PACKGEN, INC. v. BERNSTEIN, SHUR, SAWYER & NELSON, P.A.
2019 ME 90; Cum-18-58
Maine Supreme Judicial Court
June 6, 2019
2019 ME 90
HUMPHREY, J.
Argued: September 11, 2018.
HUMPHREY, J.
[¶1] In Maine, with exceptions not applicable to this appeal, the Legislature has spoken—a civil action against an attorney for professional negligence, malpractice, or breach of contract for legal services “shall be commenced within 6 years after the cause of action accrues,”
[¶2] Packgen, Inc., appeals from a judgment entered by the Superior Court (Cumberland County, Warren, J.) granting the motion of Bernstein, Shur, Sawyer & Nelson, P.A. (Bernstein Shur), to dismiss Packgen‘s complaint for legal malpractice because Packgen‘s claim is barred by Maine‘s six-year statutes of limitations for civil actions,
I. BACKGROUND
[¶3] The following facts are drawn from Packgen‘s amended complaint and from documents attached to it whose authenticity is not challenged. See Andrews v. Sheepscot Island Co., 2016 ME 68, ¶ 8, 138 A.3d 1197; see also Moody v. State Liquor & Lottery Comm‘n, 2004 ME 20, ¶ 11, 843 A.2d 43. We view the facts alleged in the complaint as if they were admitted. See Andrews, 2016 ME 68, ¶ 8, 138 A.3d 1197.
A. Underlying Federal Case—Packgen v. Covalence
[¶4] In 2008, Packgen retained Bernstein Shur to prosecute a defective-products claim against Covalence Specialty Coatings, LLC, and Berry Plastics Corporation.
[¶5] On May 29, 2008, Bernstein Shur sent a letter to Covalence “to provide notice of [Packgen‘s] claim against Covalence.”5 Although the letter was signed by a Bernstein Shur attorney, it did not set forth the cause of action under oath as is required by
[¶6] In 2011, Packgen retained new counsel and sued Covalence and Berry Plastics in the United States District Court for the District of Maine. On November 13, 2015, a jury rendered a verdict in favor of Packgen in the amount of $7,206,646.30, plus interest as allowed by law. Packgen filed an amended motion to alter or amend the judgment to allow post-judgment interest to accrue from May 29, 2008, the date that Covalence purportedly received Bernstein Shur‘s letter on behalf of Packgen.
[¶7] On December 11, 2015, while the parties were awaiting the court‘s decision on the amended motion, Packgen and Bernstein Shur “entered into a tolling agreement pursuant to which any and all legal defenses based on the passage of time and any limitations periods applicable to any claim or cause of action Packgen may possess against [Bernstein Shur] arising out of [Bernstein Shur‘s] representation of Packgen on claims against [Covalence] and other responsible parties . . . were tolled and would be deemed suspended from running as of December 11, 2015.”
[¶8] On March 7, 2016, the federal court (Torresen, J.) denied Packgen‘s motion to alter or amend the judgment because Bernstein Shur‘s letter to Covalence failed to comply with the oath requirement in
[¶9] On May 23, 2017, Packgen filed a complaint against Bernstein Shur in the Superior Court alleging that the law firm‘s failure to send a notice that complied with the requirements of section 1602-B caused Packgen to sustain an economic loss in the amount of $2,510,293.84—the difference between the prejudgment interest actually awarded by the federal court and the prejudgment interest that would have been awarded but for Bernstein Shur‘s negligence.
[¶10] Bernstein Shur responded with a motion to dismiss the complaint on the grounds that Packgen‘s claims were barred by the six-year statutes of limitations for civil actions,
[¶11] Packgen then filed an amended complaint, asserting that the December 2015 tolling agreement suspended the statute of limitations. Bernstein Shur countered in an amended motion to dismiss that the tolling agreement only saved claims that had not already expired. Bernstein Shur argued that, because the letter was sent on May 29, 2008, the suit alleging negligence in that letter was barred by the statute of limitations regardless of the tolling agreement, which only preserved claims accruing after December 11, 2009, six years prior to the signing of the agreement.
[¶12] The court concluded that section 753-B(1) barred Packgen‘s claim and granted Bernstein Shur‘s motion to dismiss the amended complaint “as to any claim for loss of prejudgment interest prior to the filing of [Packgen‘s] federal complaint.”
