and (5) the plaintiffs justifiably relied upon the representation as true and
acted upon it to their detriment.  See Francis v. Stinson, 2000 ME 173,
¶ 38, 760 A.2d 209, 217.  
	[¶37]  In light of our determination that Allstate did not
misrepresent the terms of its policy, the plaintiffs have failed to establish a
prima facie case of fraud.  Because the fraud claim did not survive, the
Superior Court properly granted summary judgment on the plaintiffs' claims
for intentional infliction of emotional distress and punitive damages.  See
Stull v. First Am. Title Ins. Co., 2000 ME 21, ¶ 14, 745 A.2d 975, 980;
Colford v. Chubb Life Ins. Co., 687 A.2d 609, 616 (Me. 1996). 

E.  Unfair Trade Practices

	[¶38]  A purchaser of personal, family or household goods, services,
or property who suffers any loss of money or property as a result of an unfair
or deceptive act committed in the conduct of trade may maintain an action
pursuant to the UTPA.  5 M.R.S.A. §§ 207, 213.  The amended third-party
complaint alleges that requiring the plaintiffs to sign the 1998 releases in
exchange for receiving the undisputed $80,000 amounts was an unfair and
deceptive trade practice.  Even if requiring the execution of a release could
be considered a deceptive act, the plaintiffs' statement of material facts is
completely devoid of any evidence that they suffered a loss of money or
property as a result of signing the releases.  The failure to establish a loss of
money or property as a result of Allstate's actions, an essential element of
the claim, is fatal to the UTPA claim.  See Tungate v. MacLean-Stevens
Studios, Inc., 1998 ME 162, ¶ 13, 714 A.2d 792, 797-98 (plain language of
UTPA statute denies relief to plaintiffs who cannot show loss of money or
	The entry is:
			Judgment affirmed.
Attorney for plaintiff: David Glasser, Esq. (orally) P O Box 1212 Camben, ME 04843 Attorney for defendant: James E. Fortin, Esq. (orally) Martica S. Douglas, Esq. Douglas, Denham, Buccina & Ernst P O Box 7108 Portland, ME 04112-7108
FOOTNOTES******************************** {1} . The case caption is changed to recognize the real parties-in-interest to this appeal as reflected in the third-party complaint. The Estate of Loretta Rumney is also a named party. {2} . Dairyland paid Allstate $20,000 as subrogee for Curtis and $4,650.45 as subrogee for Rumney's estate. {3} . The plaintiffs originally filed a separate five-count complaint in Superior Court on February 15, 2000. On June 28, 2000, after a hearing on Allstate's motion to dismiss, the Superior Court (Pierson, J.) granted the plaintiffs the opportunity to amend their third-party complaint in the interpleader action and took the motion to dismiss under advisement. The plaintiffs' motion for leave to amend their third-party complaint was granted on August 17, 2000, by the Superior Court (Marsano, J.). {4} . An interest claim based on the 1998 releases was also asserted, but was withdrawn during oral argument. {5} . The Maine Unfair Claims Settlement Practices Act provides, in pertinent part: 1. Civil actions. A person injured by any of the following actions taken by that person's own insurer may bring a civil action and recover damages, together with costs and disbursements, reasonable attorney's fees and interest on damages at the rate of 1 1/2% per month; A. Knowingly misrepresenting to an insured pertinent facts or policy provisions relating to coverage at issue; B. Failing to acknowledge and review claims, which may include payment or denial of a claim, within a reasonable time following receipt of written notice by the insurer of a claim by an insured arising under a policy; C. Threatening to appeal from an arbitration award in favor of an insured for the sole purpose of compelling the insured to accept a settlement less than the arbitration award; D. Failing to affirm or deny coverage, reserving any appropriate defenses, within a reasonable time after having completed its investigation related to a claim; or E. Without just cause, failing to effectuate prompt, fair and equitable settlement of claims submitted in which liability has become reasonably clear. 2. Without just cause. For the purposes of this section, an insurer acts without just cause if it refuses to settle claims without a reasonable basis to contest liability, the amount of any damages or the extent of any injuries claimed. 24-A M.R.S.A. § 2436-A(1)-(2). {6} . The plaintiffs also seek to impute this Court's determination in Saucier, 1999 ME 197, ¶ 19, 742 A.2d at 488, that "Allstate, through its claim analyst, knowingly misrepresented its obligations pursuant to the terms of its policy," because the plaintiffs dealt with the same claim analyst and policy language. That conclusion is not controlling because different parties are involved and the issue of whether Allstate knowingly misrepresented the policy to the plaintiffs was not litigated in Saucier. See Cline v. Maine Coast Nordic, 1999 ME 72, ¶ 9, 728 A.2d 686, 688 (collateral estoppel prevents the relitigation of factual issues between the same parties "if the identical issue was determined by a prior final judgment, and . . . the party estopped had a fair opportunity and incentive to litigate the issue in a prior proceeding"); see also Restatement (Second) of Judgments § 27 (1980). {7} . The plaintiffs assert that additional facts may exist to support the lack of just cause, but that Allstate filed a motion for summary judgment before the commencement of discovery. A defending party may move for summary judgment at any time. M.R. Civ. P. 56(b). Because the plaintiffs did not file a motion requesting the court to refuse the application for judgment or to continue the motion for summary judgment pursuant to M.R. Civ. P. 56(f), and instead merely requested more time for discovery in a paragraph of their attorney's affidavit, we find no error in the consideration of Allstate's motion for summary judgment. See M.R. Civ. P. 7(b)(1); Procise v. Electric Mut. Liab. Ins. Co., 494 A.2d 1375, 1380 (Me. 1985) (plaintiff's motion for leave to pursue further discovery properly denied).

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