Date: 07-07-2009
Case Style: William Picher v. The Roman Catholic Bishop of Portland, et al.
Case Number: 2009 ME 67
Judge: Silver
Court: Maine Supreme Court on appeal from the Superior Court for Kennebec County
Plaintiff's Attorney: Sumner H. Lipman, Keith R. Varner and Walter F. McKee, Lipman, Katz & McKee, P.A., Augusta, Maine
Defendant's Attorney: Gerald F. Petrucelli and Bradford A. Pattershall, Petrucecelli, Matin & Haddrow, LLP, Portland, Maine
Description: [¶1] William Picher appeals from a judgment of the Superior Court (Kennebec County, Marden, J.) granting a summary judgment to the Roman Catholic Bishop of Portland on its affirmative defense of charitable immunity. Picher argues that we should abrogate the doctrine of charitable immunity for acts of negligence associated with the sexual abuse of a minor, and that we should not extend the doctrine to intentional torts. We hold that the doctrine should not be abrogated as to Picher’s negligence claims because we see no basis for permitting charitable immunity as a defense to some types of negligence claims but not others. However, we also decline to interpret the relevant statute, 14 M.R.S. § 158 (2008),1 to extend the reach of charitable immunity to intentional torts. We therefore vacate the judgment as to the intentional tort claim of fraudulent concealment but affirm the judgment as to the remaining claims.
I. BACKGROUND
[¶2] Picher brought this suit against a former priest, Raymond Melville, and the Bishop, based on sexual abuse of Picher by Melville when Picher was a minor in the late 1980s. Picher asserted claims against Melville for negligence, sexual assault and battery, invasion of privacy, intentional infliction of emotional distress, clergy malpractice, and breach of fiduciary duty. Melville defaulted. Picher asserts claims against the Bishop for negligent supervision, breach of fiduciary duty, canonical agency, and fraudulent concealment of facts.
[¶3] Picher alleges that the Bishop was on notice that Melville had abused a child before he was ordained as a priest and before he was assigned to the parish where the abuse of Picher occurred. Picher further alleges that the Bishop failed to report Melville to law enforcement officials and concealed Melville’s propensities from parishioners and the public. The Bishop denies these allegations.
[¶4] The Bishop is a corporation sole.2 See Fortin v. Roman Catholic Bishop of Portland, 2005 ME 57, ¶ 3 & n.1, 871 A.2d 1208, 1212. It operates as a non-profit organization and owns, maintains, and operates multiple churches, schools, and other properties. It has no capital stock and no provision for making dividends or profits, and it derives most of its revenues from charitable sources, although parochial school tuition and fees are not considered one of its charitable sources of revenue.
[¶5] From July 1, 1986, to July 1, 1988, during the period when the alleged acts occurred, the Bishop was insured by Lloyd’s of London pursuant to two consecutive policies, each of which contained an endorsement entitled “Sexual Misconduct Exclusion.” This endorsement provides that “[s]exual or physical abuse or molestation of any person by the Assured, any employee of the Assured or any volunteer worker does not constitute personal injury within the terms of this policy and as such any claim arising, directly or indirectly, from the aforementioned is excluded.”
[¶6] The Bishop moved for summary judgment based on its affirmative defense of charitable immunity. The court granted the Bishop’s motion, holding that the Bishop qualifies as a charitable organization and has not waived its charitable immunity pursuant to 14 M.R.S. § 158 because it has no insurance coverage for the claims made by Picher. The court also held that the doctrine of charitable immunity covers both intentional and negligent torts. After a damages hearing, a final judgment was entered against Melville in the amount of $4,227,875. Picher appealed the grant of a summary judgment in favor of the Bishop.
