MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	 2017	ME	56	
Docket:	   Ken-16-274	
Argued:		  February	7,	2017		
Decided:	  March	28,	2017	
                                                                                            	
Panel:	        ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                ALESHIA	D.	DIVINEY		
                                         	
                                        v.	
                                         	
                            UNIVERSITY	OF	MAINE	SYSTEM		
	
	
ALEXANDER,	J.	

          [¶1]	 	 Aleshia	 D.	 Diviney	 appeals	 from	 the	 grant	 of	 summary	 judgment	

for	 the	 University	 of	 Maine	 System	 (UMS)	 by	 the	 Superior	 Court	 (Kennebec	

County,	 Mullen,	 J.).	 	 The	 court	 concluded	 that	 Diviney’s	 tort	 claim	 was	 time	

barred	 by	 the	 Maine	 Tort	 Claims	 Act,	 because	 it	 was	 not	 filed	 within	 the	

statutory	180-day	filing	period	pursuant	to	14	M.R.S.	§	8107	(2016),	and	that	

the	 statutory	 “good	 cause”	 justification	 for	 the	 delay	 in	 filing	 could	 not	 be	

demonstrated.	

          [¶2]	 	 On	 appeal,	 Diviney	 argues	 that	 the	 court	 erred	 (1)	 because	 the	

issue	 of	 good	 cause	 presented	 a	 disputed	 material	 fact	 not	 appropriate	 for	

resolution	 on	 summary	 judgment;	 (2)	 in	 its	 “good	 cause”	 determination	

applying	 the	 plain	 language	 of	 section	 8107	 to	 the	 facts	 in	 the	 record;	 and	
2	

(3)	by	failing	to	interpret	section	8107’s	filing	period	to	commence	from	the	

date	the	“good	cause”	for	delay	has	been	removed.1		We	affirm	the	judgment.	

                                        I.		CASE	HISTORY	

         [¶3]	 	 The	 following	 facts	 are	 viewed	 in	 the	 light	 most	 favorable	 to	

Diviney—the	 party	 against	 whom	 summary	 judgment	 was	 entered.		

See	Remmes	v.	Mark	Travel	Corp.,	2015	ME	63,	¶	18,	116	A.3d	466.		

         [¶4]	 	 On	 January	 17,	 2014,	 Aleshia	 D.	 Diviney	 was	 injured	 when	 she	

slipped	 and	 fell	 on	 ice	 outside	 of	 her	 dormitory,	 located	 on	 the	 University	 of	

Southern	 Maine	 (USM)	 Gorham	 campus.	 	 On	 February	 3,	 2014,	 Diviney’s	

father	emailed	USM’s	risk	management	office	about	his	daughter’s	injury.		He	

explained	 that	 his	 daughter	 sustained	 a	 broken	 leg,	 torn	 ligaments,	 and	

required	 surgery	 because	 of	 the	 injuries.	 	 He	 also	 stated	 that	 he	 hoped	 the	

University	would	assume	some	degree	of	responsibility,	because	the	incident	

stemmed	from	maintenance	of	walks,	steps,	and	parking	areas	on	the	campus.			

         [¶5]	 	 William	 Wells,	 Associate	 Vice	 President	 of	 Operations	 and	 Risk	

Management	for	USM,	responded	to	the	father’s	email	on	February	6,	2014.		In	

his	 email	 Wells	 expressed	 his	 sympathy	 for	 Diviney,	 and	 requested	 that	 she	

     1		Despite	Diviney’s	argument	that	the	180-day	filing	period	should	be	tolled	where	“good	cause”	

is	established	but	is	ultimately	removed	before	the	180-day	filing	period	has	expired,	title	14	M.R.S.	
§	8107	(2016)	does	not	contain	language	permitting	such	tolling.		Therefore,	this	contention	is	not	
discussed	further.		
                                                                                                  3	

file	an	incident	report.		He	also	inquired	as	to	whether	she	intended	to	file	a	

claim.		Diviney’s	father	responded	on	February	9,	2014,	explaining	that	he	and	

his	daughter	would	not	be	involving	legal	counsel	“because	of	.	.	.	[their]	faith	

that	 the	 University	 would	 be	 willing	 to	 satisfy	 the	 medical	 and	 other	 related	

expenses	.	.	.	related	to	this	incident	without	the	need	for	legal	counsel.”			

