MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2016	ME	121	
Docket:	   Pen-15-555	
Argued:	   May	5,	2016	
Decided:	  August	2,	2016	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                DAY’S	AUTO	BODY,	INC.	
                                          	
                                         v.	
                                          	
                               TOWN	OF	MEDWAY	et	al.	
	
	
GORMAN,	J.	

       [¶1]	 	 Day’s	 Auto	 Body,	 Inc.,	 (Day’s	 Auto)	 appeals	 from	 summary	

judgments	 entered	 in	 the	 Superior	 Court	 (Penobscot	 County,	 Anderson,	 J.)	 in	

favor	of	the	Town	of	Medway	(the	Town)	and	Emery	Lee	and	Sons,	Inc.,	(ELS)	

on	 Day’s	 Auto’s	 negligence	 claims	 arising	 out	 of	 the	 response	 to	 a	 fire	 at	 its	

business	 location.	 	 Day’s	 Auto	 contends	 that	 the	 trial	 court	 erred	 in	

determining	 that	 the	 Town	 and	 ELS	 are	 immune	 from	 Day’s	 Auto’s	 claims	

pursuant	 to	 the	 Maine	 Tort	 Claims	 Act	 (MTCA),	 14	M.R.S.	 §§	 8101-8118	

(2015).		We	affirm	the	judgments.	

                                    I.		BACKGROUND	

	      [¶2]		Viewed	in	the	light	most	favorable	to	Day’s	Auto,	the	nonprevailing	

party,	 the	 summary	 judgment	 record	 establishes	 the	 following	 facts.	
2	

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

responding	to	a	fire	at	Day’s	Auto’s	shop	on	October	3,	2011,	the	Town’s	fire	

department	 filled	 hoses	 with	 water	 before	 the	 nozzles	 were	 opened,	 refused	

to	allow	firefighters	to	enter	the	building,	sprayed	water	on	a	fireproof	door,	

refilled	 fire	 trucks	 from	 a	 single	 hydrant	 instead	 of	 from	 two	 other	 available	

hydrants	 or	 from	 the	 nearby	 Penobscot	 River,	 drove	 a	 truck	 toward	 a	 water	

holding	 tank	 in	 such	 a	 way	 that	 it	 would	 be	 impossible	 to	 unload	 water	 into	

the	holding	tank,	and	connected	a	water	hose	to	a	nozzle	improperly.		These	

actions	 allegedly	 prevented	 the	 Town	 from	 limiting	 the	 damage	 that	 the	 fire	

caused	to	Day’s	Auto’s	property.	

	         [¶3]	 	 ELS	 is	 a	 general	 contracting	 and	 excavating	 business	 in	

Millinocket.	 	 Emery	 Lee,	 ELS’s	 owner	 and	 manager,	 received	 a	 call	 from	

someone	 at	 the	 Town’s	 fire	 department	 directing	 him	 to	 report	 to	 the	 fire	

scene	with	an	excavator	to	assist	with	the	effort	to	extinguish	the	fire.		When	

Lee	 arrived,	 members	 of	 the	 fire	 department	 directed	 him	 to	 take	 various	

actions	 using	 the	 excavator,	 including	 taking	 down	 walls	 and	 moving	 a	 large	

carrying	beam	from	the	center	of	what	remained	of	the	building.1		After	about	

four	 hours,	 the	 fire	 department	 indicated	 to	 Lee	 that	 the	 fire	 was	 under	

     1	 	 The	 parties	 dispute	 the	 severity	 of	 the	 fire	 when	 Lee	 arrived	 and	 the	 extent	 and	 cause	 of	

property	damage	that	occurred	on	the	day	of	the	fire.		None	of	these	disputes	is	material	to	the	issue	
of	immunity	pursuant	to	the	Maine	Tort	Claims	Act,	14	M.R.S.	§§	8101-8118	(2015).	
                                                                                                                  3	

control	and	that	he	could	leave	the	scene.		ELS	submitted	a	bill	to	the	Town	for	

its	work	at	the	fire	scene	based	on	four	hours	of	work	at	an	hourly	rate.	

	        [¶4]	 	 Two	 years	 after	 the	 fire,	 Day’s	 Auto	 filed	 its	 complaint,	 alleging	

that	 the	 Town	 and	 ELS	 used	 vehicles,	 machinery,	 and	 equipment	 negligently	

in	the	course	of	their	response	to	the	fire.2		The	Town	and	ELS	each	moved	for	

a	 summary	 judgment,	 claiming	 immunity	 from	 Day’s	 Auto’s	 suit	 pursuant	 to	

the	MTCA.	

	        [¶5]		The	court	granted	both	motions.		The	court	first	concluded	that	the	

Town	 is	 immune	 from	 Day’s	 Auto’s	 suit	 because	 the	 exception	 to	

governmental	 tort	 claims	 immunity	 upon	 which	 Day’s	 Auto	 relied—for	

“[o]wnership[,]	maintenance	or	use	of	vehicles,	machinery	and	equipment”—

does	not	apply.		See	14	M.R.S.	§	8104-A(1).		The	court	also	determined	that	the	

Town	 is	 entitled	 to	 discretionary	 function	 immunity	 pursuant	 to	 14	 M.R.S.	