II. DISCUSSION
A. Standard of Review
[¶7] We review a grant of a summary judgment de novo, considering “the evidence in the light most favorable to the party against whom judgment has been granted to decide whether the parties’ statements of material facts and the referenced record material reveal a genuine issue of material fact.” Brawn v. Oral Surgery Assocs., 2003 ME 11, ¶ 15, 819 A.2d 1014, 1022 (quotation marks omitted). “We will affirm a grant of summary judgment if the record reflects that there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law.” Burdzel v. Sobus, 2000 ME 84, ¶ 6, 750 A.2d 573, 575. “A genuine issue of material fact exists when there is sufficient evidence to require a fact-finder to choose between competing versions of the truth at trial.” Lever v. Acadia Hosp. Corp., 2004 ME 35, ¶ 2, 845 A.2d 1178, 1179. Interpretation of a statute is reviewed de novo. Ashe v. Enter. Rent-A-Car, 2003 ME 147, ¶ 7, 838 A.2d 1157, 1159.
[¶8] The Bishop asserts a charitable immunity defense as to Picher’s claims for negligent supervision, breach of fiduciary duty, and fraudulent concealment. Because we treat the intentional tort claim of fraudulent concealment differently from the negligence claims, we discuss them separately, after we explain the history of the doctrine of charitable immunity.
B. History and Current Status of Charitable Immunity
[¶9] Picher does not explicitly argue that charitable immunity should be abrogated for all acts of negligence, but he does contend that it should be abrogated for acts of negligence in cases, such as this, involving the sexual abuse of a minor. The policy rationale supporting charitable immunity is the protection of charitable funds. See Jensen v. Me. Eye & Ear Infirmary, 107 Me. 408, 410-11, 78 A. 898, 899 (1910). Although the rationale itself may be challenged as outdated, as we 6 discuss below, we would need persuasive grounds to hold that charitable funds should be protected against certain types of negligence claims but not others. Without any such grounds, we decline Picher’s invitation and do not address the issue further.
[¶10] Picher has, however, directly challenged the application of charitable immunity to all intentional torts, an issue we have not previously had occasion to consider. Our decision not to extend the doctrine to intentional torts is based on three aspects of its history: (1) charitable immunity is discredited and has been abandoned in the majority of jurisdictions; (2) the Legislature did not intend to expand the scope of the common law doctrine of charitable immunity when it enacted section 158; and (3) we have previously held that we would maintain, but not expand, the doctrine, and we would leave it to the Legislature to decide whether to abolish it. We address each of these in turn.
1. Charitable Immunity Is a Discredited Doctrine
[¶11] This Court introduced charitable immunity as a judicial doctrine almost one hundred years ago and adopted it as an affirmative defense available to non-profit organizations to bar negligence claims. Jensen, 107 Me. at 410-11, 78 A. at 899. In Mendall v. Pleasant Mountain Ski Development, Inc., 159 Me. 285, 290, 191 A.2d 633, 636 (1963), we acknowledged, for historical purposes, the two policy justifications for charitable immunity that had been advanced in Jensen.
These were “(1) that funds donated for charitable purposes are held in trust to be used exclusively for those purposes, and (2) that to permit the invasion of these funds to satisfy tort claims would destroy the sources of charitable support upon which the enterprise depends.” Id. We upheld charitable immunity in Mendall, not because we concluded that these policy reasons were sound, but rather because non-profit organizations had relied upon charitable immunity for so long that abrogation of the doctrine would be far-reaching and should be undertaken by the Legislature. Id.
[¶12] Since Mendall, we have explicitly acknowledged that the rationale for charitable immunity has been severely criticized. Thompson v. Mercy Hosp., 483 A.2d 706, 708 (Me. 1984); Rhoda v. Aroostook Gen. Hosp., 226 A.2d 530, 532 (Me. 1967). This criticism has been explained in the Restatement (Second) of Torts:
[T]here has been resort to ideas of “public policy” for the encouragement of charities and mention of the fear that they may be stifled if donors are discouraged from making gifts because their money may go to pay tort claims. The development of liability insurance has made it quite unlikely that donors would fail to recognize it as a legitimate expense of operation. In fact, all of the supposed reasons for the immunity fail when the charity can insure against liability.
Restatement (Second) of Torts § 895E cmt. c (1979).
