Grossman v. Richards
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 9
Docket: 	Cum-98-308
Argued:	November 4, 1998
Decided:	January 13, 1999

Panel:	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, and ALEXANDER, JJ.	

JEFFREY A. GROSSMAN

v.

DON E. RICHARDS

and

THE CITY OF WESTBROOK

RUDMAN, J.

	[¶1]  Jeffrey A. Grossman (Grossman) appeals from a summary
judgment entered in the Superior Court (Cumberland County, Cole, J.) in
favor of Don E. Richards (Richards).  Grossman contends that the court
erred by concluding that: (1) Richards was immune from liability under the
Maine Tort Claims Act (MTCA);{1} and (2) the City of Westbrook (City) did not
waive Richards' immunity by purchasing insurance on his behalf.  We
disagree and affirm the judgment.
	[¶2]  Grossman served as Administrator for the City of Westbrook until
he resigned in June 1996.  Grossman commenced this defamation and false
light invasion of privacy action against Richards,{2} based on comments
Richards made during a televised Westbrook City Council meeting on August
5, 1996.  Richards was acting as a City Alderman and the City Council
President at the time he made the allegedly defamatory comments. 
Richards moved for a summary judgment pursuant to M.R. Civ. P. 56(b) on
the ground that no genuine issue of material fact existed and Grossman
failed to establish the elements of his claims.  After the trial court granted a
summary judgment in favor of Richards, this appeal ensued.
	[¶3]  We review a grant of a summary judgment de novo for errors of
law.  See Rippett v. Bemis, 672 A.2d 82, 85 (Me. 1996).  Summary judgment
is appropriate when a defendant is immune from tort liability.  See Moore v.
City of Lewiston, 596 A.2d 612, 614 (Me. 1991).  We have recognized that
"immunity is an issue distinct from liability."  Id. (quoting Polley v. Atwell,
581 A.2d 410, 412 (Me. 1990)).  "Whether a defendant is entitled to
governmental immunity is a question of law that may be resolved by a
summary judgment in the absence of factual contradiction."  Dubail v. Dep't
of Transp., 1998 ME 126, ¶ 7, 711 A.2d 1301, 1303.  Therefore, the trial
court did not erroneously grant a summary judgment if Richards was
immune from liability under the MTCA.  See id.      
	[¶4]  The MTCA grants absolute immunity to governmental employees
for "[p]erforming or failing to perform any discretionary function or duty." 
14 M.R.S.A. § 8111(1)(C) (1980 & Supp. 1998).  Such immunity is
"applicable whenever a discretionary act is reasonably encompassed by the
duties of the governmental employee in question, regardless of whether the
exercise of discretion is specifically authorized . . . ."  14 M.R.S.A. § 8111(1). 
Since Grossman conceded that Richards' conduct was a "discretionary act,"
the only issue is whether Richards' duties "reasonably encompassed" his
conduct.  Id. 
	[¶5]  Grossman argues that Richards' discretionary act was not
"reasonably encompassed by his duties."  The Legislature added the
"reasonably encompassed" language to section 8111(1) to clarify that an
employee does not need specific written authorization by rule or statute, in
order for discretionary immunity to apply.  See L.D. No. 2443, 113th Leg.,
2d Sess. 16 (1988).  The statement of fact accompanying the bill that
resulted in the addition of the "reasonably encompassed" language in
section 8111(1) states:

	[T]he additional language at the end of Title 14, section
	8111, subsection 1, paragraph E is intended to overrule
	the statement in True v. Ladner, 513 A.2d 257 (Me.
	1986), that discretionary immunity is only available when
	the exercise of discretion is authorized by a specific
	statute or rule.  To perform their jobs effectively, many
	government employees are required to exercise their
	discretion in areas which are not specifically governed by a
	detailed statute.  Accordingly, discretionary immunity
	should exist whenever the activity in question is in fact
	discretionary and is important to the functioning of the
	governmental activity involved. 

