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Saucier v. Allstate, part 2

C.  The Jury Instructions

	[¶24]  Allstate contends that the court erred in its instructions to the
jury on the claim that Allstate knowingly misrepresented pertinent facts
regarding its policy provision by including a specific instruction regarding
Allstate's obligations pursuant to the terms of its policy and by failing to
include an instruction that the jury must find that Saucier was injured by the
misrepresentation.  Following a request by Saucier for a further instruction,
the court gave the jury the following instruction:
With reference to Question 3 [whether Allstate made a knowing
misrepresentation], I would further instruct when you get to the
contract provision on page 17, which reads damage payable will
be reduced by all amounts paid by the owner or operator of the
covered auto or anyone else responsible, you are not called upon
to attempt to construe the contract.  That is a matter of law, and
that's the judge's job.  And as a matter of law, the contract
requires Allstate to deduct the $10,594.65 from the $50,000
coverage.  So, the question before you is whether Allstate knew
that's what they were supposed to do and they knowingly
misrepresented that they were supposed to first deduct Mr.
Pelletier's $25,000 coverage before deducting the $10,000.  So,
that's the issue before you.

Additionally, in response to Allstate's request that the court instruct the jury
that they must also find that Saucier suffered an injury, the court stated that
at that point in the trial there was an injury as a matter of law, and therefore
declined to give the requested instruction.
	[¶25]  "We review jury instructions in their entirety to determine if
they are adequate, taking into consideration the total effect created by the
instructions and the potential for jury misunderstanding."  Wheeler v. White,
1998 ME 137, ¶ 6, 714 A.2d 125, 127 (citations omitted) (internal
quotation marks omitted); see also State v. Huntley, 681 A.2d 10, 14 (Me.
1996), cert. denied, 519 U.S. 1064 (1997) (stating that Court does not view
challenged instruction in isolation).  As stated above, "[t]he meaning of
language in an insurance policy is a question of law."  Jack, 1999 ME 13,
¶ 8, 722 A.2d 869, 871.  Title 14, section 1105 states, "[d]uring a jury trial
the presiding justice shall rule and charge the jury, orally or in writing, upon
all matters of law arising in the case."  14 M.R.S.A. § 1105 (1980).
	[¶26]  The trial court found as a matter of law, following the jury's
determination of liability and damages, that Allstate was required by its
contract to deduct the actual amount of money paid by Pelletier's insurance
from Saucier's $50,000 coverage.  To simply tell the jury that the contract
speaks for itself, as Allstate requested, would have left more room for
misunderstanding on the part of the jury and it may have resulted in the jury
making its own determination regarding Allstate's obligations pursuant to its
contract, a legal determination clearly not within its province.  It was not
error for the court to state what the contract required of Allstate, rather
than let the jury guess on a question of law.
	[¶27]  Nor did the court err by declining to give an instruction
regarding the element of injury in a claim brought pursuant to the unfair
claims settlement practices statute.{12}  While it is clear that an injury is one
of the elements of a claim pursuant to 24-A M.R.S.A. § 2436-A, injury
necessarily existed by virtue of Saucier being forced to bring suit as a direct
result of the misrepresentation.{13}  In other words, but for Allstate's
misrepresentation (knowing or not) regarding the extent of coverage,
Saucier would not have been forced to bring a claim to enforce the terms of
the contract.  It was clear that Saucier had been injured by the
misrepresentation; the only remaining question for the jury was whether
Allstate's misrepresentation of its obligations regarding coverage was willful
or inadvertent.  It was not necessary for the court to instruct the jury that it
had to find injury, as it necessarily existed.
	[¶28]  "As long as the instructions are 'substantially correct and the
legal situation is made clear to the jury' the decision not to amplify an
instruction is reviewed only for an abuse of discretion."  Rich v. Fuller, 666
A.2d 71 (Me. 1995).  The trial court did not abuse its discretion in refusing
to instruct the jury on an element of the claim that had necessarily been
satisfied.  The jury instructions with respect to Saucier's claim of knowing
misrepresentation on the part of Allstate were adequate and properly
delineated the question facing the jury at that stage in the proceeding.