[¶13] A review of the history of charitable immunity and its widespread rejection in other jurisdictions confirms that it remains a doctrine in general disrepute. Charitable immunity had a precarious start in this country after it had been tried and rejected in Great Britain. It was first adopted in the United States in McDonald v. Massachusetts General Hospital, 120 Mass. 432 (1876). The court relied on a line of English cases, originating in 1846 from The Feoffes of Heriot’s Hospital v. Ross, (1846) 8 Eng. Rep. 1508 (H.L.). See Restatement (Second) of Torts § 895E cmt. b (1979) (discussing the history of charitable immunity). However, even before McDonald was decided, this line of cases had already been repudiated. See id. (citing Mersey Docks v. Gibbs, (1866) 11 Eng. Rep. 1500 (H.L.)). Eventually, however, most states recognized the doctrine. Restatement § 895E cmt. b.; see also Flagiello v. Pa. Hosp., 208 A.2d 193, 200 (Pa. 1965) (discussing the growth of the charitable immunity doctrine in the United States).
[¶14] Despite its widespread adoption in the late nineteenth century and the first half of the twentieth century, charitable immunity began to erode quickly by the 1960s. Ira C. Lupu & Robert W. Tuttle, Sexual Misconduct and Ecclesiastical Immunity, 2004 BYU L. Rev. 1789, 1797-99 (2004). The Pennsylvania Supreme Court noted that the doctrine of charitable immunity “was built on a foundation of sand.” Flagiello, 208 A.2d at 200 (citing President & Dirs. of Georgetown Coll. v. Hughes, 130 F.2d 810 (D.C. Cir. 1942)). By 1984, “virtually all states with decisions on the subject at all ha[d] rejected the complete immunity of charities” with only two or three states having retained “full immunity in the absence of legislation to the contrary.” W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 133, at 1070 (W. Page Keeton ed., 5th ed. 1984).
[¶15] With respect to our neighboring states, charitable immunity has either never been adopted or has long been abolished. New Hampshire and Vermont have never adopted the doctrine. Welch v. Frisbie Mem’l Hosp., 9 A.2d 761, 763-64 (N.H. 1939); Foster v. Roman Catholic Diocese of Vt., 70 A.2d 230, 237 (Vt. 1950). In 1961, the Rhode Island Supreme Court upheld a statute establishing charitable immunity for hospitals, but it stated that “[t]he question of whether such immunity as a matter of public policy is sound or otherwise may be open to debate,” and it left the debate to the legislature. Fournier v. Miriam Hosp., 175 A.2d 298, 302 (R.I. 1961). Seven years later, the legislature repealed the statute, Carroccio v. Roger Williams Hosp., 247 A.2d 903, 904 n.1 (R.I. 1968), and thus abolished the last remaining application of charitable immunity in that state, see Fournier, 175 A.2d at 300-02 (noting that charitable immunity had been abolished judicially, except where the legislature had provided immunity to charitable hospitals). Connecticut abolished charitable immunity by statute in 1967. See Conn. Gen. Stat. Ann. § 52-557d (2005).
[¶16] In 1971, after the Massachusetts Supreme Judicial Court threatened to abolish charitable immunity, the state legislature took note and abolished it, but limited the liability of charitable institutions to $20,000 for torts committed in the course of carrying out the charitable purpose. English v. New England Med. Ctr., Inc., 541 N.E.2d 329, 331 (Mass. 1989). An intentional tort, such as the one being alleged in this case, would likely fall outside of Massachusetts’s statutory immunity, as it would not be considered to have been committed in the course of carrying out the charitable purpose. See id. In addition, even when Massachusetts first brought the doctrine of charitable immunity to America (before later abolishing it), the state’s highest court implied that an exception existed for charities that did not hire their employees with due care. McDonald, 120 Mass. at 436 (“[I]f due care has been used by [the charity] in the selection of [its] inferior agents . . . it cannot be made responsible.”).
