MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 7 ME 22 Docket: And

- 16

- 68 Argued: November	9,	2016 Decided: January	31,	2017
Panel: SAUFLEY,	C.J.,	and ALEXANDER , MEAD, GORMAN ,	JABAR , HJELM, and HUMPHREY, JJ.

DANIEL	R.	LALONDE

v. CENTRAL	MAINE	MEDICAL	CENTER

ALEXANDER ,	J. [¶1] Central	Ma ine	Medical	Center (CMMC) has	filed	this interlocutory appeal from an	 order of	 the	 Superior	 Court (Androscoggin	 County,
MG Kennedy , J .) denying CMMC’s motion	 to	 dismiss , based	 on	 a	 claim	 of immunity pursuant	to 24	M.R.S.	§	2511	(201 6 ) , a complaint brought	by	Daniel
R.	Lalonde seeking	indemnification for	expenses	he	incurred	in	defe nse	of	an administrative	proceeding	initiated	by	the Board of	Licensure	in	Medicine	( the
Board )

. We	reac h	the	merits	of	this appeal, determine that section	2511	of	the Maine	 Health	 Security	 Act does	 not render	 CMMC	 immune	 from	 Lalonde’s

cont ractual	claim	for	reimbursement, and affirm	the	trial	court’s	order.2 I.		CASE	HISTORY [¶2 ] The	 following	 facts ,	 which	 we	 view	 as	 admitted	 for	 purposes	 of this	 appeal from	 a	 ruling	 on	 a M.R.	 Civ.	 P.	 12(b)(6) motion	 to	 dismiss ,	 are drawn	 from Lalonde’s	 complaint. See Andrews	 v.	 Sheepscot	 Isl and	 Co. , 2016 ME	68,	¶	2,	138	A.3d	1197

. [¶3 ] CMMC	 is	 a	 nonprofit	 corporation	 which	 operates	 an	 acute	 care hospital	 with	 its	 principal	 plac e	 of	 business	 in	 Lewiston

. Lalonde	 is	 a physician	 licensed	 to	 practice	 in	 Maine .	 	 He became	 employed	 by	 CMMC	 in June	 2005	 under	 a	 “Physician	 Employment	 Agreement”	 drafted	 by	 CMMC. The	 employment	 agreement	 provided	 that	 CMMC	 could	 terminate	 Lalonde’s employment	with	or	without	cause. On	June 21,	2012,	CMMC	notified	Lalonde
that	it	was	ter minating	his	employment	without	cause. [¶4 ] O n	 August	 6,	 2012,	 CMMC, referencing 24 M.R.S.	 §	 2506	 (201 6 ) , notified	 the	Board that	it	 had	 terminated	 Lalonde’s	employment	 “because	 of concerns	 about	 his	 clinical	 competence	 and	 behavior”	 as	 an	 employee	 of
CMMC. 1 As	a	result	of	CMMC’ s	report,	the	Board initiated	an	inve stigation	of
Lalonde.

1 The	Maine	Health	Security	Act,	at 24	M.R.S.	§	2506	(201 6 ) ,	requires	that	a	health	care	provider report	to	the	appropriate	board	or	authority	when	it	terminates	an	employee	for	reasons	related	to the	employee’s	clinical	competence	or	unprofessional	conduct.3 [¶5 ] CMMC’s	 corporate	 bylaws	 provide tha t	 CMMC	 will	 indemnify present	 or	 former	 employees	 for	 attorney	 fees	 and	 costs	 associated	 with defending	a	court	or	administrative	action	arising	out	of	events	pertaining	to their	employment	with	CMMC: This	corporation	shall	in	all	cases	indemnify	any	perso n	who	was or	is	a	party	.	.	.	 to	any	 threatened,	pending	or	completed	action, suit,	 or	 proceeding,	whether	 civil,	 criminal,	 or	administrative,	 by reason	of	the	fact	that	that	person	was	a[n]	.	.	.	employee	or	agent of	 the	 corporation,	 against	 expenses,	 inc luding	 attorney	 fees	 .	 .	 . actually	and reasonably	incurred	by	the	person	in	co nnection	with such	action,	suit or	proceeding;	provided	that	no	indemnification shall	 be	 made	 for	 any	 person	 with	 respect	 to	 any	 matter	 unless the	 Board	 of	 Trustees	 .	 .	 .	 determ ines	 that	 that	 person	 acted	 in good	faith	in	the	reasonable	belief	that	his	or	her	actions	were	in the	best	inter ests	of	the	corporation	.	.	.	. [¶6 ] Independent	of	any	rights	conferred	by	the	bylaws or	employment

contracts of	 a	 nonprofit	 corporation, the	 Maine Nonprofit	 Corporation	 Act , 13

