MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	35	
Docket:	   BCD-15-623	
Argued:	   September	14,	2016	
Decided:	  March	2,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                             CLAIRE	DEAN	PERRY	et	al.	
                                         	
                                        v.	
                                         	
                             WILLIAM	T.	DEAN	JR.	et	al.	
	
	
HUMPHREY,	J.	

      [¶1]	 	 The	 Department	 of	 Health	 and	 Human	 Services	 appeals	 from	 an	

order	 entered	 in	 the	 Business	 and	 Consumer	 Docket	 (Horton,	 J.)	 denying	 its	

motions	for	summary	judgment.		The	Department	argues	that	the	court	erred	

in	 holding	 that	 the	 Maine	 Probate	 Code	 contains	 an	 express	 waiver	 of	

sovereign	immunity	from	tort	claims	and	thus	the	Department	may	be	liable	

for	 a	 breach	 of	 fiduciary	 duty	 when	 acting	 as	 a	 public	 conservator.	 	 Because	

the	 Probate	 Code	 does	 not	 expressly	 waive	 sovereign	 immunity	 and	 the	

record	 reflects	 that	 the	 Department	 did	 not	 waive	 immunity	 by	 obtaining	

liability	 insurance,	 we	 conclude	 that	 the	 Department	 is	 immune	 from	 the	

breach	of	fiduciary	duty	claims	and	accordingly	vacate	the	order	and	remand	

for	the	entry	of	a	judgment	in	the	Department’s	favor.	
2	

                                           I.		BACKGROUND	

         [¶2]	 	 The	 following	 facts	 are	 undisputed	 unless	 otherwise	 noted.		

See	Deschenes	v.	City	of	Sanford,	2016	ME	56,	¶	3,	137	A.3d	198.			

         [¶3]	 	 In	 May	 2012,	 William	 T.	 Dean	 Jr.	 was	 involuntarily	 hospitalized	

and	 later	 transferred	 to	 a	 psychiatric	 facility	 where	 he	 remained	 until	

June	2013.	 	 After	 a	 Department	 investigation	 discovered	 that	 Dean	 owned	

properties	 in	 Owls	 Head	 and	 Rockland	 that	 were	 facing	 tax	 foreclosure,	 the	

Department	 filed	 a	 petition	 for	 a	 temporary	 public	 conservatorship	 in	 the	

Probate	 Court	 (Penobscot	 County)	 on	 September	 5,	 2012.	 	 See	 18-A	 M.R.S.	

§	5-408-A	 (2016).	 	 The	 court	 (Woodcock,	 J.)	 granted	 the	 petition	 on	

September	6,	2012,	 appointing	 the	 Department	 as	 Dean’s	 temporary	 public	

conservator	with	the	power	to	manage	and	control	his	assets	for	six	months.		

         [¶4]	 	 On	 May	 10,	 2013,	 after	 the	 Department	 sold	 the	 Owls	 Head	

property	purportedly	to	pay	the	outstanding	taxes,	Dean’s	sister,	Claire	Dean	

Perry,	filed	a	complaint	in	the	Superior	Court	(Knox	County)	against	Dean,	the	

trustee	of	a	family	trust,1	the	Department,	and	individuals	who	acted	on	behalf	



     1		Dean	and	Perry	are	beneficiaries	of	a	trust	established	by	their	late	mother,	Alice	H.	Dean,	of	

which	 Key	 Trust	 Company	 of	 Maine	 is	 trustee.	 	 In	 Perry’s	 complaint,	 she	 alleged	 that	 the	 trustee	
allowed	 Dean	 to	 wrongfully	 withdraw	 funds	 from	 the	 trust	 and	 that	 Dean	 “confessed”	 to	 the	
withdrawals,	promised	to	repay	Perry	$120,000	in	full	when	he	sold	his	Owls	Head	property,	and	
agreed	that	Perry	could	reside	at	the	property	until	he	repaid	that	sum.	
    	