[¶17] A review of the remaining jurisdictions shows that only a minority of them still recognize charitable immunity, and no state has applied the doctrine to intentional torts. According to the Restatement (Second) of Torts § 895E, Reporter’s Notes (1982),3 twenty-eight states, in addition to those mentioned above, and the District of Columbia have abolished the doctrine of charitable immunity by either supporting or adopting section 895E, which provides: “One engaged in a charitable, educational, religious or benevolent enterprise or activity is not for that reason immune from tort liability.”4 Restatement (Second) of Torts § 895E (1979). Ohio, Louisiana, and Nebraska have also abrogated the common law doctrine of charitable immunity. Albritton v. Neighborhood Ctrs. Ass’n for Child Dev., 466 N.E.2d 867, 871 (Ohio 1984); Jackson v. Doe, 296 So. 2d 323, 323 (La. 1974) (citing Garlington v. Kingsley, 289 So. 2d 88, 93 (La. 1974)); Myers v. Drozda, 141 N.W.2d 852, 854 (Neb. 1966).
[¶18] South Carolina initially recognized the doctrine of charitable immunity, but, in 1973, the South Carolina Supreme Court explicitly declined to extend it to intentional torts. In Jeffcoat v. Caine, the court noted the absence of a public policy rationale for extending charitable immunity to intentional torts, stating, Regardless of the public policy support, if there now be such, for a rule exempting a charity from liability for simple negligence, we know of no public policy, and none has been suggested, which would require the exemption of the charity from liability for an intentional tort; and we refuse to so extend the charitable immunity doctrine. 198 S.E.2d 258, 260 (S.C. 1973) (emphasis added). South Carolina has since abolished the doctrine of charitable immunity as to all torts, although it limits the amount of damages one can recover from a charitable institution. Bergstrom v. Palmetto Health Alliance, 596 S.E.2d 42, 46 (S.C. 1994).
[¶19] New Jersey still recognizes charitable immunity, but does not grant immunity for intentional torts. Hardwicke v. Am. Boychoir Sch., 902 A.2d 900, 917 (N.J. 2006). In New Jersey, charitable immunity is provided by statute, immunizing charities from liability for negligence. Id. at 915. In Hardwicke, the New Jersey Supreme Court held that the state statute granting charitable immunity did not grant immunity for intentional torts. Id. at 917. Therefore, notwithstanding the New Jersey Legislature’s codification of charitable immunity, the court declined to interpret the statute to provide immunity for intentional torts. Id.
[¶20] Of the remaining states that retain some form of charitable immunity, no state has explicitly applied the doctrine to intentional torts. Virginia recognizes charitable immunity, but provides an exception for the negligent hiring of an employee who commits an intentional tort. J. v. Victory Tabernacle Baptist Church, 372 S.E.2d 391, 394 (Va. 1988). In Victory Tabernacle Baptist Church, a church hired an employee recently convicted of aggravated sexual assault of a minor. Id. at 392. As was the case here, the employee had duties that put him in contact with children. Id. The Virginia Supreme Court held that “the independent tort of negligent hiring operates as an exception to the charitable immunity of religious institutions.” Id. at 394.
[¶21] Alabama has not directly addressed whether charitable institutions should be liable for intentional torts, but the Alabama Supreme Court has otherwise limited the doctrine of charitable immunity, and in dicta implied that charities could be liable for the failure to use ordinary care in the selection of employees. See Tucker v. Mobile Infirmary Ass’n, 68 So. 4, 11 (Ala. 1915). In addition, an Alabama statute granting immunity to the unpaid directors and officers of non-profit organizations does so only when individuals have not acted with willful or wanton misconduct. Ala. Code § 10-11-3 (Michie, LEXIS through 2009 Reg. Sess.).
[¶22] In Maryland and Wyoming, the highest courts have not addressed whether the doctrine applies to intentional torts, but both have created intentional tort exceptions to other doctrines of immunity. Lusby v. Lusby, 390 A.2d 77, 89 (Md. 1978) (noting that there is no interspousal immunity for intentional torts); Mills v. Reynolds, 837 P.2d 48, 55 (Wyo. 1992) (holding that immunity for co-employees in workers’ compensation cases does not apply to intentional tortfeasors). Arkansas and Colorado retain some form of charitable immunity, see Low v. Insurance Co. of North America, 220 S.W.3d 670, 674-80 (Ark. 2005); Hemenway v. Presbyterian Hospital Ass’n, 419 P.2d 312, 313 (Colo. 1966), but have never expressly applied it to intentional torts. The highest courts in Georgia and Tennessee have not addressed charitable immunity for intentional torts, but charitable immunity in both states only protects the property of charitable trusts. Morehouse Coll. v. Russell, 135 S.E.2d 432, 434 (Ga. 1964); Baptist Mem’l Hosp. v. Couillens, 140 S.W.2d 1088, 1091 (Tenn. 1940). Therefore, charitable institutions in those jurisdictions could potentially be liable for any tort, as long as the judgment is applied to non-charitable trust property. In Georgia, however, charitable trust funds can be used to satisfy a judgment against a charity that has failed to use ordinary care in the selection of its employees. Morehouse Coll., 135 S.E.2d at 434.
