Kapusta v. Dept. of Health/Risk Management (2008-383) (24-Jul-2009) 2009 VT 81 (Dooley, J.)
Employer appeals from an opinion of the Commissioner of the Department of Labor declining to apportion the responsibility for a permanent partial impairment between claimant's non-work-related condition and her work-related injury. Employer contends that Vermont law requires apportionment in this case. Alternatively, employer asserts that if the Commissioner was not required to apportion, but had the discretion to do so, she abused that discretion by declining to apportion in this case. Claimant argues that the law prohibits apportionment and the Commissioner has no discretion to allow it. We affirm the Commissioner's conclusion that the relevant statutes neither require nor forbid apportionment in this case; rather, the statutes leave this issue to her discretion. We further affirm her decision because it was not an abuse of that discretion to decline to apportion the impairment in this case.
Employer argues that § 648(b) requires apportionment because the section incorporates the AMA Guides and the AMA Guides require apportionment. However, § 648(b) provides only that the AMA Guides are to be used to determine "the existence and degree of permanent partial impairment." Apportionment is an issue of workers' compensation policy rather than medical judgment. The purpose of the AMA Guide is to assist medical professionals, not to set workers' compensation policy. AMA Guides' language is permissive and descriptive, rather than prescriptive, and does not require apportionment. Further the Legislature specifically addressed apportionment in limited circumstances in 21 V.S.A. § 648(d), and would not have needed to require apportionment in this one specific circumstance if apportionment is required in all circumstances under § 648(b). We thus affirm the Commissioner's decision that § 648(b) does not require apportionment in any case.
We reject claimant’s argument that the Commissioner had no discretion to apportion. In Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 192 A.2d 799 (1964), we considered a case in which a claimant was impaired by cancer and a work injury accelerated the progress of the disease and the disability. The employer argued that the compensation and medical benefits should be apportioned between the disease and the work injury, with the employer responsible only for those caused by the latter. We held: "[o]ur statute makes no exceptional provision for apportionment of the compensation or medical benefits between the injury and pre-existing disease. Without such a provision, there is no requirement that the commissioner . . . determine the relative contribution of the accident and the prior disease to the final result." Id. at 104, 192 A.2d at 806; see also Stamper v. Univ. Apartments, Inc., 147 Vt. 552, 554, 522 A.2d 227, 228 (1986) (upholding Commissioner's refusal to apportion current permanent impairment percentage between current work injury and prior injury). The Commissioner examined 21 V.S.A. § 648 and our case precedents and concluded that the statute, as currently worded, did not take away her discretion to apportion in cases involving preexisting uncompensated impairments. We find no clear indication of error and defer to the Commissioner's interpretation of the relevant statutes.
Here the Commissioner's decision does not constitute an abuse of discretion, because the Commissioner determined that claimant was fully functional and pain-free at the time of the work-related injury. The Commissioner was not bound by AMA Guides, which assigned a 15% impairment to claimant based on her hip replacement, but instead could reach her own determination of the extent to which the hip replacement interfered with the ability of claimant to do her job and the extent of that ability after the work-related injury.
Tuesday, July 28, 2009
Monday, June 22, 2009
Trusts and Estates. Disclaimers are irrevocable, but are voidable for duress, coercion, undue influence incompetence, or other equitable basis.
Burden of proof shifts in “suspicious circumstances” where attorney represents both sides. Carvahlo v. Estate of Carvahlo, 2009 VT 60 (Dooley, J.)
This case requires us to decide whether and in what circumstances a person who has disclaimed an interest in property under the Uniform Disclaimer of Property Interests Act, codified at 14 V.S.A. §§ 1951-1959, may revoke that disclaimer. Persons wishing to disclaim interests in property devolving to them by will or intestate succession may do so in writing within nine months of the owner’s death. Id. § 1952(a). The disclaimer “is binding upon the disclaimant,” id. § 1954(c), and the disclaimed property passes “as if the disclaimant had predeceased the decedent,” id. § 1954(a). We hold that, while statutory disclaimers are generally revocable only in limited circumstances, the superior court erred by granting summary judgment to Ms. Carvalho’s nephew who opposed revocation of the disclaimer. Accordingly, we remand the matter for the court to hold a hearing on whether the circumstances warranted allowing revocation of the disclaimer.
Agnes Carvalho appeals the superior court’s summary judgment order precluding her from revoking a disclaimer of her interest in her son’s estate. Ms. Carvalho was a ninety-two-year-old widow when her son Donald, who was her only child and had been living with her, unexpectedly died. The trial court found that she “was deeply upset and distraught after Donald’s death.” Three weeks later, nephew took Ms. Carvalho to the office of the attorney representing him in his capacity as executor of Donald’s estate. Ms. Carvalho would on that day sign her own will, and do an advanced directive and a financial power of attorney and a disclaimer, the latter of which had not been prepared or reviewed by her in advance of the meeting. The superior court found that “there are facts in dispute about how much Ms. Carvalho understood,” and that “she does not appear to have understood that the effect” of the disclaimer was to deprive her of the assets of her son’s estate during her lifetime. The court nevertheless concluded nephew was entitled to judgment as a matter of law, because Ms. Carvalho was not coerced or unduly influenced.
On appeal, Ms. Carvalho claims that the superior court erred in: (1) ruling that disclaimers are irrevocable absent incompetence, duress, coercion, or undue influence; (2) finding that there were no genuine issues of material fact as to whether she was incompetent or under duress or coercion when she executed the disclaimer.
On the weight of the case law, by virtue of our statutory text, and out of concern for the stability of property rights, we hold that disclaimers irrevocable based on claims, such as a unilateral mistake of law, that fall short of equitable claims that would support rescission of a contract or cancellation of an instrument. Disclaimers are not revocable simply because the revocation is filed within the statutory time period for filing disclaimers, even if there is no prejudice.
A disclaimer can be revoked in situations involving incompetence, fraud, undue influence, or other accepted bases for cancellation of instruments. Accordingly, if the fact finder on remand in this case were to find undue influence, coercion, or incompetence, revocation of the disclaimer would be warranted, particularly given that it was executed within the statutory time frame for disclaimers and before any property interests were affected.