       [¶6]		Wells	did	not	respond	to	the	father’s	email	or	acknowledge	receipt	

of	 Diviney’s	 incident	 report	 until	 March	 18,	 2014.	 	 He	 explained	 that	 “for	

whatever	reason,”	USM	had	not	received	the	previous	correspondence	or	the	

incident	report,	but	he	assured	the	father	that	the	University	was	not	ignoring	

the	 situation.	 	 Between	 March	 20	 and	 March	 28,	 2014,	 Diviney’s	 father	 and	

Wells	continued	to	email	about	documentation	needed	for	the	investigation	of	

the	incident,	including	medical	releases	and	Diviney’s	incident	report.			

       [¶7]	 	 On	 March	 28,	 2014,	 Wells	 referred	 Diviney’s	 claim	 to	 the	

University	 of	 Maine	 System’s	 risk	 management	 department,	 which	 referred	

the	case	to	John	Glover	at	Cross	Insurance.2		That	same	day,	Glover	attempted	

to	 reach	 Diviney	 by	 phone	 and	 email	 to	 request	 a	 recorded	 statement	 about	

the	 incident	 and	 her	 treatment.	 	 Sometime	 between	 March	 28	 and	 April	 2,	

2014,	 Glover	 spoke	 with	 Diviney	 by	 phone	 to	 confirm	 a	 date	 to	 take	 her	

   2		Cross	Insurance	provides	third-party	administration	of	injury	claims	involving	the	University	

of	Maine	System.	
4	

recorded	 statement.	 	 During	 that	 phone	 call	 Glover	 “advised	 [Diviney]	 that	

although	 she	 would	 probably	 not	 recover	 much	 from	 her	 claim,	 she	 would	

probably	 recover	 something,”	 and	 further	 stated	 that	 he	 would	 “get	 this	

worked	out	for	[her].”3		

         [¶8]	 	 By	 April	 2,	 2014,	 Glover	 had	 interviewed	 Diviney	 and	 also	

attempted	to	reach	a	witness	who	was	with	Diviney	at	the	time	of	her	fall.		Due	

to	 “a	 series	 of	 issues,”	 however,	 Glover	 did	 not	 get	 a	 statement	 from	 that	

witness	until	May	5,	2014.		The	delay	was	due,	in	part,	to	Glover’s	time	out	of	

the	office.			

         [¶9]		Between	March	28,	2014,	and	May	8,	2014,	Glover	emailed	Diviney	

four	times	and	received	two	emails	from	her.		Glover	also	received	a	letter	and	

two	emails	from	Diviney’s	father	and	emailed	him	twice	between	April	10	and	

May	8,	2014.		In	a	May	4,	2014,	email,	Diviney’s	father	asked	for	an	update	on	

his	daughter’s	case,	at	which	time	Glover	advised	that	none	could	be	provided	




     3		UMS	denied	that	these	statements	were	made,	but	recognized	that	“good	cause”	existed	during	

the	time	while	Diviney	and	her	father	were	in	communication	with	UMS	representatives	before	her	
claim	 was	 denied.	 	 Diviney	 stated	 that	 she	 interpreted	 the	 statements	 to	 mean	 that	 she	 would	
probably	not	receive	extra	compensation	for	pain	and	suffering,	but	her	medical	bills—which	were	
large	and	uninsured—would	be	mostly	covered.		Diviney	claimed	that	because	she	did	not	expect	to	
receive	 extra	 compensation	 for	 pain	 and	 suffering,	 these	 statements	 did	 not	 give	 her	 cause	 for	
concern	at	that	time.			

     	
                                                                                        5	

until	the	statement	could	be	taken	from	the	witness	who	was	with	Diviney	at	

the	time	of	her	fall.	