- B	M.R.S.	§ § 101

- 1406 (2016 ) ,	at	section	714(2) ,	provides	that : [a n]	employee	or	agent	of	a	corporation	[who]	has	been	successful on	 the	 merits	 or	 otherwise	 in	 defense	 of	 any	 action,	 suit	 or proceeding	 [to	 which	 he	 was	 made	 a	 party	 by	 reason	 of	 his employment],	.	.	.	shall	be	indemnified	against	expenses,	including attor neys’	 fees,	 actually	 and	 reasonably	 incurred by	 him	 in connection	therewith. [¶7 ] In	November	2012	and	April	2014,	Lalonde	requested	that	CMMC indemnify	 him	 for	 all	 expenses,	including	 attorney	 fees,	incurred during	 the pendency	of	the	Board ’s	proceedin g. CMMC	declined	the	request s . On Jul y	11,4 2014,	the	Board notified	Lalonde	that	it	had	dismissed	the	complaint	against
him. Lalonde	 again	 requested	 indemnification	 from	 CMMC. In	 April	 2015,
CMMC ’s Board	of	Trustees determined	that	it	would	not	indemnify	Lalonde. [¶8 ] On	May	7,	2015, Lalonde filed	a	complaint	against CMMC seeking	a judgment

— pursuant	to either the	Nonprofit	Corporation	Act or the	corporate bylaws	 of	 CMMC

— awarding	 him attorney fees	 and	 costs	 incurr ed	 in	 his
defense	 of the administrative	 proceeding	 initiated	 by	 the Board

. CMMC moved	to	dismiss	L alonde’s	complaint,	arguing	that,	pursuant to section	2511 of	 the	 Maine	 Health	 Security	 Act, 24	 M.R.S. §§	 2501

- 2988	 (201 6 ) , CMMC	 is absolutely	 immune	 from	 civil	 liability for	 making	 its	 report,	 pursuant	 to section	2506,	to	the	Board

. 2 [¶9] After	 a	 hearing, the	 co urt	 agreed	 with	 CMMC	 that,	 pursuant	 to
section 2511 ,	 CMMC	 is	 absolutely	 immune	 from	 civil	 liability	 for	 reporting
Lalonde’s	 termination to	 the	 Board

. However,	 the	 court	 determined that Lalonde	 was	 not	 claiming	 damages	 from	 CMMC for	 making	 a	 rep ort	 to	 the
Board

. Instead,	 the	 court	 concluded, he was seeking the enforcement	 of a

2 CMMC alternatively argued	 that	 the	 court	 should	 dis miss the	 complaint	 on	 the	 basis	 that Lalonde	 will	 be unable	 to	 prove his	 allegations	 because	 he	 relies on	 information	 contained	 in confidential	and	privileged	records. T he	court declined	to	reach	the	issue,	concluding that	matters outside	 the	 complaint,	i ncluding	 the	admissibility	 of	evidence,	are	 not	 considered	 on	a	motion	 to dismiss	 for	 failure	 to	state	a	claim. Because	 the	provability	of	Lalonde’s	claims	is	not	inextricably tied	 to	 the	issue	 of	immunity,	 we	 decline	 to	 consider	 the	issue	 on	 this	interlo cutory	 appeal. See Clifford	v.	MaineGeneral Med.	Ctr. ,	2014	ME	60,	¶	75,	91	A.3d	567

.5 contractual	 or	 statutory	 right	 to indemnification,	 and	 the	 allegation	 that CMMC	 reported	 La londe’s	 termination	 to	 the	 Board ,	 thus	 triggering	 the Board’s	 actions	 against	 Lalonde, wa s	 not	 an	 essential	 fact of his indemnification claim

. Thus,	 the	 court	 denied	 CMMC’s	 motion	 to	 dismiss,
conclu ding that	Lalonde’s	claims	were	not	barred	by	CMMC’s	immunit y	under
section	2511 of	the	Maine	Health	Security	Act

. This	appeal	followed.
II.		LEGAL	ANALYSIS
A. Interlocutory	Appeal. [¶10] CMMC’s	interlocutory	appeal	is	not	barred	by	the	final	judgment rule	 because	 CMMC	 asserts	 a	 claim	 of	 immunity	 pursuant	 to	 section	 2511

