MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2015 ME 84

Docket: Cum-14-261

Argued: February 12, 2015

Decided: July 14, 2015

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

BONNIE L. ALLEN

v.

ALEXANDER F. MCCANN

MEAD, J.

[¶1] Bonnie Allen appeals from an entry of summary judgment by the 

Superior Court (Cumberland County, Mills, J.) in favor of Alexander McCann on 

Allen’s complaint alleging legal malpractice. We affirm the judgment.

I. BACKGROUND

[¶2] On June 4, 2002, Bonnie Allen injured her neck, back, shoulders, and 

arms handling a high-pressure hose while working at a paper mill. In 

December 2002, Allen hired attorney Alexander McCann to represent her in her 

workers’ compensation claim. Allen was unfamiliar with workers’ compensation 

law and relied on McCann to guide her through the process from December 2002 

until March 2009. Following her injury, Allen continued to work full-time under 

light-duty restrictions, but her condition worsened over the next two years. In 
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August 2004, Allen’s medical providers indicated that she should no longer work 

for the time being, and she has not worked since.

[¶3] On August 4, 2004, Allen’s employer began paying her workers’ 

compensation benefits, but the employer disputed whether she was totally disabled. 

McCann made a lump-sum settlement demand to Allen’s employer for $300,000 in 

late September 2004. In December 2004, Allen’s employer offered her a different 

job, which she declined based on the advice of her doctor who opined that she 

currently had no work capacity. Allen’s employer again offered her another job in 

April 2005, which she declined on the advice of her doctors. In August 2005, 

Allen’s employer suspended her workers’ compensation benefits based on the 

opinion of an independent medical examiner that Allen was “capable of some 

limited work”; the employer alleged that Allen voluntarily refused reasonable 

employment. McCann petitioned for reinstatement of Allen’s benefits, which were 

provisionally reinstated on September 27, 2005, pending an evidentiary hearing, 

which was held on February 9, 2006.

[¶4] In May 2006, the Workers’ Compensation Board (WCB) awarded 

Allen, still represented by McCann, partial incapacity benefits. In his decision, the 

hearing officer stated, “Ms. Allen has not presented evidence of a work search and 

is therefore not eligible for 100% partial incapacity benefits,” concluding that 

Allen was capable of earning about $200 per week. Allen was awarded $308.48 
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per week in workers’ compensation benefits. After reading the hearing officer’s 

decision, Allen was confused and contacted McCann, asking if she should be 

performing a work search. McCann responded:

You are not required to look for work, but the payments you are 

receiving presume that you have earnings. In other words, you are 

being treated as if you are presently earning $200 per week . . . . This 

could change, either up or down, in the event of a change in 

circumstances . . . . Similarly, if you set out to look for work 

elsewhere paying $200 per week, and were able to prove that you 

could not get that work because of your injuries, that would also be a 

change in circumstances. I do not see any change in the near future.

In addition to her workers’ compensation benefits, Allen began receiving Social 

Security Disability Insurance (SSDI) benefits in 2007 with McCann’s assistance.

[¶5] In March 2009, Allen hired attorney James MacAdam to represent her 

in her workers’ compensation claim, replacing McCann. MacAdam advised Allen 

to do a work search, which she did unsuccessfully, beginning in April 2009. 

MacAdam sought to use the work search to obtain an increase in Allen’s workers’ 

compensation benefits, but Allen’s employer raised a res judicata defense. In 

December 2010, MacAdam sent a settlement demand for $350,000 on behalf of 

Allen to her employer, and in July 2012, Allen settled her workers’ compensation 

claim for $300,000.

[¶6] In March 2012, Allen filed a complaint against McCann in the Superior 

Court, alleging that McCann “failed to exercise due care and was negligent in 
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representing and advising [her].” McCann filed a motion for summary judgment 

pursuant to M.R. Civ. P. 56, and the court granted summary judgment in favor of 

McCann. Allen filed a motion to alter or amend the order, which the court denied. 

This appeal followed.

