Law Court applies "other-owned vehicle" exclusion

 On Thursday, July 14, 2016, the Law Court (Saufley, J.), in Graf v. State Farm Mutual Automobile Insurance Company, 2016 ME 109, declined to disregard “other-owned vehicle” exclusionary language in a UM/UIM policy for motor vehicle coverage, and held that where an injured motorist has settled with an at-fault party, the resulting settlement amount must be backed out of the available coverage limits when determining the available coverage of an applicable UM/UIM policy.




On August 4, 2005, Alberta Graf (hereinafter Graf) was operating her motor vehicle when she was struck from behind by another motorist. Graf sustained injuries as a result of the collision. The other motorist—who was found to be solely responsible for the accident—was insured by a $50,000 motor vehicle policy. At this time, Graf and her husband held two State Farm policies:


·         The first (hereinafter “Policy 1”), in Graf’s husband’s name, provided $1,000,000 of UM/UIM coverage, and $100,000 medical payments coverage, but did not cover Graf’s vehicle. This policy contained an “other-owned vehicle” exclusion stating that coverage would extend only to injuries sustained in vehicles insured under the policy. Graf’s vehicle was not insured under Policy 1.

·         The second (hereinafter “Policy 2”), in Graf’s name, provided $300,000 of UM/UIM coverage, and $100,000 medical payments coverage for services furnished within three years of an accident, and covered Graf’s vehicle. Policy 2 provided that “. . . coverage shall be excess over and shall not pay again any medical expenses paid under the medical payments coverage,” and that medical payments coverage would be denied “to the extent workers’ compensation benefits are required to be payable.” 



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Law Court Upholds Judgment in Wrongful Death Case

On Tuesday, July 12, 2016, the Law Court (Saufley, J.), in Estate of Kay v. Estate of Wiggins, 2016 ME 108, upheld summary judgment in favor of defendants Budget Truck Rental, LLC and the Estate of Douglas Wiggins in a wrongful death action maintained by the Estate of Dennis Kay for his death in a work-related motor vehicle accident. In its ruling, the Law Court concluded that Wiggins—and through principles of vicarious liability, Budget Truck Rental, LLC—was in compliance with the Maine Workers’ Compensation Act at the time of the accident and that, therefore, the Act’s exclusivity provisions barred any claims against Wiggins. 

In 2008, Dennis Kay began working for Option Rentals—a furniture rental business owned by Douglas Wiggins. As part of its regular business, Option Rentals maintained an agreement with Budget Truck Rental, LLC (hereinafter “Budget”) to transfer Budget vehicles from one destination to another in exchange for payment. As part of his employment with Option Rentals, Kay regularly transported Budget vehicles at Wiggins’ instruction. On December 30, 2011, Kay was instructed to complete a Budget transfer, but informed Wiggins that he “felt uncomfortable” doing so due to inclement weather. Wiggins then instructed Kay to perform the transfer sometime on the morning of December 31, 2011. On the morning of December 31, 2011, Kay began transport of the Budget vehicle. Sadly, the Budget truck he was operating hit a patch of ice and slid off of the roadway, ejecting Kay, who died from his injuries. Wiggins died of unrelated causes in 2013. 

In July 2013 the Estate of Kay (hereinafter “Kay”) filed a complaint against the Estate of Wiggins (hereinafter “Wiggins”) and Budget alleging wrongful death caused by Wiggins and Budget, and punitive damages. The complaint repeatedly alleged that Kay was “an employee” of Wiggins. 

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Relegating Self-Driving Vehicles to Separate Roadways

On Friday, July 8 2016, the Wall Street Journal published an Op-Ed by a leading computer scientist, Jerry Kaplan, in which he predicts that in order to truly be successful integrating self-driving vehicles into society, we will need to adapt and construct separate roadways purposed solely for autonomous traffic.

Responding to the first known fatality in a self-driving car in May 2016, Kaplan cautions readers that “this was no ordinary accident” and that “the car performed exactly as designed . . . the (non)driver’s failure to take any corrective action could reasonably have been foreseen by [Tesla].” In other words, Kaplan argues that “it’s simply not practical to ask passengers in a self-driving vehicle to remain alert and engaged” –calling the fatal collision “an unwelcome yet widely anticipated milestone [that] may set back progress on what promises to be one of the most valuable technologies of the 21st century.” 