      [¶10]		By	letter	dated	May	14,	2014,	Glover	denied	Diviney’s	claim	and	

explained	the	reasons	for	doing	so.		At	that	point,	there	were	sixty-three	days	

remaining	 of	 the	 180-day	 notice	 deadline.	 	 On	 October	 31,	 2014—well	 past	

the	 mid-July	 notice	 deadline	 and	 170	 days	 after	 Diviney’s	 claim	 had	 been	

formally	 denied—Diviney,	 now	 represented	 by	 counsel,	 served	 a	 formal	

notice	of	claim	pursuant	to	14	M.R.S.	§	8107.	

      [¶11]		On	September	14,	2015,	Diviney	filed	a	complaint	in	the	Superior	

Court	(Kennebec	County)	alleging	premises	liability	against	the	University	of	

Maine	System,	the	University	of	Southern	Maine,	and	the	State	of	Maine.4		By	

answer	dated	September	30,	2015,	UMS	asserted	several	affirmative	defenses,	

including	 noncompliance	 with	 the	 notice	 requirements	 of	 14	 M.R.S.	 §	 8107,	

arguing	 that	 Diviney’s	 notice	 was	 untimely.	 	 The	 UMS	 moved	 for	 summary	

judgment,	asserting	untimely	notice	on	December	4,	2015.		That	same	day,	by	

agreement	with	Diviney,	UMS	filed	a	motion	to	stay	deadlines	associated	with	

the	case	until	the	court	ruled	on	the	motion	for	summary	judgment.		




  4		The	State	was	subsequently	dismissed	from	the	case	by	agreement	of	the	parties.	
6	

       [¶12]		On	April	29,	2016,	the	court	heard	arguments	on	the	motion.		The	

court	 granted	 UMS’s	 motion	 for	 summary	 judgment	 on	 May	 17,	 2016.	 	 The	

court	concluded	that	the	father’s	February	3,	2014,	email	did	not	comply	with	

the	 notice	 requirements	 of	 the	 Maine	 Tort	 Claims	 Act;	 Diviney	 was	

unequivocally	 notified	 that	 her	 claim	 was	 denied	 with	 over	 sixty	 days	

remaining	 before	 the	 180-day	 notice	 deadline;	 Diviney	 did	 not	 file	 notice	

satisfying	 the	 statutory	 requirements	 until	 after	 the	 180-day	 deadline	 had	

passed;	 and	 Diviney	 could	 not	 show	 “good	 cause”	 to	 excuse	 her	 failure	 to	

timely	 file	 notice.	 	 Diviney	 brought	 this	 timely	 appeal.	 	 See	 M.R.	 App.	 P.	

2(b)(3);	14	M.R.S.	§	1851	(2016).	

                                 II.		LEGAL	ANALYSIS	

       [¶13]		Diviney	argues	that	the	trial	court’s	grant	of	summary	judgment	

was	 in	 error	 because	 the	 question	 of	 “good	 cause”	 justifying	 her	 filing	 of	 the	

notice	outside	the	180-day	statutory	filing	period	presented	genuine	issues	of	

material	fact,	and	further	argues	that	the	court	erred	in	its	application	of	the	

statute,	14	M.R.S.	§	8107,	to	the	facts	in	the	record.			

	      [¶14]		We	review	the	entry	of	summary	judgment	de	novo	for	errors	of	

law.	 	 See	 Brown	 v.	 Delta	 Tau	 Delta,	 2015	 ME	 75,	 ¶¶	 8-9,	 118	 A.3d	 789. We	

review	 the	 facts	 from	 the	 summary	 judgment	 record	 in	 the	 light	 most	
                                                                                        7	

favorable	 to	 Diviney—the	 party	 against	 whom	 summary	 judgment	 was	

entered—to	 determine	 whether	 a	 genuine	 issue	 of	 material	 fact	 exists	 and	

whether	 UMS	 was	 entitled	 to	 judgment	 as	 a	 matter	 of	 law.	 	 See	 Remmes,	