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of	 the	 Department.2	 	 Perry	 alleged	 that	 she	 was	 residing	 at	 the	 Owls	 Head	

property	 pursuant	 to	 an	 agreement	 with	 Dean	 and	 asserted	 several	 claims	

arising	 out	 of	 the	 Department’s	 management	 of	 Dean’s	 property	 during	 the	

public	 conservatorship.	 	 The	 case	 was	 thereafter	 transferred	 to	 the	 Business	

and	Consumer	Docket.			

        [¶5]	 	 Pamela	 Vose,	 who	 is	 Dean’s	 cousin,	 was	 appointed	 as	 his	

conservator	 on	 August	 1,	 2013,	 after	 the	 Department’s	 temporary	 public	

conservatorship	 had	 expired.	 	 Vose,	 on	 behalf	 of	 Dean,	 answered	 Perry’s	

complaint	and	asserted	various	cross-claims	against	the	Department	and	the	

individual	 state	 defendants,	 including	 a	 claim	 against	 the	 Department	 for	

breach	 of	 fiduciary	 duty.	 	 Vose	 alleged	 that	 the	 Department	 sold	 the	 Owls	

Head	 property	 for	 forty	 percent	 of	 the	 tax-assessed	 value,	 damaged	 Dean’s	

real	 and	 personal	 property	 by	 allowing	 the	 Rockland	 property’s	 water	 pipes	

to	 burst,	 euthanized	 Dean’s	 cat,	 sold	 Dean’s	 Cadillac	 for	 less	 than	 market	

value,	and	generally	mismanaged	Dean’s	property.			

        [¶6]		Vose	then	filed	a	separate	action	against	the	purchaser	of	the	Owls	

Head	property	and	other	parties,	and	later	amended	her	complaint	to	join	the	




   2		These	individuals	included	David	A.	Vaughan,	Janice	Archer,	and	Barbara	A.	Cardone.		We	refer	

to	them	collectively	as	“the	individual	state	defendants.”			
4	

Department	 as	 a	 defendant.	 	 She	 alleged	 that	 the	 Department	 abused	 its	

authority	by	selling	the	cottage	for	less	than	fair	market	value.		

          [¶7]		The	Department	answered	and	asserted	the	affirmative	defense	of	

sovereign	 immunity	 in	 both	 the	 action	 initiated	 by	 Perry	 and	 the	 separate	

action	initiated	by	Vose.		The	court	(Horton,	J.)	appropriately	consolidated	the	

two	cases	for	the	purposes	of	discovery.			

	         [¶8]	 	 On	 May	 15,	 2015,	 the	 Department	 and	 the	 individual	 state	

defendants	moved	for	summary	judgment	on	all	claims	asserted	against	them	

in	 the	 two	 cases.	 	 On	 December	 3,	 2015,	 the	 court	 entered	 a	 summary	

judgment	 in	 favor	 of	 the	 Department	 and	 the	 individual	 state	 defendants	 on	

all	 of	 Perry’s	 claims	 against	 them	 and	 most	 of	 Vose’s	 claims,	 but	 denied	 the	

Department’s	 motions	 for	 summary	 judgment	 on	Vose’s	 claims	 for	 breach	 of	

fiduciary	 in	 both	 cases.3	 	 The	 court	 concluded	 that	 provisions	 in	 Article	 V	 of	

the	Maine	Probate	Code,	see,	e.g.,	18-A	M.R.S.	§§	5-417,	5-429(b),	5-601,	5-607,	

5-611	(2016),	expressly	waived	sovereign	immunity	and	that	the	Department	

was	therefore	subject	to	suit	in	tort	when	acting	as	a	public	conservator.		The	

court	reasoned	that	by	imposing	certain	duties	and	liabilities	on	conservators	



     3	
     	 In	 the	 action	 initiated	 by	 Vose,	 the	 court	 denied	 the	 Department’s	 motion	 for	 summary	
judgment	on	her	“abuse	of	authority”	claim	“to	the	extent”	that	she	asserted	a	claim	for	breach	of	
fiduciary	duty.			
                                                                                                                5	

and	 requiring	 the	 Department	 to	 post	 a	 surety	 bond,	 the	 Legislature	 must	

have	intended	to	waive	immunity	if	the	Department	breached	those	duties.		

