MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2013 ME 14
Docket:   Fed-12-60
Argued:   September 13, 2012
Decided:  January 29, 2013

Panel:      SAUFLEY, C.J., and LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
Majority:   SAUFLEY, C.J., and LEVY, SILVER, MEAD, and GORMAN, JJ.
Dissent:    JABAR, J.


                                MICHAEL FORTIN

                                         v.

                                JACOB TITCOMB

GORMAN, J.

       [¶1] Pursuant to 4 M.R.S. § 57 (2012) and M.R. App. P. 25, the United

States Court of Appeals for the First Circuit (Lipez, J.) has certified two questions

of state law for our review: (1) “Where an insurance policy is available to cover a

judgment against a government employee sued in his personal capacity, is the

applicable limit on the award of damages set by [14 M.R.S.] § 8104-D ($10,000)

or by the combination of [14 M.R.S.] §§ 8105(1) and 8116 ($400,000 or the policy

limit)?” and (2) “In light of the competing state interests described, which

interpretive principles should be applied to construe an insurance policy, procured

by a governmental body to cover itself or its employees for MTCA damages

liability, that contains an ambiguity affecting the scope of coverage?” We answer

the first certified question as follows: “Whether or not an insurance policy is
2

available to cover a judgment against a government employee sued in his personal

capacity, the applicable limit on the award of damages is $10,000 pursuant to

14 M.R.S. § 8104-D.” We decline to answer the second certified question.

                               I. BACKGROUND

      [¶2] In 2009, Michael Fortin filed an action in the United States District

Court for the District of Maine against Jacob Titcomb, a Wells police officer,

asserting federal and state claims stemming from Titcomb’s alleged use of force in

arresting Fortin in 2007.   A jury found Titcomb liable on Fortin’s state law

negligence claim and awarded Fortin $125,000 in damages. On Titcomb’s motion,

the District Court amended the judgment to reduce the damages award to $10,000

pursuant to 14 M.R.S. § 8104-D (2012). Fortin appealed to the United States

Court of Appeals for the First Circuit. The Court of Appeals then certified these

two questions for our review. 4 M.R.S. § 57; M.R. App. P. 25.

                                II. DISCUSSION

      [¶3] Title 4 M.R.S. § 57 authorizes, but does not require, us to consider a

certified question of state law posed by a federal court in certain circumstances.

See M.R. App. P. 25(a); Darney v. Dragon Prods. Co., LLC, 2010 ME 39, ¶ 9,

994 A.2d 804. “We may, in our discretion, answer a certified question if (1) there

is no dispute as to the material facts at issue; (2) there is no clear controlling
                                                                                    3

precedent; and (3) our answer, in at least one alternative, would be determinative

of the case.” Id. ¶ 10 (quotation marks omitted).

      [¶4] In the instant matter, there are no material facts in dispute given that a

jury has already rendered its verdict. See id. We also agree that there is no clear

controlling precedent on point because we have never been called upon to

reconcile the statutory provisions that the Court of Appeals now asks us to

consider. Finally, our answer to the first certified question will be determinative of

the case because it will ultimately decide the maximum damages to which Fortin is

entitled. We therefore agree to consider the first certified question.

      [¶5]   Among the provisions of the Maine Tort Claims Act, 14 M.R.S.

§§ 8101-8118 (2012), are three sections that concern the limits of liability and

damages that may be obtained against governmental actors or entities. Title 14

M.R.S. § 8104-D, entitled “Personal liability of employees of a governmental

entity,” provides:

              Except as otherwise expressly provided by section 8111 or by
      any other law, and notwithstanding the common law, the personal
      liability of an employee of a governmental entity for negligent acts or
      omissions within the course and scope of employment shall be subject
      to a limit of $10,000 for any such claims arising out of a single
      occurrence and the employee is not liable for any amount in excess of
      that limit on any such claims.

