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