        [¶9]		The	Department	appealed	and	Perry	and	Vose	cross-appealed.		We	

consolidated	 the	 appeals	 and	 dismissed	 the	 cross-appeals	 filed	 by	 Perry	 and	

Vose	as	interlocutory,4	leaving	for	decision	only	the	Department’s	appeal	from	

the	 court’s	 denial	 of	 its	 summary	 judgment	 motions	 asserting	 sovereign	

immunity	in	both	cases.		

                                             II.		DISCUSSION	

        [¶10]	 	 Although	 an	 appeal	 from	 the	 denial	 of	 a	 defendant’s	 motion	 for	

summary	 judgment	 is	 generally	 interlocutory,	 the	 Department’s	 assertion	 of	

sovereign	immunity	is	reviewable	pursuant	to	the	death	knell	exception	to	the	

final	judgment	rule.		See	Morgan	v.	Kooistra,	2008	ME	26,	¶	18,	941	A.2d	447.	

        [¶11]		The	discrete	issue	presented	here	is	whether	the	Department	is	

immune	from	tort	claims	when	acting	as	a	public	conservator,	or,	as	the	court	

held,	the	Maine	Probate	Code	waives	immunity.		We	review	de	novo	the	denial	

of	 a	 summary	 judgment	 motion	 asserting	 immunity.	 	 See	Estate	 of	 Fortier	 v.	

City	of	Lewiston,	2010	ME	50,	¶	9,	997	A.2d	84.	


   4		The	court’s	order	and	entry	of	a	summary	judgment	disposed	of	only	those	claims	against	the	

Department	 and	 the	 individual	 state	 defendants.	 	 A	 number	 of	 claims	 remain	 pending	 before	 the	
court	 in	 the	 two	 cases,	 including	 but	 not	 limited	 to	 Perry’s	 claims	 against	 Dean	 and	 Vose’s	 claims	
against	the	purchaser	of	the	Owls	Head	property.	
6	

A.	   Maine	Tort	Claims	Act	Immunity	

      [¶12]	 	 The	 Maine	 Tort	 Claims	 Act	 (MTCA)	 provides,	 “[e]xcept	 as	

otherwise	 expressly	 provided	 by	 statute,	 all	 governmental	 entities	 shall	 be	

immune	 from	 suit	 on	 any	 and	 all	 tort	 claims	 seeking	 recovery	 of	 damages.”		

14	M.R.S.	 §	 8103	 (2016).	 	 In	 enacting	 Section	 8103,	 the	 Legislature	

unambiguously	 granted	 the	 State	 immunity	 from	 tort	 suits,	 unless	 expressly	

waived	by	statute.		See	New	Orleans	Tanker	Corp.	v.	Dep’t	of	Transp.,	1999	ME	

67,	¶	5,	728	A.2d	673	(“[I]mmunity	is	the	rule	and	exceptions	to	immunity	are	

to	be	strictly	construed.”);	Drake	v.	Smith,	390	A.2d	541,	543	(Me.	1978)	(“In	

the	absence	of	specific	authority	conferred	by	an	enactment	of	the	Legislature,	

therefore,	the	sovereign’s	immunity	from	suit	cannot	be	waived	.	.	.	.”).			

      [¶13]		The	MTCA	expressly	waives	immunity	for	particular	tort	actions,	

including	 negligent	 operation	 of	 vehicles,	 negligent	 building	 and	 road	

construction	 and	 maintenance,	 and	 negligent	 discharge	 of	 pollutants.		

See	14	M.R.S.	§	8104-A	(2016).		The	Act	also	waives	immunity	“to	the	limits	of	

the	 insurance	 coverage”	 when	 the	 State	 purchases	 liability	 insurance.		