It was pursuant to this provision that the District Court reduced Fortin’s damages

to the $10,000 maximum.
4

      [¶6] Fortin contends that the allowable damages are instead determined by

the greater amount allowed by 14 M.R.S. § 8105(1) or 14 M.R.S. § 8116. Title 14

M.R.S. § 8105(1), entitled “Limitation on damages,” states:

      Limit established. In any claim or cause of action permitted by this
      chapter, the award of damages, including costs, against either a
      governmental entity or its employees, or both, may not exceed
      $400,000 for any and all claims arising out of a single occurrence.

Finally, 14 M.R.S. § 8116, entitled “Liability insurance,” allows a governmental

entity to purchase insurance for itself or its employees, and, in such circumstances,

provides for a limit of liability based on the policy limit: “If the insurance provides

protection in excess of the limit of liability imposed by section 8105, then the

limits provided in the insurance policy shall replace the limit imposed by section

8105.”

      [¶7] This matter requires us to interpret, de novo, the meaning and interplay

of the three damages caps established in these provisions of the Act—$10,000;

$400,000; and the insurance policy limit.        See Searle v. Town of Bucksport,

2010 ME 89, ¶ 8, 3 A.3d 390. We look first to the plain language of the statute;

“[a]s a general rule, words and phrases that are not expressly defined in a statute

must be given their plain and natural meaning and should be construed according

to their natural import in common and approved usage.” Id. (quotation marks

omitted). We also interpret a statute “to avoid absurd, illogical, or inconsistent
                                                                                  5

results,” id. (quotation marks omitted), and look to “the context of the whole

statutory scheme of which the section at issue forms a part” to achieve a consistent

and “harmonious result,” Friends of the Boundary Mountains v. Land Use

Regulation Comm’n, 2012 ME 53, ¶ 20, 40 A.3d 947 (quotation marks omitted).

We consider other indicia of legislative intent only if the plain language of the

operative provisions is ambiguous. Mitton v. Verizon, 2012 ME 41, ¶ 8, 38 A.3d

1285.

        [¶8] In the instant matter, we need look no further than the unambiguous

plain language of the three provisions to determine their relation to one another.

We begin with section 8104-D, which unequivocally states that the personal

liability of a government employee who is sued in that capacity is limited to

$10,000 per single occurrence. Section 8104-D speaks to the limit of damages that

may be obtained from any and all claims against one single person (“an

employee”), such as Titcomb.

        [¶9] Section 8105 has a broader application, and provides for the overall

limitation on damages per occurrence rather than per individual defendant. It

plainly states that in any action against a governmental entity or government

employees, the damages award is capped at $400,000 “for any and all claims

arising out of a single occurrence.” 14 M.R.S. § 8105(1) (emphasis added). Thus,

when the defendant in such an action is the governmental entity, more than one
6

government employee, or the government entity and one or more government

employee, the liability of all the defendants together can total no more than

$400,000.      Section 8105 works in conjunction with section 8104-D in that a

government employee is individually liable only for $10,000 according to section

8104-D, but the damages that may be collected from all defendants in a matter

involving the governmental entity and/or multiple government employees may be

as high as, but cannot exceed, $400,000. For example, if Fortin had sued Titcomb

plus seven other police officers, the eight officers’ liability would be capped at

$10,000 each, totaling $80,000. If Fortin had successfully sued eight officers and

had also sued the police department, the department’s liability as a government

entity could not exceed $320,000 for that single incident. If Fortin had sued only

the police department, those damages would be capped at $400,000 because the

$10,000 damages limit in section 8104-D does not apply to the entity, only to

individuals.