Likening the introduction of today’s early-stage autonomous vehicles to the “‘horseless carriages’ of the early 1900s,” Kaplan warns that automakers like Tesla have “pursued a flawed vision of the future, one in which tomorrow’s technology is simply layered on top of today’s.” Much like the early 1900s, Kaplan reminds readers that it the tangible benefits of self-driving technology won’t be realized until “substantial changes [are made] in our transportation infrastructure,” and that “the true power of the automobile was unleashed only after streets were paved, lanes marked, traffic lights installed, pedestrians confined to sidewalks and horse-drawn traffic curtailed.” Much in the same way, Kaplan argues that in order to harness the power of self-driving technologies we must first separate autonomous vehicles from human-piloted traffic on separate thoroughfares and equip every vehicle with a transponder for sending and receiving navigational information. 

According to Kaplan, the National Highway Traffic Safety Administration (NHTSA) is expected to issue rules mandating the installation of transponders in all new American automobiles in the near futures. Equipped with this technology, Kaplan states that “vehicle-to-vehicle” (“V2V”) communication will be a reality, allowing automobiles to broadcast their speed, anticipated turns, and other relevant operating information to one another. According to the NHTSA, installing transponders to promote V2V communication could prevent as many as 500,000 crashes and 930 fatalities annually. While impressive in their life-saving potential, Kaplan cautions that transponders are currently only able to assist human drivers, but if paired with self-driving technology on separate roads, the reduction in accidents and fatalities could be much higher.

 Looking ahead, Kaplan predicts that many states could enact reactionary legislation stalling the development of self-driving vehicles as companies scramble to integrate “limited-functionality products with today’s streets and drivers” rendering the technology as “a mere novelty or convenience” until a comprehensive and dedicated infrastructure is implemented to support self-driving vehicles.

 As an interesting coda, in the following YouTube video Kaplan presents a case for the safety-centric ethical considerations that underscore his position that self-driving vehicles need to be segregated to their “own” throughways: Would You Buy a Car That's Programmed to Kill You? 

Stay Safe On The Water This Summer

With more than 6,000 lakes and ponds, 3,000 miles of coastline, and 32,000 miles of rivers and streams, few states can match the magnitude of water that Maine has to offer. Which is why boating adds approximately $150 million to the state’s economy each year. 

But with the scenic waterways comes a substantial number of boating accidents. According to the U.S. Coast Guard, there are approximately 5,000 recreational boating accidents in the United States annually, resulting in more than 750 fatalities and 3,500 injuries. Of the 750 deaths, on average over 500 include victims who drowned without wearing a life jacket. 

At the Law Offices of Joe Bornstein, we see victims of boating accidents on a regular basis. That’s why we want to help educate boaters on how to be safe when on the open water. Because when it comes to boating safety, a little education can be the difference between life and death. 

• All motorized boats must carry a current registration sticker from the state.

• The age restriction for operating a personal watercraft, including a jet-ski is 16. Boaters between the ages of 16-18 must either be accompanied by an adult or have completed an approved education course and carry proof of completion.

• Every boat should have one life jacket per passenger on board.

• Carry an emergency kit and cell phone, and be sure to tell someone where you are headed and when you expect to return.

• Slow down when near other boats, swimmers, and those enjoying the water. Your consideration will allow others to have fun and remain safe.

• Most boating accidents are alcohol-related. Like driving a car, it is illegal to operate a boat with a Blood Alcohol Content level over .08.

• Educate yourself on basic water safety and boating rules. The U.S. Coast Guard strongly recommends that all boat owners take an official boater education course.

By following a few simple safety tips, boaters can enjoy their time on Maine’s waterways while ensuring safety for themselves and others.

Because at the end of the day, knowing you had a safe and relaxing day out on the water is fun in itself, especially if you don’t rock the boat. 

If you or a loved one has been injured in a boating, swimming, or watersport activity, call the Law Offices of Joe Bornstein today for a free and confidential consultation. 

For more information on boating safety tips please visit: 

Law Court upholds SJ in premises liability suit

On Thursday, July 7, 2016, the Law Court (Hjelm, J.), in Estate of Smith, et al v. Salvesen, 2016 ME 100, affirmed summary judgment entered by the Cumberland County Superior Court (Mills, J.) in a premises liability case in which the Estate of Smith (hereinafter “the Estate”) alleged negligence wrongful death. In its holding, the Court held that summary judgment was appropriate where the Estate failed to qualify its witness as an expert based on particular statements, and where the Estate failed to produce evidence sufficient to survive a prima facie showing of causation.