§	8104-B(3),	 so	 that	 even	 if	 the	 “vehicles,	 machinery	 and	 equipment”	

exception	did	apply,	the	Town	would	still	be	immune	from	Day’s	Auto’s	suit.		

With	regard	to	ELS,	the	court	concluded	that	discretionary	function	immunity	



    2	 	 On	 April	 28,	 2014,	 Day’s	 Auto	 filed	 a	 motion	 for	 leave	 to	 amend	 its	 complaint	 along	 with	 a	

proposed	amended	complaint	in	which	it	also	claimed	that	the	Town	is	vicariously	liable	for	ELS’s	
actions,	alleging	that	ELS	“was	acting	at	the	direction	of	and	on	behalf	of	[the	Town]	at	all	relevant	
times.”	 	 Although	 it	 is	 unclear	 from	 the	 record	 whether	 (and	 if	 so,	 when)	 the	 trial	 court	 granted	
ELS’s	 motion	 to	 amend	 the	 complaint,	 given	 our	 affirmance	 of	 the	 summary	 judgment	 in	 ELS’s	
favor,	see	infra	¶¶	13-22,	any	well-pleaded	vicarious	liability	claim	is	moot.	
4	

applied	 because	 when	 ELS	 assisted	 the	 Town	 with	 the	 fire,	 it	 was,	 for	

purposes	of	the	MTCA,	acting	as	an	employee	of	the	Town	and	was	engaged	in	

a	 discretionary	 function.	 	 See	14	M.R.S.	 §§	8102(1),	 8111(1)(C).	 	 Day’s	 Auto	

filed	this	appeal.	

                                      II.		DISCUSSION	

A.	    Standards	of	Review	

	      [¶6]	 	 We	 review	 a	 court’s	 entry	 of	 a	 summary	 judgment	 de	 novo,	

viewing	the	evidence	in	the	light	most	favorable	to	the	nonprevailing	party	to	

determine	 whether	 a	 genuine	 issue	 of	 material	 fact	 exists.	 	 Budge	 v.	 Town	 of	

Millinocket,	2012	ME	122,	¶	12,	55	A.3d	484;	see	M.R.	Civ.	P.	56(c)	(requiring	

entry	 of	 a	 summary	 judgment	 where	 the	 record	 reveals	 “that	 there	 is	 no	

genuine	 issue	 as	 to	 any	 material	 fact	 .	 .	 .	 and	 that	 any	 party	 is	 entitled	 to	 a	

judgment	 as	 a	 matter	 of	 law”).	 	 “A	 fact	 is	 material	 if	 it	 has	 the	 potential	 to	

affect	the	outcome	of	the	suit,”	and	an	issue	of	material	fact	is	genuine	“when	a	

fact-finder	must	choose	between	competing	versions	of	the	truth,	even	if	one	

party’s	 version	 appears	 more	 credible	 or	 persuasive.”	 	 Angell	 v.	 Hallee,	

2014	ME	 72,	 ¶	 17,	 92	A.3d	 1154	 (quotation	 marks	 omitted).	 	 “When	 the	

material	 facts	 are	 not	 in	 dispute,	 we	 review	 de	novo	 the	 trial	 court’s	
                                                                                                                5	

interpretation	 and	 application	 of	 the	 relevant	 statutes	 and	 legal	 concepts.”		

Remmes,	2015	ME	63,	¶	19,	116	A.3d	466.	

	        [¶7]	 	 “Summary	 judgment	is	 appropriate	 when	 a	 defendant	 is	 immune	

from	 tort	 liability.”	 	 Grossman	 v.	 Richards,	 1999	 ME	 9,	 ¶	 3,	 722	A.2d	 371;	

see	Moore	 v.	 City	 of	 Lewiston,	 596	 A.2d	 612,	 614	 (Me.	1991).	 	 Because	

“immunity	 is	 an	 issue	 distinct	 from	 liability,”	 Grossman,	 1999	 ME	 9,	 ¶	 3,	

722	A.2d	371	(quotation	marks	omitted),	our	review	in	this	appeal	is	limited	

to	the	question	of	whether	the	Town	and	ELS	are	immune	from	suit	pursuant	

to	the	MTCA	as	a	matter	of	law.	

