MEMORANDUM DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1
Plaintiff Western World Insurance Company (‘Western World”) and defendant American and Foreign Insurance Company (“Royal”) cross-move for summary judgment in this action seeking declaratory judgment that Royal possessed duties to defend and indemnify the Town of Brunswick (“Town”) in connection with a lawsuit arising from the fatal 1997 shooting of one Richard Weymouth by Brunswick police. Western World Insurance Company’s Motion for Summary Judgment, etc. (“Plaintiffs Motion”) (Docket No. 8) at 1-2; Defendant American and Foreign Insurance Company’s Motion for Summary Judgment, etc. (“Defendant’s Motion”) (Docket No. 10) at 1-2; Complaint (Docket No. 1) ¶¶ 1, 7-9, 21-23. For the reasons that follow, the Defendant’s Motion is granted and the Plaintiffs Motion is denied.
I. Summary Judgment Standards
Summary judgment is appropriate only if the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “In this regard, ‘material’ means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant .... By like token, ‘genuine’ means that ‘the evidence about the fact is such that a reasonable [factfinder] could resolve the point in favor of the nonmoving party ....’”
McCarthy v. Northwest Airlines, Inc.,
The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case.
Celotex Corp. v. Catrett,
II. Factual Context
The parties’ statements of material facts, credited to the extеnt either admitted or supported by record citations in accordance with Loe. R. 56, reveal the following relevant to this decision:
*227 On November 6, 1997 Sergeant Mark Phillips and patrolman Shawn O’Leary of the Brunswick Police Department responded to a disturbance and possible assault at an apartment on 29 High Street involving Weymouth and several of his drinking companions. Western World Insurance Company’s Statement of Material Facts with Respect to Which There Is No Genuine Dispute (“Plaintiffs SMF”) (Docket No. 9) ¶ 1; American and Foreign Insurance Company’s Response to Western World’s Statement of Material Facts (“Defendant’s Opposing SMF”) (Docket No. 21) ¶ 1. Shortly after the officers entered the apartment, Weymouth quickly and without warning withdrew a previously concealed butcher knife with an eight-to ten-inch blade. Id. ¶ 2. The officers made several failed attempts to make Weymouth drop the knife without resort to deadly force. Id. ¶ 3.
The officers never attempted to use police batons to stop Weymоuth because neither had one available, which was alleged to have been in violation of the Town’s departmental policy. Id. ¶ 4. General Order 95-3, section 3.07, required officers to wear among their “Belts and Equipment” a “Department-Approved Impact Weapon,” which no one inspected on the day of the incident. Id. ¶ 5. Despite the officers’ efforts to stop Weymouth, he repeatedly stabbed himself in the abdomen, moved his wheelchair, ignored the officers and acted in a manner that threatened them. Id. ¶ 6. O’Leary shot Weymouth three times. Id. ¶ 7.
On or about October 28, 1999 Donna Connors, as personal representative of the estate of Weymouth, initiated a lawsuit against O’Leary, Phillips, chief of police Jerry Hinton and the Town (the “Connors Complaint”). Id. ¶¶ 5, 8. 2 The Connors Complaint alleged that the use of deadly force against Weymouth was unreasonable and without justification. Defendant American and Foreign Insurance Company’s Statement of Material Facts in Support of Motion for Summary Judgment (“Defendant’s SMF”) (Docket No. 11) ¶ 9; Western World Insurance Company’s Opposition to American and Foreign Insurance Company’s Statement of Material Facts (“Plaintiffs Opposing SMF”) (Docket No. 23) ¶ 9.
Count I of the Connors Complaint alleged that Phillips and O’Leary used excessive force, violated Weymouth’s civil and constitutional rights and caused his death. Defendant’s SMF ¶ 10; Connors Complaint, attached as Exh. 7. to Statement of Stipulated Facts (“Stipulated Facts”) (Docket No. 7), ¶23. Count II asserted a claim against the Town for violation of Weymouth’s civil rights, basеd upon allegations of “failing to adequately train, supervise and discipline its officers.” Defendant’s SMF ¶¶ 11-12; Plaintiffs Opposing SMF ¶¶ 11-12. Count III alleged assault and battery based upon Phillips’ and O’Leary’s use of force in attempting to arrest Weymouth. Id. ¶ 13. Count IV stated a claim for warrantless arrest and alleged that Phillips and O’Leary attempted to arrest Weymouth without sufficient cause or basis and without having a valid warrant for his arrest. Id. ¶ 14. Count V, captioned “Negligence and Wrongful Death,” alleged that the officers’ assault and battеry upon Weymouth in wrongfully attempting to arrest him and in shooting him constituted a breach of the standard of care. Id. ¶ 15. Count V also alleged, in paragraph 39: “The actions by all of the Defendants individually and jointly, including the failure to adequately train, supervise and discipline, and including the indi *228 vidual actions of Defendants Phillips and O’Leary, constitute negligence and wrongful death under Maine law.” Plaintiffs SMF ¶ 9; Defendant’s Opposing SMF ¶ 9; see also Connors Complaint ¶39. Count VI of the Connors Complaint sought punitive damages based upon the allegations set forth in paragraphs 1 though 39 of the complaint. Defendant’s SMF ¶ 16; Plaintiffs Opposing SMF ¶ 16.