14	M.R.S.	§	8116	(2016).	

      [¶14]		We	have	declared	that	“a	waiver	of	governmental	immunity	is	not	

to	 be	 implied.”	 	 Young	 v.	 Greater	 Portland	 Transit	 Dist.,	 535	 A.2d	 417,	 419	
                                                                                                                7	

(Me.	1987);	see	also	Knowlton	v.	Attorney	Gen.,	2009	ME	79,	¶	12,	976	A.2d	973	

(“Waivers	are	not	generally	implied,	and	even	explicit	waivers	are	construed	

narrowly.”).5	 	 Where	 a	 statute	 generally	 authorizes	 suits	 against	 parties	 that	

could	 include	 government	 entities,	 this	 authorization,	 without	 more,	 is	

insufficient	 to	 constitute	 a	 waiver	 of	 sovereign	 immunity;	 the	 statute	 must	

further	 expressly	 waive	 immunity.	 	 See	 Hinkley	 v.	 Penobscot	 Valley	 Hosp.,	

2002	ME	 70,	 ¶¶	 6,	 9-10,	 15,	 794	 A.2d	 643;	 Young,	 535	 A.2d	 at	 418	 (holding	

that	 a	 statute	 providing	 that	 a	 government	 entity	 may	 “sue	 or	 be	 sued”	 was	

insufficient	to	constitute	an	express	waiver);	see	also	Nelson	v.	Me.	Tpk.	Auth.,	

157	Me.	174,	179,	170	A.2d	687,	690	(1961).			

B.	     The	Maine	Probate	Code	and	Conservatorships	

        [¶15]	 	 The	 issue	 here	 is	 whether	 the	 Maine	 Probate	 Code	 waives	

sovereign	 immunity	 when	 the	 Department	 acts	 as	 a	 public	 conservator.	 	 We	

begin	with	a	summary	of	the	relevant	Code	provisions.	

        [¶16]		The	Department	“shall	act	as	the	public	guardian	or	conservator	

for	 incapacitated	 persons	 in	 need	 of	 protective	 services.”	 	 18-A	 M.R.S.	


   5	   	 Whether	 “a	 general	 statute	 allowing	 the	 State	 to	 enter	 into	 contracts	 implies	 a	 waiver	 of	
sovereign	immunity	by	the	Legislature	when	the	State	is	sued	for	breach	of	that	contract,”	Knowlton	
v.	 Attorney	 Gen.,	 2009	 ME	 79,	 ¶	 13,	 976	 A.2d	 973	 (quotation	 marks	 omitted),	 is	 not	 an	 issue	 here	
because	there	is	no	contract	between	the	parties	and	a	claim	for	breach	of	fiduciary	duty	is	a	tort	
claim.		See	Estate	of	Hiller,	2014	ME	2,	¶	18,	86	A.3d	9;	Picher	v.	Roman	Catholic	Bishop	of	Portland,	
2009	ME	67,	¶	8,	974	A.2d	286.	
     		
8	

§	5-601(b)	 (2016).	 	 The	 same	 standards	 and	 obligations	 apply	 to	 public	

conservators	as	to	conservators.6		See	18-A	M.R.S.	§	5-601(c)	(2016)	(“Except	

as	 otherwise	 provided	 in	 this	 Part,	 the	 appointment,	 termination,	 rights	 and	

duties,	 and	 other	 provisions	 for	 guardians	 and	 conservators	 in	 this	 Article	

shall	 apply	 to	 public	 guardians	 and	 conservators.”);	 18-A	 M.R.S.	 §	 5-607	

(“A	public	 guardian	 or	 conservator	 has	 the	 same	 powers,	 rights	 and	 duties	

respecting	 his	 ward	 or	 the	 protected	 person	 as	 provided	 for	 guardians	 and	

conservators	by	the	other	parts	of	this	Article	.	.	.	.”).			