The attorney testified at his deposition that he considered Ms. Carvalho to be his client, but he billed the estate for his services in having her execute the disclaimer. Thus, not only was the execution of the disclaimer facilitated by the contingent beneficiary of the estate, but the attorney who presented the disclaimer to Ms. Carvalho appeared to be representing the interests of parties with potentially conflicting interests. These facts amount to suspicious circumstances as a matter of law, which places the burden on nephew to establish affirmatively that the disclaimer was not procured by undue influence or coercion.
We conclude that the facts of this case preclude summary judgment in favor of nephew. As noted, the facts establish “suspicious circumstances” that impose upon nephew the burden of showing the absence of undue influence or coercion with respect to Ms. Carvalho’s signing of the disclaimer. On remand, the fact finder must determine, following an evidentiary hearing, whether nephew has met his burden of demonstrating a lack of undue influence, duress, or coercion with respect to Ms. Carvalho’s signing of the disclaimer. In assessing whether nephew has met this burden, the court should consider the effect of the attorney obtaining the disclaimer from Ms. Carvalho, his client, while acting as attorney for the estate and its executor. The issue cannot be decided on summary judgment.
This case requires us to decide whether and in what circumstances a person who has disclaimed an interest in property under the Uniform Disclaimer of Property Interests Act, codified at 14 V.S.A. §§ 1951-1959, may revoke that disclaimer. Persons wishing to disclaim interests in property devolving to them by will or intestate succession may do so in writing within nine months of the owner’s death. Id. § 1952(a). The disclaimer “is binding upon the disclaimant,” id. § 1954(c), and the disclaimed property passes “as if the disclaimant had predeceased the decedent,” id. § 1954(a). We hold that, while statutory disclaimers are generally revocable only in limited circumstances, the superior court erred by granting summary judgment to Ms. Carvalho’s nephew who opposed revocation of the disclaimer. Accordingly, we remand the matter for the court to hold a hearing on whether the circumstances warranted allowing revocation of the disclaimer.
Agnes Carvalho appeals the superior court’s summary judgment order precluding her from revoking a disclaimer of her interest in her son’s estate. Ms. Carvalho was a ninety-two-year-old widow when her son Donald, who was her only child and had been living with her, unexpectedly died. The trial court found that she “was deeply upset and distraught after Donald’s death.” Three weeks later, nephew took Ms. Carvalho to the office of the attorney representing him in his capacity as executor of Donald’s estate. Ms. Carvalho would on that day sign her own will, and do an advanced directive and a financial power of attorney and a disclaimer, the latter of which had not been prepared or reviewed by her in advance of the meeting. The superior court found that “there are facts in dispute about how much Ms. Carvalho understood,” and that “she does not appear to have understood that the effect” of the disclaimer was to deprive her of the assets of her son’s estate during her lifetime. The court nevertheless concluded nephew was entitled to judgment as a matter of law, because Ms. Carvalho was not coerced or unduly influenced.
On appeal, Ms. Carvalho claims that the superior court erred in: (1) ruling that disclaimers are irrevocable absent incompetence, duress, coercion, or undue influence; (2) finding that there were no genuine issues of material fact as to whether she was incompetent or under duress or coercion when she executed the disclaimer.
On the weight of the case law, by virtue of our statutory text, and out of concern for the stability of property rights, we hold that disclaimers irrevocable based on claims, such as a unilateral mistake of law, that fall short of equitable claims that would support rescission of a contract or cancellation of an instrument. Disclaimers are not revocable simply because the revocation is filed within the statutory time period for filing disclaimers, even if there is no prejudice.
A disclaimer can be revoked in situations involving incompetence, fraud, undue influence, or other accepted bases for cancellation of instruments. Accordingly, if the fact finder on remand in this case were to find undue influence, coercion, or incompetence, revocation of the disclaimer would be warranted, particularly given that it was executed within the statutory time frame for disclaimers and before any property interests were affected.
The attorney testified at his deposition that he considered Ms. Carvalho to be his client, but he billed the estate for his services in having her execute the disclaimer. Thus, not only was the execution of the disclaimer facilitated by the contingent beneficiary of the estate, but the attorney who presented the disclaimer to Ms. Carvalho appeared to be representing the interests of parties with potentially conflicting interests. These facts amount to suspicious circumstances as a matter of law, which places the burden on nephew to establish affirmatively that the disclaimer was not procured by undue influence or coercion.
We conclude that the facts of this case preclude summary judgment in favor of nephew. As noted, the facts establish “suspicious circumstances” that impose upon nephew the burden of showing the absence of undue influence or coercion with respect to Ms. Carvalho’s signing of the disclaimer. On remand, the fact finder must determine, following an evidentiary hearing, whether nephew has met his burden of demonstrating a lack of undue influence, duress, or coercion with respect to Ms. Carvalho’s signing of the disclaimer. In assessing whether nephew has met this burden, the court should consider the effect of the attorney obtaining the disclaimer from Ms. Carvalho, his client, while acting as attorney for the estate and its executor. The issue cannot be decided on summary judgment.
Friday, June 19, 2009
Worker’s Compensation appeal: wrong forum in time; right forum too late.
Worker’s Comp. appeal to superior court defeated because Commissioner certified only questions of law. Mistake of forum not grounds for late appeal. Stoll v. Burlington Electric, 2009 VT 61 (Skoglund, J.) (Dooley, J., dissenting.)
Employee appeals the superior court’s dismissal of his workers’ compensation appeal for lack of jurisdiction. We affirm.
Employee further asks that we grant his motion for leave to file an untimely direct appeal from the Commissioner’s decision. We deny this motion.
The Commissioner certified two questions to the superior court: 1. Whether the Superior Court has jurisdiction to hear this appeal from the Department of Labor’s decision granting Summary Judgment, where no facts were disputed by the parties for the purpose of the summary judgment motions; and 2. Whether the Occupational Disease Act’s five year statute of repose bars Claimant’s claim for alleged work-related asbestosis disease.
The superior court’s order granting summary judgment for the insurance companies on jurisdictional grounds was appropriate because both certified questions presented pure questions of law. Section 671 does not authorize the certification of questions of law to the superior court but only questions of fact or mixed questions of fact and law.