B.	      Summary	Judgment	for	the	Town	

	        [¶8]	 	 The	 MTCA	 begins	 with	 a	 broad	 grant	 of	 governmental	 immunity	

from	 tort	 claims:	 “Except	 as	 otherwise	 expressly	 provided	 by	 statute,	 all	

governmental	 entities	 shall	 be	 immune	 from	 suit	 on	 any	 and	 all	 tort	 claims	

seeking	 recovery	 of	 damages.”3	 	 14	 M.R.S.	 §	 8103(1).	 	 The	 statute	 then	

enumerates	several	exceptions	to	that	immunity,	including	the	provision	that	

“[a]	 governmental	 entity	 is	 liable	 for	 its	 negligent	 acts	 or	 omissions	 in	 its	

ownership,	maintenance,	or	use	of”	various	types	of	“vehicles,	machinery	and	

equipment.”	 	 14	 M.R.S.	 §	 8104-A(1).	 	 Because	 “the	 MTCA	 employs	 an	


    3	 	 It	 is	 undisputed	 that	 the	 Town	 is	 a	 “governmental	 entity”	 within	 the	 meaning	 of	 the	 MTCA.		

See	14	M.R.S.	§	8102(2),	(3).	
6	

exception-to-immunity	 approach	 rather	 than	 an	 exception-to-liability	

approach,”	 when	 we	 consider	 the	 exceptions	 to	 immunity	 for	 governmental	

entities,	“we	start	from	the	premise	that	immunity	is	the	rule	and	exceptions	

to	 immunity	 are	 to	 be	 strictly	 construed.”	 	 Thompson	 v.	 Dep’t	 of	 Inland	

Fisheries	&	Wildlife,	2002	ME	78,	¶	5,	796	A.2d	674	(quotation	marks	omitted);	

see	 Estate	 of	 Fortier	 v.	 City	 of	 Lewiston,	 2010	 ME	 50,	 ¶	 14	 n.7,	 997	A.2d	 84;	

Carroll	v.	City	of	Portland,	1999	ME	131,	¶	6	n.3,	736	A.2d	279.	

	      [¶9]	 	 Day’s	 Auto	 argues	 that	 the	 summary	 judgment	 record	 reveals	 a	

genuine	dispute	of	material	fact	as	to	whether	the	Town’s	actions	fall	within	

section	 8104-A(1)’s	 exception	 concerning	 “vehicles,	 machinery	 and	

equipment,”	 and	 that	 the	 trial	 court	 therefore	 erred	 by	 entering	 a	 summary	

judgment	 in	 the	 Town’s	 favor.	 	 We	 disagree.	 	 In	 a	 line	 of	 cases	 interpreting	

section	 8104-A(1),	 we	 have	 made	 clear	 that	 the	 mere	 fact	 that	 a	 vehicle	 or	

piece	 of	 equipment	 or	 machinery	 is	 involved	 in	 the	 conduct	 that	 allegedly	

caused	harm	does	not,	in	itself,	implicate	the	exception	to	immunity.		In	Brooks	

v.	Augusta	Mental	Health	Institute,	for	example,	where	a	patient’s	estate	sued	

several	 government	 defendants	 for	 negligence	 when	 the	 patient	 died	 after	

jumping	 from	 a	 moving	 bus	 operated	 by	 the	 defendants,	 we	 held	 that	 the	

exception	 did	 not	 apply	 because	 “the	 gravamen	 of	 [the]	 claim	 [was]	 not	 the	
                                                                                         7	

defendants’	 negligent	 operation,	 use	 or	 maintenance	 of	 the	 bus,	 but	 the	

monitoring	 and	 supervision	 of	 the	 decedent	 by	 [government]	 employees	

while	 the	 decedent	 was	 riding	 on	 the	 bus.”	 	 606	 A.2d	 789,	 790	 (Me.	1992);	

see		 New	 Orleans	 Tanker	 Corp.	 v.	 Dep’t	 of	 Transp.,	 1999	 ME	 67,	 ¶	 9,	 728	A.2d	

673	 (“The	major	 risk	 from	 the	 negligent	 use	 of	 vehicles	 with	 the	 power	 to	

move	is	that	they	will	be	driven	or	transported	in	locations	where	the	general	

public	is	exposed	to	the	possibility	of	a	collision	and	resulting	harm.”).	

	     [¶10]	 	 We	 recognized	 this	 principle	 again	 in	 Thompson,	 where	 the	

plaintiff	sought	to	invoke	the	exception	after	he	was	injured	in	a	snowmobile	

accident.		2002	ME	78,	¶¶	2,	6-9,	796	A.2d	674.		He	alleged	that	a	rescue	effort	

by	the	Department	of	Inland	Fisheries	&	Wildlife	was	unduly	delayed	and	that	

it	 exacerbated	 his	 injuries	 because	 a	 rescue	 helicopter	 was	 inadequately	

fueled	 and	 its	 navigational	 and	 radio	 communications	 equipment	 was	

inadequate.		Id.	¶¶	2,	6.		“[T]he	kind	of	negligence	falling	within	the	exception	

to	immunity	provided	in	section	8104-A(1),”	we	stated,	“involves	harms	that	

flow	naturally	or	directly	from	the	negligent	use	or	maintenance	of	vehicles.”		

Id.	¶	7.		“[T]he	focus	is	on	the	risk	of	harm	naturally	or	directly	caused	by	the	

vehicle’s	contact	with	the	general	public.”		Id.	¶	8.	
8	

	     [¶11]		We	apply	the	same	reasoning	here.		It	is	true	that	fire	trucks	may,	

at	times,	come	into	contact	with	the	general	public	to	create	a	risk	of	collision.		