[¶23] Hawaii and South Dakota appear not to have addressed the doctrine of charitable immunity. Finally, New Mexico has not addressed the existence of charitable immunity. See, e.g., Los Alamos Med. Ctr. v. Coe, 275 P.2d 175, 181 (N.M. 1954) (reserving the issue of the existence of charitable immunity).
2. The Legislature Did Not Intend to Expand the Scope of Charitable Immunity
[¶24] In 1965, the Legislature enacted 14 M.R.S. § 158, which limits the extent of the charitable immunity defense available to a non-profit organization that is covered by liability insurance. See P.L. 1965, ch. 383. The Bishop argues that 14 M.R.S. § 158 should be interpreted to apply charitable immunity to intentional torts. This interpretation would require a determination that the Legislature intended to modify the common law because, at the time section 158 was enacted in 1965, the doctrine of charitable immunity had been applied to negligence actions, see Mendall, 159 Me. at 286-90, 191 A. at 634-36; Jensen, 107 Me. at 410-11, 78 A. at 899, but we had not had occasion to consider whether to apply the doctrine to intentional torts. When the Legislature modifies the common law by statute, it must do so with clear and unambiguous language:
[W]e have long embraced the well-established rule of statutory construction that the common law is not to be changed by doubtful implication, be overturned except by clear and unambiguous language, and that a statute in derogation of it will not effect a change thereof beyond that clearly indicated either by express terms or by necessary implication. Batchelder v. Realty Res. Hospitality, LLC, 2007 ME 17, ¶ 23, 914 A.2d 1116, 1124 (quotation marks omitted).
[¶25] Section 158 does not clearly and unambiguously express legislative intent to expand the scope of the common law doctrine of charitable immunity. Section 158 states: “A charitable organization shall be considered to have waived its immunity from liability for negligence or any other tort during the period a policy of insurance is effective . . . .” This language is ambiguous; the words “or any other tort,” plausibly suggest that section 158 was meant to expand the applicability of charitable immunity beyond its historical bounds, to cover any tort, including intentional torts. The other interpretation is that the statute has only one purpose, which is to deny charitable immunity, to the extent it would otherwise be available under the charitable immunity doctrine, when the non-profit organization is covered by insurance.
[¶26] When a statute is ambiguous, we review its legislative history to discern legislative intent. Liberty Ins. Underwriters, Inc. v. Estate of Faulkner, 2008 ME 149, ¶ 15, 957 A.2d 94, 99. The purpose of section 158 was to limit charitable immunity. See 2 Legis. Rec. 2679, 2848 (1965). There is nothing in the legislative history to indicate that section 158 was intended to do anything other than that, nor is there any indication of an intent to confer immunity for intentional torts. The 1965 floor debates for section 158 reflect several facts. As originally introduced, the bill would have completely abolished charitable immunity. L.D. 587 (102d Legis. 1965); see 2 Legis. Rec. 2848 (1965). There are repeated references in the floor debates to this Court’s decisions recognizing charitable immunity for negligence. 2 Legis. Rec. 2675, 2676, 2849, 2850 (1965). The final bill was a compromise, abolishing immunity only when the non-profit organization has insurance. L.D. 1580 (102d Legis. 1965); 2 Legis. Rec. 2673, 2851 (1965). There is no evidence that the Legislature intended the bill to expand the scope of charitable immunity, nor is there any discussion in the floor debates of immunity for intentional torts. The floor debates contain several references to the discredited status of charitable immunity and to the fact that most other states had abandoned it. 2 Legis. Rec. 2675, 2676, 2849, 2851 (1965). Section 158 is therefore properly interpreted solely as a limitation on charitable immunity, not an expansion of it.