Moreover, we decline to exercise our discretion under 21 V.S.A. § 673 to allow employee to file a direct appeal of the Commissioner’s order with this Court.
Dooley, J. dissents from the majority’s refusal to allow a direct appeal, and in its failure to recognize that a possible question of fact permits appeal to superior court on all issues, including preliminary legal issues. In Justice Dooley’s view the statute creates alternative appeal routes. If the losing party is satisfied with the fact-findings, review is by the Supreme Court on the record made before the Commissioner and under a limited standard of review. If the party is not satisfied with the Commissioner’s fact finding, the party may appeal to the superior court for “trial by jury” and review of questions of “fact . . . and fact and law.” 21 V.S.A. § 671. A claimant can raise pure legal issues in a superior court appeal as long as the claimant has also raised factual issues.
Here the employee committed to an appeal to the superior court believing that the appeal was controlled by facts—that is, the cause and nature of his disability. However, ignoring the employee’s specification of the issues, the Commissioner certified pure questions of law only. In these circumstances, Justice Dooley says the Court has discretion to take this appeal by virtue of 21 V.S.A. § 673, and should allow the late appeal to the Supreme Court so that employee is not denied access to a court because of a mistake in choice of forum.
Employee appeals the superior court’s dismissal of his workers’ compensation appeal for lack of jurisdiction. We affirm.
Employee further asks that we grant his motion for leave to file an untimely direct appeal from the Commissioner’s decision. We deny this motion.
The Commissioner certified two questions to the superior court: 1. Whether the Superior Court has jurisdiction to hear this appeal from the Department of Labor’s decision granting Summary Judgment, where no facts were disputed by the parties for the purpose of the summary judgment motions; and 2. Whether the Occupational Disease Act’s five year statute of repose bars Claimant’s claim for alleged work-related asbestosis disease.
The superior court’s order granting summary judgment for the insurance companies on jurisdictional grounds was appropriate because both certified questions presented pure questions of law. Section 671 does not authorize the certification of questions of law to the superior court but only questions of fact or mixed questions of fact and law.
Moreover, we decline to exercise our discretion under 21 V.S.A. § 673 to allow employee to file a direct appeal of the Commissioner’s order with this Court.
Dooley, J. dissents from the majority’s refusal to allow a direct appeal, and in its failure to recognize that a possible question of fact permits appeal to superior court on all issues, including preliminary legal issues. In Justice Dooley’s view the statute creates alternative appeal routes. If the losing party is satisfied with the fact-findings, review is by the Supreme Court on the record made before the Commissioner and under a limited standard of review. If the party is not satisfied with the Commissioner’s fact finding, the party may appeal to the superior court for “trial by jury” and review of questions of “fact . . . and fact and law.” 21 V.S.A. § 671. A claimant can raise pure legal issues in a superior court appeal as long as the claimant has also raised factual issues.
Here the employee committed to an appeal to the superior court believing that the appeal was controlled by facts—that is, the cause and nature of his disability. However, ignoring the employee’s specification of the issues, the Commissioner certified pure questions of law only. In these circumstances, Justice Dooley says the Court has discretion to take this appeal by virtue of 21 V.S.A. § 673, and should allow the late appeal to the Supreme Court so that employee is not denied access to a court because of a mistake in choice of forum.
Friday, June 5, 2009
Statute of limitations: Cause of action that accrues after decedent’s death is not limited under §557(a) to two years.
Benson v. MVP Health Plan , 2009 VT 57 (Skoglund, J.)
Brian Benson, as administrator of Alan Benson’s estate, appeals from a Windsor Superior Court order dismissing his suit against decedent’s insurer, MVP as barred by the two-year limitations period set forth in 12 V.S.A. § 557(a). We reverse and remand. We hold that the limitation period set forth in § 557(a) does not apply to causes of action that accrue to the estate after a decedent’s death.
That statute reads as follows:
"If a person, by or against whom an action may be brought, dies before the expiration of the time within which such action may be commenced as provided by this chapter or dies within thirty days after the expiration of such times, the period of limitation as to such action shall cease to operate at the date of his death. After the issuance of letters testamentary or of administration, such action, if the cause of action survives, may be commenced by or against the executor or administrator within two years, and not after."
A cause of action does not accrue until each element of the cause of action exists. A cause of action for breach of contract accrues when the breach occurs, and a cause of action against an insurance company for bad faith accrues when the company errs, unreasonably, in denying coverage.
Benson died on October 18, 2002. The administrator was appointed on December 2, 2002. The administrator filed suit on August 30, 2007, alleging that MVP breached the contract when it failed to pay a valid claim submitted by the administrator and repeatedly refused to respond to the administrator’s grievances and requests for information and relief. The complaint alleges bad faith on the grounds that MVP denied the claim without a reasonable basis. Assuming these allegations to be true, the estate’s causes of action accrued after the decedent’s death.
Based on the statutory language quoted above, MVP argues that § 557(a) applies to causes of action that accrue after death because a person who dies before a cause of action accrues necessarily dies before the expiration of that action’s limitations period. This clever reading is flawed, however, because the plain language of § 557(a) establishes a limitations period only for causes of action that could have been brought by or against the deceased during his lifetime; it does not apply to causes of action by or against an estate that accrue after the decedent’s death.
Accordingly, the trial court erred in concluding that the estate’s claim was barred by § 557(a).
Brian Benson, as administrator of Alan Benson’s estate, appeals from a Windsor Superior Court order dismissing his suit against decedent’s insurer, MVP as barred by the two-year limitations period set forth in 12 V.S.A. § 557(a). We reverse and remand. We hold that the limitation period set forth in § 557(a) does not apply to causes of action that accrue to the estate after a decedent’s death.
That statute reads as follows:
"If a person, by or against whom an action may be brought, dies before the expiration of the time within which such action may be commenced as provided by this chapter or dies within thirty days after the expiration of such times, the period of limitation as to such action shall cease to operate at the date of his death. After the issuance of letters testamentary or of administration, such action, if the cause of action survives, may be commenced by or against the executor or administrator within two years, and not after."
A cause of action does not accrue until each element of the cause of action exists. A cause of action for breach of contract accrues when the breach occurs, and a cause of action against an insurance company for bad faith accrues when the company errs, unreasonably, in denying coverage.
Benson died on October 18, 2002. The administrator was appointed on December 2, 2002. The administrator filed suit on August 30, 2007, alleging that MVP breached the contract when it failed to pay a valid claim submitted by the administrator and repeatedly refused to respond to the administrator’s grievances and requests for information and relief. The complaint alleges bad faith on the grounds that MVP denied the claim without a reasonable basis. Assuming these allegations to be true, the estate’s causes of action accrued after the decedent’s death.
Based on the statutory language quoted above, MVP argues that § 557(a) applies to causes of action that accrue after death because a person who dies before a cause of action accrues necessarily dies before the expiration of that action’s limitations period. This clever reading is flawed, however, because the plain language of § 557(a) establishes a limitations period only for causes of action that could have been brought by or against the deceased during his lifetime; it does not apply to causes of action by or against an estate that accrue after the decedent’s death.
Accordingly, the trial court erred in concluding that the estate’s claim was barred by § 557(a).
Thursday, May 28, 2009
UIM insurance
Primary carrier pays nothing because primary carrier, not the excess carrier, gets to offset the full amount of the tortfeasor’s liability payment. Humphrey v. Vermont Mutual and State Farm, 2009 VT 53 (mem.)
Humphrey was injured when the car in which she was a passenger was struck by another car. State Farm insured the driver of the car in which Humphrey was a passenger. Humphrey had an automobile insurance policy with Vermont Mutual. She brought suit to enforce uninsured/underinsured motorist (UM/UIM) provisions in both the Vermont Mutual and the State Farm policies, because her damages exceeded the tortfeasor’s liability coverage. The superior court granted summary judgment to State Farm, ruling that the tortfeasor’s $100,000 liability payment nullifies State Farm’s primary UIM coverage of $50,000. We affirm.
State Farm Mutual Auto Insurance Co. v. Powers, 169 Vt. 230, 732 A.2d 730 (1999) endorsed the majority view that the offset applies first to the primary coverage. Id. at 240-41, 732 A.2d at 737-38. Vermont Mutual urges us instead to prorate the $100,000 credit. By their proposed allocation method, they would receive the proportion of the credit that their UIM coverage bears to the total UIM coverage, or roughly $86,000 of the $100,000 offset in this case. Vermont Mutual argues that our decision in Powers does not control and that public policy considerations favor pro rata allocation. We reject these arguments.
Powers decided that the insurer providing primary UM/UIM coverage is entitled to offset its coverage with any payment obtained from the tortfeasor. Vermont Mutual’s fairness argument—that it should be rewarded with a greater portion of the offset because it assumed a higher risk in issuing a higher limit policy—is without merit. The denial of any offset to the excess insurer is a logical corollary to the lack of risk it faces until the primary policy is exhausted.
In order to be fair, in this context, we need only be consistent. Consistency allows insurers to accurately assess the risk associated with the policies they issue. Our decision that the insurer who stands first in line to pay should also stand first in line to collect is consistent with Powers and with the majority of jurisdictions that have addressed the issue.
We explicitly hold today that primary UM/UIM insurers are entitled to offset their coverage by the full amount of a tortfeasor’s liability payment. Any remaining offset inures to the excess insurer’s benefit.
Humphrey was injured when the car in which she was a passenger was struck by another car. State Farm insured the driver of the car in which Humphrey was a passenger. Humphrey had an automobile insurance policy with Vermont Mutual. She brought suit to enforce uninsured/underinsured motorist (UM/UIM) provisions in both the Vermont Mutual and the State Farm policies, because her damages exceeded the tortfeasor’s liability coverage. The superior court granted summary judgment to State Farm, ruling that the tortfeasor’s $100,000 liability payment nullifies State Farm’s primary UIM coverage of $50,000. We affirm.
State Farm Mutual Auto Insurance Co. v. Powers, 169 Vt. 230, 732 A.2d 730 (1999) endorsed the majority view that the offset applies first to the primary coverage. Id. at 240-41, 732 A.2d at 737-38. Vermont Mutual urges us instead to prorate the $100,000 credit. By their proposed allocation method, they would receive the proportion of the credit that their UIM coverage bears to the total UIM coverage, or roughly $86,000 of the $100,000 offset in this case. Vermont Mutual argues that our decision in Powers does not control and that public policy considerations favor pro rata allocation. We reject these arguments.
Powers decided that the insurer providing primary UM/UIM coverage is entitled to offset its coverage with any payment obtained from the tortfeasor. Vermont Mutual’s fairness argument—that it should be rewarded with a greater portion of the offset because it assumed a higher risk in issuing a higher limit policy—is without merit. The denial of any offset to the excess insurer is a logical corollary to the lack of risk it faces until the primary policy is exhausted.
In order to be fair, in this context, we need only be consistent. Consistency allows insurers to accurately assess the risk associated with the policies they issue. Our decision that the insurer who stands first in line to pay should also stand first in line to collect is consistent with Powers and with the majority of jurisdictions that have addressed the issue.
We explicitly hold today that primary UM/UIM insurers are entitled to offset their coverage by the full amount of a tortfeasor’s liability payment. Any remaining offset inures to the excess insurer’s benefit.
Friday, May 8, 2009
Wrongful death of a cat: no damages for lost companionship or emotional distress.
Goodby v. Vetpharm, 2009 VT 52 (Burgess, J.)
This case presents two questions: first, whether noneconomic damages are available when a pet dies due to negligent or wanton acts of veterinarians and a pharmaceutical company; second, whether a claim for negligent infliction of emotional distress lies for the death of a pet when its human companion was not within any so-called zone of danger at the time of the mishap. We answer both questions in the negative and affirm the superior court’s order of dismissal.
Plaintiffs recognize that the common law generally treats animals as personal property. We have said that the measure governing damages to personal property is the property’s “fair market value before the injury less fair market value after the injury.” That there may be a different or more appropriate measure of damages for the tangible loss of pets due to the negligence of others—a measure based on the particular pet’s value to its owner, not simply its value to a stranger in the market—need not be considered here, since plaintiffs effectively waived that claim by dismissing all claims for general damages in favor of preserving only claims for their lost companionship and emotional distress resulting from the death of their pets.