L.D. No. 2443, 113th Leg., 2d Sess. 16 (1988).
	[¶6]  As we stated in Darling v. Augusta Mental Health Inst., the
purpose of the discretionary function immunity is to preserve
"independence of action without deterrence or intimidation by the fear of
personal liability and vexatious suits."  Darling v. Augusta Mental Health Inst.,
535 A.2d 421, 425 (Me. 1987) (quoting Restatement (Second) of Torts
§ 895D comment b (1979)).  "[T]ort liability should not be imposed for
conduct of a type for which the imposition of liability would substantially
impair the effective performance of a discretionary function."  Id.  According
to the statement of fact accompanying the aforementioned bill:

	[T]he immunities contained in Title 14, section 8111 are
	intended to serve important governmental purposes. 
	Government officials are frequently required as part of
	their jobs to take actions that have serious consequences
	for the individuals affected. . . .  If these government
	officials were faced with the constant possibility of
	personal liability, the inevitable result would be that they
	would be hesitant to take necessary enforcement action
	and the public interest would suffer.

L.D. No. 2443, 113th Leg., 2d Sess. 15 (1988).
	[¶7]  We have identified four factors to consider in determining
"whether an action is encompassed within a discretionary function":

	(1) Does the challenged act, omission, or decision
	necessarily involve a basic governmental policy, program[,]
	or objective?

	(2) Is the questioned act, omission, or decision essential
	to the realization or accomplishment of that policy,
	program, or objective[,] as opposed to one which would
	not change the course or direction of the policy,
	program[,] 	or objective?

	(3) Does the act, omission, or decision require the
	exercise of basic policy evaluation, judgment, and
	expertise on the part of the governmental agency
	involved?

	(4) Does the governmental agency involved possess the
	requisite constitutional, statutory, or lawful authority and
	duty to do or make the challenged act, omission, or
	decision?

Berard v. McKinnis, 1997 ME 186, ¶ 9, 699 A.2d 1148, 1151 (quoting
Adriance v. Town of Standish, 687 A.2d 238, 240 (Me. 1996)).
	[¶8]  The trial court analyzed these four factors as follows:

	[(1) Richards'] statements involved a basic governmental
	objective, namely, the proper custody and distribution of
	the public's money.  [(2)] Questioning whether there was a
	conflict of interest involved in the distribution of public
	money is essential to the realization of the function of
	properly distributing public money.  [(3)] Richards's [sic]
	statements required basic policy evaluation, judgment,
	and expertise by Richards.  [(4)] Finally, Richards
	possessed the requisite lawful authority, as an alderman
	voting to approve an appropriation, to question the
	possible conflict of interest involved in the distribution of
	public money.  Although Richards's [sic] comments appear
	ill-informed, ill-advised, and otherwise actionable, they do
	not exceed the permissible bounds of discretion allowed
	by § 8011(1)(C).

The trial court concluded that "Richards performed a discretionary
function" within the meaning of section 8111.  Richards' duties "reasonably
encompassed" his discretionary act of pointing out a potential conflict of
interest regarding the distribution of public money.  See 14 M.R.S.A.
§ 8111(1).  Therefore, Richards is entitled to discretionary function
immunity under the MTCA.
	[¶9]  Grossman asserts that the trial court erred in concluding that
the "bad faith" provision in section 8111(1)(E) does not apply to
discretionary act immunity under section 8111(1)(C).{3}  However, we
addressed this exact issue in Dall v. Caron and held that the "bad faith
proviso" of subparagraph E does not apply to the remainder of section
8111(1).  See Dall v. Caron, 628 A.2d 117, 119 (Me. 1993).  We stated:

	The proviso contained in subparagraph E that excludes
	actions in bad faith is limited to that subparagraph's broad
	grant of immunity for "any intentional act or omission
	within the course and scope of employment."  The
	immunity granted in the more limited circumstances
	described in subparagraphs A through D is absolute and
	not qualified by the bad faith proviso in subparagraph E.

