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. 

In October 2014, Wiggins filed a motion to dismiss the complaint as barred by Maine’s Workers’ Compensation Act (hereinafter “the Act”), attaching proof that Wiggins had a State-accepted workers’ compensation insurance policy in December 2011. Following a hearing the lower court ruled summarily in favor of Wiggins’ motion to dismiss, stating that there was no genuine issue of material fact as to whether Wiggins had obtained worker’s compensation insurance sufficient to invoke the immunity and exclusivity provisions of the Act, and because Kay had argued exclusively that he was an employee, not an independent contractor. Additionally, the lower court granted Budget’s motion for summary judgment on the ground that there was no genuine issue of material fact regarding proximate cause. Kay then timely appealed. 

Upon review, the Law Court first addressed whether the lower court properly dismissed Kay’s claim against Wiggins. In so doing, the Court reiterated that an employer who has secured the payment of workers’ compensation for its employees is exempt from civil actions for death resulting from injuries sustained by an employee incurred during the course of employment. 39-A M.R.S. §§ 104, 403(1) (2015). The Court further noted that where an employer is exempt from civil actions due to compliance with the Act, an employee’s only remedy is to pursue a claim for workers’ compensation benefits. Ultimately the Court concluded that where Wiggins provided “competent evidence” of compliance with the Act—and Kay failed to rebut said evidence, and even argued that he was an employee of Wiggins—the lower court properly found that Wiggins was in compliance with, and the claim was barred by, the Act.

Next, the Court examined whether the lower court properly granted Budget’s motion for summary judgment. Before the Court, Kay argued that Budget was vicariously liable for Wiggins’ actions because Budget had control over Wiggins. Oddly, Kay also argued that the Act’s exclusivity provision does not apply to Budget because Wiggins was an independent contractor. Declining to determine whether Wiggins was indeed an employee or independent contractor of Budget, the Court ruled that it need only consider that if Budget were vicariously liable for Kay’s death, it stood in the shoes of Wiggins against whom any claims were barred by his compliance with the Act, as discussed supra

Judgment Affirmed


Caleb J. Gannon, Esq. for Kay

Brendan O’Rourke, Esq. for Budget

Elizabeth Germani, Esq. for Wiggins

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.”

About the Law Offices of Joe Bornstein

For more than 40 years, the Law Offices of Joe Bornstein has been specializing in Personal Injury and Social Security Disability Law.

With a statewide practice and six conveniently located offices in Sanford, Biddeford, Portland, Lewiston, Augusta and Bangor, the Law Offices of Joe Bornstein provides access to justice to injured and disabled Mainers. Since 1974, the Law Office of Joe Bornstein has helped more than 23,000 Mainers collect over $300 million in settlements and benefits.

Our legal team consists of 13 specialized attorneys with a support staff of over 65 legal professionals. All of our employees are experienced in many different types of law, including:

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If you or a loved one has been injured by the negligence of someone or something else, call the Law Offices of Joe Bornstein today for a free and confidential consultation. You may be entitled to compensation.

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