[¶13] The court noted that Packgen “appear[ed] to argue that its claim is not limited to the loss of prejudgment interest because of [Bernstein Shur‘s] failure to diligently pursue the case and keep Packgen informed of its status constituted legal malpractice ‘which caused additional damage to Packgen.’ Packgen‘s amended complaint, however, in no way specifies what additional damage or losses were allegedly caused by [Bernstein Shur‘s] lack of diligence.” (Citation omitted.) The court granted Packgen leave to file a motion to file an amended complaint if it alleged that Bernstein Shur committed professional negligence on or after December 11, 2009, that caused Packgen to incur financial losses other than the loss of prejudgment interest. Packgen did not file such a motion, and the court entered its final judgment dismissing the action on January 24, 2018.
[¶14] The court rejected Packgen‘s assertions that the doctrines of continuing representation and continuing negligence operate to save its claim from Bernstein Shur‘s statute of limitations defense because it determined that such a result would contravene the Legislature‘s intent in rejecting the discovery rule and adopting the six year statute of limitations in
II. DISCUSSION
[¶15] Packgen argues that the court erred when it dismissed its claim as untimely because the court limited its analysis to Bernstein Shur‘s act of sending the defective notice of claim to Covalence on May 29, 2008. It is Packgen‘s position that Bernstein Shur committed actionable, negligent
A. Standard of Review
[¶16] “A motion to dismiss tests the legal sufficiency of the complaint,” In re Wage Payment Litig., 2000 ME 162, ¶ 3, 759 A.2d 217 (quotation marks omitted), the material allegations of which “must be taken as admitted,” Moody, 2004 ME 20, ¶ 7, 843 A.2d 43 (quotation marks omitted); see also Ramsey v. Baxter Title Co., 2012 ME 113, ¶ 2, 54 A.3d 710. When reviewing the grant of a motion to dismiss, “we examine the complaint in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory.” In re Wage Payment Litig., 2000 ME 162, ¶ 3, 759 A.2d 217; see also McCormick v. Crane, 2012 ME 20, ¶ 5, 37 A.3d 295. A dismissal is only proper “when it appears beyond doubt that [the] plaintiff is entitled to no relief under any set of facts that [it] might prove in support of [its] claim.” Moody, 2004 ME 20, ¶ 7, 843 A.2d 43 (quotation marks omitted).
B. Statute of Limitations
[¶17] In this case, Packgen challenges the court‘s interpretation and application of the statute of limitations in attorney malpractice cases. “Whether a claim is barred by the statute of limitations is a legal question subject to de novo review.” Estate of Weatherbee, 2014 ME 73, ¶ 14, 93 A.3d 248. “The statute of limitations is an affirmative defense. Unless it is clear on the face of the complaint that the action is barred by the relevant statute of limitations, dismissal on limitations grounds is improper.” Jackson v. Borkowski, 627 A.2d 1010, 1013 (Me. 1993) (citation omitted).
[¶18] In a legal negligence or malpractice action, the six-year statute of limitations begins to run from the date the cause of action accrues,
[¶19] In general, “[w]e construe statutes of limitations narrowly.” White v. McTeague, Higbee, Case, Cohen, Whitney & Toker, P.A., 2002 ME 160, ¶ 8, 809 A.2d 622. “When a statute already defines accrual . . . we are not free to re-define the term,” Musk v. Nelson, 647 A.2d 1198, 1201 (Me. 1994); however, “[a]bsent legislative direction, the decision of when a cause of action accrues is a judicial function,” White, 2002 ME 160, ¶ 7, 809 A.2d 622.
[¶20] “In interpreting a statute, our single goal is to give effect to the Legislature‘s intent in enacting the statute.” Dickau v. Vt. Mut. Ins. Co., 2014 ME 158, ¶ 19, 107 A.3d 621. In general, a statute of limitations “should be construed strictly in favor of the bar which it was intended to create.” Harkness v. Fitzgerald, 1997 ME 207, ¶ 5, 701 A.2d 370 (quotation marks omitted); see also Dickau, 2014 ME 158, ¶ 21, 107 A.3d 621 (“Among [the principles of statutory construction] is the principle that we must interpret the plain language by taking into account the subject matter and purposes of the statute, and the consequences of a particular interpretation.“).