The	gravamen	 of	 Day’s	 Auto’s	 claim	 against	 the	 Town,	 however,	 is	 that	 the	

Town	 made	 imprudent	 tactical	 decisions	 in	 the	 course	 of	 fighting	 the	 fire.		

Those	decisions,	if	they	were	poor	ones,	could	indeed	create	a	risk	of	greater	

fire	damage,	but	they	do	not	create	the	type	of	risk	for	which	the	Legislature	

intended	governmental	entities	to	incur	tort	liability	when	it	enacted	section	

8104-A(1).		Section	8104-A(1)	cannot	be	used	to	end	a	governmental	entity’s	

immunity	 from	 tort	 claims	 simply	 because	 vehicles	 or	 equipment	 were	

involved	in	the	conduct	that	allegedly	caused	harm.	

	     [¶12]		Because	section	8104-A(1)’s	vehicle	exception	is	inapplicable	and	

Day’s	Auto	makes	no	claim	that	any	other	exception	to	immunity	applies,	we	

conclude	that	the	Town	is	immune	from	Day’s	Auto’s	suit	pursuant	to	section	

8103(1)	and	that	the	court	therefore	did	not	err	when	it	entered	a	summary	

judgment	 in	 favor	 of	 the	 Town.	 	 We	 do	 not	 address	 the	 parties’	 arguments	

regarding	 the	 Town’s	 discretionary	 function	 immunity	 pursuant	 to	 14	M.R.S.	

§	8104-B(3).	 	 See	 Estate	 of	 Fortier,	 2010	 ME	 50,	 ¶¶	 10,	 16,	 997	 A.2d	 84;	

Simmons,	 Zillman	 &	 Gregory,	 Maine	 Tort	 Law	 §	 15.20	 at	 15-47	 (2004	 ed.)	

(noting	 that	 section	 8104-A’s	 exceptions	 to	 immunity	 provide	 “the	 sole	
                                                                                            9	

situations	in	which	governmental	entities	may	be	liable	under	the	MTCA,”	and	

that	 “[i]f	 the	 plaintiff’s	 claim	 cannot	 fit	 within	 one	 of	 [section	 8104-A’s]	 four	

categories,	the	plaintiff	will	be	unable	to	recover	under	the	MTCA”).	

C.	    Summary	Judgment	for	ELS	

	      [¶13]	 	 Day’s	 Auto	 also	 argues	 that	 the	 court	 erred	 by	 entering	 a	

summary	judgment	in	ELS’s	favor,	contending	that	(1)	ELS	does	not	meet	the	

MTCA’s	 definition	 of	 “employee,”	 (2)	 discretionary	 function	 immunity	 does	

not	 apply	 to	 ELS’s	 actions	 at	 the	 fire	 scene,	 and	 (3)	 ELS	 cannot	 be	 immune	

from	suit	without	first	demonstrating	that	it	did	not	carry	liability	insurance.	

	      [¶14]	 	 We	 first	 address	 the	 question	 of	 whether	 ELS	 was	 a	 Town	

employee,	 for	 purposes	 of	 the	 MTCA,	 when	 it	 responded	 to	 the	 fire	 at	 Day’s	

Auto’s	shop.		The	MTCA	defines	“employee”	as	follows:	

       “Employee”	 means	 a	 person	 acting	 on	 behalf	 of	 a	 governmental	
       entity	 in	 any	 official	 capacity,	 whether	 temporarily	 or	
       permanently,	 and	 whether	 with	 or	 without	 compensation	 from	
       local,	state	or	federal	funds,	including	.	.	.	volunteer	firefighters	as	
       defined	in	Title	30-A,	section	3151[,]	.	.	.	but	the	term	“employee”	
       does	not	mean	a	person	or	other	legal	entity	acting	in	the	capacity	
       of	 an	 independent	 contractor	 under	 contract	 to	 the	 governmental	
       entity.	
       	
10	

14	M.R.S.	§	8102(1)	(emphases	added).4		Day’s	Auto	argues,	at	the	outset,	that	

ELS	 cannot	 be	 an	 employee	 as	 defined	 by	 the	 statute	 because	 ELS	 is	 a	

corporation,	 not	 a	 “person.”	 	 We	 are	 not	 persuaded.	 	 Pursuant	 to	 1	M.R.S.	

§	72(15)	(2015),	“‘[p]erson’	may	include	a	body	corporate.”		This	rule	“shall	be	

observed	 in	 the	 construction	 of	 statutes	 .	 .	 .	 unless	 such	 construction	 is	

inconsistent	 with	 the	 plain	 meaning	 of	 the	 enactment,	 the	 context	 otherwise	

requires	 or	 definitions	 otherwise	 provide.”	 	 1	M.R.S.	 §	 72	 (2015).	 	 None	 of	

these	circumstances	applies	here.		Section	8102(1),	by	its	terms,	specifies	that	

a	 legal	 entity	 that	 is	 “acting	 in	 the	 capacity	 of	 an	 independent	 contractor”	 is	

not	an	employee.		If,	as	Day’s	Auto	 contends,	no	legal	entity	could	ever	meet	

the	MTCA’s	definition	of	“employee,”	the	phrase	“acting	in	the	capacity	of	an	

independent	contractor”	would	be	surplusage.		We	therefore	decline	to	adopt	

Day’s	Auto’s	interpretation.		See	Dickau	v.	Vt.	Mut.	Ins.	Co.,	2014	ME	158,	¶	22,	

107	 A.3d	 621	 (“We	 reject	 interpretations	 that	 render	 some	 language	 mere	

surplusage.”).	