D.  Allstate's Offer of $11,000 to Saucier

	[¶29]  Allstate argues that the trial court should have excluded
evidence pursuant to M.R. Evid. 403{14} of Allstate's offer of $10,000 in
underinsurance coverage and $1000 in medical payments coverage in
settlement of Saucier's claim, as it served to confuse and inflame the jury
despite its relevance.  Trial courts are afforded wide discretion when
applying the balancing test established in Rule 403.  See State v. Ifill, 574
A.2d 889, 891 (Me. 1990); Field & Murray, Maine Evidence, § 403.1 at 99
(4th ed. 1997).  Although the trial court should be more predisposed to
exclusion when the danger is confusing the jury, see Field & Murray, supra,
§ 403.1 at 101 (citing State v. Grigsby, 666 A.2d 503 (Me. 1995)), we will
only vacate an evidentiary ruling if the trial court committed a clear abuse of
discretion.  See Ifill, 574 A.2d at 891 (citations omitted).
	[¶30]  Once the issues of liability and damages were decided in the
first portion of the trial, the court allowed evidence of the communications
between Saucier and Allstate, including Allstate's offer of settlement, in the
second portion of the trial in which the jury was asked to determine
whether Allstate had withheld payment on an undisputed portion of
Saucier's claim.  Allstate argues that the only information that should have
been made available to the jury was the fact that Allstate had made an offer of
settlement in an undisclosed amount that Saucier had rejected.  Allstate
contends that disclosing the amount to the jury served to inflame them
when compared to the large amount of damages previously found.
	[¶31]  During the second portion of the trial, however, the jury was
well aware of the extent of Saucier's coverage, $50,000 less the offset of
roughly $10,000, notwithstanding the $200,000 in damages found to exist. 
Secondly, the jury was being asked to determine what amount, if any, of
Saucier's claim was undisputed by Allstate.  Allstate's communications
regarding the two types of coverage available to Saucier and its estimation of
the amounts to which Saucier was entitled are highly probative on this point. 
Withholding such details from the jury's consideration may have caused
more confusion than including them, precisely because two types of
coverage were involved in the overall settlement offer.  This is borne out by
the jury's determination that only the $1000 worth of medical payments
coverage, that was not dependent on a determination of liability, constituted
an undisputed portion of Saucier's claim.
	[¶32]  The danger of unfair prejudice, if any, does not substantially
outweigh the probative value of the details of Allstate's offer to Saucier,
including its amount.  The trial court did not commit an abuse of discretion
when it admitted evidence of the specifics of Allstate's offer on the question
of whether Allstate failed to pay an undisputed portion of a claim.