[¶21] To determine that legislative intent, “we first look to the plain
1. The Occurrence Rule
[¶22] Title
In actions alleging professional negligence, malpractice, or breach of contract for legal service by a licensed attorney, the statute of limitations starts to run from the date of the act or omission giving rise to the injury, not from the discovery of the malpractice, negligence or breach of contract, except as provided in this section or as the statute of limitations may be suspended by other laws.
By its plain language, section 753-B unambiguously divests itself of the discovery rule in attorney malpractice cases in all but two circumstances not applicable here7 and, instead, adopts an occurrence rule.
[¶23] Under the discovery rule, the statute of limitations is tolled until the injured party knows or should know of the harm caused. See 3 Ronald E. Mallen, Legal Malpractice § 23:54 at 604 (2019 ed. 2019). In contrast, under the occurrence rule, the statute of limitations begins to run on the date of the “occurrence of the essential facts that form the cause of action“—i.e., the date of the act or omission giving rise to the injury. See id. § 23:22 at 446-50. As a practical matter, because the clock begins to run on the date that the act or omission giving rise to the injury occurred, under the occurrence rule, the statute of limitations could begin to run before an injured party becomes aware of its injury. Id. § 23:22 at 454.
[¶24] Packgen argues that our analysis regarding negligence or malpractice actions against attorneys should not be limited to the strictures of the occurrence rule and urges us to adopt the doctrines of continuing representation and continuing negligence, which would save its claim against Bernstein Shur from dismissal resulting from the statute of limitations.
2. The Continuing Representation Doctrine
[¶25] The doctrine of continuing representation has been adopted in some states. In those states, the doctrine is applied “only where there are clear indicia of an ongoing, continuous, developing and dependent relationship between the client and the attorney.” Smith v. Stacy, 482 S.E.2d 115, 121 (W. Va. 1996) (quotation marks omitted). This doctrine is “designed to toll the statute of limitations during the continuation of the attorney/client relationship . . . until the professional relationship terminates with respect to the matter underlying the malpractice action.” Id. at 120. The continuing representation doctrine was originally used in medical malpractice cases and applied in
[¶26] Although we have not had the opportunity to determine whether the continuing representation doctrine has a place in attorney malpractice litigation,8 we have had occasion to review the use of this doctrine in the context of medical malpractice claims. See Dickey v. Vermette, 2008 ME 179, 960 A.2d 1178. In Dickey, we rejected the application of the continuing course of treatment doctrine—as it is called in medical malpractice litigation—pursuant to which the statute of limitations would not begin to run until the end of the doctor-patient relationship. Id. ¶ 7. We observed that, when the Legislature set “a three-year period of limitations, declaring that the cause of action accrues on the date of the act or omission giving rise to the injury and carving out a specific exception for foreign objects, the Legislature effectively declined to adopt the continuing course of treatment doctrine.” Id. (quotation marks omitted). Applying the continuous course of treatment doctrine to save the plaintiff‘s claim would have required “imposing a judicially-created exception that is contrary to the plain meaning of [the statute of limitations].” Id.; see also Dasha v. Me. Med. Ctr., 665 A.2d 993, 996 (Me. 1995).
[¶27] The legislative history of section 753-B similarly proscribes our ability to define when a legal negligence or malpractice cause of action accrues.
The Legislature clearly defined the accrual date for actions for legal malpractice when it first adopted the occurrence rule, see P.L. 1985, ch. 804, § 2 (effective Aug. 1, 1988) (codified at
causing the injury occurs. The Legislature could have chosen to
[¶28] Further, as reasoned in Dickey, and correctly recognized by the trial court in this case, applying the doctrine of continuing representation in attorney negligence or malpractice actions would be tantamount to resurrecting the discovery rule, which is clearly foreclosed by the plain language of section 753-B. 2008 ME 179, ¶ 7, 960 A.2d 1178. Adoption of the continuing representation doctrine would defer accrual of a cause of action until the attorney-client relationship is terminated, potentially tolling the statute of limitations through years of trial and appellate review, which would contradict the “policy of repose mandated by the Legislature.” White, 2002 ME 160, ¶ 8, 809 A.2d 622.
[¶29] The Legislature has provided a specific six-year period of limitations subject to two narrow exceptions.
