Claire Dean Perry v. William T. Dean Jr., 156 A.3d 742

In 2012 the Maine DHHS (the Department) was appointed temporary public conservator for William T. Dean Jr.; it sold one of his properties and managed other assets during the conservatorship.
Dean’s cousin Pamela Vose (later conservator) and Dean’s sister Claire Perry sued the Department and individual state employees, alleging mismanagement and breach of fiduciary duty.
The trial court granted summary judgment to the Department on many claims but denied summary judgment on Vose’s breach-of-fiduciary-duty claims, concluding the Maine Probate Code and bond requirements amounted to an express waiver of sovereign immunity.
The Department appealed the denial of summary judgment on immunity grounds; the appeal was reviewed under the death-knell exception.
The Maine Supreme Judicial Court considered (1) whether the Probate Code expressly waived the State’s sovereign immunity for tort claims by public conservators and (2) whether immunity was waived by the State’s procurement of liability insurance or was otherwise affected by the required surety bond.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Maine Probate Code expressly waives sovereign immunity for tort claims against the State acting as public conservator	Probate Code duties, liability provision for conservators, and required surety bond together show legislative intent to allow suits against the State for breaches	MTCA makes immunity the rule; waivers must be express in statute and Probate Code contains no explicit waiver referencing MTCA	No — Probate Code does not expressly waive sovereign immunity; any inference would be an implied waiver and is insufficient
Whether the State waived immunity by purchasing liability insurance under 14 M.R.S. § 8116	Vose argued bond/insurance-like protection may operate to waive immunity at least to extent of bond	Department produced unrebutted summary-judgment evidence that State purchased no liability insurance covering these claims; self-insurance excludes immune claims	No waiver — record shows no liability insurance; immunity not waived under § 8116 on this record
Whether plaintiffs may proceed directly against the Probate surety bond for recovery	Plaintiffs suggested bond existence supports liability and recovery against State	Department argued actions against bond are separate and were not pled; bond was not in the summary-judgment record	Court declined to decide; actions on the bond require a separate suit against surety and issue left unresolved

Hinkley v. Penobscot Valley Hosp., 794 A.2d 643 (Me. 2002) (statute permitting actions against providers did not constitute express waiver of sovereign immunity)
Young v. Greater Portland Transit Dist., 535 A.2d 417 (Me. 1987) (waiver of governmental immunity will not be implied)
New Orleans Tanker Corp. v. Dep’t of Transp., 728 A.2d 673 (Me. 1999) (statutory grant of immunity is unambiguous and exceptions are strictly construed)
Drake v. Smith, 390 A.2d 541 (Me. 1978) (sovereign immunity cannot be waived without specific statutory authority)