Giovanis v. A-1 Cab Service, LLC

STATE OF MAINE SUPERIOR COURT YORK,SS. CIVIL ACTION DOCKET NO. CV-1 -64

GEORGE GIOVANIS, executor of the Estate of EVA GIOVANIS,

Plaintiff, v. ORDER

A-1 CAB SERVICE, LLC,

Defend1mt.

Plaintiff George A. Giovanis, administrator of the Estate of Eva Gi vanis, brings this survivor action to recover for pain 'and suffering sustained by is late wife while she was being transported in vehicles owned and operated y A-1 Cab Service, LLC ("A-1 Cab"). The complaint further alleges the defe,dant's negligence was a substantial factor in causing her death and seeks ddmages under the Wrongful Death Act. Plaintiff mov~s to amend the complaint to add John D. Surran and Debra M. Surran, co-owners of A-1 Cab, as defendants

Under Rule 15(a), leave to amend pleapings "shall be freely give I when

justice so requires." M.R. Civ. P. 15(a). Whetl~_er to allow a motion to am nd "is I

left to the discretion of the trial court." Bernier v. Merrill Air Eng'rs, 2001 17, <JI I I

22, 770 A.2d 97. So long as the movant is not acting in bad faith or or the purpose of delay, motions to amend nwill b~ granted in the absence of undue prejudice." Mut. Fire Ins. Co. v. Richardson, 640 A.2d 205, 207 (Me. 1994).

Defendant opposes the motion to amend on the grounds that the cannot be held personally liable and thus argues the motion to amend sh uld be *2 denied as futile. See Glynn v. City of S. Portland, 640 A.2d 1065, 1067 (M . 1994) (stating court has discretion to deny motion to amend where the amende would not survive a motion to dismiss). Defendant specifically argues t plaintiff has failed to establish evidence the Surrans abused the corporate orm to justify piercing the corporate veil or the Surrans committed wrongful acts their individual capacities.

At this stage, the burden does not fall on plaintiff to produce evid nee in support of its claims; rather, the court assumes the allegations containe complaint are true and admitted. Richardson v. Winthrop Sch. Dep't, 2009 109, <j[ 5, 983 A.2d 400 (citation omitted). The court views the complaint "in most favorable to the plaintiff to determine whether it sets forth eleme cause of action or alleges facts that would entitle the plaintiff to relief purs ant to some legal theory." Ramsey v. Baxter Title Co., 2012 ME 113, <j[ 6, 54 A.3d 10. To conclude a complaint fails to state a claim, the court must be satisfied t "beyond doubt that [the] plaintiff is entitled to no relief under any set that might be proven in support of the claim." Dragomir v. Spring Harbo Hasp., 2009 ME 51, <J[ 15, 970 A.2d 310.

To bring claims against the Surrans in their individual capacif es, the plaintiff need only allege they committed a wrongful act or omission · their individual capacity. Plaintiff does not have to allege facts that would justify piercing the corporate veil. See Advanced Constr. Corp. v. Pilecki, 2006 ME 8 , 1 13, 901 A.2d 189 ("Corporate officers who participate in wrongful acts can · e held liable for their individual acts, and such liability is distinct from pierc g the corporate veil.") In the proposed amended complaint, the plaintiff alleg s John Surran and Debra Surran were negligent in hiring, training, and eq ·pping

I employees and maintaining company standards for safety. The cJmplaint

further alleges that the Surrans failed to remedy safety lapses after +ceiving notice of the first incident in which Eva Giovanis was injured. (Am. Cofpl. <J[<J[

14-15.) I I The amended complaint thus contains allegations that if proven, may be

adequate to hold the Surrans personally liable. Because the amendme t is not facially futile and the defendant does not oppose the amendment on basis, the motion to amend is granted.

The clerk will make the following entry, by reference, on the docket pursuant to Rule 79(a): [

The motion to amend the complaint to add John Surran and Debr,l, Surran as defendants is hereby GRANTED. I so ORDERED. I DATE: November 2, 2015 I

CV-15-64

ATTORNEYS FOR PLAINTIFF: BLAIR A JONES RUDMAN & WINCHELL PO BOX 1401 BANGOR ME 04402-1401

STEPHEN WADE SKELTON TAINTOR & ABBOTT 95 MAIN STREET AUBURN ME 04210

ATTORNEY FOR DEFENDANT: FREDEFUCK J BADGER JR FUCHARDSON WHITMAN LARGE & BADGER POBOX2429 BANGOR ME 04402-2429

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