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Maine Mutual Fire Insurance Co. v. Tinker3/16/2005
ENTRY ORDER
1. Maine Mutual Fire Insurance Company appeals from a superior court order concluding that it has an affirmative duty to provide counsel and liability coverage to Robert Tinker in a suit arising from his actions as a professional surveyor. Maine Mutual contends that the court erred in refusing to decide the coverage issues as a matter of law, and, alternatively, in failing to submit several issues to the jury. We conclude that, as a matter of law, the business liability policy excludes coverage for damages arising from Tinker's professional services, and therefore we reverse the superior court's order denying judgment as a matter of law in favor of Maine Mutual. Given this disposition, we do not reach the questions regarding the issues submitted to the jury.
2. In late 1999, Wayne and Timothy Kenney retained Tinker to survey a boundary line on property they were considering buying from Laurence and Barbara Schuvert. The Kenneys were particularly interested in resolving the ownership of a 19.9 acre parcel that the Schuverts' neighbor, John Fedor, claimed title to through adverse possession. Tinker concluded that the parcel in fact belonged to the Schuverts, and he then went on to the property and cut trees and altered the existing boundary markers. In April of 2001, Fedor filed suit against Tinker, the Kenneys, and others alleging that Tinker's actions damaged Fedor's property and called his title into question.
3. Tinker asked Maine Mutual to defend and indemnify him pursuant to a business owner's liability policy he purchased from an agent in Vermont. Maine Mutual provided an initial defense, but immediately sought a declaratory judgment absolving it of the duty to defend and indemnify. Tinker sought a jury trial on the issue, and the superior court set a trial date in September 2003. On the morning of trial, Maine Mutual moved the court for judgment as a matter of law based on a clause in Tinker's policy excluding coverage for " ' odily injury,'' property damage,''personal injury' or 'advertising injury' due to rendering or fail to render any professional service." (Emphasis added). In support of its motion, Maine Mutual presented Tinker's deposition testimony, in which he conceded that he undertook all of his actions on the disputed property in the course of rendering professional services. Nonetheless, the court rejected Maine Mutual's arguments and submitted the case to the jury for a determination of the parties' reasonable coverage expectations at the time the parties entered into the insurance contract.
4. At trial, Tinker testified that he had previously held a malpractice insurance policy, but had stopped renewing it on the belief that he was largely judgment proof because he and his wife jointly own the major business assets. Tinker explained, however, that he then purchased the Maine Mutual policy on the understanding that it would cover him for damages he might unintentionally inflict on third parties. He expressed the belief that, while his malpractice insurance had protected him in the event of a dispute with a paying client, his current business liability policy covered suits such as that brought by Fedor.
5. At the close of evidence, the court indicated that it would submit only the question of the parties' reasonable coverage expectations to the jury. Maine Mutual then moved the court to present several additional questions to the jury, including whether Tinker's actions were an "occurrence" within the policy definition, and whether Tinker intentionally damaged the property, thereby precluding coverage. The court found that Maine Mutual had not presented evidence on these additional issues, and asked the jury to
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