In October 2012, Lois Smith and her husband, Eugene, traveled to Maine where they had made reservations to stay at the Maine Farmhouse—a guesthouse owned and operated by Timothy Salvesen in Woodstock, Maine. Where the Smiths had made their reservations through a third party, they did not receive any specific information about their accommodations or personally speak to Salvesen. Upon arriving at the Farmhouse, the Smiths selected a second-story room and settled in. Unbeknownst to the Smiths, the room they had selected was a second-story suite that was connected to a first story living area by way of a private staircase. That night the Smiths slept in the second-story suite. The following morning, Mr. Smith was awakened by a “loud crash” and the sound of his wife scream. Mr. Smith began searching for his wife throughout the suite when, for the first time, he noticed the private staircase leading to the first floor living area. Mr. Smith found his wife at the landing of the staircase, bleeding from her head. Ms. Smith died the next day from her injuries.


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Tesla's fatal autopilot crash: Family may have grounds to sue

On July 6, the Guardian featured a piece in which legal experts suggested that the family of Joshua Brown—the man who on May 7, 2016, was killed in a fatal collision while traveling in his Tesla Model S vehicle—may have grounds to sue the innovative automaker.

On May 7, 2016, Joshua Brown was killed when the Tesla vehicle in which he was travelling failed to respond to an abrupt change in traffic during ‘autopilot’ mode and collided with the side of a truck before careening off the shoulder of the road. Following the collision, questions remain as to whether Brown was watching a portable DVD player at the time of the collision, while investigators have determined that neither Brown nor his vehicle’s operating system took any evasive actions just prior to the collision. The National Highway Traffic and Safety Administration is conducting an ongoing investigation of the crash.

In response to recent media coverage of the event, Tesla published a blog post in which the automaker described its autopilot feature as more of a “traffic-aware cruise control” than a traditional autonomous operating system, and reiterated its warning to motorists to keep their hands on the steering wheel at all times during autopilot operation—a warning made apparent to motorists by visual alerts and mechanical slowing the vehicle until the driver’s hands are detected. Further, Tesla stressed that the autopilot feature present in vehicles like the one involved in the fatal crash is “disabled by fault and requires specific acknowledgement that the system is new technology and still in a public beta phase before it can be enabled.” Despite Tesla’s recent efforts to point out the shortcomings and operator-dependent nature of their burgeoning technology, the company—through founder Elon Musk—has a history of touting its autopilot feature as “probably better than humans at this point in highway driving.”

Despite these warnings, some legal experts believe that the deceased’s family will have a strong case against Tesla. Anthony Johnson, CEO of the American Injury Attorney Group, says that Brown’s family “absolutely” has a product liability case against the automaker, based on whether Brown “was adequately warned about the potential defects in the system.” According to Johnson, the family will likely argue that “whatever warnings may have been offered, the driver may have been led to believe the system was more capable than it was.” What’s more, according to Johnson, “the term ‘autopilot’ has been used for decades and is understood by the masses as a situation whereby the machine (typically airplanes until recently) pilots the vehicle for the operator. . . you cant sell something at the grocery store that looks like a tomato and is labeled tomato and place in the fine print that its actually a grape.”

Despite this view, not all legal experts believe that Brown’s family has such a strong claim. Farid Yaghoubtil, a personal injury attorney in Los Angeles, said that “If there was a sensor, if [Tesla] had the safety features in place and [Brown] ignored them, it would make a huge difference in being able to pursue a case, because at that point [Tesla would be able to shift] the burden from themselves to the user.”

Examining the legal response likely to be levied by Tesla, Bryant Walker Smith, a law professor  at the University of South Carolina, said that the automaker will likely “point to warnings they gave on prior use, point to the fact that this was a beta that required supervision, argue that the acts of the driver was the predominant cause of the crash” in trying to argue that Brown was at least partly culpable for his death. Ultimately, says Smith, the case will come down to reasonableness, with a jury asked to determine “was Tesla reasonable , was its design reasonable, was the driver reasonable?” 

Aroostook Jury Awards $240,000 in Medical Malpractice Case

Recently, the Maine Lawyers Review (June 23, 2016) reported that an Aroostook County jury awarded $240,000 to a plaintiff in a medical malpractive case against the Aroostook Medical Center for twice failing to direct him to the services of a surgeon for his hand injury, resulting in the eventual amputation of his left index finger. 