      [¶10]     Section 8116, in turn, provides an alternative to the $400,000

damages cap of section 8105 in the event that the government entity has insurance

for itself and/or its employees. It says simply that if such insurance exists, and that

insurance has a policy limit higher than the $400,000 cap imposed by section 8105,

“then the limits provided in the insurance policy shall replace the limit imposed by

section 8105.” 14 M.R.S. § 8116. Section 8116 therefore interacts with section
                                                                                                      7

8104-D in the same manner that section 8105 interacts with section 8104-D; the

governmental entity and/or the collection of employees involved in the same

occurrence have a total combined liability limit of $400,000 or the policy limit of

any applicable insurance, whichever is higher, but no individual government

employee may be held liable for more than $10,000. This is true whether any

insurance is available to cover the government employee, or whether the

government employee must pay those damages out of pocket.1

        [¶11]     In the factual record presented to us, a jury found Titcomb

individually liable for acts he committed in his capacity as government employee.

Titcomb’s individual personal liability is therefore limited to $10,000 pursuant to

section 8104-D. Neither section 8105 nor section 8116 would be implicated unless

Fortin also obtained a judgment against the governmental entity at issue and/or

other government employees personally; in that event, the combined liability of

these other defendants could not exceed $390,000, and any individual employees

could not be liable for more than $10,000 each. The answer to the first question

posed to us by the First Circuit Court of Appeals is therefore $10,000.

        [¶12] Given this conclusion, we need not determine the answer to the

second question posed by the Court because the individual personal liability of a

   1
      We note that 14 M.R.S. § 8112(8) (2012) requires each governmental entity to insure, or defend and
indemnify, its employees to the $10,000 limit of 14 M.R.S. § 8104-D (2012), so no government employee
will actually pay the judgment.
8

government employee is limited to $10,000 without regard to whether any

insurance policy exists to cover that employee’s personal liability. Our answer to

the second certified question therefore would not be determinative of the case

before the Court of Appeals, and we decline to answer it.

      The entry is:

                      We answer certified question 1: “Whether or not
                      an insurance policy is available to cover a
                      judgment against a government employee sued in
                      his personal capacity, the applicable limit on the
                      award of damages is $10,000 pursuant to
                      14 M.R.S. § 8104-D.” Given this holding, we
                      decline to answer certified question 2.




JABAR, J., dissenting.

      [¶13] I respectfully dissent because I believe we should adopt a reading of

the statutory scheme that concludes that the Legislature intended to establish a

balance between remedying injuries caused by the negligence of government

employees and protecting those government employees from financial ruin. I also

dissent to express my concern about answering a question forwarded to us by the

federal court when there is an underlying legal issue that undermines the

applicability of 14 M.R.S. § 8104-D (2012) to the facts of this case. See generally
                                                                                 9

Fortin v. Titcomb, 747 F. Supp. 2d 44, 46 (D. Me. 2010) (noting that the parties

agree that section 8104-D applies).

A.     Legislative Intent

       [¶14] “We interpret a statute to avoid absurd, illogical, or inconsistent

results.”   Costain v. Sunbury Primary Care, P.A., 2008 ME 142, ¶ 5,

954 A.2d 1051 (quotation marks omitted). “[W]e will consider the whole statutory

scheme for which the section at issue forms a part so that a harmonious result,

presumably the intent of the Legislature, may be achieved.” FPL Energy Me.

Hydro LLC v. Dep’t of Envtl. Prot., 2007 ME 97, ¶ 12, 926 A.2d 1197 (quotation

marks omitted). In this case, however, the interpretation of the statutory scheme

forwarded by the Court creates a serious inconsistency between sections 8104-D,

8105, and 8116 of Title 14.

       [¶15] As originally drafted in 1977, the Maine Tort Claims Act (MTCA) did

not include a limitation on personal liability of government employees. See L.D.

87 (108th Legis. 1977); P.L. 1977, ch. 2. At that time, section 8105 read as

follows: “In any action for damages permitted by this chapter, the claim for and

award of damages including costs shall not exceed . . . .” L.D. 87, § 8105 (108th

Legis. 1977). The section then went on to provide specific monetary limitations on

the amount that a victim could recover against a municipality or its employees. Id.