. Interlocutory	appeals	are	allowed	from	orders	denying	motions	to	dismiss	or motions	for	summary	judgment	when	the	asserted	basis	for	the	motion	is	the complete	 or	 qualified	 immunity	 o f	 the	 defendant	 from	 suit. See Estate	 of Fortier	v.	City	of	Lewiston ,	2010	ME	50,	¶ 1,	997	A.2d	84 ; Knowlton	v.	Attorney
General ,	2009 ME	79,	¶ 10,	976 A.2d	973 ; Wilcox	v.	City	of	Portland ,	2009	ME 53,	¶	11,	970	A.2d	295 ; Hawkes	v.	Commercial	Union	Ins.	C o. ,	2001	ME	8,	¶	6,
764 A.2d 258

.6 B. Denial	of	Motion	to	Dismiss [¶1 1 ] An	affirmative	defe nse	of	immunity	may	be	raised	by a	motion	to dismiss	 for	 failure	 to	 state	 a	 claim. M.R.	 Civ.	 P.	 8(c); see Munjoy	 Sporting
& A thletic	Club	v.	Dow ,	2000	ME	141,	¶ 17,	755	A.2d	531. When	we	review	a
trial	 court’s denial of a	 motion	 to	 dismiss	 for	 failure	 to	 state	 a	 claim	 upon which	 relief	 can	 be	granted,	we	 view	 the	 facts	 alleged	in	 the	 complaint	 as	if they	 were	 admitted and in	 the	 light	 most	 favorable	 to	 the plaintiff

. See Andrews ,	2016 ME	68,	¶	8,	138 A.3d	1197; s ee	also Moody	v.	State	Liquor
& Lottery	Comm’n, 2004	ME	20,	¶	7,	843	A.2d	43 (stating	that	when	reviewing a	ruling	on	a	motion	to	dismiss,	the	complaint	is	examined “in	the	light	most
favorable	 to	 t he	 plaintiff	 to	 determine	 whether	 it	 sets	 forth	 elements	 of	 a cause	 of	 action	 or	 alleges	 facts	 that	 would	 entitle	 the	 plaintiff	 to	 relie f pursuant	to	some	legal	theory ” ). [¶1 2 ] Section	2511 (1) of t he Health	Security	Act grants	immunity from civil	liability	to	a “ health	care	provider ,” such	as CMMC , “ for	making	a ny report or	 other	 information	 available	 to	 any	 board , ” such	 as the Medical Board

. See also 24	 M.R.S. § 2502(1) ,	 (2) (201 6 )

. Specifically, 24	 M.R.S. § 2511 (1)

states:7 Any	 person acting	 without	 malice,	 any	 physician,	 podiatrist, health	care provider,	health	care	entity

.	.	. and any	entity	required to	report	under	this	chapter	are	immune	from	civil	liability: 1

. Reporting. For	 making	 any	 report	 or	 other	 information available	 to any	 board,	 appropriate	 authority,	 professional competence	 committee	 or	 professional	 review	 committee pursuant	to	law

. [¶1 3 ] The	specific	terms	of	section	2511	give	CMMC	immunity from	any suit	 claiming	 harm by defamation,	 slander,	 breach	 of contract,	 inte rference with	 an	 expectancy , or	 any	 other	 cause of	 action seeking	 damages	 or	 other remedies	 based	 on	 CMMC’s	 report	 to	 the	 Board. The	 focus	 of	 Lalonde’s complaint	is	not	CMMC’s	report	to	the	Board,	but rather Lalonde’s	defense	in an	 administrative	 action	 before	 a	 professional	 licensing	 board	 and CMMC’s bylaws	that entitle	an	employee	to	reimbursement	for	defense	costs. [¶1 4 ] T o	 obtain relief	 under	 a c ontractual	 indemnification	 theory , Lalonde must prove that (1) he	 and	 CMMC had	 a	 l egally	 binding	 contract, (2) CMMC	 breached	 a	material	 term	 of	 the	 contract,	 and	 (3)	 CMMC’s	 breach
caused him to	 suffer damages

. See Tobin	 v.	 Barter ,	 2014	 ME	 51,	 ¶¶	 9

- 10,
89 A.3d	1088

. Lalonde ’s	complaint satisfies	each	of	the required	elements. I t

asserts that (1) CMMC’s	bylaws	created	a	legally	binding	contract between	the hospital	 and	 Lalonde;	 (2) CMMC	 breached	 the	 co ntract’s	 indemnification clause; a nd	(3) CMMC’s	breach	caused	him	to incur financial	loss