3. The Court Has Maintained Charitable Immunity but Declined to Either Expand or Abrogate It
[¶27] Charitable immunity remains a judicial doctrine, subject to our interpretation, notwithstanding that the Legislature created an exception to the doctrine with the enactment of section 158. Child v. Cent. Me. Med. Ctr., 575 A.2d 318, 319 (Me. 1990); Thompson, 483 A.2d at 707 & n.3. In Thompson, we noted that “[t]he doctrine of charitable immunity is a creation of our common law. Except for one significant restriction imposed by statute, its applicability in Maine is controlled entirely by the precedents of this Court.” 483 A.2d at 707 (footnotes omitted). It is therefore appropriate for this Court to continue to determine the scope of charitable immunity.
[¶28] We have previously held that we would maintain, but neither expand nor eliminate, the doctrine of charitable immunity. We noted in Rhoda that the adoption of section 158 provides a basis “for our continued adherence to the charitable immunity doctrine.” 226 A.2d at 532. Although we have maintained the doctrine to date, we have declined either to expand it beyond its traditional bounds or to contract it. Child, 575 A.2d at 319-20; Thompson, 483 A.2d at 708; Rhoda, 226 A.2d at 532-33.
C. Charitable Immunity and Picher’s Fraudulent Concealment Claim
[¶29] For three reasons, we do not recognize the defense of charitable immunity in claims involving intentional torts. First, applying charitable immunity to intentional torts would set Maine so far outside the mainstream that it would put this State in a class by itself. We do not believe it advisable to expand so profoundly a doctrine that has generally been acknowledged as bankrupt. Second, nothing in the legislative history of section 158 indicates any legislative intent to so interpret the doctrine of charitable immunity. Third, there are no convincing policy reasons to apply charitable immunity to intentional torts. We therefore hold that charitable immunity is not available as a defense to intentional torts.
[¶30] We now consider whether Picher has stated a cause of action against the Bishop, as a corporation sole, for fraudulent concealment. The elements of a claim of fraudulent concealment are: (1) a failure to disclose; (2) a material fact; (3) where a legal or equitable duty to disclose exists; (4) with the intention of inducing another to act or to refrain from acting in reliance on the non-disclosure; and (5) which is in fact relied upon to the aggrieved party’s detriment. See Letellier v. Small, 400 A.2d 371, 376 (Me. 1979) (stating the elements of fraud); Morrow v. Moore, 98 Me. 373, 57 A. 81 (1903) (holding that the withholding of information does not amount to fraudulent concealment absent a duty to disclose), overruled on other grounds by Rulon-Miller v. Carhart, 544 A.2d 340, 342 (Me. 1988); Marcotte v. Allen, 91 Me. 74, 77, 39 A. 346, 347 (1897) (holding that silence may be fraudulent). Picher alleges that the Bishop had actual or constructive knowledge that Melville sexually assaulted minors, breached its duty to disclose that knowledge, and affirmatively concealed the knowledge with the intent to mislead Picher and his family. Picher and his family relied on the Bishop to Picher’s detriment. Picher has stated a claim for fraudulent concealment.
[¶31] The Bishop argues that it is entitled to a summary judgment on vicarious liability because the alleged actions in furtherance of fraudulent concealment were, as a matter of law, outside of the scope of employment. Vicarious liability on the fraudulent concealment claim is distinct from vicarious liability for Melville’s sexual misconduct. Vicarious liability for fraudulent concealment is a claim of liability based on the actions of an agent or agents of the Bishop, other than Melville, for fraudulently concealing from Picher the propensity of Melville to commit sexual misconduct. The Bishop, however, sought summary judgment based solely on its charitable immunity defense. The Bishop did not make any argument about vicarious liability before the Superior Court and consequently did not preserve this issue for appeal. See Foster v. Oral Surgery Assocs., P.A., 2008 ME 21, ¶ 22, 940 A.2d 1102, 1107. We therefore decline to decide this issue.