II. DISCUSSION

[¶7] Allen argues that the court erred in granting summary judgment in 

favor of McCann because there exists a genuine issue of material fact concerning 

whether she could have obtained an award of total incapacity benefits, as opposed 

to an award of partial incapacity benefits, had McCann advised her to perform a 

work search. Allen also argues that she sustained a loss because (1) the amount of 

the final settlement of her workers’ compensation claim was less than what she 

would have recovered in workers’ compensation benefits had McCann instructed 

her to perform a work search and had the Hearing Officer awarded her total 

incapacity benefits; (2) that amount should not be offset by her SSDI benefits; and 

(3) that amount was not fully compensated by her SSDI benefits.

A. Standard of Review

[¶8] “Summary judgment is properly granted if the record reflects that there 

is no genuine issue of material fact . . . .” Angell v. Hallee, 2014 ME 72, ¶ 16, 

92 A.3d 1154 (quotation marks omitted). We review a grant of summary judgment 

de novo, “viewing the summary judgment record in the light most favorable to the 
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nonprevailing party to determine whether it demonstrates that there is no genuine 

issue of material fact and the moving party is entitled to judgment as a matter of 

law.” Cote Corp. v. Kelley Earthworks, Inc., 2014 ME 93, ¶ 8, 97 A.3d 127 

(quotation marks omitted). “A fact is material if it has the potential to affect the 

outcome of the suit, and a genuine issue of material fact exists when a fact-finder 

must choose between competing versions of the truth . . . .” Angell, 2014 ME 72, 

¶ 17, 92 A.3d 1154 (quotation marks omitted).

B. Legal Malpractice

[¶9] Attorneys have “a legal obligation to discharge their duties and execute 

the business entrusted to them with a reasonable degree of care, skill, and 

dispatch . . . .” Garland v. Roy, 2009 ME 86, ¶ 19, 976 A.2d 940 (quotation marks 

omitted). To prove legal malpractice, a plaintiff must demonstrate by a 

preponderance of the evidence that (1) “the defendant breached a duty owed to the 

plaintiff to conform to a certain standard of conduct,” and (2) “the breach of that 

duty proximately caused an injury or loss to the plaintiff.” Id. (quotation marks 

omitted). “The mere possibility of such causation is not enough, and when the 

matter remains one of pure speculation or conjecture, or even if the probabilities 

are evenly balanced, a defendant is entitled to judgment.” Niehoff v. Shankman & 

Assocs. Legal Ctr, P.A., 2000 ME 214, ¶ 8, 763 A.2d 121 (quotation marks 

omitted).
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[¶10] In the May 2006 WCB decision, the hearing officer awarded Allen 

partial benefits. Allen argues that she would have received total benefits but for 

McCann’s negligence in failing to advise her to perform a work search. Although 

this aspect of her claim may have survived McCann’s motion for summary 

judgment, this issue is subsumed in the larger issue of whether she could have 

established damages without resort to speculation.

[¶11] Allen argues that she suffered a measureable loss due to McCann’s 

failure to advise her to perform a work search. However, Allen settled with her 

employer, and because of the settlement, her proffered damages calculation is 

speculative. Attorney MacAdam’s assertion, without further detail or explanation,

that he believes that he could have settled for more had Allen been receiving an 

additional $150 per week in workers’ compensation benefits, does not provide a 

foundation upon which a jury could assess damages without resort to speculation. 

The other party to the settlement, the employer, certainly has its own settlement 

criteria, which may or may not have focused upon the weekly benefit rate. 

Because the factors producing a settlement cannot be ascertained or weighed in 

hindsight, attempting to calculate an award of damages is speculative.1 Summary 

judgment was correctly granted.

 1

 Because the settlement rendered the calculation of damages speculative regardless of whether or not 

Allen’s SSDI benefits are considered, we do not reach the issue of whether her SSDI benefits are a 

collateral source.
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The entry is:

Judgment affirmed.

On the briefs:

Marshall J. Tinkle, Esq., Hirshon Law Group, PC, Portland, for appellant 

Bonnie L. Allen

Philip P. Mancini, Esq., and Andrew P. Pierce, Esq., Drummond & 

Drummond, LLP, Portland, for appellee Alexander F. McCann

At oral argument:

Marshall J. Tinkle, Esq., for appellant Bonnie L. Allen

Philip P. Mancini, Esq., for appellee Alexander F. McCann

Cumberland County Superior Court docket number CV-2012-161

FOR CLERK REFERENCE ONLY