	       [¶15]		Having	determined	that	it	is	possible	for	a	legal	entity	to	meet	the	

MTCA’s	 definition	 of	 “employee,”	 we	 turn	 to	 the	 question	 of	 whether,	 here,	

ELS	 was	 an	 employee	 of	 the	 Town	 when	 it	 responded	 to	 the	 fire	 at	 Day’s	

    4		ELS	does	not	contend	that	it	meets	the	statutory	definition	of	“voluntary	firefighter,”	which	is	

“an	 active	 member	 of	 a	 volunteer	 fire	 association	 who	 receives	 no	 compensation	 from	 the	
municipality	other	than	injury	and	death	benefits.”		30-A	M.R.S.	§	3151(4)	(2015).	
                                                                                               11	

Auto’s	 business	 location.	 	 This	 issue	 is	 “predominantly	 a	 question	 of	 law,”	

Cushman	v.	Tilton,	652	A.2d	650,	651	(Me.	1995),	and	here,	the	facts	material	

to	 the	 determination	 are	 undisputed,	 see	Campbell	 v.	 Washington	 Cty.	 Tech.	

Coll.,	219	F.3d	3,	7-8	(1st	Cir.	2000).		ELS	is	a	business	independent	from	the	

Town.		On	the	day	of	the	fire,	the	Town’s	fire	department	summoned	an	ELS	

employee,	 Emery	 Lee,	 to	 assist	 at	 the	 fire	 scene	 with	 an	 excavator.		

Lee	brought	 an	 excavator	 to	 the	 scene	 and,	 after	 performing	 various	 actions	

with	the	excavator	for	about	four	hours—all	at	the	direction	of	the	Town—the	

fire	 department	 indicated	 that	 he	 could	 leave.	 	 ELS	 submitted	 a	 bill	 to	 the	

Town	for	its	work	at	the	fire	scene	based	on	four	hours	of	work	at	an	hourly	

rate.	

	        [¶16]	 	 In	 previous	 cases	 where	 we	 analyzed	 whether	 an	 alleged	

tortfeasor	was	a	government	employee	pursuant	to	the	MTCA,	we	have	most	

often	focused	on	the	first	part	of	section	8102(1):	“‘Employee’	means	a	person	

acting	 on	 behalf	 of	 a	 governmental	 entity	 in	 any	 official	 capacity,	 whether	

temporarily	or	permanently,	and	whether	with	or	without	compensation	from	

local,	 state	 or	 federal	 funds	 .	 .	 .	 .”	 	 14	 M.R.S.	 §	 8102(1);	 see	Kennedy	 v.	 State,	

1999	ME	85,	¶¶	7-12,	730	A.2d	1252;	Cushman,	652	A.2d	at	651-52;	Clark	v.	

Me.	 Med.	 Ctr.,	 559	 A.2d	 358,	 360	 (Me.	1989);	 Taylor	 v.	 Herst,	 537	 A.2d	 1163,	
12	

1165	 (Me.	 1988).	 	 “[W]e	 have	 characterized	 the	 [MTCA’s]	 definition	 of	

employee	 as	 ‘broad.’”5	 	 Kennedy,	 1999	ME	 85,	 ¶	 8,	 730	 A.2d	 1252	 (quoting	

Taylor,	 537	 A.2d	 at	 1165).	 	 We	examine	 the	 worker’s	 job	 responsibilities,	

see	Cushman,	 652	 A.2d	 at	 652,	 and	 whether	 the	 work	 was	 performed	 at	 the	

direction	 of	 the	 governmental	 entity,	 see	Clark,	 559	A.2d	 at	 360.	 	 We	 also	

consider	the	worker’s	function	in	relation	to	that	of	the	governmental	entity.		

See	 Kennedy,	 1999	ME	 85,	 ¶¶	 7-12,	 730	A.2d	 1252.	 	 In	Kennedy,	 for	 example,	

we	determined	that	a	guardian	ad	litem	serving	in	child	custody	proceedings	

was	 a	 government	 employee	 pursuant	 to	 the	 MTCA	 based	 on	 her	 role	 as	 an	

“arm	of	the	court.”		1999	ME	85,	¶¶	8-12,	730	A.2d	1252.		The	guardian	was	

compensated	for	“acting	on	behalf	of”	and	“assist[ing]	the	court.”		Id.	¶¶	10,	12	

(quotation	marks	omitted).	