The defendants in the Connors case moved for summary judgment. Plaintiffs SMF ¶ 10; Defendant’s Opposing SMF ¶ 10. The plaintiff opposed the motion for summary judgment as to Hinton and the Town on the ground of failure to examine the officers’ uniforms -for the presence of impact weapons before they went out on the day of the incident. Id. ¶ 5. Count I survived against O’Leary for causing harm to Weymouth through the excessive use of force. Id. ¶ 10. Count II survived against the Town аnd Hinton for failure to enforce “official policy requiring the carrying of batons,” as required by the dress code. Id. ¶ 11. Count V, the claim under state law for “negligence and wrongful death,” survived against all of the remaining defendants. Id. ¶ 12.
The case settled during trial, resolving each claim that survived summary judgment. Id. ¶ 13. The amount of $150,000 paid in settlement, which included the plaintiffs attorneys’ fees, was reasonable. Id. ¶ 14. Western World paid the reasonable amount of $105,669.50 in attorneys’ fees and $16,249.04 in costs to defend the case through the time settlеment was concluded. Id. ¶ 15.
Royal insured the Town under a standard commercial general liability policy that was in effect at the time of the events at issue in this case. Id. ¶ 16. After the Town’s insurance agent, the Riley Insurance Agency, sent Royal a copy of the plaintiffs notice of claim, but before the Connors Complaint was filed, Craig Carver of Royal Insurance Company, the parent of American and Foreign Insurance Company, wrote to Hinton stating that his company would not insure the Town or the poliсe department for the claims made in the notice of claim because:
The decision to fire on Mr. Weymouth is considered a professional decision made by a police officer in the line of duty, and therefore an act under the coverage of a professional liability insurance policy. Because the Town carries policies for this purpose, Royal’s policy contains a Professional Liability Exclusion that reads, With respect to any professional services shown in the Schedule, this insurance does not apply to ‘bodily injury,’ ‘property damage,’ ‘personal injury,’ or ‘advertising injury’ due to the rendering or failure to render any professional service.
Id. ¶ 17. The “Schedule” to which Carver referred in his letter states:
Description of Professional Services:
1. 44102 ALL PROFESSIONAL LIABILITY SERVICES PROVIDED BY THE TOWN OF BRUNSWICK
Id. ¶ 18.
On October 25, 1999, after having received a copy of a proposed complaint that did not differ from the complaint Connors eventually filed, Royal wrote to Hinton stating in part:
[O]ur position with respect to our involvement in this matter is unchanged. The allegаtions brought against the Town of Brunswick are related to the training, supervision, and discipline of Town police officers. Our position is that those items all fall within the auspices of a “professional service,” and that the exclusionary language cited in Mr. Carver’s letter apply [sic].
Defendant’s Opposing SMF ¶ 19; Letter dated October 25, 1999 from Kirk W. Purcell, AIC to Town of Brunswick, Attn: *229 Chief Hinton, attached as Exh. 4 to Stipulated Facts.
Western World insured the Town under a law enforcement liability policy that was in effect at the time of the events at issue in this case. Plaintiffs SMF ¶ 21; Defendant’s Oрposing SMF ¶ 21. The Western World policy states, among other things:
If other valid and collectible insurance is available to the insured for a loss we cover as a “law enforcement incident”, our obligations are limited as follows:
H« * # * * #
b. If the other insurance available to you was not issued by us, the insurance available under this policy shall be excess insurance over any other valid and collectible insurance available to the insured.
Id. ¶ 22. 3
III. Analysis
Western World argues first and foremost that, by electing not to use a narrowly tailored, commonly used law enforcement activity exclusion, Royal signaled (perhaps unwittingly) that no such activities were to be excluded. Plaintiffs Motion at 1-2, 5-6. Alternatively, Western World contends that, even assuming ar-guendo the applicability of Royal’s more broadly worded professional services exclusion, Royal possessed duties to defend and to indemnify in the Connors case. Id. at 7-9.
For its part, Royal seeks summary judgment on the bases that (i) Western World’s primary proposition is without merit; (ii) in this case, the availability оf uneontro-verted extrinsic evidence obviates the need to resort to “traditional” principles of contract interpretation to determine the Town’s and Royal’s intent; and (iii) in any event, even traditional contract analysis yields the conclusion that Royal possessed no duty to defend. Defendant’s Motion at 2-11.