Section 8116 stated that the government entity could procure insurance, and “[i]f
10

the insurance provides protection in excess of the limits of liability imposed by

section 8105, then the limits provided in the insurance policy shall replace the

limits imposed by section 8105.” P.L. 1977, ch. 2, § 8116. Because there was not

yet a limitation on personal liability of government employees, section 8105 was

the only limitation on damages and there was no need for section 8116 to reference

any other limitation—section 8105 and 8116 applied to all actions for damages

under the MTCA. See P.L. 1977, ch. 2, § 8105 (“In any action for damages

permitted by this chapter . . . .”).

       [¶16] Shortly after its adoption, the MTCA was amended to place a $10,000

limit on the personal liability of state, but not municipal, employees.

Sen. Amend. C to H.P. 1680, L.D. 1874, No. S-365 (108th Legis. 1977). The

limitation was originally codified in section 8103. Sen. Amend. C to H.P. 1680,

L.D. 1874, No. S-365 (108th Legis. 1977). Still, because section 8105 applied to

“any action for damages permitted by this chapter,” a victim’s damages against

municipal employees were limited only by the specific enumerated amounts in

section 8105 or the insurance policy limit, whichever was greater. See Drummond

v. City of Portland, 1985 Me. Super. LEXIS 158, at *4 (June 13, 1985) (“Under

[section] 8116, the State must insure its employees to the extent of their potential

liability under [section] 8103 and may purchase additional insurance. Under the

same section, the governmental entities may insure their employees.”). Eventually,
                                                                                  11

in 1986, section 8103 was amended to extend the limitation on liability to all

government employees. See P.L. 1985, ch. 599, §§ 1, 2, 3. Nevertheless, the

limitation on personal liability applied only to prevent a victim from executing a

judgment against the personal assets of a government employee in an amount

greater than $10,000. Legis. Rec. 73, 1827-29, 1976 (1977); L.D. 2142, Statement

of Fact, § 8103(3), at 4 (112th Leg. 1986). To this end, the government entity was

required to provide insurance to cover the employees’ potential liability. L.D.

2142, Statement of Fact, § 8103(3), at 4 (112th Leg. 1986). The limitation on

personal liability contained in section 8103 was later codified in section 8104-D,

but did not change substantively. L.D. 2443, Statement of Fact, § 8104-D, at 14

(113th Legis. 1988). Arguably, when the Legislature amended the MTCA in 1977

by adding section 8103 to place limitations on personal liability, it could have been

clearer by also amending section 8116 to include a reference not only to the 8105

limitation but also to the 8103 limitation. However, section 8104-D was designed

only to limit personal liability whereas 8105 and 8116 were designed to limit

damages. Fortin v. Titcomb, 671 F.3d 63, 68 (1st Cir. 2012) (“[Sections] 8104-D

and 8105 by their terms address different matters: the former relates to personal

liability, while the latter imposes a limit on damages.”).

      [¶17] Fortin argues that the insurance policy limit provides the limitation on

damages when the government, pursuant to section 8116, procures insurance in
12

excess of the $10,000 required by section 8104-D. The First Circuit Court of

Appeals, in an opinion authored by Judge Lipez, characterized this argument as a

“plausible reading of the statutory scheme.”2 Fortin, 671 F.3d at 68. In discussing

Fortin’s plausible reading, Judge Lipez’s opinion states that “[t]he legislative

history of the MTCA’s damages-related provisions could be read to support the

view that [section] 8104-D does not remove personal-capacity claims from the

scope of [sections] 8105 and 8116.” Id. at 69. We should adopt this reading of the

statute. Judge Lipez cautions that “[r]eading [section] 8104-D to supersede the

[sections] 8105 [and 8116] liability limit in every instance, without regard to the

availability of insurance, would defeat the balance the [L]egislature may have

intended to establish between remedying injuries caused by government employees

and protecting those employees from financial ruin.” Id. at 70.