C. Continuing Negligence Doctrine
[¶30] Alternatively, Packgen urges that we apply the continuing negligence doctrine to its legal malpractice claim as we applied the doctrine to a medical malpractice claim in Baker v. Farrand, 2011 ME 91, ¶ 29, 26 A.3d 806. Under the continuing negligent treatment doctrine, the limitations period does not begin to run “until the date of the last act of negligence.” Id. ¶ 20. In Baker, we examined the plain language of
pursuant to section 2902, a plaintiff may bring a single action alleging continuing negligent treatment that arises from two or more related acts or omissions by a single health care provider or practitioner where each act or omission deviated from the applicable standard of care and, to at least some demonstrable degree, proximately caused the harm complained of, as long as at least one of the alleged negligent acts or omissions occurred within three years of the notice of claim.
Id. ¶ 29.
[¶31] Packgen urges that this reasoning in Baker should also be applied to claims
[¶32] In Baker, a primary care physician performed six annual tests on a patient‘s prostate, only two of which fell within the applicable statute of limitations. Id. ¶¶ 3-4. The physician failed to refer the patient to a specialist after three of the tests, even though the results were abnormal and the need for further testing was indicated. Id. As a result, the patient‘s prostate cancer was not detected until after it spread considerably and his treatment options were substantially limited. Id. Because the harm was caused by a continuing course of negligent treatment, the patient was permitted to bring a cause of action on the basis of each of the occasions on which the physician failed to adhere to the standard of care, even though only two of those acts or omissions fell within the limitations period. Id. ¶¶ 3, 29.
[¶33] Unlike the continuing course of negligent treatment in Baker, the negligence Packgen alleges arises from a single act: Bernstein Shur‘s failure to send a proper notice of claim on May 29, 2008. Here, the negligent action was singular—an isolated mistake severable from the remainder of Bernstein Shur‘s representation of Packgen—and substantially dissimilar from the ongoing treatment and annual testing in Baker. We understand Packgen‘s argument that Bernstein Shur committed a new negligent omission each day it failed to provide a proper notice of claim or seek another remedy after May 29, 2008; however, we were clear in Baker that where it is “reasonably probable that one act or omission in a series of acts or omissions was the sole proximate cause of the injury complained of, a cause of action would accrue from the date of that act or omission, and not from the dates of any subsequent acts or omissions.” Id. ¶ 24. In this case, it is reasonably probable that the harm Packgen complains of occurred as a result of Bernstein Shur‘s alleged failure to meet the oath requirements for the notice of claim on May 29, 2008. As such, the continuing negligence doctrine is inappropriate in this case.
[¶34] Moreover, the applicability of the continuing negligence doctrine to the medical malpractice statute of limitations was based firmly “on the language and authority of the Health Security Act,” to which there are no analogous provisions in the attorney malpractice context. Id. ¶ 30. In Baker, we anchored our holding on two definitions particular to the Health Security Act: “action for professional negligence” and “professional negligence.” Id. ¶ 22 (citing
[¶35] There are no congruent definitions in title 14, generally, or in chapter 205, specifically. Without similar authorizing language on which to draw, we are unable to conclude that the continuing negligence doctrine is applicable to claims for legal malpractice. Moreover, considering the particular language and history of section 753-B, it is clear that the application of the continuing negligence doctrine is foreclosed by the Legislature‘s intent to provide timely repose to claims against attorneys, as discussed above. White, 2002 ME 160, ¶ 8, 809 A.2d 622. While it can be said that section 753-B, like any statute of limitations, provides an arbitrary cutoff after which a client‘s claim against his attorney is no longer viable, this was a deliberate choice the Legislature made, and we must defer to it.
III. CONCLUSION
[¶36] Given the legislative history underpinning the adoption of the occurrence rule in section 752, the plain language of section 753-B regarding actions against attorneys, and the strict construction we apply to statutes of limitations, we conclude that the Legislature intended to limit the accrual of a cause of action for attorney negligence or malpractice to the “act or omission giving rise to the injury“—that is, the attorney‘s singular act or omission that proximately caused the harm to the client,
The entry is:
Judgment affirmed.
HJELM, J., with whom ALEXANDER and JABAR, JJ., join, dissenting.