         [¶17]		One	such	duty	requires	that	each	conservator	“act	as	a	fiduciary”	

and	“observe	the	standards	of	care	applicable	to	trustees	as	described	by	Title	

18-B,	sections	802	to	807	and	chapter	9.”		18-A	M.R.S.	§	5-417.		Conservators	

may,	 in	 certain	 circumstances,	 be	 held	 “individually	 liable	 for	 obligations”	 in	

managing	 the	 protected	 person’s	 property	 and	 for	 torts	 committed	 in	

administering	the	estate.		See	18-A	M.R.S.	§	5-429(b).		The	public	conservator	

is	 required	 to	 “give	 a	 surety	 bond	 for	 the	 joint	 benefit	 of	 the	 wards	 or	

protected	 persons	 placed	 under	 the	 responsibility	 of	 the	 .	 .	 .	 [State],	 with	 a	

surety	 company	 or	 companies	 authorized	 to	 do	 business	 within	 the	 State,	 in	



     6		The	fact	that	the	conservatorship	was	temporary	is	not	material	to	the	issue	presented	in	this	

appeal.	 	 See	 18-A	 M.R.S.	 §	 5-408(f)	 (2016)	 (“A	 temporary	 conservator	 has	 all	 the	 powers	 of	 a	
permanent	conservator	provided	in	this	code	.	.	.	.”).			
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an	 amount	 not	 less	 than	 the	 total	 value	 of	 all	 assets	 held	 by	 the	 public	

guardian	or	conservator.”		18-A	M.R.S.	§	5-611.	

C.	   Whether	the	Probate	Code	Expressly	Waives	Immunity	

      [¶18]	 	 The	 trial	 court	 held	 that,	 read	 together,	 the	 above	 provisions	 of	

the	 Probate	 Code	 constitute	 an	 express	 waiver	 of	 immunity.	 	 The	 court	

reasoned	 that	 because	 public	 conservators	 had	 the	 same	 duties	 and	

obligations	 as	 conservators,	 18-A	 M.R.S.	 §§	 5-601(c),	 5-607,	 conservators	

could	 be	 held	 liable	 for	 their	 conduct	 in	 managing	 property,	 18-A	 M.R.S.	

§	5-429(b),	 and,	 because	 the	 State	 was	 required	 to	 provide	 a	 surety	 bond	 in	

the	 amount	 of	 assets	 held,	 18-A	 M.R.S.	 §	 5-611,	 the	 Legislature	 must	 have	

intended	that	the	Department	be	held	liable	for	a	breach	of	those	duties.		The	

court	 acknowledged	 that	 the	 Probate	 Code	 contains	 no	 “explicit	 statement	

that	sovereign	immunity	is	waived”	but	concluded	that	the	bond	requirement	

in	18-A	M.R.S.	§	5-611	“would	be	utterly	meaningless”	if	the	protected	person	

had	 “no	 recourse	 against	 the	 bond”	 when	 the	 Department	 breached	 duties	

imposed	by	18-A	M.R.S.	§	5-417.			

      [¶19]	 	 In	 Hinkley	 v.	 Penobscot	 Valley	 Hospital,	 we	 considered	 whether	

language	in	the	Maine	Health	Security	Act	(MHSA)	permitting	“any	action	for	

damages	for	injury	or	death	against	any	health	care	provider”	constituted	an	
10	

express	 waiver	 of	 sovereign	 immunity.7	 	 2002	 ME	 70,	 ¶	 9,	 794	 A.2d	 643.		

Because	 the	 MHSA	 did	 not	 explicitly	 reference	 the	 MTCA	 and	 did	 not	

specifically	 waive	 immunity	 as	 to	 medical	 malpractice	 claims,	 we	 concluded	

that	there	was	no	express	waiver.		Id.	¶¶	9-10.		We	reiterated	that	“a	waiver	of	

governmental	immunity	is	not	to	be	implied”	and	an	express	waiver	must	be	

explicitly	stated	in	the	statute.		Id.	¶	10	(quotation	marks	omitted).		