Id. (footnote omitted). 
	[¶10]  	In Berard v. McKinnis, we recently affirmed the decision in
Dall that the "bad faith proviso" in subparagraph E does not apply to the
absolute immunity that subparagraphs A through D provide.  See Berard,
1997 ME 186, ¶ 11 n.7, 699 A.2d at 1152 n.7.  In rejecting the plaintiff's
claim that the "bad faith proviso" prevented discretionary function
immunity under subparagraph C, we stated:

	[The plaintiff] argues that [MTCA] immunity . . . is not
	available to [the defendant] because he acted in bad
	faith . . . .  Because we have determined that [the
	defendant's] conduct is a proper discretionary function,
	[pursuant to] 14 M.R.S.A. § 8111(1)(C), we need not
	address [the plaintiff's] bad faith argument.  The bad faith
	exception to sovereign immunity is found in subparagraph
	E of section 8111.  Because [the defendant] is entitled to
	absolute immunity under subparagraph C, this bad faith
	proviso does not apply.

Id. (citing Dall, 628 A.2d at 119).
	[¶11]  Grossman argues that we should overturn Dall and Berard, but
fails to support his contentions with timely or relevant precedent. "The
meaning of statutory language is a question of law."  Cook v. Lisbon Sch.
Comm., 682 A.2d 672, 676 (Me. 1996).  In Cook, we stated:

	In construing a statute we look first to the plain meaning
	of the statutory language to give effect to legislative intent,
	and if the meaning of the statute is clear on its face, then
	we need not look beyond the words themselves.  Thus, if
	the text of the statute given its plain meaning answers the
	interpretative question raised by the parties, the language
	must prevail and no further inquiry is required.

Id. (citations omitted).
	[¶12]  On its face, section 8111(1) provides "absolute immunity" for
employees of governmental entities under subparagraphs A through E.{4}  See
14 M.R.S.A. § 8111(1).  Subparagraph E provides absolute immunity for
"[a]ny intentional act or omission within the course and scope of
employment" that an employee did not commit in bad faith.  14 M.R.S.A.
§ 8111(1)(E).{5}  In other words, section 8111(1) provides absolute immunity
for, inter alia, a government employee's intentional, good-faith acts or
omissions.{6}  See id. 
	[¶13]  Since the meaning of section 8111(1) is clear on its face, the
language prevails, and we indulge in no further inquiry.  See Cook, 682 A.2d
at 676.  Our decisions in Dall and Berard were based on the plain meaning of
the MTCA.  See Dall, 628 A.2d at 119; Berard 1997 ME 186, ¶ 11 n.7, 699
A.2d at 1152 n.7.  Furthermore, we strictly construe exceptions to
governmental immunity under the MTCA.  See Petillo v. City of Portland,
657 A.2d 325, 327 (Me. 1995).  Therefore, since the trial court's
conclusions clearly comport with both the statute and our recent decisions,
the court did not commit an error of law in granting a summary judgment in
favor of Richards.{7}
	[¶14]  Finally, Grossman asserts that the City waived Richards'
immunity by purchasing insurance on Richards' behalf.  Section 8116 of
Title 14 provides that: "The legislative or executive body or any department
of the State or any political subdivision may procure insurance against
liability for any claim against it or its employees for which immunity is
waived under this chapter or under any other law."  14 M.R.S.A. § 8116
(1980 & Supp. 1998) (emphasis added).  However, "[i]f the insurance
provides coverage in areas where the governmental entity is immune, the
governmental entity shall be liable in those substantive areas" (although only
to the limits of coverage).  Id. (emphasis added).  Section 8116 only affects
the liability of governmental entities, and does not waive the immunity of the
individual insured employees.  See id.; Moore v. City of Lewiston, 596 A.2d
612, 616 (Me. 1991).{8}  Therefore, Grossman's assertion is without merit.  
	The entry is:
					Judgment affirmed.
                                                        