[¶37] For two fundamental reasons, I disagree with the Court‘s conclusion that Packgen, Inc.‘s claim for professional negligence, filed against its former attorneys, Bernstein, Shur, Sawyer & Nelson, P.A., is barred by the statute of limitations. First, in my view, the complaint sufficiently alleges that some negligent omissions occurred within the period of limitations, and so that part of Packgen‘s claim should survive for that reason alone. Second, the doctrine of continuing negligence, which we have adopted in cases involving medical negligence, should be applied to claims for legal malpractice and, at this very early phase of the case, entitles Packgen to pursue the entirety of its negligence claim. For these reasons, I respectfully dissent.
[¶38] The narrow issue presented here is the legal viability of Packgen‘s claim as pleaded in its amended complaint. The criterion for assessing the adequacy of a pleading is familiar and generous. For purposes of this analysis, we take the allegations to be true and “examine the complaint in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory.” Argereow v. Weisberg, 2018 ME 140, ¶ 2, 195 A.3d 1210 (quotation marks omitted). Because Maine is a notice-pleading jurisdiction, the level of scrutiny used to assess the sufficiency of a pleading is “forgiving.” Howe v. MMG Ins. Co., 2014 ME 78, ¶ 9, 95 A.3d 79 (quotation marks omitted). The statute of limitations—an affirmative defense—is the sole basis for Bernstein Shur‘s motion to dismiss Packgen‘s complaint, so dismissal is proper only if “it is clear on the face of the complaint” that the claim is time-barred. Jackson v. Borkowski, 627 A.2d 1010, 1013 (Me. 1993).
[¶39] The relevant facts and chronology of events as alleged in Packgen‘s amended complaint are not complicated. Packgen retained Bernstein Shur in 2008 “to prosecute its legal claims” arising from a commercial dispute. In late May of 2008, Bernstein Shur sent the prospective defendant a notice of claim, but the form of the notice was insufficient to trigger the accrual of prejudgment interest, see
[¶40] Packgen and Bernstein Shur entered into a tolling agreement, which, as of December 11, 2015, stopped the clock that would determine the timeliness of any claim that Packgen might later assert against Bernstein Shur. And, in fact, in May of 2017, Packgen commenced this action. Because, as the parties agree, Packgen‘s claim against Bernstein Shur is subject to a six-year period of limitations, see
[¶41] The interpretation and application of two interrelated statutes are integral to this appeal. The first statute,
All civil actions shall be commenced within 6 years after the cause of action accrues and not afterwards, except actions on a judgment or decree of any court of record of the United States, or of any state, or of a justice of the peace in this State, and except as otherwise specially provided.
The second,
In actions alleging professional negligence, malpractice or breach of contract for legal service by a licensed attorney, the statute of limitations starts to run from the date of the act or omission giving rise to the injury, not from the discovery of the malpractice, negligence or breach of contract, except as provided in this section or as the statute of limitations may be suspended by other laws.
[¶42] The facial reach of the six-year limitation period created by section 752 covers some, but not all, of the time that Bernstein Shur represented Packgen, which was from 2008 into 2011. Thus, in examining the timeliness of Packgen‘s claims, there are two different periods to be considered: (1) the period beginning December 11, 2009, which is the six-year period that ended with the effective date of the parties’ tolling agreement; and (2) the period that predates December 11, 2009. Because the legal considerations differ as between these two timeframes, I address them separately.
[¶43] As I note above, Packgen alleges that throughout the entire course of Bernstein Shur‘s representation of its interests, which extended until sometime in 2011—and includes more than one year within the period of limitations prescribed in section 752—the firm was negligent in several different ways. Packgen‘s claim includes allegations, not only that Bernstein Shur was negligent by issuing the statutorily defective notice of claim, but also that the firm negligently failed to file suit on Packgen‘s underlying commercial claim, which also would have triggered the accrual of prejudgment interest arising from that claim. Thus, although the Court focuses exclusively on the Bernstein Shur‘s allegedly negligent act of issuing a deficient notice of claim in May of 2008, there is more to Packgen‘s claim.