         [¶18] Interpreting the statutory scheme—and section 8104-D specifically—

to limit only personal liability of government employees is nothing more than

common sense.          Through section 8116, the Legislature allows governmental

entities to procure insurance to allow citizens to recover sums in excess of the

statutory limits established in section 8105. If the government procures such


     2
     The opinion by Judge Lipez offers two plausible readings of the statutory scheme: one forwarded by
the plaintiff, Fortin, and the other forwarded by the defendant, Titcomb. Fortin v. Titcomb, 671 F.3d 63,
66-70 (1st Cir. 2012). Titcomb argues that “[section] 8104-D is a stand-alone provision that applies to
personal-capacity claims against governmental employees, while [sections] 8105 and 8116 apply to all
other types of claims involving governments and their employees.” Fortin, 671 F.3d at 67.
                                                                                   13

insurance for itself and its employees, and a victim of negligence committed by a

single government employee is awarded a judgment within the policy limits, the

victim should be allowed to recover the full amount of the judgment. Indeed,

section 8116 specifically states that “[a] governmental entity may purchase

insurance or may self-insure on behalf of its employees to insure them against any

personal liability for which a governmental entity is obligated or entitled to provide

defense or indemnity under section 8112.” (Emphasis added). It would make little

sense for the Legislature to draft a statutory scheme that allows government

entities the option to procure insurance in excess of the $400,000 limit in section

8105 in cases where the government or multiple employees commit negligent acts,

and thereby grant Maine citizens additional protection from government

negligence, but deny those same governmental entities the option to provide added

protection beyond $10,000 for negligent acts committed by a single employee. See

Drummond, 1985 Me. Super. LEXIS 158, at *4 (“Under [section] 8116, the State

must insure its employees to the extent of their potential liability under [section]

8103 and may purchase additional insurance.”).

      [¶19] In this case, the jury determined that Fortin was entitled to $125,000

in compensatory damages and the court subsequently reduced that award to

$10,000—less than 10% of what the jury found Fortin deserved.             Under this

Court’s interpretation of the statutory scheme, without regard to the availability of
14

insurance, if the same injuries that Fortin sustained were inflicted by thirteen

officers rather than one, Fortin would be allowed to recover the damages the jury

found that he was owed. This, I assert, is an illogical interpretation of the statutory

scheme because in cases such as this, the government employee will not actually

be personally liable for the judgment. Because the government entity may procure

insurance on behalf of the employee in excess of the $10,000 limitation in section

8104-D, section 8116 would be applicable, and the insurance policy would set the

limitation on damages.

      [¶20] Allowing governmental entities the option of providing protection

beyond the $10,000 limit of section 8104-D by purchasing additional insurance is

consistent with the statutory scheme set out by the Legislature. This reading of the

statute strikes a balance between compensating victims of negligence committed

by government actors and protecting government employees from the burden of

personal liability.   Therefore, in determining whether section 8104-D sets the

limitation on damages, it is essential to determine whether the government

employee is personally liable for the judgment: if the employee is personally liable,

then the award is reduced to $10,000; if the government procures insurance for its

employees, thereby removing personal liability, then the policy limit sets the extent

of damages under 8116. See Rodriguez v. Town of Moose River, 2007 ME 68,

¶ 26, 922 A.2d 484 (noting that the $10,000 limitation on damages is applicable
                                                                                   15

because the government employee would be personally liable for any award of

damages arising from negligent acts she committed in the course and scope of her

employment); see also 14 M.R.S. § 8116 (“A governmental entity may purchase

insurance or may self-insure on behalf of its employees to insure them against any

personal liability for which a governmental entity is obligated or entitled to provide

defense or indemnity under section 8112.”).         Arguably, because 14 M.R.S.