. See Whalen8 v.	 Dow n	 E ast	 Cmty

. Hosp. ,	 2009	 M E	 99,	 ¶	 9,	 980 A.2d	 1252 (stating	 that
h ospital	bylaws may	create	a valid,	enforceable	contract	between the hospital and	its	staff	physicians ). [¶1 5 ] To	prevail	on a theory	of	statutory	indemnification	under section 714(2) of t he	Nonprofit	Corporation	Act ,	Lalonde	must	prove that (1) he was an	employee	 of	CMMC ,	 (2)	CMMC	is	a no nprofit	 hospital,	 (3 )	 he suc cessfully
defended an	 action brought	 against	 him	 by	 reason	 of his	 employment	 with CMMC,	and	(4 )	he	incurred	expenses	as	a	result	of	defending	 the	action. See
13

- B	 M.R.S.	 § 714(2)

. B ased	 on	 the	 facts	 recounted	 above, Lalonde’s complaint	 satisfies	 each	 of	 the	 required	 elements of	 section	 714(2) .	 	 T he CMMC	 bylaws ,	 however, are	more	 favorable	 to	 Lalo nde , because	 the	 bylaws do	 not	 condition	 payment	 on	 a	 successful	 defense	 and	 consequently	 allow payment	during,	ra ther	than	after,	the	proceeding

. [¶1 6 ] Because	 CMMC’s	 byla ws	 are	 more	 favorable	 to	 Lalonde on	 his contract	 theory	of	recovery,	and	because	 the	record	is	unclear	as	 to	whether the	 Board’s	 dismissal	 of	 the	 complaint	was	 a	 decision based	 on	 a	 successful defense	 of	 the	 claim or	 on some	 other	 grounds that	 might	 not	 generate liability	 for indemnifica tion pursuant	 to	 section	 714(2) ,	 we	 limit	 further discussion	to	application	and	interpretation	of	the	CMMC	bylaws.9 [¶1 7 ] To	 generate liability	 for indemnification,	 the	 bylaws	 do	 not require	evide nce	of	 the	cause	of	an	action	or investigation,	only	 that a b oard action	 or	 investigation regarding	 an	 employee	 occurred. While	 the	 Board ’s action	against	Lalonde	was prompted by	a	report	made	by	CMMC , and Lalonde alleged	that	fact,	perhaps	un necessarily,	in	his	complaint, Lalonde’s	complaint does	 not	 seek	 to	 hold	 CMMC	 civilly liable	 for	 its	 report .	 	 T herefore,	 section 2511	 is	 inapplicable. The	 CMMC	 bylaws	 create	 an	 indemnification responsibility	regardless	of	the	cause	of	the	investigation	and,	in	effect,	create a	contractual	exception	to	sec tion	2511	immunity	when	CMMC	may	initiate	or
assist an	action	before	the	Board that	involves	one	of	its	employees. [¶1 8 ] That	the	CMMC	bylaws	create a	contractual	exception	to	section 2511	 immunity	 becomes	 more	 apparent	 when	 one	 recognizes	 that	 section 25 11(3)	 extends	 immunity	 to	 any	 activity “ assisting	 the	 board,	 authority	 or committee	 in	 carrying	 out	 any	 of	 its	 duties	 or	 functions	 provided	 by	 law. ”
See 24	M.R.S. § 2511(3). To	the	extent	that CMMC	would	likely	be	called	upon to	 provide	 information	 or	 assistance	 in	 most	 investigations	 or	 actions regarding	 its	 employees,	 the	 indemnification	 clause	 in	 the	 CMMC	 bylaws would	 be	 rendered	meaningless	if	 section	 2511	were	 read,	as	 CMMC	argues
that sec tion	2511	should	be	read,	to	bar	contractual	indemnification	any time10 CMMC	initiates,	participates	in,	or	assists	an	action	or	inv estigation	regarding

one	o f	its	employees. [¶19 ] V iewing	the	complaint	in	the	light	most	favorable	to	Lalonde,	the allegatio ns	in	 the	complaint	are,	as	a	matter	 of	law,	 sufficient	 to	 overcome	a
Rule 12(b)(6 )	motion , because	they	state	the elements	of	a	cause	of	action	and
facts	that	would	entitle	Lalonde	to	relief pursuant	to	some	leg a l	theory

. Thus,
CMMC	is	not	immune	 from Lalonde’s action for	indemnification for	 the	costs of	his defense. The	entry	is: Judgment	affirmed.

Michael	 R.	 Poulin,	 Esq.	 (orally),	 Skelton,	 Taintor	 &	 Abbot t ,	 Auburn,	 for appellant	Central	Maine	Medical	Center Christopher	 C.	 Taintor,	 Esq. (orally),	 Norman,	 Hanson	 &	 DeTroy,	 LLC, Portland,	for	appellee	Daniel	R.	Lalonde

Androscoggin	County	Superior	Court	docket	number	CV

- 2015

- 78 F OR C LERK R EFERENCE O NLY