        [¶20]	 	 Even	 if	 the	 express	 language	 of	 the	 Probate	 Code	 provisions,	

when	 read	 together,	 supports	 an	 inference	 that	 immunity	 is	 waived,	 this	

would	amount	to	an	implied—not	express—waiver.		Compare	Implied	Waiver,	

Black’s	Law	Dictionary	(10th	ed.	2014)	(defining	“implied	waiver”	as	conduct	

“reasonably	 inferring	 the	 intent	 to	 waive”	 (emphasis	 added)),	 with	 Express,	

Black’s	 Law	 Dictionary	 (defining	 “express”	 as	 “[c]learly	 and	 unmistakably	

communicated”	as	opposed	to	“implied”);	see	also	Conn	v.	Bd.	of	Comm’rs,	51	

N.E.	1062,	1064	(Ind.	1898)	(“The	implication	or	inference	which	may	arise	in	

the	construction	of	statutes	is	of	something	not	expressly	declared,	but	arises	

out	of	that	which	is	directly	or	expressly	declared	in	the	statute.”).			

        [¶21]	 	 Combining	 various	 provisions	 of	 the	 Probate	 Code	 to	 reach	 the	

inference	 that	 the	 Legislature	 waived	 immunity,	 as	 the	 trial	 court	 did,	

   7		 There	 was	 no	 dispute	 in	 that	 case	 that	 the	 defendant,	 Penobscot	 Valley	 Hospital,	 was	 a	
governmental	entity.		See	Hinkley	v.	Penobscot	Valley	Hosp.,	2002	ME	70,	¶	2,	794	A.2d	643.	
   	
                                                                                     11	

contravenes	 the	 clear	 statutory	 language	 granting	 the	 State	 immunity	

“[e]xcept	 as	 otherwise	 expressly	 provided	 by	 statute,”	 14	M.R.S.	 §	 8103(1)	

(emphasis	 added),	 and	 our	 precedents	 rejecting	 implied	 statutory	 waivers.		

See	Hinkley,	2002	ME	70,	¶	10,	794	A.2d	643;	Young,	535	A.2d	at	419.		Thus,	

although	 the	 Probate	 Code	 imposes	 a	 fiduciary	 duty	 on	 conservators	 and	

provides	 that	 they	 may	 be	 held	 liable	 for	 a	 breach,	 18-A	 M.R.S.	 §	 5-429(b),	

without	a	separate,	express	provision	waiving	immunity	to	bring	those	claims	

against	 the	 State,	 immunity	 endures.	 	 See	 Hinkley,	 2002	 ME	 70,	 ¶¶	 10,	 12,	

794	A.2d	 643	 (“[W]e	 have	 never	 held	 that	 an	 individual	 could	 bring	 suit	

against	a	government	entity	under	a	statute	that	provides	for	a	specific	cause	

of	 action	 without	 first	 determining	 that	 the	 statute	 expressly	 waived	

governmental	immunity.”).		

      [¶22]	 	 Because	 there	 is	 no	 express	 waiver	 in	 the	 Probate	 Code,	 the	

Department	is	immune.	

D.	   Waiver	Pursuant	to	14	M.R.S.	§	8116	

      [¶23]	 	 We	 next	 consider	 whether	 the	 Department	 waived	 sovereign	

immunity	 by	 obtaining	 liability	 insurance.	 	 See	 14	M.R.S.	 §	 8116	 (providing	

that	immunity	is	waived	where	the	State	obtains	liability	insurance,	“but	only	

to	the	limits	of	the	insurance	coverage”).			
12	

          [¶24]	 	 The	 Department	 asserted	 the	 affirmative	 defense	 of	 sovereign	

immunity	and	thus	had	the	burden	of	proof	on	this	issue,	including	the	burden	

to	 establish	 that	 there	 is	 no	 insurance	 coverage.	 	 See	 King	 v.	 Town	 of	