[¶32] However, because vicarious liability will be at issue on the fraudulent concealment claim on remand, we provide updated guidance on the applicable law. We have previously turned to the Restatement (Second) of Agency §§ 219, 228 (1958) for guidance on issues pertaining to employer vicarious liability. Mahar v. StoneWood Transp., 2003 ME 63, ¶¶ 13-14, 19-21, 823 A.2d 540, 544, 545-46; McLain v. Training & Dev. Corp., 572 A.2d 494, 497-98 (Me. 1990). The Restatement (Third) of Agency has since been published and states:
(1) An employer is subject to vicarious liability for a tort committed by its employee acting within the scope of employment.
(2) An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.
(3) For purposes of this section,
(a) an employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work, and
(b) the fact that work is performed gratuitously does not relieve a principal of liability.
Restatement (Third) of Agency § 7.07 (2006).5 The Restatement (Third) of Agency § 7.08 (2006) may also be relevant, as this section is the counterpart to the Restatement (Second) of Agency § 219(2)(d) (1958) and also addresses vicarious liability in the employment context. We express no opinion as to the applicability of either section 7.07 or section 7.08 of the Restatement (Third) of Agency to the facts of this case, except to say that on remand, the court may look to these sections to provide the appropriate framework for analyzing the vicarious liability issues raised in this case.
D. Charitable Immunity and Picher’s Negligence Claims
[¶33] Having addressed Picher’s intentional tort claim, we turn to his negligence claims. Because we reject Picher’s argument that charitable immunity should be abrogated as a defense as to some types of negligence claims but not others, we must address two additional issues relevant to the Bishop’s assertion of this defense: (1) whether the Bishop, as a corporation sole and a non-profit institution, is entitled to assert charitable immunity, and (2) whether the Bishop waived immunity through the purchase of insurance.
[¶34] Principles of tort law and charitable immunity apply to the Bishop as they do to any corporation. The Bishop, as a corporation sole, is “[a] series of 5 Comment b to section 7.07 explains the changes in the formulation of the scope-of-employment doctrine between Restatement (Third) of Agency § 7.07(2) (2006) and its predecessors, Restatement (Second) of Agency §§ 228, 229 (1958), including that section 7.07(2) is stated in more general terms and takes into account changes in workplace practices. Restatement (Third) of Agency § 7.07 cmt. b (2006). successive persons holding an office; a continuous legal personality that is attributed to successive holders of certain monarchical or ecclesiastical positions, such as kings, bishops, rectors, vicars, and the like.” Black’s Law Dictionary 366 (8th ed. 2004). “This continuous personality is viewed, by legal fiction, as having the qualities of a corporation.” Id. In accordance with the private and special law pursuant to which the Bishop was established as a corporation sole, it is to be treated as a corporation under Maine law, “with all the powers, rights and privileges prescribed, and subject to all the liabilities imposed by the general statutes of the state.” P. & S.L. 1887, ch. 151, § 1. Thus, the defense of charitable immunity applies no differently to a corporation sole than to other types of organizations.
[¶35] A party seeking charitable immunity bears the burden of establishing both that it is entitled to charitable immunity and that it has not waived immunity. Coulombe v. Salvation Army, 2002 ME 25, ¶¶ 10, 13, 790 A.2d 593, 595-96. The Bishop meets the requirements for non-profit status. We have held that an organization is entitled to charitable immunity if it “has no capital stock and no provision for making dividends or profits and . . . derive[s] its funds mainly from public and private charity, . . . hold[ing] them in trust for the object of the institution.” Id. ¶ 10, 790 A.2d at 595 (quotation marks omitted). The parties do not dispute that the Bishop meets these requirements.
[¶36] The parties dispute whether the Bishop has waived charitable immunity, pursuant to 14 M.R.S. § 158, through the purchase of insurance. We have held that a charitable organization with insurance coverage is deemed to have waived its tort immunity to the extent of its insurance coverage. Thompson, 483 A.2d at 707 n.3. We have previously noted that the Legislature modified charitable immunity “to the extent of permitting recovery of damages to an amount not exceeding the limits of insurance coverage which the charity might be carrying at the time of the negligent or tortious act.” Rhoda, 226 A.2d at 531.