Attorney for plaintiff:

Robert Edmond Mittel, Esq., (orally)
Mittel, Asen, Hunter & Cary, LLC
P O Box 427
Portland, ME 04112-0427

Attorneys for defendants:

Martha C. Gaythwaite, Esq., (orally)
Friedman, Babcock & Gaythwaite
P O Box 4726
Portland, ME 04112-4726
(for Richards)

Michael D. Cooper, Esq.
P O Box 529
Westbrook, ME 04098-0529
(for City of Westbrook)

FOOTNOTES******************************** {1} . The Maine Tort Claims Act is codified in 14 M.R.S.A. §§ 8101-18 (1980 & Supp. 1998). {2} . Grossman also filed suit against the City under a vicarious liability theory. However, the court granted the City's motion for a summary judgment and Grossman later withdrew his appeal with respect to the City. {3} . Subparagraph E of section 8111(1) provides employees of governmental entities with absolute immunity for "[a]ny intentional act or omission within the course and scope of employment; provided that such immunity shall not exist in any case in which an employee's actions are found to have been in bad faith." 14 M.R.S.A. § 8111(1)(E) (1980 & Supp. 1998) (emphasis added). {4} . The statement of fact accompanying the bill that resulted in an amendment to section 8111(1) stated: The legislative history of the [MTCA] in 1977 demonstrates that the discretionary immunity was intended to be absolute. To the extent that McKerron v. Madura, 474 A.2d 166 (Me. 1984), can be read to suggest that only a qualified immunity was intended, it is incorrect. The addition of language specifying absolute immunity in the initial sentence of Title 14, section 8111, subsection 1, is intended to solve this problem. L.D. No. 2443, 113th Leg., 2d Sess. 17 (1988). {5} . Section 8111(1) and subparagraph E state, in pertinent part: [E]mployees of governmental entities shall be absolutely immune from personal civil liability for . . . . [a]ny intentional act or omission within the course and scope of employment; provided that such immunity shall not exist in any case in which an employee's actions are found to have been in bad faith. 14 M.R.S.A. § 8111(1) (1980 & Supp. 1998) (emphasis added). {6} . Grossman contends that "absolute immunity" for good faith acts "makes no sense." Grossman claims that "[b]y definition, absolute immunity cannot have a component of good faith." Grossman argues that the Legislature was confused in its juxtaposition of the term "absolute immunity" with a "good faith" requirement. However, as we stated in Dall: "The Legislature understood the distinction between qualified and absolute immunity." Dall v. Caron, 628 A.2d 117, 119 n.2 (Me. 1993). {7} . Had the Legislature intended for the "bad faith proviso" to apply to subparagraphs A through D, it would have been a simple matter to draft section 8111(1) in a manner that clearly indicated such intent. In order for us to justify the interpretation that Grossman advocates, we would need to ignore the structure of section 8111 and look beyond the plain meaning of the statute as written. However, as a basic principle of statutory construction, we refuse to look beyond the words of a statute when the meaning is clear on its face. See Cook v. Lisbon Sch. Comm., 682 A.2d 672, 676 (Me. 1996). {8} . In Moore we stated: [The third paragraph of] [s]ection 8116 provides that a governmental entity "may purchase insurance or may self-insure on behalf of its employees to insure them against any personal liability for which a governmental entity is obligated or entitled to provide defense or indemnity under section 8112." However, unlike the parallel provision in [the first paragraph of] section 8116 regarding governmental entities, which states that "the governmental entity shall be liable . . . to the limits of the insurance coverage" (emphasis added), this provision does not purport to waive the personal immunity of insured employees. Thus, regardless whether the City's insurance coverage extended to the defense or indemnity of the police officers, their personal immunity from liability could not have been waived. Moore v. City of Lewiston, 596 A.2d 612, 616 (Me. 1991) (quoting 14 M.R.S.A. ¶ 8116) (emphasis added; footnote omitted).