2015	ME	63,	¶	18,	116	A.3d	466;	Lockridge	v.	University	of	Maine	Sys.,	597	F.3d	

464,	469	(1st	Cir.	2010).		“When	the	defendant	is	the	moving	party,	[it]	must	

establish	that	there	is	no	genuine	dispute	of	fact	and	that	the	undisputed	facts	

would	entitle	[it]	to	judgment	as	a	matter	of	law.”		Estate	of	Cabatit	v.	Canders,	

2014	ME	 133,	 ¶	 8,	 105	 A.3d	 439.	 	 “It	 then	 becomes	 the	 plaintiff’s	 burden	 to	

make	out	the	prima	facie	case	and	demonstrate	that	there	are	disputed	facts.”		

Id.	

	      [¶15]	 Tort	 actions	 against	 a	 governmental	 entity	 are	 governed	 by	 the	

Maine	 Tort	 Claims	 Act,	 14	 M.R.S.	 §§	 8101-8118	 (2016).	 	 Title	

14	M.R.S.	§	8107(1)	 sets	 forth	 the	 requirements	 for	 properly	 filing	 notice	

under	the	Act,	requiring	that	

       [w]ithin	180	days	after	any	claim	or	cause	of	action	permitted	by	
       this	chapter	accrues,	or	at	a	later	time	within	the	limits	of	section	
       8110,	 when	 a	 claimant	 shows	 good	 cause	 why	 notice	 could	 not	
       have	been	reasonably	filed	within	the	180-day	limit,	a	claimant	or	
       a	 claimant’s	 personal	 representative	 or	 attorney	 shall	 file	 a	
       written	notice	.	.	.	.	
	
The	statute	defines	“good	cause”	in	the	following	manner:		
8	

       “Good	cause”	as	used	in	subsection	1	includes	but	is	not	limited	to	
       any	cases	in	which	any	official	of	the	governmental	entity	whose	
       duties	 and	 authority	 include	 the	 settlement	 of	 tort	 claims	 or	 any	
       tort	liability	insurer	of	the	governmental	entity	makes	direct	oral	
       or	 written	 contacts	 with	 the	 claimant	 or	 the	 claimant’s	 personal	
       representative	or	attorney,	including	payments	to	or	on	behalf	of	
       the	 claimant,	 that	 contain	 or	 imply	 a	 promise	 of	 coverage	
       sufficient	 to	 cause	 a	 reasonable	 person	 to	 believe	 that	 the	 losses	
       for	which	no	timely	notice	claim	is	filed	would	be	covered	.	.	.	.	
              	
Id.	§	8107(5).				

      [¶16]		We	have	interpreted	“good	cause”	to	include	situations	where	the	

plaintiff	was	unable	to	file	a	notice	of	claim	or	was	“in	some	meaningful	way	

prevented	 from	 learning	 of	 the	 information	 forming	 the	 basis	 of	 [her]	

complaint.”		Smith	v.	Voisine,	650	A.2d	1350,	1352	(Me.	1994).		If	“good	cause”	

is	 shown	 for	 why	 notice	 reasonably	 could	 not	 have	 been	 filed	 within	 the	

180-day	 filing	 period,	 notice	 may	 be	 filed	 within	 two	 years	 from	 when	 the	

cause	of	action	accrued.		14	M.R.S.	§	8110.	

	     [¶17]	 	 “The	 good	 cause	 exception	 is	 interpreted	 narrowly	 since	 the	

Maine	 Tort	 Claims	 Act	 is	 a	 ‘limited	 relaxation’	 of	 common-law	 sovereign	

immunity.”		Peters	v.	City	of	Westbrook,	2001	ME	179,	¶	6,	787	A.2d	141.		“The	

immunity	exceptions	are	strictly	construed	so	as	to	adhere	to	immunity	as	the	

general	rule.”		Searle	v.	Town	of	Bucksport,	2010	ME	89,	¶	9,	3	A.3d	390.	
                                                                                     9	