E.  Attorney Fees

	[¶33]  Following a hearing in which Allstate examined Saucier's
attorney under oath concerning his fees, the trial court entered a judgment
for Saucier in which it ordered that Allstate pay Saucier's attorney fees and
costs associated with the knowing misrepresentation claim in the amount of
$16,731.38.{15}  Allstate argues on appeal that only a portion of this amount is
attributable to work regarding the knowing misrepresentation claim and
that this amount is separable from amounts associated with such things as
the liability and damages issues.
	[¶34]  The unfair claims settlement practices statute provides for the
award of reasonable attorney fees, as well as costs and disbursements,
incurred as a result of any of the unfair claims settlement practices
described by the statute.  24-A M.R.S.A. § 2436-A(1) (1990).  A trial court's
determination of attorney fees is reviewed for an abuse of discretion.  See
Colquhoun v. Webber, 684 A.2d 405, 412 (Me. 1996); Monopoly, Inc. v.
Aldrich, 683 A.2d 506, 510 (Me. 1996); Nadeau v. Rainbow Rugs, Inc., 675
A.2d 973, 977 (Me. 1996).
	[¶35]  Saucier's attorney presented a clear and detailed accounting of
his fees and expenses to the trial court, and Allstate had the opportunity to
examine him under oath regarding them.  Saucier's attorney testified that all
of his work was necessary to all of the claims and that he could not
compartmentalize the work he had performed.  Given the broad discretion
allowed trial courts in the award of attorney fees, it does not appear that the
court abused its discretion in allowing Saucier's attorney fees, necessarily
concluding that all were associated with the unfair claims settlement
practices claim.
	[¶36]  Saucier requests that we remand this matter for a
determination of additional attorney fees and costs associated with
postjudgment proceedings and this appeal.  Because we find that such fees
and costs are within the contemplation of consumer protection statutes
such as the unfair claims settlement practices statute and help fulfill its
remedial purpose, we agree that remand is appropriate on this one issue. 
See Beaulieu v. Dorsey, 562 A.2d 678, 680 (Me. 1989); Colony Cadillac &
Oldsmobile, Inc. v. Yerdon, 558 A.2d 364, 368-69 (Me. 1989).
	The entry is:
Judgment affirmed.  Remanded to the
Superior Court for the determination of
attorney fees and costs associated with
postjudgment proceedings and this appeal
pursuant to 24-A M.R.S.A. § 2436-A(1).
Attorney for plaintiff: William J. Smith, Esq., (orally) P O Box 7 Van Buren, ME 04785 Attorney for defendant: Frank H. Bishop Sr., Esq., (orally) Stevens, Engels & Bishop P O Box 311 Presque Isle, ME 04769
FOOTNOTES******************************** {1} . Saucier's policy provided, "[Allstate] will pay damages for bodily injury, sickness, disease or death which an insured person is legally entitled to recover from the owner or operator of an uninsured auto." The policy further provides, "[d]amages payable will be reduced by . . . all amounts paid by the owner or operator of the uninsured auto or anyone else responsible." {2} . Title 24-A, section 2436-A in effect during the relevant time period provided in part: 1.Civil Actions. Any person injured by any of the following actions taken by his own insurer may bring a civil action and recover damages, together with costs and disbursements, reasonable attorneys fees and interest on damages at the rate of 1 1/2% per month: A.Knowingly misrepresenting to an insured pertinent facts of policy provisions relating to coverage at issue. . . . . 24-A M.R.S.A. § 2436-A(1)(A) (1990) repealed and replaced by P.L. 1997, ch. 621, § 1 (effective June 30, 1998). {3} . Title 24-A, section 2436 provides in relevant part: 1.A claim for payment of benefits under a policy of insurance against loss delivered or issued for delivery within this State is payable within 30 days after proof of loss is received by the insurer and ascertainment of the loss is made either by written agreement between the insurer and the insured or by filing with the insured of an award by arbitrators as provided in the policy, and a claim which is neither disputed nor paid within 30 days is overdue, provided that if during the 30 days the insurer, in writing, notifies the insured that reasonable additional information is required, the undisputed claim shall not be overdue until 30 days following receipt by the insurer of the additional required information[.] . . . . 3.If an insurer fails to pay an undisputed claim or any undisputed part of the claim when due, the amount of the overdue claim or part of the claim shall bear interest at the rate of 1 1/2% per month after the due date. 24-A M.R.S.A. § 2436(1) & (3) (1990). {4} . Because Saucier carried insurance with Allstate in larger amounts than Pelletier, the parties do not dispute the fact that Pelletier was an "uninsured motorist" pursuant to the statutory definition found in 24-A M.R.S.A. § 2902(1). See also Day v. Allstate Ins. Co., 1998 ME 278, ¶ 7, 721 A.2d 983, 985. {5} . This amount reflects the per person liability limit of his uninsured motorist policy (i.e., $50,000) minus the amount he actually received through Pelletier's insurance (i.e., $10,594.65). {6} . In negotiations with Saucier, Allstate's position appeared to be that the case of Mullen v. Liberty Mut. Ins. Co., 589 A.2d 1275 (Me. 1991), interpreting the statute defining "uninsured motorist," abrogated Allstate's policy provisions regarding offsets available to Allstate reducing the amount owed to its insureds. On appeal, Allstate instead argues that, pursuant to its own policy provision quoted above, Allstate's offset is measured by the