Monmouth,	 1997	 ME	 151,	 ¶	 7,	 697	 A.2d	 837.	 	 The	 Department	 met	 this	

burden.	 	 The	 Department	 asserted,	 in	 a	 properly	 supported	 statement	 of	

material	 fact,	 that	 the	 State	 did	 not	 purchase	 liability	 insurance	 that	 would	

cover	 the	 claims	 against	 the	 Department	 and	 that	 the	 State’s	 self-insurance	

excludes	 coverage	 for	 claims	 for	 which	 the	 State	 is	 immune.	 	 Although	 Vose	

denied	 this	 statement,	 she	 failed	 to	 properly	 controvert	 the	 State’s	 assertion	

because	 her	 denial	 was	 unsupported	 by	 a	 citation	 to	 competent	 contrary	

evidence	in	the	record.		See	M.R.	Civ.	P.	56(h)(4).8	

E.	       The	Surety	Bond	

          [¶25]	 	 Lastly,	 we	 decline	 to	 reach	 whether	 sovereign	 immunity	 bars	

recovery	 against	 the	 surety	 bond	 filed	 with	 the	 Probate	 Court	 pursuant	 to	

18-A	M.R.S.	 §	 5-611.9	 	 To	 reach	 a	 bond,	 the	 Probate	 Code	 contemplates	 a	


      8		The	court	relied	in	part	on	14	M.R.S.	§	8116	to	conclude	that	immunity	was	waived	“at	least	to	

the	extent	of	the	[Department]	surety	bond,”	which	was	not	part	of	the	summary	judgment	record,	
and	declined	to	decide	whether	the	bond	was	insurance	until	it	was	made	part	of	the	record.		Vose,	
however,	does	not	urge	this	reasoning	on	appeal,	arguing	that	“the	bonds	of	the	public	and	private	
conservators	 serve	 the	 same	 purpose:	 surety.	 	 Neither	 is	 liability	 insurance.”	 	 Vose	 instead	 relies	
entirely	on	the	argument	that	the	Probate	Code	expressly	waived	sovereign	immunity.	
   	
   9		As	noted,	the	bond	the	Department	obtained	pursuant	to	18-A	M.R.S.	§	5-611	(2016)	was	not	

part	 of	 the	 summary	 judgment	 record	 and	 has	 not	 been	 included	 in	 the	 record	 on	 appeal.	 	 By	
                                                                                                            13	

separate	action,	filed	in	either	the	Probate	Court	or	the	Superior	Court,	on	the	

bond	 against	 the	 surety.	 	 See	 18-A	 M.R.S.	 §	 8-309	 (2016).	 	 An	 action	 on	 the	

bond	 would	 thus	 proceed	 against	 the	 surety	 company	 providing	 the	 bond	

pursuant	 to	 18-A	 M.R.S.	 §	 5-611,	 rather	 than	 against	 the	 principal,	 the	

Department.		See	18-A	M.R.S.	§§	5-611,	8-309;	Mitchell	&	Hunt,	Maine	Probate	

Procedure:	 Guide	 to	 Official	 and	 Recommended	 Forms	 §	 13.14.2	 at	 13-64	

(2012)	 (describing	 the	 procedure	 by	 which	 an	 interested	 party	 may	 bring	 a	

suit	 against	 the	 bond,	 naming	 the	 surety	 when	 the	 bonded	 fiduciary	 has	

misbehaved);	Estate	of	Jennings	v.	Cumming,	2013	ME	103,	¶¶	13-14,	82	A.3d	

132	 (discussing	 the	 Superior	 Court’s	 concurrent	 jurisdiction	 to	 adjudicate	

claims	of	conservator	misconduct	and	against	the	sureties	of	probate	bonds);	

see	 also	 Restatement	 (Third)	 of	 Suretyship	 &	 Guaranty	 §	1	cmt.	 d	 (Am.	 Law.	

Inst.	1996).	