	     [¶18]	 	 Diviney	 argues	 that	 “good	 cause”	 presents	 a	 factual	 issue	 not	

proper	 for	 resolution	 on	 summary	 judgment	 and	 cites	 two	 Superior	 Court	

cases	 in	 support	 of	 that	 contention.	 	 See	 Thuotte	 v.	 Perry,	 No.	 CV-07-422,	

2008	Me.	 Super.	 LEXIS	 138	 (June	 26,	 2008);	 Wildes	 v.	 City	 of	 Portland,	 No.	

CV-04-595,	 2005	 Me.	 Super.	 LEXIS	 30	 (Jan.	 28,	 2005).	 	 While	 the	 Superior	

Court	 in	 these	 two	 cases	 determined	 that	 “good	 cause”	 presented	 a	 factual	

issue	 that	 precluded	 summary	 judgment,	 the	 facts	 of	 this	 case	 are	 easily	

distinguished.		As	the	trial	court	observed,	unlike	in	Thuotte	and	Wildes,	where	

there	 was	 a	 dispute	 about	 whether	 “good	 cause”	 existed,	 here	 there	 is	 no	

dispute	 that	 “good	 cause”	 existed	 while	 Diviney	 and	 her	 father	 were	 in	

communication	 with	 University	 representatives,	 but	 “good	 cause”	 was	

unequivocally	removed	with	over	two	months	remaining	to	file	proper	notice.		

Accordingly,	this	case	is	not	factually	analogous	to	Thuotte	and	Wildes.	

      [¶19]	 	 It	 is	 undisputed	 that	 Diviney’s	 injury	 occurred	 on	 January	 17,	

2014,	 and	 that	 notice	 was	 filed	 on	 October	 31,	 2014,	 outside	 the	 180-day	

notice	period.		Although	UMS	recognized	that	“good	cause”	existed	during	the	

period	 that	 Diviney	 and	 her	 father	 were	 communicating	 with	 UMS	

representatives,	 that	 fact	 is	 not	 material,	 because	 “good	 cause”	 was	

indisputably	 revoked	 when	 Glover	 denied	 Diviney’s	 claim	 in	 writing.	 	 When	
10	

Diviney’s	 claim	 was	 denied,	 there	 were	 sixty-three	 days	 remaining	 within	

which	she	could	have	filed	proper	notice,	which	she	failed	to	do.	

       [¶20]	 	 “Rule	 56(e)	 imposes	 upon	 [the	 opponent	 of	 the	 motion]	 the	

obligation	to	come	forward	with	affidavits	or	other	materials	setting	forth	by	

competent	proof	specific	facts	that	would	be	admissible	in	evidence	to	show	

.	.	.	 that	 a	 genuine	 issue	 of	 fact	 exists.”	 Bangor	 &	 Aroostook	 R.R.	 Co.	 v.	 Daigle,	

607	A.2d	533,	535-36	(Me.	1992);	see	also	Watt	v.	UniFirst	Corp.,	2009	ME	47,	

¶	 21,	 969	 A.2d	 897.	 	 Here,	 Diviney’s	 affidavit	 and	 her	 father’s	 affidavit	

constituted	the	total	universe	of	evidence	that	she	presented	to	the	trial	court.		

Those	 affidavits	 contained	 no	 information	 about	 why	 Diviney	 could	 not	 file	

the	 necessary	 notice	 in	 a	 timely	 manner.	 	 This	 is	 demonstrated	 by	 the	 trial	

court’s	conclusion	that	it	“remains	a	mystery	to	this	day”	why	it	took	170	days	

for	Diviney	to	file	the	notice	after	her	claim	was	denied.		Her	statements	that	

she	was	a	freshman	in	college,	that	she	was	unable	to	put	weight	on	her	left	

leg	 for	 five	 weeks	 following	 surgery,5	 and	 that	 “it	 would	 take	 [her]	 170	

additional	 days	 to	 find	 a	 lawyer	 who	 would	 take	 [her]	 case	 and	 serve	 the	

necessary	notice”	are	insufficient	to	generate	a	factual	dispute	about	whether	


   5		Diviney	underwent	surgery	for	her	injuries	on	January	31,	2014.		Five	weeks	from	the	date	of	

her	surgery	was	March	7,	2014,	meaning	that	at	the	time	her	claim	was	denied	she	had	been	able	to	
bear	weight	on	both	legs	for	over	two	months.			
                                                                                                                   11	

there	was	“good	cause”	for	“why	notice	could	not	have	been	reasonably	filed	

within	the	180-day	limit.”			