Both parties agree that, in this diversity action, Maine law applies. Id. at 3; Plaintiffs Motion at 5.
I first address Western World’s novel argument:
The absence of a Law Enforcement Activity exclusion [of the type assertedly used in commercial general liability policies nationwide] is like the famous watchdog that didn’t bark in the night in the Sherlock Holmes story, ‘Silver Blaze’ — the absence of a bark said more than any sound could have.... In other words, the fact that Royal has a professional services exclusion highlights the fact that it does not have a law enforcement activity exclusion or the concomitant ability to negate coverage for law enforcement activity.
Plaintiffs Motion at 6 (emphasis in original). For this proposition Western World cites only one casе,
Travelers Indem. Co. v. Dingwell,
Nor is there any reason to suspect that, if confrontеd with this question, the Law Court would side with Western World. As
*230
Royal points out, “[i]mplicit in Western World’s position is the notion that there can be only one ‘right’ way of excluding coverage for law enforcement activities.”
See
Objection of American and Foreign Insurance Company to Western World’s Motion for Summary Judgment (Docket No. 20) at 3. While it may well be true, as Western World asserts, that courts have found specific exclusions for law enforcement activity effective,
see
Plaintiffs Motion at 5, those cases do not thereby imply thаt more broadly worded exclusions are ineffective. Nor can Western World identify a single case in which a broadly worded exclusion has been held entirely ineffective — in effect, stricken from the parties’ insurance contract — simply because a more specifically worded exclusion could have been used. Such an approach, rather than being consistent with Law Court precedent, would seem an abrupt departure from it.
See, e.g., Apgar v. Commercial Union Ins. Co.,
I next address another unusual invitation — this time from Royal — that the court bypass the “traditional” exercise of contract interpretation and proceed directly to Royal’s extrinsic evidence to divine the meaning of its professional services exclusion.
See
Defendant’s Motion at 6-7. As Western World rightly rejoins, this suggested approach offends cardinal principles of insurance law.
See
Western World Insurance Company’s Opposition to American and Foreign Insurance Company’s Motion for Summary Judgment (“Plaintiffs Opposition”) (Docket No. 19) at 1-3. In Maine (as elsewhere), courts first examine relevant policy language to determine whether it is unambiguous; if so, it is enforced as written.
See, e.g., Dingwell,
As Western World points out, Royal never suggests that the language of its professional services exclusion is ambiguous (and, indeed, is in an awkward position to do so). See Plaintiffs Opposition at 2-3; Defendant’s Motion at 2-7, 10. Nor do I find, for reasons discussed below, that the language in issue is ambiguous. Accordingly, Royal’s extrinsic evidence is irrelevant to decision of this case. Nonetheless, Western World seeks to stretch its victory too far in declaring that “[o]nce the Court rejects this evidence, there is nothing left to support [Royal’s] motion for summary judgment and it should therefore be denied.” See Plaintiffs Opposition at 2. Western World makes too short a shrift of Royal’s remaining (and as it turns out, meritorious) contention that, even proceeding by way of traditional contract interpretation, Royal should be found not to have had a duty to defend.
“It is black letter law in [the state of Maine] that an insurer’s duty to defend is determined by comparing the allegations in the underlying complaint with the provisions of the insurance policy.”
Foundation for Blood Research v. St. Paul Marine & Fire Ins. Co.,
The relevant language of the Royal policy provides that “[w]ith respect to any professional services shown in the Schedule” — which are defined as “all professional liability services provided by the Town of Brunswick” — “this insurance does not apply tо ‘bodily injury,’ ‘property damage,’ ‘personal injury,’ or ‘advertising injury’ due to the rendering or failure to render any professional service.”
While, as Western World points out, see Plaintiffs Motion at 7, the Law Court has not had occasion to address the meaning of a professional services exclusion, I conclude that the term “professional services,” as used in the Royal policy, is not ambiguous. As other courts have noted, the line between what constitutes a professional service and what does not is capable of being drawn with some precision. The definition first articulated by the Supreme Court of Nebraska is the most frequently quoted discussion of the issue:
Something more than an act flowing from mere employment or vocation is essential. The act or service must be such as exacts the use or application of special learning or attainments of some kind. The term “professional” in the context used in the policy provision means something more than mere proficiency in the performance of a task and imрlies intellectual skill as contrasted with that used in an occupation for production or sale of commodities. A “professional” act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or man-ual_ In determining whether a particular act is of a professional nature or a “professional service,” [the court] must look not to the title or character of the party performing the act, but to the act itself.