Plaintiff Travis Blair severed a major nerve in his left finger when he cut himself while attempting to free his child’s Christmas present from its packaging (year unspecified). Following the injury, Blair reported to the Aroostook Medical Center where emergency doctors failed to diagnose his nerve injury. Ten days later, Blair’s Primary Care Physician (also an employee of the Aroostook Medical Center) properly identified the damage in Blair’s finger, but informed Blair that it was “too late” for surgical correction and that Blair would likely suffer numbness in his finger for the rest of his life. Eighty-one days after the injury, Blair was seen by an orthopedic who concluded that Blair should have had surgery to repair the nerve in his finger as soon as possible after it had been severed, and that the delay had deprived Blair of his best chance to restore feeling to the finger. Ultimately, Blair’s finger was amputated. 

Notably, the jury’s $240,000 award in this case stands in stark contrast to the findings of the mandatory medical malpractice screening panel—who found in favor of the Aroostook Medical Center. Given the divergent outcomes between the jury award and the panel finding, the article’s author questions whether the med mal screening panel is effective in meeting the goals for which it was established: identification and compensation of meritorious claims and dismissal of those nonmeritorious. 

Last year, a bill (LD 1311) that would have reformed the current medical malpractive screening system—by shifting the responsibility to a state agency—died in the Legislature. The bill was widely opposed by professionals in the legal, medical, and insurance industries. While the article does not offer a viable alternative, the author remarks that the $240,000 award serves as an example of the inefficacy of the current screening panel.

Risks higher for front-seat passengers in some SUV crashes

On June 23rd, the New York Times published an article revealing that front-seat passengers in SUVs may be at increased risk for injury during a motor vehicle collision than drivers.

Recently, the Insurance Institute for Highway Safety (hereinafter “IIHS”) tested seven leading small SUV vehicles by placing them through “small overlap frontal tests,” the newest of IIHS’s tests, which simulates front-end impact to the passenger’s side of the vehicle. Previously, all seven vehicles had been tested by the IIHS for front-end driver’s side impact ratings and all seven vehicles received the highest rating—“good.” However, when IIHS replicated the test for front-end passenger side impact to determine the extent to which they protect passengers, only one vehicle—the 2016 Hyundai Tucson—earned a “good” rating.  Of the remaining vehicles three—the 2015 Buick Encore, 2015 Honda CR-V, and 2015 Mazda CX-5—earned ratings of “acceptable,” while the 2014 Nissan Rogue and 2014 Subaru Forrester received “marginal” passenger protection ratings, and the 2015 Toyota RAV4 received a “poor” result. 

According federal fatality data, the level or protection that small SUVs afford front-seat passengers is of paramount importance, as 1,600 passengers died in frontal crashes in 2014 alone. Heeding the call to help analyze crash data in an effort to make American roads safer, the IIHS began its testing approximately four years ago. Since then, IIHS testing has prompted 13 automakers to make structural changes to 97 vehicles. And while it seems that many automakers are determined to incorporate IIHS safety testing results in the redesign and improvement of their models, some continue to note that IIHS safety standards “:go beyond” that required under federal law. 

Still, manufacturers like Hyundai, are happy to promote their good results, highlighting the “demanding” standards of IIHS testing in light of their vehicles’ top performance.

Law Court reinstates ex parte attachment/priority for estate of Noyes Street fire victim

 On Tuesday, June 7, 2016, the Law Court (Gorman, J.), in Estate of Summers et al. v. Nisbet, 2016 ME 88, reversed the decision of the Cumberland County Superior Court (Mills, J.) to dissolve the attachment that the Estate of Steven Summers had received on an ex parte basis in connection with its complaint against Gregory Nisbet (hereinafter “the Defendant”) in December 2014 and, upon issuing a new attachment, its decision not to effectuate that attachment as of its original date of entry.


On November 1, 2014, Steven Summers perished in an apartment fire on the premises of a building located on Noyes Street in Portland, Maine, and owned by the Defendant. In addition to Summers, Ashley Thomas, Nicole Finlay, David Bragdon, Jr., and Christopher Conlee (represented by parties hereinafter labeled as “the other estates”) also perished in the blaze. On November 21, 2014, the Estate of Summers filed a complaint in the Superior Court alleging various causes of action for wrongful death and pain and suffering, alleging that the apartment building was in a state of disrepair, lacked working smoke detector and a passable secondary means of egress, contained an illegal third-floor apartment, violated various fire codes, and that the Defendant allowed storage of combustible materials on the property. Between the dates of January 6 and January 30, 2015, the other estates filed similar causes of action based on similar facts.


In its complaint, the Estate of Summers sought an order for attachment and trustee process on an ex parte basis. The trial court granted the request, on an ex parte basis, in the amount of $1.7 million on December 3, 2014. The Defendant did not challenge the attachment.