		       [¶21]	 	 The	 record	 includes	 no	 explanation	 of	 the	 efforts	 Diviney,	 her	

father,	or	anyone	else	made	to	find	a	lawyer	after	her	claim	was	denied.		Nor	

was	 there	 any	 evidence	 offered	 that	 lawyers	 willing	 to	 take	 the	 case	 were	

unavailable,	despite	efforts	to	locate	them.		Even	if	Diviney	had	been	unable	to	

find	 a	 lawyer	 to	 take	 her	 case,	 there	 is	 nothing	 in	 the	 record	 to	 explain	 why	

she	 could	 not	 have	 hired	 a	 lawyer	 to	 prepare	 the	 proper	 notice	 before	 the	

expiration	 of	 the	 180-day	 filing	 period,	 or	 could	 not	 have	 prepared	 and	 filed	

the	 notice	 herself.6	 	 Some	 explanation	 or	 evidentiary	 support	 for	 why	 she	

reasonably	could	not	file	the	notice	of	claim	within	the	180-day	time	limit	was	

required.	


     6		The	requirements	for	filing	proper	notice	are	explicitly	stated	in	section	8107.		Proper	notice	

requires:		

              A.	 	 The	 name	 and	 address	 of	 the	 claimant,	 and	 the	 name	 and	 address	 of	 the	
              claimant’s	attorney	or	other	representative,	if	any;	

              B.	 	 A	 concise	 statement	 of	 the	 basis	 of	 the	 claim,	 including	 the	 date,	 time,	 place	
              and	circumstances	of	the	act,	omission	or	occurrence	complained	of;	

              C.		The	name	and	address	of	any	governmental	employee	involved,	if	known;	

              D.	 	 A	 concise	 statement	 of	 the	 nature	 and	 extent	 of	 the	 injury	 claimed	 to	 have	
              been	suffered;	and	

              E.			A	statement	of	the	amount	of	monetary	damages	claimed.		

     14	M.R.S.	§	8107(1)(A)-(E).		
12	

         [¶22]		At	the	time	“good	cause”	no	longer	existed,	there	were	sixty-three	

days	 remaining	 to	 file	 proper	 notice.	 	 Diviney	 failed	 to	 submit	 sufficient	

evidentiary	 support	 as	 to	 “why	 notice	 could	 not	 have	 been	 reasonably	 filed”	

within	the	180-day	filing	period,	or	more	specifically,	during	those	remaining	

sixty-three	 days.	 	 Because	 the	 record	 contained	 no	 disputed	 material	 factual	

issues,	and	the	court	properly	applied	the	language	of	section	8107	to	the	facts	

available	 in	 the	 record,	 the	 trial	 court	 did	 not	 err	 in	 granting	 summary	

judgment	for	UMS.	

         The	entry	is:	

                            Judgment	affirmed.	
	
	     	       	    	      	       	
	
William	 C.	 Herbert,	 Esq.	 (orally),	 Hardy,	 Wolf	 &	 Downing,	 P.A.,	 Lewiston,	 for	
appellant	Aleshia	D.	Diviney	
	
Christopher	 C.	 Dinan,	 Esq.	 (orally),	 Monaghan	 Leahy,	 LLP,	 Portland,	 for	
appellee	University	of	Maine	System	
	
	
Kennebec	County	Superior	Court	docket	number	CV-2015-161	
FOR	CLERK	REFERENCE	ONLY	