	        [¶17]	 	 According	 to	 the	 final	 clause	 of	 section	 8102(1),	 “the	 term	

‘employee’	does	not	mean	a	person	or	other	legal	entity	acting	in	the	capacity	

of	 an	 independent	 contractor	 under	 contract	 to	 the	 governmental	 entity.”		

14	M.R.S.	 §	8102(1).	 	 The	common-law	 distinction	 between	 an	 employee	 and	

an	independent	contractor,	therefore,	also	guides	our	analysis.		See	Campbell,	


   5	 	 See,	e.g.,	 Clifford	 v.	 MaineGeneral	 Med.	 Ctr.,	 2014	 ME	 60,	 ¶	 47,	 91	 A.3d	 567	 (collecting	 cases	

where	we	held	that	privately-employed	medical	workers	were	government	employees	pursuant	to	
the	MTCA);	McNally	v.	Town	of	Freeport,	414	A.2d	904,	905	(Me.	1980)	(holding	that	“an	agent	of	
the	Town”	who	administered	a	blood	test	was	a	government	employee	pursuant	to	the	MTCA).	
                                                                                     13	

219	F.3d	at	7;	Miller	v.	Szelenyi,	546	A.2d	1013,	1019-20	(Me.	1988).		To	make	

this	distinction,	we	consider	the	following	eight	factors:	

     “(1)	the	existence	of	a	contract	for	the	performance	by	a	person	of	
     a	certain	piece	or	kind	of	work	at	a	fixed	price;	
     	
     (2)	independent	nature	of	the	business	or	his	distinct	calling;	
     	
     (3)	his	employment	of	assistants	with	the	right	to	supervise	their	
     activities;	
     	
     (4)	 his	 obligation	 to	 furnish	 necessary	 tools,	 supplies,	 and	
     materials;	
     	
     (5)	his	right	to	control	the	progress	of	the	work	except	as	to	final	
     results;	
     	
     (6)	the	time	for	which	the	workman	is	employed;	
     	
     (7)	the	method	of	payment,	whether	by	time	or	by	job;	[and]	
     	
     (8)	 whether	 the	 work	 is	 part	 of	 the	 regular	 business	 of	 the	
     employer.”	
     	
Legassie	 v.	 Bangor	 Publ’g	 Co.,	 1999	 ME	 180,	 ¶	 6	 n.1,	 741	 A.2d	 442	 (quoting	

Murray’s	Case,	130	Me.	181,	186,	154	A.	352	(1931));	see	id.	¶	8.		Control	is	the	

most	 important	 factor,	 and	 “[t]he	 right	 to	 control	 the	 details	 of	 the	

performance,	 present	 in	 the	 context	 of	 an	 employment	 relationship,	 must	 be	

distinguished	from	the	right	to	control	the	result	to	be	obtained,	usually	found	

in	independent	contractor	relationships.”		Id.	¶	6	(quotation	marks	omitted).	
14	

	     [¶18]	 	 Here,	 the	 first	 and	 eighth	 factors	 weigh	 in	 favor	 of	 a	 conclusion	

that	 ELS	 was	 a	 government	 employee	 pursuant	 to	 the	 MTCA	 when	 it	

performed	 the	 actions	 relevant	 to	 this	 case:	 no	 contract	 existed	 for	

performance	 of	 the	 work	 at	 a	 fixed	 price;	 and	 the	 type	 of	 work,	 fire	

suppression,	 was	 the	 regular	 business	 of	 the	 Town.	 	 See	 30-A	 M.R.S.	 §	 3152	

(2015)	 (authorizing	 municipalities	 to	 provide	 fire	 protection	 services).		

The	second,	 fourth,	 and	 sixth	 factors	 point	 toward	 the	 contrary	 conclusion:	

ELS	 is	 a	 business	 independent	 from	 the	 Town,	 furnished	 the	 relevant	 tools,	

and	 worked	 for	 a	 relatively	 short	 period	 of	 time.	 	 The	 third	 and	 seventh	

factors	are	unhelpful	in	this	case;	there	is	no	evidence	regarding	whether	ELS	

could	 have	 employed	 assistants,	 and	 although	 ELS	 was	 paid	 based	 on	 an	

hourly	rate,	the	payment	was	for	one	distinct	job.	

	     [¶19]	 	 With	 regard	 to	 the	 fifth	 and	 most	 important	 factor,	 control,	 the	

relevant	 evidence,	 which	 is	 undisputed,	 reveals	 that	 ELS	 acted	 only	 at	 the	

direction	of	the	Town,	and	that	the	Town	maintained	control	over	“the	details	

of	 the	 performance,”	 not	 simply	 “the	 result	 to	 be	 obtained,”	 see	Legassie,	

1999	ME	 180,	 ¶	 6,	 741	 A.2d	 442.	 	 ELS	 took	 no	 action	 other	 than	 at	 the	

direction	 of	 members	 of	 the	 Town’s	 fire	 department,	 and	 followed	 specific	

directives	from	the	department	about	how	to	use	the	excavator	to	take	control	
                                                                                     15	

of	the	fire.		Because	the	most	important	factor	weighs	in	favor	of	a	conclusion	

that	ELS	was	the	Town’s	employee	and	because,	like	the	guardian	ad	litem	in	

Kennedy,	ELS	functioned	only	as	part	of	the	Town,	we	conclude	that	ELS	was	a	

government	employee	when,	at	the	direction	of	the	Town,	it	responded	to	the	

fire	and	used	its	excavator	as	directed	by	the	Town	in	the	Town’s	attempt	to	

minimize	the	damage.	