        [¶26]	 	 Because	 the	 claims	 for	 breach	 of	 fiduciary	 duty	 were	 brought	

directly	 against	 the	 Department	 rather	 than	 against	 the	 bond,	 this	 appeal	


statute,	 the	 Department	 is	 not	 required	 to	 file	 bonds	 in	 individual	 guardianships	 or	
conservatorships,	 but	 must	 give	 a	 surety	 bond	 “for	 the	 joint	 benefit	 of	 the	 wards	 or	 protected	
persons	placed”	in	public	guardianships	or	conservatorships	in	the	amount	of	the	total	value	of	all	
assets	held	by	the	public	guardian	or	conservator.		18-A	M.R.S.	§	5-611.		The	total	value	is	calculated	
at	the	end	of	the	State’s	fiscal	year.		Id.		According	to	the	Department,	the	value	of	Dean’s	assets	was	
not	included	in	any	bond	because	the	temporary	public	conservatorship	expired	before	the	end	of	
the	 fiscal	 year.	 	 The	 Department	 represented	 at	 oral	 argument	 that	 notwithstanding	 this	 fact,	 the	
bond	for	the	benefit	of	all	wards	and	protected	persons	in	public	conservatorship	would	still	cover	
Dean’s	property.		
14	

presents	 no	 occasion	 to	 reach	 the	 issue;	 we	 therefore	 express	 no	 opinion	

regarding	sovereign	immunity	in	an	action	brought	against	the	bond	pursuant	

to	 18-A	 M.R.S.	 §	 8-309.	 	 Further	 discussion	 would	 be	 purely	 advisory.		

See	Wilcox	 v.	 City	 of	 Portland,	 2009	 ME	 53,	 ¶	 12,	 970	 A.2d	 295	 (“We	 do	 not	

issue	.	.	.	advisory	opinions.”).			

                                   III.		CONCLUSION	

       [¶27]	 	 We	 conclude	 that	 because	 the	 Probate	 Code	 does	 not	 expressly	

refer	 to	 the	 MTCA	 or	 expressly	 provide	 that	 the	 State	 may	 be	 sued	 and	 held	

liable	 for	 a	 breach	 of	 fiduciary	 duty	 when	 acting	 as	 public	 conservator,	

see	Hinkley,	2002	ME	70,	¶¶	9-10,	794	A.2d	643,	and	because,	on	this	record,	

there	is	no	evidence	that	the	Department	obtained	liability	insurance	coverage	

that	 waived	 immunity	 pursuant	 to	 14	 M.R.S.	 §	 8116,	 the	 Department	 is	

immune	from	the	breach	of	fiduciary	duty	claims	asserted	in	these	cases.		We	

therefore	 vacate	 the	 order	 denying	 the	 Department’s	 motions	 for	 summary	

judgment	and	remand	with	instructions	to	grant	the	motions.	

       The	entry	is:	

                     Order	 denying	 the	 Department’s	 motions	 for	
                     summary	judgment	vacated.		Remanded	for	the	
                     entry	 of	 a	 summary	 judgment	 in	 favor	 of	 the	
                     Department	 in	 both	 cases	 on	 the	 basis	 of	
                     sovereign	immunity.		
                                                                                   15	

	
	      	      	      	      	      	
	
Janet	 T.	 Mills,	 Attorney	 General,	 and	 Christopher	 C.	 Taub,	 Asst.	 Atty.	 Gen.	
(orally),	Office	of	the	Attorney	General,	Augusta,	for	appellant	Department	of	
Health	and	Human	Services	
	
David	F.	Jenny,	Esq.	(orally),	Owls	Head,	for	cross-appellant	Pamela	W.	Vose	
	
Cynthia	 A.	 Dill,	 Esq.	 (orally),	 Troubh	 Heisler,	 Portland,	 for	 cross-appellant	
Claire	Dean	Perry	
	
	
Business	and	Consumer	Docket	docket	numbers	CV-2013-48	and	CV-2014-14	
FOR	CLERK	REFERENCE	ONLY	