§ 8112(8) (2012) requires governmental entities to insure employees up to the

section 8104-D limit, absent abnormal circumstances rendering the employee

personally liable, see Rodriguez, 2007 ME 68, ¶ 34 & n.4, 922 A.2d 484, the

policy limit will establish the limitation on damages. Still, in most cases, the

$10,000 limit contained in section 8104-D and the policy limit will likely be

identical—there is nothing preventing the governmental entity, perhaps more

concerned with preserving the fisc than with compensating the victim of its

employee’s negligence, from procuring an insurance policy that covers only the

minimum amount outlined in section 8104-D. However, we should not interpret

the statutory scheme in such a way that the governmental entity is prohibited from

procuring insurance coverage that allows for a recovery in excess of the $10,000

minimum set out in 8104-D. When the governmental entity, pursuant to 14 M.R.S.

§ 8116, procures insurance for the negligent acts of its employees with a policy

limit greater than the $10,000 minimum contained in 14 M.R.S. § 8104-D, an
16

award of damages within that policy limit should not be reduced pursuant to

14 M.R.S. § 8104-D because the employee will not actually be personally liable.

B.    Scope of Employment

      [¶21] In addition to my disagreement with the Court over the interpretation

of the statutory scheme, I also disagree with the Court’s decision to answer the first

question. Section 8104-D provides a limitation on damages for negligence actions

against government employees as long as the employee is acting “within the course

and scope of employment.” Notwithstanding the fact that the parties stipulated that

section 8104-D applies in this case, see Fortin, 747 F. Supp. 2d at 46, the

underlying facts raise a significant legal issue as to the applicability of 8104-D that

was not addressed at trial and is not before the Court at this time. Because section

8104-D may not be applicable under the facts of this case, answering the question

posed to us by the federal court will serve only to confuse our jurisprudence

surrounding the MTCA. We should refrain from unnecessarily making a broad

pronouncement of law that could ultimately be based on an erroneous agreement

regarding the application of section 8104-D.

      [¶22] The jury in this case found that the officer exceeded the scope of his

discretion, thus denying him the safe harbor of discretionary function immunity.

In order for an employee to be eligible for discretionary function immunity the

employee must be acting within the course and scope of employment. See Morgan
                                                                                        17

v. Kooistra, 2008 ME 26, ¶ 20, 941 A.2d 447; Darling v. Augusta Mental Health

Instit., 535 A.2d 421, 425 (Me. 1987). “Conduct that is within the scope of

employment is the type of conduct the employee was hired to perform; occurs

within the time and space of the employment; and is undertaken, at least partially,

to serve the employee’s master.” Morgan, 2008 ME 26, ¶ 21, 941 A.2d 447. A

police officer’s conduct is typically entitled to discretionary function immunity

unless the “egregious conduct clearly exceeded, as a matter of law, the scope of

any discretion he could have possessed in his official capacity as a police officer.”

Polley v. Atwell, 581 A.2d 410, 414 (Me. 1990). Discretionary function immunity

under the MTCA encompasses not only lawful and proper exercises of discretion,

but also abusive exercises of discretion. 14 M.R.S. § 8111(1)(C) (2012). If a

government employee who otherwise would be entitled to discretionary function

immunity is found not to be entitled to immunity because he exceeded the scope of

any discretion he could have possessed in his capacity as a police officer, he did

something more culpable than act in bad faith, abuse his discretion, or act without

official authority. See Selby v. Cumberland Cnty., 2002 ME 80, ¶¶ 6, 8 & n.6,

796 A.2d 678 (noting that discretionary function immunity applies even in

situations of bad faith, acting in abuse of discretion, or acting without authority).

      [¶23] In this case, the officer did not have the protection of discretionary

function immunity. The court instructed the jury, in relevant part, as follows:
18

      State law provides immunity to governmental employees including
      police officers for performing or failing to perform any discretionary
      function or duty, whether or not the discretion is abused; and whether
      or not any authority under which the discretionary function or duty is
      performed is valid. For purposes of state immunity law a police
      officer’s arrest of an individual is a discretionary act. Maine law
      provides immunity to a police officer unless the officer’s conduct was
      so egregious that it clearly exceeded the scope of any discretion an
      officer could have possessed in his or her capacity as a police officer.
      Thus, if you find that one or both of the defendants negligently used
      excessive force against the plaintiff, you must also decide whether, in
      doing so, each such officer’s action clearly exceeded the scope of any
      discretion he could have possessed in his capacity as a police officer.
      If you find that it did, you must find that that defendant may be liable
      to the plaintiff on his negligence claim. If you find that it did not, you
      must find for that defendant on that claim.