Marx v. Hartford Accident & Indem. Co.,
Western World contends that with respect to all of the defendants (Hinton, O’Leary and Phillips as well as the Town) “there was at least a chance that, as alleged in the complaint, those actions were not professional services, which would be enough to trip the hair trigger of the duty to defend.” Plaintiffs Motion at 8. Westеrn World points to paragraph 39 of the Connors Complaint, which states: “The actions by all of the Defendants individually and jointly, including the failure to adequately train, supervise and discipline, and including the individual actions of Defendants Phillips and O’Leary, constitute negligence and wrongful death under Maine law.” Id.; see also Western World Insurance Company’s Reply to Defendant’s Opposition to Western World’s Motion for Summary Judgment (“Plaintiffs Reply”) (Docket No. 28) at 2-3; Connors Complaint ¶ 39. In Western World’s view, this paragraph sets forth “general allеgations” of negligence inasmuch as (i) it refers to “the actions” of the defendants without specifying which actions; (ii) it employs the word “including,” indicating that the allegations are broader than those listed; and (iii) it claims “all of the Defendants” were negligent “individually and jointly,” suggesting that the alleged negligence *232 went beyond issues of training, supervision and discipline. Plaintiffs Reply at 2. According to Western World, in Maine general allegations of negligence suffice to impose a duty to defend. Id. at 2-3; see also Plaintiffs Motion at 8. Western World finally argues that, in any event, the Town itself was neither a “professional” nor was alleged to have performed any professional acts. Plaintiffs Reply at 3.
For the following reasons, these arguments fall short:
1. Western World concedes, albeit in the context of its duty-to-indemnify analysis, that “using the
Marx
analysis there can be little doubt that Shawn O’Leary’s decision to use deadly force is one that can be made only after the training and education in the specialized decision-making process that goes into whether to use deadly force.” Plaintiffs Motion at 8-9. Yet, Wеstern World fails to identify any allegations against either Phillips or O’Leary in the Connors Complaint that implicate anything other than this sort of decisionmaking (ie., decisionmaking based on an officer’s training and experience). Indeed, there are none.
See
Connors Complaint ¶¶ 8-25, 32, 34-35, 37-39, 41-43. In like vein, nowhere in the Connors Complaint is there a suggestion of conduct on the part of the Town and Hinton other than failure to adequately train, supervise and discipline.
See
Connors Complaint ¶¶ 26-30, 39, 41-43. The duty to defend cannot be triggered by pure speculation as to conduct or causes of action that are not either set forth in, or fairly suggested by, the allegations of the complaint.
See, e.g., Maine Mut. Fire Ins. Co. v. Gervais,
2. The case that Western World cites for the proposition that allegations of general negligence suffice to trigger the duty to defend,
see
Plaintiffs Motion at 8 (citing
North East Ins. Co. v. Tanguay,
3. As the Connors Complaint made clear, the Town’s asserted liability was entirely derivative of Hinton’s conduct in his capacity as a “policymaker” for the Town. See Connors Complaint ¶¶ 26-30. Thus, to the extent Hinton’s alleged acts or omissions qualified as “professional services,” the Royal exclusion pertained to the Town as well.
For these reasons, I conclude that Royal had no duty to defend the Connors Complaint. Inasmuch as the duty to defend is broader than the duty to indemnify,
see, e.g., Lambert,
Although I need not reach Western World’s arguments concerning the duty to indemnify, even were I to do so the outcome would be the same. Western World argues that a particular claim of supervisory malfeasance that survived summary judgment (namely, the Town’s and Hinton’s asserted failure to enforce a policy that police officers carry batons) triggered the duty to indemnify. See Plaintiffs Motion at 9. Specificаlly, Western World reasons that enforcement of the baton policy would have required no particular skill or training — anyone could have detected the absence of the batons — and hence qualifies as a ministerial rather than a “professional” service. See id. I am unpersuaded.
In certain instances, activities of professionals have been held non-professional for purposes of a professional services exclusion.
See, e.g., Medical Records,
IY. Conclusion
For the foregoing reasons, the Defendant’s Motion is GRANTED, and the Plaintiffs Motion is DENIED.
. Pursuant to 28 U.S.C. § 636(c), the parties have consented to have United States Magistrate Judge David M. Cohen conduct all proceedings in this case, including trial, and to order entry of judgment.
Notes
. The allegations of the Connors Complaint are incorporated in full by reference into Westem World's statement of material facts. See Plaintiffs SMF ¶ 9.
. Western World protests that extrinsic evidence offered by Royal to show the intent of the parties to the Royal contract is immaterial. See Defendant’s SMF ¶¶ 25-42; Plaintiff’s Opposing SMF ¶¶ 25-42. I agree, and aсcordingly disregard that profered evidence.
. I am mindful that in
York Ins. Group of Me. v. Lambert,