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Cumings v. Westport2/13/2002
James Cummings filed an action in state court seeking to recover damages from Westport Insurance Company after he obtained a judgment against his former attorney Michael Waxman for malpractice. Waxman did not plead a state law count of battery when he represented Cummings in a civil suit seeking damages for an incident in which a police officer pushed Cummings. The current complaint has one count which is framed as a "reach and apply" action under 24-A M.R.S.A. § 2904 (2005). Westport removed the action to this Court and has filed a motion for judgment on the pleadings. (Docket No. 15.) It argues that Attorney Waxman's alleged malpractice resulted solely in economic damage to Cummings and is therefore not properly the subject of an action brought pursuant to § 2904. I recommend that the Court GRANT the motion. Westport presses its motion pursuant to Federal Rule of Civil Procedure 12(c). Therefore the record consists of the well-pleaded allegations of the complaint, which must be taken as true. Pasdon v. City of Peabody, 417 F.3d 225, 226 (1st Cir. 2005). The material allegations of the complaint reflect that Cummings retained Attorney Michael Waxman to represent him in a lawsuit after a Portland police officer forcefully shoved Cummings to the ground, without reasonable cause to do so, causing him serious personal injury. Attorney Waxman pursued a civil rights action against the officer, his police chief and the City of Portland, without asserting a state law claim for battery. The civil rights claims succumbed to summary judgment. Following a further loss on appeal, Cummings notified Waxman of his intent to pursue a claim against Waxman for legal malpractice, of which Waxman notified his malpractice insurer, Westport Insurance Company. Westport denied Waxman any defense or indemnification under his policy. Cummings filed suit against Waxman in state court and obtained a judgment of $1.25 million. Cummings thereupon filed suit against Westport under Maine's reach and apply statute, seeking to obtain payment of the judgment by Westport. Westport timely removed the reach and apply action to this Court on the basis of diversity jurisdiction and moved to dismiss the action on the legal ground that Maine's reach and apply statute does not authorize a judgment creditor to bring a direct action against a tortfeasor's insurer when the underlying cause of action is for legal malpractice. (First Mot. for J., Docket No. 15.) Whenever any person, administrator, executor, [or] guardian, recovers a final judgment against any other person for any loss or damage specified in section 2903, the judgment creditor shall be entitled to have the insurance money applied to the satisfaction of the judgment by bringing a civil action, in his own name, against the insurer to reach and apply the insurance money, if when the right of action accrued, the judgment debtor was insured against such liability and if before the recovery of the judgment the insurer had had notice of such accident, injury or damage. 24-A M.R.S.A. § 2904. Section 2903 reads: The liability of every insurer which insures any person against accidental loss or damage on account of personal injury or death or on account of accidental damage to property shall become absolute whenever such loss or damage, for which the insured is responsible, occurs. The rendition of a final judgment against the insured for such loss or damage shall not be a condition precedent to the right or obligation of the insurer to make payment on account of such loss or damage.
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