Packgen, Inc. v. Bernstein, Shur, Sawyer & Nelson, P.A.
209 A.3d 116
Me.2019Background
- Packgen retained Bernstein Shur in 2008 to pursue a defective-products claim; on May 29, 2008 the firm sent a notice of claim that did not satisfy the statutory oath requirement.
- Bernstein Shur allegedly failed thereafter to serve a valid notice, to file suit, or to keep Packgen informed; Packgen replaced the firm in 2011 and obtained a federal judgment in 2015.
- The federal court held the May 29, 2008 unsworn letter did not constitute a valid notice for prejudgment interest, so Packgen recovered interest only from the 2011 complaint filing date.
- Packgen sued Bernstein Shur in state court on May 23, 2017 for legal malpractice, seeking lost prejudgment interest (~$2.5M) and alleging continuing negligent omissions while the firm represented it.
- Bernstein Shur moved to dismiss as time-barred under the six-year statute of limitations (14 M.R.S. § 752) and the accrual rule for attorney malpractice (14 M.R.S. § 753-B); the Superior Court dismissed and the Maine Supreme Judicial Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the continuing representation doctrine tolls accrual under 14 M.R.S. § 753-B | Packgen: accrual should wait until attorney-client representation on the matter ends, so claims within six years of termination survive | Bernstein Shur: § 753-B adopts an occurrence rule; accrual is the act/omission date (May 29, 2008) and continuing representation cannot extend accrual | Held: Doctrine not adopted for attorney malpractice; accrual is the date of the act/omission, not termination of representation |
| Whether the continuing negligence (continuing tort) doctrine applies to legal malpractice under § 753-B | Packgen: multiple related omissions (unsworn notice, failure to file, failure to advise) form a continuing wrong, so accrual is last omission within limitations | Bernstein Shur: § 753-B’s occurrence rule forecloses treating a single/initial omission as part of an extended accrual; continuing negligence reserved for contexts with statutory text supporting it | Held: Continuing negligence doctrine not adopted for attorney malpractice here; where a single act is the proximate cause, accrual is that act’s date |
| Effect of the parties’ 2015 tolling agreement | Packgen: tolling agreement suspended limitations as of Dec 11, 2015 and preserved claims accruing after Dec 11, 2009 | Bernstein Shur: tolling cannot revive claims that already expired before the tolling start (i.e., those accruing May 29, 2008) | Held: Tolling preserved claims accruing on/after Dec 11, 2009 but cannot revive claims that accrued and expired before that date |
| Whether Packgen’s amended complaint sufficiently alleged malpractice within the limitations period (failing to file suit etc.) | Packgen: complaint alleges negligent omissions continuing into 2011 (within six years of tolling cutoff) and so survives facial dismissal | Bernstein Shur: primary injury stems from the May 29, 2008 defective notice, so claim is time-barred | Held: Majority treated the harm as accruing May 29, 2008 and dismissed; dissent argued the complaint facially alleged post-2009 negligent omissions that should survive pleading-stage review |
Key Cases Cited
- Dickey v. Vermette, 960 A.2d 1178 (Me. 2008) (rejected continuing-course-of-treatment doctrine in medical malpractice where legislature set accrual date as act or omission)
- Baker v. Farrand, 26 A.3d 806 (Me. 2011) (adopted continuing negligence principle in medical-malpractice context where related multiple acts/omissions can give rise to single cause of action accruing at last act)
- White v. McTeague, Higbee, Case, Cohen, Whitney & Toker, P.A., 809 A.2d 622 (Me. 2002) (statutes of limitation construed narrowly; recognition of legislative intent to limit stale claims against attorneys)
- Nevin v. Union Tr. Co., 726 A.2d 694 (Me. 1999) (judicial reluctance to create exceptions to legislatively defined accrual rules)
- Jackson v. Borkowski, 627 A.2d 1010 (Me. 1993) (statute-of-limitations is an affirmative defense; dismissal improper unless action is clearly time-barred on the face of the complaint)
- Myrick v. James, 444 A.2d 987 (Me. 1982) (courts may not override clear legislative policy on limitations and accrual)