Case of the Day – Thursday, May 3, 2018

DOUBLE, DOUBLE DOIL, AND TROUBLE

Our apologies to Bill Shakespeare, despite the fact he and the three witches of MacBeth probably are not regular readers of this blog. Today we meet Aynne Doil, a hapless landowner who gets slapped with double damages under an unusual Maine law requiring the marking of property boundaries, but who dodges much greater liability for the misfeasance of her independent contractor, Matt McCourt.

Aynne is the Doil. And, pretty clearly, Matt is the trouble.

This is not the first time, and it won’t be the last, that we emphasize the importance of written agreements, and (for you homeowners especially), the importance of ensuring that your timber harvesters, tree trimmers and arborists are and remain independent contractors. We’ll even sell you a book about it.

At trial (where Aynne’s timber harvester and co-defendant, Matt McCourt, proved himself to be “Matt SkipCourt” and did not bother to show up), the court bonked Aynne over the head with about $120,000 in damages for the mess Matt had made in denuding the Stocklys’ 20 acres of woodland. Lucky for Aynne she had signed a written agreement with Matt that was sufficient under Maines’ Bonk v. McPherson factors to make him an independent contractor.

The Maine Supreme Court unbonked Aynne, because – as we all know – a landowner is only responsible for the intentional or negligent acts of his or her independent contractor if the landowner reserved the right to control the manner of the contractor’s performance. Aynne knew from nothing about timber, a fact pretty evident from her rather simple negotiation of the agreement. But for its failings, the contract was good enough in the end to make Matt an independent contractor, Aynne was not responsible for the $119,000 in damages, but rather only for about $14,000 for failing to mark her property, which was doubled by statute to $28,000.

Matt promised in the contract to indemnify Aynne from any liability, which should have protected her from even the $28,000 in damages, but we’ll leave it to you to imagine how reliable a promised indemnity might be from a guy who did not even show up in court to defend himself.

Some time we’ll talk about performance bonds, people. For now, we’ll call Aynne “Double Doil,” but concede that she nevertheless may have avoided $119,000 worth of real trouble.

Stockly v. Doil, 870 A.2d 1208 (Me. 2005). The Stocklys owned 20 acres of undeveloped land in Falmouth. Aynne Doil’s 30 acres of land abutted the Stockly property. Neither Aynne nor the Stocklys cleared their properties, which were naturally forested with a mix of mature hardwoods and softwoods, prior to spring of 2001.

It was then that Aynne hired Matt McCourt to selectively harvest timber on her property. Matt did the paperwork with the State, and helped Aynne get a copy of the tax map of her property. Aynne, who was not especially cartographically inclined, understood that Matt would determine the boundary of the property from the tax map, an impossible task.

No matter, because Matt told Aynne he would indemnify her in the event that he trespassed on any land she did not own. The indemnification provision in the agreement was to Aynne, who didn’t want to liable for “anything that might … happen.”

Stone walls marked the boundary between the western and southern edge of the Stockly property and the eastern edge of Aynne’s land. The eastern, northern, and southern edges of the Stockly property, which abutted the Doil property, had previously been surveyed and flagged, but no other markers indicated the boundary between the two properties. Aynne knew Matt had identified the stone wall boundaries on at least one edge of the property, and she thought he had all the information he needed to determine the boundary of her property. Unfortunately for Aynne, she didn’t know Maine law required her to mark her boundaries, something that Matt – being the pro here – should have told her. At trial, she conceded liability under 14 MRSA § 7552-A, which requires the owner of 10 acres or more being cut to mark the property lines, or pay double damages for any resulting injury to another property.

Pretty complete clearcut: Matt did a complete job, but it wasn’t pretty.

During the spring and summer of 2001, Matt “selectively” cut trees on 30 acres of Aynne’s property and on all 20 acres of the Stockly property, much the same way the locusts “selectively” descended on Egypt. The Stocklys lost about 725 trees to Matt’s saw, mostly large hardwoods and softwoods (the good stuff). The Stocklys obviously did not authorize the cutting and were not aware of it until after it occurred. Matt paid Aynne $18,000 for the trees he cut.

The trees cut on the Stockly property had a fair market or “stumpage value” of $14,127.00. The forfeiture value of the trees, pursuant to Maine’s unlawful cutting statute, 17 MRSA § 2510(2), was $59,525.00. The cost to clean up the debris and slash left behind from the timber harvesting was $35,750. To restore the property would have cost about $370,000. The cutting, however, did not have a significant impact on the fair market value of the Stockly property, but the Stocklys understandably contended that their property was 95% clear-cut and was of little or no value to them, as they could no longer use it for recreational purposes.