Plaintiffs and amicus Animal Legal Defense Fund urge us to adopt the view that companion animals are more properly considered as family members than personal property, so that recovery for noneconomic damage occasioned by their loss should be similarly available as for the wrongful death of next of kin. Plaintiffs fail to demonstrate a compelling reason why, as a matter of public policy, the law should offer broader compensation for the loss of a pet than would be available for the loss of a friend, relative, work animal, heirloom, or memento—all of which can be prized beyond measure, but for which this state’s law does not recognize recovery for sentimental loss. We are not persuaded that a special exception to recover noneconomic damages for the loss of companion animals occasioned by negligence should be undertaken outside of the legislative arena.
To be in the “zone of danger,” the plaintiff must be within the zone of an act negligently directed at him by defendant. Further, recovery for negligent infliction of emotional distress is precluded where the claimant does not allege “any reasonable fear for [his or her] own safety. The facts alleged in this case do not satisfy these standards. Administering the pills to the cats placed plaintiffs in no fear for their own safety, and were not acts “directed at” plaintiffs, but rather at their pets. Therefore, we also affirm the trial court’s decision to dismiss the negligent infliction of emotional distress claim.
Affirmed.
This case presents two questions: first, whether noneconomic damages are available when a pet dies due to negligent or wanton acts of veterinarians and a pharmaceutical company; second, whether a claim for negligent infliction of emotional distress lies for the death of a pet when its human companion was not within any so-called zone of danger at the time of the mishap. We answer both questions in the negative and affirm the superior court’s order of dismissal.
Plaintiffs recognize that the common law generally treats animals as personal property. We have said that the measure governing damages to personal property is the property’s “fair market value before the injury less fair market value after the injury.” That there may be a different or more appropriate measure of damages for the tangible loss of pets due to the negligence of others—a measure based on the particular pet’s value to its owner, not simply its value to a stranger in the market—need not be considered here, since plaintiffs effectively waived that claim by dismissing all claims for general damages in favor of preserving only claims for their lost companionship and emotional distress resulting from the death of their pets.
Plaintiffs and amicus Animal Legal Defense Fund urge us to adopt the view that companion animals are more properly considered as family members than personal property, so that recovery for noneconomic damage occasioned by their loss should be similarly available as for the wrongful death of next of kin. Plaintiffs fail to demonstrate a compelling reason why, as a matter of public policy, the law should offer broader compensation for the loss of a pet than would be available for the loss of a friend, relative, work animal, heirloom, or memento—all of which can be prized beyond measure, but for which this state’s law does not recognize recovery for sentimental loss. We are not persuaded that a special exception to recover noneconomic damages for the loss of companion animals occasioned by negligence should be undertaken outside of the legislative arena.
To be in the “zone of danger,” the plaintiff must be within the zone of an act negligently directed at him by defendant. Further, recovery for negligent infliction of emotional distress is precluded where the claimant does not allege “any reasonable fear for [his or her] own safety. The facts alleged in this case do not satisfy these standards. Administering the pills to the cats placed plaintiffs in no fear for their own safety, and were not acts “directed at” plaintiffs, but rather at their pets. Therefore, we also affirm the trial court’s decision to dismiss the negligent infliction of emotional distress claim.
Affirmed.
Friday, April 24, 2009
Agency/ insurance law: What is “personal knowledge” of a corporation?
Mann v. Adventure Quest (2007-443) (24-Apr-2009), 2009 VT 38 (Dooley, J.)
This suit arises out of the conduct of, the executive director of Adventure Quest who sexually abused both plaintiffs when they were minors and attended Adventure Quest. Plaintiffs appeal from the Windsor Superior Court’s grant of summary judgment to intervenor-insurer Virginia Surety Company, determining that insurer would not owe indemnification to Adventure Quest should it be found liable to plaintiffs for sexual abuse they experienced while attending Adventure Quest’s school. On appeal, plaintiffs argue that insurer was not entitled to summary judgment because the superior court should not have imputed knowledge of the sexual abuse to Adventure Quest and because a material fact remained in dispute. The insurance policy exclusion insurer seeks to apply is invoked only if Adventure Quest has “personal knowledge of any sexual abuse, sexual molestation, sexual exploitation, or sexual injury.” The superior court granted summary judgment to insurer because the executive director’s knowledge of his own misconduct must be imputed to Adventure Quest, so that it can be said to have had “personal knowledge” of the abuse thereby precluding coverage under the exclusion quoted above. We agree that a material fact remains in dispute and reverse and remand.
Under agency law, the executive director’s knowledge of his own misconduct must be imputed to Adventure Quest, so that it can be said to have had “personal knowledge” of the abuse in this case only if the executive director controls and dominates the corporation. Any notice or knowledge received by an officer or agent authorized to receive the same is imputed to the corporation itself, unless it is received by the agent outside the scope of the agent’s authority. When an agent’s interests in the subject matter are so adverse as to practically destroy the agency relationship, there is no imputation of knowledge to the principal. This is the adverse-interest exception. There is an exception to the adverse interest exception when an adverse agent is the sole representative of the principal.
We adopt the sole-representative doctrine as applied when an agent controls and dominates the corporation. Although we generally view this case as turning on agency principles, the policy language does not necessarily adopt these principles. The use of the word “personal” suggests a more rigorous standard. Our duty is to construe the policy as it is written and not to rewrite it using language we can more easily construe. It is important that we not broadly allow imputation of knowledge of misconduct through a sole-representative doctrine. We view the very limited policy language requiring “personal” knowledge as addressing that concern.
From this record we cannot determine whether the executive director controlled and dominated Adventure Quest. There are clearly disputed questions of material fact that prevent the grant of summary judgment.
This suit arises out of the conduct of, the executive director of Adventure Quest who sexually abused both plaintiffs when they were minors and attended Adventure Quest. Plaintiffs appeal from the Windsor Superior Court’s grant of summary judgment to intervenor-insurer Virginia Surety Company, determining that insurer would not owe indemnification to Adventure Quest should it be found liable to plaintiffs for sexual abuse they experienced while attending Adventure Quest’s school. On appeal, plaintiffs argue that insurer was not entitled to summary judgment because the superior court should not have imputed knowledge of the sexual abuse to Adventure Quest and because a material fact remained in dispute. The insurance policy exclusion insurer seeks to apply is invoked only if Adventure Quest has “personal knowledge of any sexual abuse, sexual molestation, sexual exploitation, or sexual injury.” The superior court granted summary judgment to insurer because the executive director’s knowledge of his own misconduct must be imputed to Adventure Quest, so that it can be said to have had “personal knowledge” of the abuse thereby precluding coverage under the exclusion quoted above. We agree that a material fact remains in dispute and reverse and remand.
Under agency law, the executive director’s knowledge of his own misconduct must be imputed to Adventure Quest, so that it can be said to have had “personal knowledge” of the abuse in this case only if the executive director controls and dominates the corporation. Any notice or knowledge received by an officer or agent authorized to receive the same is imputed to the corporation itself, unless it is received by the agent outside the scope of the agent’s authority. When an agent’s interests in the subject matter are so adverse as to practically destroy the agency relationship, there is no imputation of knowledge to the principal. This is the adverse-interest exception. There is an exception to the adverse interest exception when an adverse agent is the sole representative of the principal.
We adopt the sole-representative doctrine as applied when an agent controls and dominates the corporation. Although we generally view this case as turning on agency principles, the policy language does not necessarily adopt these principles. The use of the word “personal” suggests a more rigorous standard. Our duty is to construe the policy as it is written and not to rewrite it using language we can more easily construe. It is important that we not broadly allow imputation of knowledge of misconduct through a sole-representative doctrine. We view the very limited policy language requiring “personal” knowledge as addressing that concern.
From this record we cannot determine whether the executive director controlled and dominated Adventure Quest. There are clearly disputed questions of material fact that prevent the grant of summary judgment.
Sunday, April 19, 2009
Stealing plaintiffs’ money and then lying to them about the theft, notwithstanding fiduciary duty, was malice as a matter of law.
New trial on amount of punitive damages granted, even though plaintiff made no Rule 50 motion. DeYoung v. Ruggerio, 2009 VT 9 (Dooley, J.)
This is an action by clients against a lawyer who misappropriated funds belonging to the clients. The lawyer failed to answer the complaint, and the superior court entered a default judgment in favor of plaintiffs. The court held a trial on damages, and a jury awarded no punitive damages based on a special interrogatory that it did not find malice. On appeal, we conclude that the element of malice was demonstrated as a matter of law in this case. Even though Plaintiff made no Rule 50 motion on this issue, we reverse the judgment in part and remand the matter for the jury to determine how much in punitive damages, if anything, to award plaintiffs.
Our longstanding definition of malice has been a source of confusion by referring not only to “conduct manifesting personal ill will” but also to “conduct showing a reckless disregard to the rights of others.” Although defendant acknowledges stealing plaintiffs’ money and then lying to them about the theft for years notwithstanding his fiduciary duty to them, he contends that the jury could reasonably have found no malice because (1) he did not intend to harm them, and (2) he always intended to return the money to them sooner rather than later. We conclude that even if the jury accepted this explanation entirely, defendant’s fraudulent conduct demonstrated bad motive and malice as a matter of law.
Malice or “bad motive” does not arise exclusively from “personal ill will” toward a particular person. Malice may also be found when the defendant engages in deliberate and outrageous conduct aimed at securing financial gain or some other advantage at another’s expense, even if the motivation underlying the outrageous conduct is to benefit oneself rather than harm another. To find malice, the jury was not required to determine that defendant’s motive in stealing plaintiffs’ estate funds was to harm them rather than enrich himself. Especially this case involving wrongdoing by a fiduciary, Defendant’s admitted motive to enrich himself and promote the interests of his company, in and of itself demonstrates a bad motive.
The trial court could have found malice as a matter of law, in light of the record demonstrating his intentional course of wrongdoing, committed with conscious and deliberate disregard for plaintiffs’ rights, and pursuant to an illegitimate motive. In the absence of a Rule 50 motion, the court should have granted plaintiffs’ post-hearing motion for a new trial based on the complete absence of evidence to support the jury’s finding of no malice. Accordingly, we reverse and remand for the jury to consider the proper amount of punitive damages, if any, without requiring them to make the threshold determination of whether malice existed.
This is an action by clients against a lawyer who misappropriated funds belonging to the clients. The lawyer failed to answer the complaint, and the superior court entered a default judgment in favor of plaintiffs. The court held a trial on damages, and a jury awarded no punitive damages based on a special interrogatory that it did not find malice. On appeal, we conclude that the element of malice was demonstrated as a matter of law in this case. Even though Plaintiff made no Rule 50 motion on this issue, we reverse the judgment in part and remand the matter for the jury to determine how much in punitive damages, if anything, to award plaintiffs.
Our longstanding definition of malice has been a source of confusion by referring not only to “conduct manifesting personal ill will” but also to “conduct showing a reckless disregard to the rights of others.” Although defendant acknowledges stealing plaintiffs’ money and then lying to them about the theft for years notwithstanding his fiduciary duty to them, he contends that the jury could reasonably have found no malice because (1) he did not intend to harm them, and (2) he always intended to return the money to them sooner rather than later. We conclude that even if the jury accepted this explanation entirely, defendant’s fraudulent conduct demonstrated bad motive and malice as a matter of law.
Malice or “bad motive” does not arise exclusively from “personal ill will” toward a particular person. Malice may also be found when the defendant engages in deliberate and outrageous conduct aimed at securing financial gain or some other advantage at another’s expense, even if the motivation underlying the outrageous conduct is to benefit oneself rather than harm another. To find malice, the jury was not required to determine that defendant’s motive in stealing plaintiffs’ estate funds was to harm them rather than enrich himself. Especially this case involving wrongdoing by a fiduciary, Defendant’s admitted motive to enrich himself and promote the interests of his company, in and of itself demonstrates a bad motive.
The trial court could have found malice as a matter of law, in light of the record demonstrating his intentional course of wrongdoing, committed with conscious and deliberate disregard for plaintiffs’ rights, and pursuant to an illegitimate motive. In the absence of a Rule 50 motion, the court should have granted plaintiffs’ post-hearing motion for a new trial based on the complete absence of evidence to support the jury’s finding of no malice. Accordingly, we reverse and remand for the jury to consider the proper amount of punitive damages, if any, without requiring them to make the threshold determination of whether malice existed.
Depositions at trial: prejudicial error to admit video “preservation” deposition of expert w/o showing witness unavailable.
Nichols and Nichols, Guardians of Nichols v. Brattleboro Retreat d/b/s/ Retreat Healthcare (2007-310) (23-Jan-2009) (Reiber, C.J.; Burgess, J., dissenting.)
Plaintiffs in this medical negligence action appeal from a judgment based on a jury verdict, in favor of defendant, the Brattleboro Retreat. Plaintiffs contend the court erred in admitting the deposition testimony of an expert witness without finding that the witness was unavailable. We conclude that the admission of the deposition testimony was error, and reverse and remand.
The trial court did not make the requisite finding that the witness was unavailable as a basis for admission. Instead, because the sole purpose of the deposition was to preserve testimony for trial, the court found that plaintiffs had waived the objection by failing to raise it at the deposition. We agree with plaintiffs that the facts and the law do not support the court’s finding of a waiver. There is no question, to be sure, that plaintiffs were aware of the stated purpose of the deposition and extensively examined the witness with this understanding. Nevertheless, plaintiffs expressly denied having entered into any stipulations at the start of the deposition, and, more importantly, were under no affirmative obligation to raise an objection at that time; it remained defendant’s burden, as the proponent, to establish a foundation for the deposition’s admission at trial. See Duto v. Mitchell, 158 Vt. 653, 654, 609 A.2d 988, 989 (1992) (mem.) (although plaintiffs had informed defendant of their intent to introduce deposition at trial and defendant did not object, defendant “never agreed affirmatively to waive its right to require the in-court appearance” of the witness, and defendant’s silence did not amount to acquiescence). Hence, we cannot conclude that the record supports a finding that plaintiffs waived their objection to the deposition or implicitly agreed to its admission. Moreover, there was no finding that the witness actually was unavailable. Accordingly, it was error to admit the deposition. The admission of the deposition was prejudicial because it was the sole evidence offered by defendant on a central issue.
Burgess, J., dissenting, would have held the “absence of Dr. Rabinowitz’s physical appearance in court “ was harmless error. The deposition was preceded by plaintiffs’ initial discovery deposition when the nature and scope of Dr. Rabinowitz’s opinion and the basis therefore could be known in advance of the preservation deposition. The deposition at issue was specifically noticed and conducted as a “preservation” deposition where objections could be interposed for ruling at trial. The doctor’s preserved testimony was videotaped, so that his tone and demeanor on direct and cross-examination could be observed. Plaintiffs were therefore prepared to vigorously cross-examine the expert at the second deposition, and the record shows that this is precisely what occurred.
Plaintiffs in this medical negligence action appeal from a judgment based on a jury verdict, in favor of defendant, the Brattleboro Retreat. Plaintiffs contend the court erred in admitting the deposition testimony of an expert witness without finding that the witness was unavailable. We conclude that the admission of the deposition testimony was error, and reverse and remand.
The trial court did not make the requisite finding that the witness was unavailable as a basis for admission. Instead, because the sole purpose of the deposition was to preserve testimony for trial, the court found that plaintiffs had waived the objection by failing to raise it at the deposition. We agree with plaintiffs that the facts and the law do not support the court’s finding of a waiver. There is no question, to be sure, that plaintiffs were aware of the stated purpose of the deposition and extensively examined the witness with this understanding. Nevertheless, plaintiffs expressly denied having entered into any stipulations at the start of the deposition, and, more importantly, were under no affirmative obligation to raise an objection at that time; it remained defendant’s burden, as the proponent, to establish a foundation for the deposition’s admission at trial. See Duto v. Mitchell, 158 Vt. 653, 654, 609 A.2d 988, 989 (1992) (mem.) (although plaintiffs had informed defendant of their intent to introduce deposition at trial and defendant did not object, defendant “never agreed affirmatively to waive its right to require the in-court appearance” of the witness, and defendant’s silence did not amount to acquiescence). Hence, we cannot conclude that the record supports a finding that plaintiffs waived their objection to the deposition or implicitly agreed to its admission. Moreover, there was no finding that the witness actually was unavailable. Accordingly, it was error to admit the deposition. The admission of the deposition was prejudicial because it was the sole evidence offered by defendant on a central issue.
Burgess, J., dissenting, would have held the “absence of Dr. Rabinowitz’s physical appearance in court “ was harmless error. The deposition was preceded by plaintiffs’ initial discovery deposition when the nature and scope of Dr. Rabinowitz’s opinion and the basis therefore could be known in advance of the preservation deposition. The deposition at issue was specifically noticed and conducted as a “preservation” deposition where objections could be interposed for ruling at trial. The doctor’s preserved testimony was videotaped, so that his tone and demeanor on direct and cross-examination could be observed. Plaintiffs were therefore prepared to vigorously cross-examine the expert at the second deposition, and the record shows that this is precisely what occurred.
Exculpatory release is clear, valid and enforceable to preclude negligence liability.
Provoncha v. Vermont Motocross Assn. 2009 VT 29 (Skoglund, J.)(Johnson, J., dissenting.)
Heidi and Clint Provoncha appeal from the Orleans County Superior Court’s grant of summary judgment in favor of Vermont Motocross Association (VMA). The Provonchas filed suit alleging negligence in connection with injuries Mr. Provoncha sustained while participating in a motocross event sponsored by VMA. The superior court ruled that the “Race Day Entry Form,” which Mr. Provoncha signed the day before the event, operated as a waiver of the negligence claim. The form releases VMA "from liability, loss, claims, and demands that may accrue from any loss, damage or injury, including paralization and/or death to my person or property, in anyway arising while engaged in competition or in practice or preparation therefore, or while entering or departing the premises, from any cause what so ever." The Provonchas contend on appeal that the Race Day Entry Form does not release VMA from liability because: (1) it is not sufficiently clear as required by our decision in Thompson v. Hi Tech Motor Sports, Inc., 2008 VT 15, ___ Vt. ___, 945 A.2d 368; and (2) it violates public policy. We affirm the superior court’s grant of summary judgment.