	     [¶20]		Next,	we	address	the	question	of	whether	an	exception	to	liability	

affords	ELS	immunity	from	Day’s	Auto’s	suit	as	a	Town	employee.		For	claims	

against	 government	 employees,	 as	 opposed	 to	 those	 against	 governmental	

entities,	 liability	 is	 the	 rule	 and	 immunity	 the	 exception.	 	 See	 14	 M.R.S.	

§§	8102(2-A),	8104-D;	Hilderbrand	v.	Washington	Cty.	Comm’rs,	2011	ME	132,	

¶	 8,	 33	 A.3d	 425.	 	 The	 exceptions	 to	 tort	 claims	 liability	 for	 government	

employees	are	enumerated	in	14	M.R.S.	§	8111(1),	which	provides,	inter	alia,	

that	 “employees	 of	 governmental	 entities	 shall	 be	 absolutely	 immune	 from	

personal	 civil	 liability	 for	.	.	.	[a]ny	 intentional	 act	 or	 omission	 within	 the	

course	 and	 scope	 of	 employment[,]	 provided	 that	 such	 immunity	 does	 not	

exist	in	any	case	in	which	an	employee’s	actions	are	found	to	have	been	in	bad	

faith.”	 	 14	 M.R.S.	 §	 8111(1)(E).	 	 This	 “intentional	 act	 immunity,”	 therefore,	

affords	 government	 employees	 immunity	 from	 tort	 liability	 where	 the	 claim	
16	

arises	 out	 of	 intentional	 acts	 by	 the	 employee	 that	 are	 within	 the	 scope	 of	

employment	and	performed	in	good	faith.		“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	 v.	 Kooistra,	 2008	 ME	 26,	

¶	21,	941	A.2d	447.			

	     [¶21]		Here,	the	summary	judgment	record	confirms	that	ELS’s	alleged	

conduct	meets	all	of	the	requirements	for	intentional	act	immunity	pursuant	

to	 section	 8111(1)(E).	 	 ELS’s	 actions	 were	 intentional,	 they	 were	 within	 the	

scope	 of	 its	 employment,	 and	 there	 is	 no	 allegation	 or	 indication	 that	 they	

were	 taken	 in	 bad	 faith.	 	 See	Lyons	 v.	 City	 of	 Lewiston,	 666	 A.2d	 95,	 101-02	

(Me.	1995)	     (affirming	     a	   summary	       judgment	     in	    favor	   of	    a	

government-employee	 defendant	 where	 the	 record	 revealed	 no	 genuine	

dispute	as	to	whether	the	defendant	acted	in	bad	faith);	cf.	Morgan,	2008	ME	

26,	 ¶¶	 21-23,	 941	 A.2d	 447	 (concluding	 that	 a	 government-employee	

defendant	 was	 not	 entitled	 to	 intentional	 act	 immunity	 because	 alleged	

defamatory	 remarks	 “were	 motivated	 by	 personal,	 not	 professional,	

objectives”	and	were	therefore	outside	the	scope	of	employment);	Rodriguez	

v.	 Town	 of	 Moose	 River,	 2007	 ME	 68,	 ¶	 25,	 922	 A.2d	 484	 (concluding	 that	 a	
                                                                                                           17	

government-employee	 defendant	 in	 a	 negligence	 action	 was	 not	 entitled	 to	

intentional	act	immunity	because	the	omission	that	gave	rise	to	the	suit	was	

unintentional).	 	 The	 trial	 court	 therefore	 did	 not	 err	 when	 it	 entered	 a	

summary	 judgment	 in	 favor	 of	 ELS,	 and	 we	 do	 not	 reach	 Day’s	 Auto’s	

argument	 that	 the	 court	 incorrectly	 concluded	 that	 ELS	 is	 entitled	 to	

discretionary	function	immunity	pursuant	to	14	M.R.S.	§	8111(1)(C).6	

	        [¶22]	 	 Finally,	 we	 are	 not	 persuaded	 by	 Day’s	 Auto’s	 argument	 that,	

notwithstanding	 ELS’s	 immunity	 as	 a	 government	 employee,	 ELS	 can	 still	 be	

held	liable	for	damages	to	the	extent	of	any	private	liability	insurance	that	it	

holds.		Day’s	Auto	relies	on	a	provision	of	the	MTCA	governing	the	defense	and	

indemnification	 of	 government	 employees	 by	 their	 employers	 in	 “[c]ertain	

suits	arising	out	of	use	of	motor	vehicles.”7		14	M.R.S.	§	8112(9).		Contrary	to	



    6	 	 Although	 the	 trial	 court	 concluded	 that	 ELS	 was	 entitled	 to	 a	 summary	 judgment	 based	 on	

discretionary	 function	 immunity,	 see	 14	 M.R.S.	 §	 8111(1)(C),	 we	 affirm	 the	 judgment	 on	 different	
grounds,	see	Bouchard	v.	Frost,	2004	ME	9,	¶	8,	840	A.2d	109.	
   	