[¶37] Picher makes both a procedural and a substantive argument about the Bishop’s insurance coverage. We interpret Picher’s procedural argument to be essentially that the Bishop, as the moving party on summary judgment, has the burden to demonstrate that there is no genuine issue of material fact regarding insurance coverage, and because the Bishop did not produce evidence that it submitted a claim to Lloyd’s of London and that Lloyd’s of London denied the claim, the Bishop has not met this burden. The Bishop responded with a motion to supplement the record; we denied the motion. Although we acknowledge that the issue of insurance coverage may, in some circumstances, present a genuine issue of material fact precluding summary judgment, this is not such a case. We decline to impose the requirement that the insured in all instances submit a claim to, or litigate coverage with, the insurer prior to moving for summary judgment on the defense of charitable immunity. The language of the policies held by the Bishop is not in dispute, and we may interpret it as a matter of law. “The interpretation of an insurance contract exclusion and its applicability is a matter of law reviewed de novo.” Pease v. State Farm Mut. Auto. Ins. Co., 2007 ME 134, ¶ 7, 931 A.2d 1072, 1075.
[¶38] Picher’s substantive argument regarding waiver is that the insurance policy language should be interpreted to provide coverage, and the Bishop therefore should be deemed to have waived charitable immunity. Picher argues that the sexual misconduct exclusion should not apply to his claims because exclusions in insurance policies are generally not favored. See Gross v. Green Mountain Ins. Co., 506 A.2d 1139, 1141 (Me. 1986). Picher also argues that the sexual misconduct exclusion does not apply because the claims against the Bishop for negligent supervision, breach of fiduciary duty, and fraudulent concealment are distinct from his claims against Melville for sexual abuse.
[¶39] Picher’s claims against the Bishop are unambiguously excluded from the insurance policy. Exclusions in an insurance contract are interpreted consistently with their obvious contractual purpose. Although ambiguities in standard insurance policies drafted by the insurer are interpreted against the insurer, exclusionary language is not ambiguous if an ordinary person in the shoes of the plaintiff would understand that the policy does not cover [his] claims.
Sarah G. v. Me. Bonding & Cas. Co., 2005 ME 13, ¶ 10, 866 A.2d 835, 838 (quotation marks and citation omitted). We have not previously had occasion to consider whether an exclusion similar to that in this case could bar a claim of negligent supervision. In Sarah G., we did not reach the issue because the plaintiffs conceded that if the conduct at issue constituted abuse pursuant to the insurance policy, the sexual misconduct exclusion at issue in that case would bar a negligence claim. Id. ¶ 9, 866 A.2d at 838. In other jurisdictions, courts have interpreted sexual misconduct exclusions and other types of misconduct exclusions to preclude coverage for negligent hiring and supervision claims. See, e.g., Gulf Underwriters Ins. Co. v. KSI Servs., Inc., 233 F. App’x 239, 241-42 (4th Cir. 2007) (holding that negligent supervision claim was barred due to exclusion for dishonest or criminal acts); All Am. Ins. Co. v. Burns, 971 F.2d 438 (10th Cir. 1992) (holding that claims for negligent failure to investigate and negligent failure to discharge were barred due to sexual misconduct exclusion); Am. Commerce Ins. Co. v. Porto, 811 A.2d 1185 (R.I. 2002) (holding that negligent supervision claim was barred due to sexual misconduct exclusion). As a matter of law, Picher’s claims against the Bishop are excluded from coverage, and therefore the Bishop has not waived charitable immunity.
* * *
See: http://www.courts.state.me.us/court_info/opinions/2009%20documents/09me67pi.pdf
Outcome: The entry is: Judgment affirmed as to all claims against the Bishop except fraudulent concealment. Judgment vacated as to the claim of fraudulent concealment. Remanded for further action consistent with this opinion.
Plaintiff's Experts:
Defendant's Experts:
Comments:
