Document 62Qn0RxO0Z60Vzbay1Ray8LR

> (1981 & itutes, 19 ipp.1991). Ice from id a child der then Schneider' 1,820 and iations in 991), she equitable Schneider Superior^ 'he court and dis-: that acB'ebruary s split of. recently, ither the ction for barter v. Nor do n in the is devoid udice to y's delay ;he child be predi; Tewks23 A.2d ler failed ry to ap art erred pport arOarter v. t for enjcision of :es. KEYES FIBRE CO. v. LAMARRE Me. 213 Cite as 617 A.2d 213 (Me. 1992) found that worker was not entitled to bene KEYES FIBRE COMPANY fits during period at issue; employer paid v. Stephen LAMARRE. benefits pursuant to requirements of Workers' Compensation Act with intent to relinquish its property interest, and, until Supreme Judicial Court of Maine Argued Nov. 17, 1992. Decided Dec. 22, 1992. such time as Commission issued order or decision denying benefits, worker had en forceable right to those benefits and em ployer was subject to statutory penalty should it fail to pay. 39 M.R.S.A. 100. Employer brought action against work er for conversion of workers' compensation benefits. The Superior Court, Kennebec County, Chandler, J., entered summary judgment for employer, and worker appeal ed. The Supreme Court, Glassman, J., held that worker, rather than employer, had property interest in benefits at time of alleged conversion. Vacated and remanded for entry of summary judgment for worker. H. Peter DelBianco, Jr. (orally), Black, Lambert, Coffin & Rudman, Portland, for plaintiff. Robert J. Daviau, Michaela Murphy (oral ly), Daviau, Jabar & Batten, Waterville, for defendant. Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS and RUDMAN, JJ. 1. Judgment @=185(2) Party which would have burden of proof at trial was required to produce evi dence on its motion for summary judgment sufficient to resist motion for directed ver dict if it produced at trial nothing more than was before court on its motion for summary judgment. 2. Trover and Conversion @=9(3), 16 To prevail on its cause of action for conversion of money, plaintiff was required to establish that it had property interest in money, right to its possession at time of alleged conversion, and, if defendant ac quired possession rightfully, demand by plaintiff for possession and refusal by de fendant to surrender. 3. Trover and Conversion @=16 Worker, rather than employer, had property interest in workers' compensation benefits at time of alleged conversion of those benefits by worker, even though, on review of worker's incapacity, Commission GLASSMAN, Justice. Stephen Lamarre appeals from the sum mary judgment entered in the Superior Court (Kennebec County, Chandler, J.) awarding to Keyes Fibre Company on Count II of its complaint1 the amount of money alleged to have been converted by Lamarre. We vacate the judgment. The following facts are undisputed: On April 21, 1987, Lamarre, an employee of Keyes, suffered a work-related back injury. Pursuant to the Workers' Compensation Act, 39 M.R.S.A. 1-195 (1989 & Supp. 1992), Keyes accepted the compensability of the injury and began payment of bene fits to Lamarre. In November 1987, Keyes filed a petition with the commission for a review of Lamarre's incapacity, see 39 M.R.S.A. 100,2 and Lamarre filed a peti tion for reinstatement to suitable work. See 39 M.R.S.A. 66-A. The petitions were consolidated for a hearing before the commission. Keyes continued to pay La marre benefits until December 21, 1988, when the commission by its decision denied 1. Count I of Keyes' complaint contained allega tions of fraud. Because its motion for sum mary judgment on the conversion count was granted. Count I was never disposed of on its merits. 2. 39 M.R.S.A. 100 provides, in pertinent part, that on petition of either party the single com missioner may increase, decrease, restore or discontinue compensation. 0007-SWP-005802981 214 Me.' 617 ATLANTIC REPORTER, 2d SERIES Lamarre's petition, granted Keyes' petition and found that Lamarre was "no longer disabled and [could] perform his customary or most recent work." In response to La marre's motion for additional findings of fact and conclusions of law, the commission found further that Lamarre had completely recovered from his back injury by June 30, 1987. Benefits in the amount of $31,404.72 were paid by Keyes to Lamarre between June 30, 1987 and December 21, 1988. Seeking to recover the amount of the bene fits it had paid Lamarre during this period of time, Keyes instituted the present action against Lamarre. After a hearing on Keyes' motion for a summary judgment on Count II of its complaint, the trial court held as a matter of law that Keyes was entitled to a judgment in the amount paid to Lamarre in benefits between June 30, 1987 and December 21, 1988 and directed an entry of final judgment on Count II, pursuant to M.R.Civ.P. 54(b), and Lamarre appeals. [1-3] "When reviewing a grant of sum mary judgment, we view the evidence in the light most favorable to the party against whom the judgment has been granted, and review the trial court's deci sion for error of law." Estate of Althenn v. Althenn, 609 A.2d 711, 714 (Me.1992). Because Keyes would have the burden of proof at trial, it was required to produce evidence sufficient to resist a motion for a directed verdict if it produced at trial noth ing more than was before the court on its motion for a summary judgment. Id. To prevail on its cause of action for the con version of the money here at issue, Keyes must establish that it had a property inter est in the money, the right to its possession at the time of the alleged conversion and, if Lamarre acquired possession rightfully, a demand by Keyes for possession and a refusal by Lamarre to surrender. See Chiappetta v. LeBlond, 505 A.2d 783, 785 (Me. 1986). Here, Keyes failed to allege or establish any facts that, if proved, would support a finding that it had a property interest in the money at the time of the alleged conversion. The monetary benefits received by Lamarre were paid by Keyes pursuant to the requirements of the Work ers' Compensation Act, with the intent to relinquish its property interest. Until such time as the commission, after a review of incapacity as provided by section 100, is sued an order or decision denying benefits to Lamarre, he had an enforceable right to those benefits and Keyes was subject to a statutory penalty should it have failed to pay. See American Mut. Ins. Companies v. Murray, 420 A.2d 251, 252 (Me.1980); 39 M.R.S.A. 104-A. Because, as a matter of law, it was Lamarre who had the proper ty interest in the money at the time of the alleged conversion, the trial court erred in not rendering a summary judgment for La marre on Count II of Keyes' complaint. See M.R.Civ.P. 56. The entry is: Judgment vacated. Remanded to the Su perior Court for the entry of a summary judgment for the defendant on Count II of the plaintiff's complaint. All concurring. G007-SWP-005802982 CONFIDENTIAL