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THURSTON v. CONTINENTAL CAS. CO.12/26/1989
§ 290-A (Pamph. 1989), but the legislation does not apply to this lawsuit commenced on January 30. 1984.
Against this background, we conclude that the Uniform Partnership Act as adopted in Maine before its 1987 amendment did not permit partnerships to be sued directly in cases like this. The Law Court's 1852 pronouncement of the common law rule to that effect was unequivocal; the 1973 adoption of the Uniform Partnership Act did not address the issue; and there is no argument comparable to that in partnership real estate cases that led us to decide in 1987 that "it is appropriate that the partnership should be allowed to sue or be sued in its partnership name" in circumstances where title is held in the partnership name and "can only be conveyed in the partnership name," 521 A.2d at 697 n. 9. The Superior Court, therefore, should have granted the partnership's motion to dismiss.
DAMAGE CLAIMS FOR AN
EXCESS JUDGMENT
In debating the ability of 3K to recover any damages without having first paid the excess judgment, the parties disagree over whether the summary judgment evidence competently established that 3K was insolvent. We conclude that even if the defendants' proof has established that 3K was insolvent at the time of the excess judgment, that fact does not foreclose damages for the defendants' alleged malpractice or failure to defend or settle. It may be that 3K has not been damaged in the full amount of the excess judgment, for the proof may show that no such judgment could ever have been recovered against 3K. There are other elements of damages, however — for example, injury to credit rating, injury to reputation (3K may be able to prove that its name's good will possessed a value that would have been worth transferring to another had it not been for the excess judgment), and expenses incurred in dealing with the existence of the judgment and settling the claim. The point is that the choice is not between collecting the entire excess judgment and no damages at all.
To that extent, we align ourselves with those states that have determined that an insured need not pay an excess judgment in order to recover damages. See, e.g., Frankenmuth Mut. Ins. Co. v. Keeley, 433 Mich. 525, 447 N.W.2d 691 (1989); Henegan v. Merchants Mut. Ins. Co., 31 A.D.2d 12, 294 N.Y.S.2d 547 (1968); Carter v. Pioneer Mut. Casualty Co., 67 Ohio St.2d 146, 423 N.E.2d 188 (1981); Crabb v. National Indem. Co., 87 S.D. 222, 205 N.W.2d 633 (1973). Consequently, 3K's failure to pay the excess judgment did not entitle the defendants to summary judgment. We do not agree, however, that the
MISCELLANEOUS
In their motion to dismiss, the defendants challenged the effectiveness of 3K's assignment to the plaintiff because of asserted inadequacies in the assignment process. The complaint, however, alleged that 3K had assigned the claims. That is all that was necessary to survive the motion to dismiss.
The entry is:
Judgment vacated and remanded for entry of an order dismissing the partnership defendant and for further proceedings consistent with the opinion herein.
All concurring.
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