per person liability limit of the tortfeasor regardless of the amount actually paid to its insured, citing Mullen and other cases applying 24-A M.R.S.A. § 2902(1) (1990) (defining "uninsured motorist") for support. Both positions, however, are in error as discussed infra. {7} . Allstate also cites Simpson v. Hanover Ins. Co., 588 A.2d 1183 (Me. 1991), a case dealing with the award of prejudgment interest and the reduction of the fee of one of the insured's experts in awarding costs, to support its interpretation of the policy provision. However, in addressing one of the insured's arguments in that case, we noted: The insurance contract clearly provides that although Hanover is potentially liable up to a maximum of $50,000, its liability under the policy would be reduced by all sums already paid to Simpson by an underinsured motorist and his insurer. Accordingly, after Simpson's settlement with Miller and Maine Bonding in the amount of $25,000, Hanover's maximum potential liability under the underinsured motorist provisions of its contract of insurance with Simpson was reduced to $25,000. Id. at 1186 (emphasis added). This is consistent with the Superior Court's determination that Allstate's liability only be reduced by the actual amount that Saucier has been paid pursuant to his settlement with Pelletier's insurance company. {8} . Nor do these cases somehow abrogate policy provisions governing the extent of coverage once it is determined that coverage exists. {9} . Two cases not cited by Allstate might initially appear to conflict with the Superior Court's interpretation of Allstate's policy provision. In McGillivray v. Royal Ins. Co., 675 A.2d 524 (Me. 1996), we were once again called on to apply the definition of "uninsured motorist" in section 2902(1) to determine if uninsured motorist coverage existed. We stated that once a determination was made that the tortfeasor was an uninsured motorist and coverage existed, the insureds "may seek recovery against the insurer . . . for their damages in excess of the dollar limit of liability insurance on the tortfeasor's vehicle." Id. at 526 (emphasis added). However, in that case we held that the tortfeasor was not underinsured and therefore no uninsured motorist coverage applied. See id. Although the observation constitutes only dicta, it would still be a correct statement of the law if only one party made a claim against the tortfeasor and the tortfeasor's insurance company paid the per person policy limit to that party. In Botting v. Allstate Ins. Co., 1998 ME 58, 707 A.2d 1319, in which the tortfeasor had a per accident limit of $100,000 and the injured insureds had a per accident limit of $300,000 with Allstate, we stated "Hill had $100,000 coverage available for personal injury. Allstate's exposure therefore is controlled by a $200,000 limit per accident." Botting, 1998 ME 58, ¶ 7, 707 A.2d 1319, 1322. In Botting, however, the insureds were paid the full $100,000 available from the tortfeasor, but characterized a portion as attributable to property damage. We held that the Bottings could not reduce the offset available to Allstate from $100,000 to $95,000, when they in fact had been paid $100,000 by the tortfeasor, simply by recharacterizing a portion of it. See id. {10} . M.R. Civ. P. 50 provides in relevant part: The court may grant the motion as to any claim if the court determines that, viewing the evidence and all reasonable inferences therefrom most favorably to the party opposing the motion, a jury could not reasonably find for that party on an issue that under the substantive law is an essential element of the claim. M.R. Civ. P. 50(a) (1999). {11} . As discussed above, Allstate argues on appeal that it merely disputes the measure of the offset pursuant to the terms of its policy. The Claim analyst testified, however, that she was under the impression that the terms of the policy had been "superseded" by case law and that Mullen had "changed" the contract between Saucier and Allstate. She went on to indicate that, as a claim analyst, she received such general information from Allstate. {12} . In addition to the instruction quoted above, the court previously described the determination to be made by the jury on the knowing misrepresentation claim at several points in its instructions, thus: [D]id Allstate Insurance Company knowingly misrepresent that Mr. Saucier's insurance policy required Allstate to first deduct Alden Pelletier's $25,000 per person coverage from Mr. Saucier's $50,000 per person coverage to determine what coverage was left to insure Mr. Saucier? . . . . In other words, you know the policy says one thing and means one thing but you tell an insured that it says something else and means something else and you're aware that there is a difference. . . . . [I]t is an issue as to whether there was a legitimate dispute as to how to interpret the policy. . . . So, this has to be a knowledgeable misrepresentation and awareness that there was a misrepresentation, not a dispute as to what something says. {13} . In response to Allstate's request for an instruction on the element of injury, the court replied: "I would find as a matter of law that there's been injury because just by virtue of -- just by bringing the lawsuit." {14} . Maine Rules of Evidence, Rule 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." M.R. Evid. 403. {15} . The trial court also ordered that Allstate pay $1000 in attorney fees associated with Saucier's claim that Allstate failed to pay an undisputed portion of his claim. The parties agreed to this amount separately and it does not appear to be in dispute.

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