Based on this instruction, the jury found that the officer’s conduct was so

egregious that he was not entitled to discretionary function immunity. Thus, the

question remains whether an officer can act in a manner that clearly exceeds any

discretion that he could have possessed in his capacity as a police officer yet still

be acting within the course and scope of employment.

      [¶24] From a policy standpoint, because “[d]iscretionary function immunity

preserve[s] independence of action without deterrence or intimidation by the fear

of personal liability and vexatious suits,” Carrol v. City of Portland, 1999 ME 131,

¶ 6 n.4, 736 A.2d 279 (quotation marks omitted), it is certainly wise to protect

officers from liability in cases where they abuse their discretion or act without the

authority to do so. See Selby, 2002 ME 80, ¶¶ 8-11, 796 A.2d 678 (finding an
                                                                                      19

officer was still entitled to immunity despite violating internal office policies). It is

unwise, however, to extend protection to actions well outside any discretion the

officer could have possessed in his capacity as a government employee. See

Morgan, 2008 ME 26, ¶¶ 21-23, 941 A.2d 447. As it stands, the broad scope of

discretionary function immunity is sufficient to protect “independence of action”;

there is no need to extend the 14 M.R.S. § 8104-D limitation on liability to

situations in which a jury finds that the employee’s conduct is so egregious that it

is outside the scope of discretion they possessed as a government employee. I

believe that as a matter of law conduct found to be so egregious that it is not

entitled to discretionary function immunity because the officer exceeded the scope

of any discretion he could have possessed in his capacity as a government

employee should not be considered within the course and scope of employment,

and therefore should not be entitled to the damages limitation of 14 M.R.S.

§ 8104-D. See Polley, 581 A.2d at 414; Darling, 535 A.2d at 425.

      [¶25] Although this issue is not presently before the Court and has not been

previously decided by this Court, I am concerned that by answering the legal

question submitted to us by the federal court we may be implicitly concluding that

egregious conduct that exceeds an employee’s scope of discretion may still be

considered within the course and scope of employment. I believe this significant

legal issue remains unsettled in our jurisprudence and I do not believe that this
20

opinion addresses this issue. Accordingly, we should refrain from answering the

question presented to us because, despite the parties’ stipulation, section 8104-D

may not be applicable to the facts of this case; answering the question posed to us

under these facts will only confuse our jurisprudence surrounding the MTCA.

      [¶26] In sum, I dissent not only to caution that the unresolved legal issue

surrounding scope of discretion and scope of employment may create unintended

consequences, but also to express my belief that the Court’s interpretation of

sections 8104-D, 8105, and 8116 threatens to upset the balance that the Legislature

intended to strike between compensating victims of government negligence and

protecting government employees from financial ruin.



On the briefs:

      Michael A. Feldman, Esq., Law Offices of Michael A. Feldman, Brunswick,
      and Michael P. Turndorf, Esq., Turndorf Law, P.A., Brunswick, for
      appellant Michael Fortin

      Douglas I. Louison, Esq., Louison, Costello, Condon & Pfaff, LLP, Boston,
      Massachusetts, for appellee Jacob Titcomb

      William Schneider, Attorney General, Paul Stern, Dep. Atty. Gen., Susan P.
      Herman, Asst. Atty. Gen., and Ronald W. Lupton, Asst. Atty. Gen., for
      amicus curiae State of Maine
                                                                             21

At oral argument:

        Michael A. Feldman, Esq., for appellant Michael Fortin

        Douglas I. Louison, Esq., for appellee Jacob Titcomb



United States Court of Appeals for the First Circuit docket number 10-2370
FOR CLERK REFERENCE ONLY