Subsequently the other estates each moved for attachment and trustee process, which the Defendant again did not challenge. Prior to the trial court’s review of these motions, the other estates also moved to dissolve and modify the Estate of Summers’s attachment order on the grounds that the Estate of Summers had failed to meet the requirements for attachment on anex parte basis. Following a hearing on these motions, the trial court dissolved the Estate of Summers’s ex parte attachment of December 3, 2014, and simultaneously granted attachments in favor of the Estate of Summers and the other estates. The trial court’s order resulted in a loss of priority status for the Estate of Summers, which timely appealed.


On appeal, the Estate of Summers argued that the trial court erred by concluding that the other estates had standing to challenge its December 2014 attachment order. Reviewing the standard for attachment on an ex parte basis, the Court held that a plaintiff is required to “establish the same likelihood of success [as required under the rules for seeking standard attachment—a likelihood of success in the underlying suit and of recovering in that amount of greater] but also requires the plaintiff to establish that there is a clear danger that the defendant if notified in advance of the attachment of the property will remove it from the state or will conceal it or will otherwise make it unavailable to satisfy a judgment or that there is immediate danger that the defendant will damage of destroy the property to be attached.”


Upon reviewing the scope of the above inquiry that Maine courts must make in assessing motions for ex parte attachment, the Law Court concluded that once an attachment is challenged, the ex parte portion of the analysis becomes moot, and a motion to dissolve an ex parte  attachment is treated as the equivalent of a contested motion for attachment after notice in which the attaching plaintiff has the burden to establish, by a preponderance of the evidence its entitlement to recovery of an amount equal to or greater than the amount of the attachment. In articulating this rule, the Law Court noted the thrust of the inquiry upon review of a grant of ex parte attachment is whether the plaintiff has made the requisite showing to obtain the attachment in the first place.


The Court finally concluded that where, as here, none of the other estates had challenged the Estate of Summers’s entitlement to an attachment there was no inquiry for the trial court to make into whether the Estate of Summers had in fact met the requisite elements for the granted ex parte attachment, and therefore its dissolution of the ex parte attachment was error for straying outside the boundaries of this narrow inquiry.


Following its decision to reinstate the ex parte attachment order, the Law Court also held that it reinstated the date of the December 3, 2014, as the date of the Estate of Summers’s priority.


Order for dissolution by the trial court vacated. Original ex parte order and priority date reinstated.

Massachusetts family settles claims for wharf death in Port Clyde

On Monday, June 6, 2016, the Bangor Daily News published an article in which it reported that the family of a Massachusetts boy who was killed when he was struck by a runaway vehicle on a wharf in Port Clyde, Maine, has settled claims related to their son’s death. 

On August 11, 2013, nine-year-old Dylan Gold was visiting Port Clyde with his parents and younger brother, waiting on the Monhegan-Thomaston Boat Line wharf for a ferry bound for Monhegan when a Cheryl Torgerson—a New York resident— lost control of her vehicle, sped down the wharf, and crashed into the Gold family. As a result of the collision, young Dylan suffered fatal injuries and his mother was hospitalized for four weeks with multiple pelvic fractures, a perforated bladder, and internal bleeding. Gold’s younger brother sustained minor injuries, and Gold’s father was unharmed.

Following the crash, Torgerson—who was not found to be suffering from any medical condition or to have any alcohol in her system at the time of the collision—informed State Police that her vehicle “suddenly accelerated as if the pedal were stuck to the floor.” State Police found no mechanical defects with Torgerson’s vehicle, though did receive multiple reports of a car matching the description of Torgerson’s vehicle speeding on several occasions in the hours leading up to the crash.

The family filed suit in August 2015 against Torgerson alleging negligent operation of her motor vehicle, and also filed suit against the Monhegan-Thomaston Boat Line and the owners of the property upon which the fatal crash occurred alleging negligence for “failing to erect barriers and gates and failing to safely channel the mix of vehicle, pedestrian, and bicycle traffic on the wharf.” 

Recently, the family—represented by Kevin Libby, Esq.—has settled their claims with all three parties, though the terms of the settlement have not been released. Torgerson is represented by Robert Hatch, Esq., and the ferry line and property owners are represented by Thomas Marjerison, Esq. 

Torgerson was not criminally charged as a result of the crash. The Knox County District Attorney’s Office stated that there was “insufficient evidence to show that Torgerson acted in a criminally negligent manner.”

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