   7		Title	14	M.R.S.	§	8112(9)	provides,	in	its	entirety:	

   	
         9.	 	 Certain	 suits	 arising	 out	 of	 use	 of	 motor	 vehicles.	 	 A	governmental	 entity	 is	
         not	 required	 to	 assume	 the	 defense	 of	 or	 to	 indemnify	 an	 employee	 of	 that	
         governmental	entity	who	uses	a	privately	owned	vehicle,	while	acting	in	the	course	
         and	scope	of	employment,	to	the	extent	that	applicable	liability	insurance	coverage	
         exists	other	than	that	of	the	governmental	entity.		In	such	cases,	the	employee	of	the	
         governmental	 entity	 and	 the	 owner	 of	 the	 privately	 owned	 vehicle	 may	 be	 held	
         liable	for	the	negligent	operation	or	use	of	the	vehicle	but	only	to	the	extent	of	any	
         applicable	liability	insurance,	which	constitutes	the	primary	coverage	of	any	liability	
         of	 the	 employee	 and	 owner	 and	 of	 the	 governmental	 entity.	 	 To	 the	 extent	 that	
         liability	 insurance	 other	 than	 that	 of	 the	 governmental	 entity	 does	 not	 provide	
18	

Day’s	Auto’s	contention,	it	is	plain	that	section	8112(9)	does	not	apply	where,	

as	here,	the	government	employee	is	otherwise	immune	from	suit	pursuant	to	

the	 MTCA.	 	 Unlike	 14	 M.R.S.	 §	 8116,	 which	 expressly	 states	 that	 a	

governmental	 entity	 that	 possesses	 insurance	 coverage	 “in	 areas	 where	 the	

governmental	 entity	 is	 immune	 .	 .	 .	 shall	 be	 liable	 in	 those	 substantive	 areas	

but	 only	 to	 the	 limits	 of	 the	 insurance	 coverage,”	 nothing	 about	 section	

8112(9)	 indicates	 that,	 for	 a	 government	 employee,	 possession	 of	 private	

insurance	 coverage	 vitiates	 any	 absolute	 immunity	 conferred	 by	 section	

8111(1).	 	 According	 to	 Day’s	 Auto’s	 interpretation,	 section	 8112(9)	 would	

govern	the	defense	and	indemnification	of	employees	who	are	totally	immune	

from	 suit	 in	 the	 first	 place.	 	 We	decline	 to	 adopt	 such	 an	 interpretation.		

See	Fortin	v.	Titcomb,	2013	ME	14,	¶	7,	60	A.3d	765	(“We	.	.	.	interpret	a	statute	

to	 avoid	 absurd,	 illogical,	 or	 inconsistent	 results	 .	 .	 .	 .”	 (quotation	 marks	

omitted)).	

       The	entry	is:	

                      The	summary	judgments	in	favor	of	the	Town	of	
                      Medway	 and	 Emery	 Lee	 and	 Sons,	 Inc.,	 are	
                      affirmed.	
	
	      	      	       	      	       	


       coverage	up	to	the	limit	contained	in	section	8105,	the	governmental	entity	remains	
       responsible	for	any	liability	up	to	that	limit.	
                                                                                     19	

	
On	the	briefs:	
	
      Arthur	 J.	 Greif,	 Esq.,	 and	 Julie	 D.	 Farr,	 Esq.,	 Gilbert	 &	 Greif,	
      P.A.,	Bangor,	for	appellant	Day’s	Auto	Body,	Inc.	
      	
      John	 J.	 Wall,	 III	 Esq.,	 Monaghan	 Leahy,	 LLP,	 Portland,	 for	
      appellee	Town	of	Medway	
      	
      Gerard	O.	Fournier,	Esq.,	and	Heidi	J.	Hart,	Esq.,	Richardson,	
      Whitman,	 Large	 &	 Badger,	 Bangor,	 for	 appellee	 Emery	 Lee	
      and	Sons,	Inc.	
      	
	
At	oral	argument:	
	
      Arthur	J.	Greif,	Esq.,	for	appellant	Day’s	Auto	Body,	Inc.	
      	
      John	J.	Wall,	III	Esq.,	for	appellee	Town	of	Medway	
      	
      Gerard	 O.	 Fournier,	 Esq.,	 for	 appellee	 Emery	 Lee	 and	 Sons,	
      Inc.	
	
	
	
Penobscot	County	Superior	Court	docket	number	CV-2013-156	
FOR	CLERK	REFERENCE	ONLY	
