1:10-cv-00031 | D. Me. | Jun 10, 2010


DISTRICT OF MAINE TAMMY HERSEY, as Personal ) Representative of the Estate of ) Jason Hersey, )

) Plaintiff, ) ) v. ) CV-10-31-B-W ) KEMPER INDEPENDENCE ) INSURANCE COMPANY, )

) Defendant. ) ORDER ON MOTION FOR SUMMARY JUDGMENT On December 28, 2009, Tammy Hersey, acting as the personal representative of the Estate of Jason Hersey, filed a Complaint in Maine State Superior Court against Kemper Independence Insurance Company (Kemper). Compl. Attach. 1 (Docket # 1). According to the Complaint, on April 2, 2004, Jamison O’Neal negligently operated a motor vehicle under the influence of alcohol and as a consequence, became involved in a motor vehicle accident in which Jason Hersey was killed. Id. ¶¶ 1-3. The Complaint further alleges that Kemper Insurance Company had issued a homeowners insurance policy to David Condon and that Laurie Hafford, a resident of Mr. Condon’s home, had illegally furnished alcohol to Mr. O’Neal, a minor. Id. ¶¶ 5-6, 10. Finally, it alleges that Ms. Hersey had brought a negligence action against Ms. Hafford in Aroostook County Superior Court and had been awarded a judgment of $200,000.00. Id. ¶ 8. It sought recovery against Kemper under Maine’s reach and apply statute, 24-A M.R.S.A. § 2904.

On January 20, 2010, Kemper removed this civil action to this Court, and the same day moved to dismiss the Complaint. Notice of Removal (Docket # 1); Mot. to Dismiss (Docket # 5). Ms. Hersey responded to the motion to dismiss and Kemper replied. Pl.’s Objection to Def.’s Mot. to Dismiss (Docket # 8); Def.’s Reply Mem. in Support of Mot. to Dismiss (Docket # 9). On February 16, 2010, the Court denied the motion to dismiss. Order on Mot. to Dismiss (Docket # 10).

On February 17, 2010, Kemper moved for summary judgment. Def.’s Mot. for Summ. J. (Docket # 15). Ms. Hersey did not respond. Instead, on May 6, 2010, she filed a proposed Stipulation of Dismissal without prejudice. Stip. of Dismissal without Prejudice (Docket # 18). Kemper objected to the “without prejudice” aspect of the dismissal, and the Court ordered Ms. Hersey to respond by June 7, 2010. Objection to “Stip. of Dismissal without Prejudice” (Docket # 19); Order (Docket # 20). On June 4, 2010, Ms. Hersey filed a Notice which reads:

It is agreed that Defendant’s Motion for Summary Judgment be granted and that the Defendant waives all claims it may have against Plaintiff including reimbursement for costs.

Notice (Docket # 21). Based on the agreement of the parties, the Court GRANTS the Defendant’s Motion for Summary Judgment (Docket # 15). The Court DISMISSES without prejudice as moot the Defendant’s Objection to the Stipulation of Dismissal (Docket # 19). The Court ORDERS Judgment to issue in favor of Defendant Kemper Independence Insurance Company and against Plaintiff Tammy Hersey without costs.


/s/ John A. Woodcock, Jr.



Dated this 10th day of June, 2010 2