[¶44] Although Bernstein Shur‘s issuance of the defective notice of claim is a single allegedly negligent act with an ascertainable date,11 the failure to commence an action altogether is an allegedly negligent omission—something that never happened at all. And from the allegations contained in the amended complaint, it is not possible to assign a date certain to an event that did not occur; that omission is temporally indeterminate within the period when Bernstein Shur represented Packgen. In other words, for purposes of determining whether the amended complaint is time-barred on its face, Packgen‘s allegation that Bernstein Shur committed legal malpractice by not filing suit does not inevitably lead to the conclusion that the alleged negligence associated with that omission necessarily falls entirely outside the period of limitations. The bones of Packgen‘s amended complaint are sufficient to encompass an assertion, which could only be fleshed out during the evidentiary phases of the case, that Bernstein Shur, in the exercise of due care, should have commenced the action in the commercial case on or after December 11, 2009. Based on this aspect of Packgen‘s claim alone, its amended complaint was not facially untimely.
[¶45] I also note that the trial court‘s order dismissing the complaint was actually provisional. While concluding that Packgen‘s claim was outside of the period of limitations, the court gave Packgen an opportunity to seek leave to further amend its amended complaint to allege damages other than those allegedly caused by the defective notice of claim sent in 2008. Although Packgen did not file any such motion, the absence of any supplemental filing by Packgen is inconsequential. In its amended complaint, Packgen had already alleged a sufficient basis—the failure to file suit, for example—on which Bernstein Shur could be determined liable based on negligent acts or omissions occurring directly within the six-year limitations period. Therefore, the court erred by requiring Packgen to do something more than it had
[¶46] Because Packgen‘s amended complaint alleges negligence that occurred within the limitations period, which runs forward from December 11, 2009, I conclude that the court erred by dismissing that portion of Packgen‘s claim.
B. Allegations of Negligence Occurring Before December 11, 2009
[¶47] In contrast to Packgen‘s claim for negligence that occurred on or after December 11, 2009, its claim for negligent acts or omissions occurring before that date is time-barred pursuant to section 752 unless an appropriate legal mechanism brings that part of Packgen‘s claim back within the period of limitations. Packgen asserts that two such legal theories preclude the dismissal of those older aspects of its claim against Bernstein Shur: continuing representation and continuing negligence.12
[¶48] I agree with the Court‘s conclusion that the mere continuation of an attorney‘s representation of a client on an ongoing matter extending into the limitations period does not preclude the statute of limitations from barring a claim based on a negligent act or omission that occurred outside of the limitation period. See Court‘s Opinion at ¶¶ 25-29. We have reached that conclusion in the context of a medical malpractice claim, see Dickey v. Vermette, 2008 ME 179, ¶¶ 4-8, 960 A.2d 1178; see also Baker v. Farrand, 2011 ME 91, ¶¶ 18-19, 26 A.3d 806, and the same analysis applies to legal malpractice claims. In Dickey, we explained that the “act or omission” phraseology contained in
[¶49] I part ways with the Court, however, when it concludes that this case does not allow for the application of a doctrine that is, in effect, a subsidiary of the continuing representation theory—namely, the continuing negligence doctrine.
[¶50] As the Court correctly describes, the continuing negligence doctrine prevents the limitations clock from beginning to tick until the date of the last negligent occurrence that proximately causes injury.
[¶51] We have endorsed the application of the continuing negligence doctrine in medical negligence cases.15 In such actions, the plaintiff is entitled to
bring a single action alleging continuing negligent treatment that arises from two or more related acts or omissions by a single health care provider or practitioner where each act or omission deviated from the applicable standard of care and, to at least some demonstrable degree, proximately caused the harm complained of, as long as at least one of the alleged negligent acts or omissions occurred within three years of the notice of claim.16
Baker, 2011 ME 91, ¶ 29, 26 A.3d 806 (emphasis added). In other words, where at least one negligent act or omission that demonstrably and proximately contributed to the harm occurred within the period of limitations, but other related acts or omissions occurred outside the period of limitations, the entirety of the claim may be prosecuted.
[¶52] Our adoption of the continuing negligence doctrine in Baker resulted from two separate analytical strands. The first draws on an examination of statutes that are specific to medical negligence claims. In particular, we noted that
[¶53] That is not true with respect to the second reason why we adopted the principle of continuing negligence in Baker. Our second line of reasoning draws on both rules of statutory construction and on jurisprudential principles that are of more universal application and persuasively extend to this action for legal malpractice. See id. ¶ 27.