The Stocklys sued Aynne and Matt, seeking damages for (1) breach of statutory duties pursuant to 14 MRSA §§ 7552 and 7552-A; (2) negligence; (3) nuisance; and (4) negligent infliction of emotional distress. Aynne filed a cross-claim seeking indemnification from Matt. Matt failed to appear, and a default judgment was entered against him. The Superior Court found Aynne responsible for damages of $28,254.60 (double the stumpage value) under § 7552-A, for failing to mark her property line; and (2) finding Aynne and Matt responsible for damages of $119,050 (double the forfeiture value of the trees), pursuant to 14 MRSA § 7552, for negligently cutting, destroying, damaging, and carrying away trees from land without the property owner’s permission, but reduced Aynne’s share to $35,750 pursuant to 14 MRSA § 7552(3)(B). To add insult to injury, the Stocklys got $45,000 in attorney fees and $1,537.00 in other costs pursuant to § 7552(5).

Aynne and the Stocklys both appealed.

Held: Aynne was not liable for Matt’s trespass. The Maine Supreme Court examined 14 MRSA 7552, and found that it “simply provides that “a person” may not “cut down” someone else’s trees and that “a person” who violates this prohibition is liable to the owner of those trees. “Nothing in this statute indicates that the language ‘a person’ and ‘cut down’ was intended to also include one who engages an independent contractor to cut down someone’s trees,” the Court held, “especially because 14 MRSA § 7552-A already creates such liability.”

The Court said the statute’s history supported its interpretation. In legislative history accompanying a 1977 amendment, the legislature said that the “new draft clarifies the purpose of the original bill. It increases the damages for which the trespasser himself is liable, in section 1 of the new draft. Section 2 of the new draft clarifies the law with regard to the landowner who authorizes cutting, but fails to mark his property lines, with the result that timber is cut on the abutting owner’s land.”

In 1992, the Supreme Court considered a case, Bonk v. McPherson, 605 A.2d 74, 79 (Me.1992), that applied 14 MRSA § 7552 in a case where a landowner hired an independent contractor. There, the Court held that the statute was ordinarily applicable only to the actual trespasser and that liability may extend back to an employer for the trespass of his independent contractor only under very narrow circumstances:

a party can be held liable for the trespass of an otherwise independent contractor if the trespass was [1] authorized as part of the contract, [2] or was the natural result of the work contracted to be done, [3] or the trespass was somehow directed or part of a common purpose, or [4] the trespass was ratified.

Here, Aynne’s contract with Matt provided that Matt would “assume all responsibility for the cutting of wood on adjacent properties and shall indemnify and hold the Seller harmless from all claims of trespass and damage and further shall be responsible for complying with all applicable governmental regulations.”

The Court noted that the trespass was not authorized under the contract and was not the natural result of the riskiness of the work contracted to be done. Aynne did not direct Matt to enter the Stocklys’ property and cut down their trees, and she did not subsequently rarify the trespass. Aynne’s acceptance of Matt’s payment could ratify his acts only if she was aware of all the material facts relating to the trespass. Here, there was no evidence in the record that suggests Aynne knew at the time she accepted payment that Matt had cut Stockly trees. “Common sense,” the Court said, “suggests the opposite.”

Aynne was liable for the damages caused by her own failure to mark her boundaries. “However,” the Court ruled, “it only makes sense to hold her responsible for the intentional or negligent act of Matt if she reserved the right to control the manner of his performance somehow. Because Matt was an independent contractor, the only opportunity Aynne had to exert control over the manner of his performance was during the formation of the contract when she was deciding what exactly it was that she wanted him to perform. Consequently, that is the point in time that we look to.” An independent contractor’s employer has a say-so only about whether the end product is acceptable, not about the exact manner or means used to achieve it.

Meanwhile, the Stocklys complained that the trial court erred by awarding them damages pursuant to 14 MRSA § 7552-A based only on the value of the severed trees, or the “stumpage value.” In Maine, an owner can claim the diminution in value of the land or treat the timber as personal property and claim the value of the severed trees as his damage. However, nothing prevented the trial court from considering the cleanup costs, which Aynne and the Stocklys agreed totaled $35,750, “to remove the debris left by” the cutting. “Those cleanup costs,” the Court said, “which may be necessary to reduce risks of fire, erosion and sedimentation of streams, and to restore use of trails and roads on the property, are recoverable as an element of damages pursuant to section 7552-A.” The issue was sent back to the trial court.

Because Aynne is no longer liable for the $119,050 in trespass to tree damages, the attorneys’ fees awarded to the Stocklys were mooted.

– Tom Root

TNLBGray140407

 

Far be it from us to plug our book, but if Aynne had had a copy of it, she might have avoided those pesky double damages (and some litigation expense). It makes our low, low price seem like a bargain, doesn’t it?

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