[¶54] The construction of the phrase “act or omission” was at issue in Baker, just as it is here. As we discussed in that case, the Legislature has explicitly stated that “[w]ords of the singular number may include the plural,”
[¶55] This part of Baker‘s analysis, which is sufficient to support its holding,18 carries over seamlessly to Packgen‘s legal malpractice claim against Bernstein Shur and the statutes that apply here. This is true with both the close examination in Baker of the words in the phrase “act or omission” and our broader discussion in that case of principles governing the way causes of action are properly framed.
[¶56] First, as to the statutory language itself, Title 14, section 753-B contains language defining the event giving rise to Packgen‘s claim—an “act or omission“—that is identical to the language in
[¶57] Second, and more broadly, the conceptual observations we made in Baker apply with equal force in the present context. As a substantive legal principle, multiple acts or omissions that comprise individual deviations from the standard of care can combine to proximately cause a discrete harm and give rise to a single cause of action. Baker, 2011 ME 91, ¶ 24, 26 A.3d 806. Relatedly, a plaintiff should not be required to litigate those separate negligent acts or omissions in a piecemeal manner. See id. ¶ 25. These principles apply directly to claims for legal malpractice every bit as much as they do to claims for medical negligence.
[¶58] All of this—the dry process of statutory interpretation and a conceptual consideration of the nature of a professional negligence claim—demonstrates that, for many of the same reasons we stated in Baker, the principle of continuing negligence is readily accommodated by sections 752 and 753-B in this legal malpractice action. I would therefore apply Baker‘s conclusion to this case and—to paraphrase the language in Baker—hold that, when a single cause of action arises from an attorney‘s multiple acts or omissions while representing a client, and when the combination of those multiple acts or omissions proximately causes the alleged injury, the single resulting cause of action accrues on the date of the last act or omission that contributed to the alleged injury, because that is when the alleged negligence is complete. See Baker, 2011 ME 91, ¶¶ 24, 26, 26 A.3d 806.
[¶59] This statement of the continuing negligence doctrine also illuminates its limiting principle—that the claim will be time-barred if the last of the negligent acts or omissions that demonstrably and proximately contributed to the injury occurred outside of the period of limitations.19 Consequently, if the case were to proceed on remand, as I believe it should, in order for Packgen to recover for negligent acts or omissions that occurred before December 11, 2009, Packgen would be required to demonstrate that at least one negligent act or omission that occurred on or after December 11, 2009, demonstrably and proximately contributed to the harm also caused by those earlier related acts or omissions.
[¶60] Based on the amended complaint alone and without the benefit of a record, the Court is willing to jump to the conclusion that Packgen will be unable to present any evidence sufficient to meet this requirement. See Court‘s Opinion ¶ 33. There, the Court states that Packgen‘s claim arose from a single act, namely, the defective notice of claim sent in 2008, and that it is “reasonably probable” that Packgen‘s injury is attributable entirely to that act. Id. ¶ 33. This is an inappropriately narrow reading of the amended complaint,
C. Conclusion
[¶61] For now, the only question before us is whether the allegations in Packgen‘s amended complaint make clear that the claim is time-barred. See Jackson, 627 A.2d at 1013. In my view, the amended complaint withstands that facial review, particularly given the “forgiving” notice-pleading standard by which the sufficiency of a complaint is reviewed, see Howe, 2014 ME 78, ¶ 9, 95 A.3d 79. Packgen has alleged negligence within the period of limitations itself, through sometime in 2011 when Packgen terminated its relationship with the firm. Further, for purposes of the present pleading stage of the case, pursuant to the continuing negligence doctrine the allegations of Bernstein Shur‘s negligent acts or omissions occurring before December 11, 2009, can properly be treated as an integrated part of a claim that did not accrue until on or after December 11, 2009—within the period of limitations. Accordingly, I would vacate the judgment and remand for the trial court proceedings to continue.
Phillip E. Johnson, Esq. (orally), Johnson, Webbert & Young, LLP, Augusta, for appellant Packgen, Inc.
George T. Dilworth, Esq. (orally), and Jeana M. McCormick, Esq., Drummond Woodsum, Portland, for appellee Bernstein, Shur, Sawyer & Nelson, P.A.
Cumberland County Superior Court docket number CV-2017-208
FOR CLERK REFERENCE ONLY