The question of whether the Race Day Entry Form at issue in this case was sufficiently clear to release VMA and Driver from liability for negligence is governed by Douglass v. Skiing Standards, Inc., 142 Vt. 634, 459 A.2d 97 (1983) (release was sufficiently clear for purposes of exculpating ski area from negligence liability notwithstanding its failure to include the word “negligence” in its terms.) We recently reaffirmed Douglass in Thompson, where we held that, unlike Douglass, an agreement releasing a motorcycle dealership from “any claim” was not sufficiently clear to exculpate it from its own negligent acts. The release at issue in Thompson read: “The undersigned waives any claim that he/she may have now or in the future against [defendant] . . . for injury to him/her self as a result of his/her operation . . . of a motorized vehicle owned by . . . [defendant].” In contrast, the Race Day Entry Form, like the Douglass release, is comprehensive as to type of claim—"liability, loss, claims, and demands that may accrue from any loss, damage or injury.” The Race Day Entry form is sufficiently clear as to operate as a release of negligence claims against defendants.
We explained in Thompson that “evaluating whether a release from liability contravenes public policy does not follow a strict formula because no single formula will reach the relevant public policy issues in every factual context.” Id., ¶ 6 (quotation omitted). “Rather,” we continued, “we consider the totality of the circumstances and societal expectations to determine whether sufficient public interest exists to avoid a release.” Id. We conclude, given the totality of the circumstances of this case, the nature of the activity, and the expectations of society, that there are no public policy barriers to effectuating the Race Day Entry Form.
Johnson, J., dissents for the simple and obvious reason that this case is plainly controlled by Thompson v. Hi Tech Motor Sports, Inc., 2008 VT 15, ___ Vt. ___, 945 A.2d 368, where the Court held that a similar contractual release was insufficiently clear and unambiguous to insulate the defendant from liability for its own negligence.
Heidi and Clint Provoncha appeal from the Orleans County Superior Court’s grant of summary judgment in favor of Vermont Motocross Association (VMA). The Provonchas filed suit alleging negligence in connection with injuries Mr. Provoncha sustained while participating in a motocross event sponsored by VMA. The superior court ruled that the “Race Day Entry Form,” which Mr. Provoncha signed the day before the event, operated as a waiver of the negligence claim. The form releases VMA "from liability, loss, claims, and demands that may accrue from any loss, damage or injury, including paralization and/or death to my person or property, in anyway arising while engaged in competition or in practice or preparation therefore, or while entering or departing the premises, from any cause what so ever." The Provonchas contend on appeal that the Race Day Entry Form does not release VMA from liability because: (1) it is not sufficiently clear as required by our decision in Thompson v. Hi Tech Motor Sports, Inc., 2008 VT 15, ___ Vt. ___, 945 A.2d 368; and (2) it violates public policy. We affirm the superior court’s grant of summary judgment.
The question of whether the Race Day Entry Form at issue in this case was sufficiently clear to release VMA and Driver from liability for negligence is governed by Douglass v. Skiing Standards, Inc., 142 Vt. 634, 459 A.2d 97 (1983) (release was sufficiently clear for purposes of exculpating ski area from negligence liability notwithstanding its failure to include the word “negligence” in its terms.) We recently reaffirmed Douglass in Thompson, where we held that, unlike Douglass, an agreement releasing a motorcycle dealership from “any claim” was not sufficiently clear to exculpate it from its own negligent acts. The release at issue in Thompson read: “The undersigned waives any claim that he/she may have now or in the future against [defendant] . . . for injury to him/her self as a result of his/her operation . . . of a motorized vehicle owned by . . . [defendant].” In contrast, the Race Day Entry Form, like the Douglass release, is comprehensive as to type of claim—"liability, loss, claims, and demands that may accrue from any loss, damage or injury.” The Race Day Entry form is sufficiently clear as to operate as a release of negligence claims against defendants.
We explained in Thompson that “evaluating whether a release from liability contravenes public policy does not follow a strict formula because no single formula will reach the relevant public policy issues in every factual context.” Id., ¶ 6 (quotation omitted). “Rather,” we continued, “we consider the totality of the circumstances and societal expectations to determine whether sufficient public interest exists to avoid a release.” Id. We conclude, given the totality of the circumstances of this case, the nature of the activity, and the expectations of society, that there are no public policy barriers to effectuating the Race Day Entry Form.
Johnson, J., dissents for the simple and obvious reason that this case is plainly controlled by Thompson v. Hi Tech Motor Sports, Inc., 2008 VT 15, ___ Vt. ___, 945 A.2d 368, where the Court held that a similar contractual release was insufficiently clear and unambiguous to insulate the defendant from liability for its own negligence.
Workers Comp. Act bars action against supervisor exercising managerial prerogative.
Garger v. Desroches, 2009 VT 37 (mem.)
Plaintiff Michael Garger appeals from the superior court’s order dismissing his complaint against his former co-employee and supervisor. Plaintiff filed an action for damages, alleging that defendant negligently ordered him to surmount a steep incline while driving an all-terrain vehicle, which resulted in an accident that caused him severe injury. The court dismissed the complaint as barred by the Workers’ Compensation Act . On appeal, plaintiff argues that his cause of action is not barred because it is not against his employer. We affirm.
For someone to be “other than the employer” and not per se immune from suit, the person must not be acting as the employer—that is, he must not be performing a nondelegable duty of the employer and must not be exercising “managerial prerogatives.” We conclude that defendant can be acting as the employer even though he is not an owner or officer of the employer corporation. The order was given as a managerial duty in that, as plaintiff alleges, defendant was acting as his supervisor at the time.
A failure to ensure that the equipment is appropriate for the job is part of an employer’s nondelegable duty to provide a safe workplace. Any negligence was in failing to assure that the equipment and the operator were safe and appropriate for the task of driving up the steep slope. Whether the alleged negligence is characterized as arising from an affirmative act or from an omission, the fact remains that defendant may not be sued because any breach was of the duty to provide a safe work environment. Thus, defendant’s act is not excepted from § 624(a)’s exclusivity clause.
The exclusivity provision bars any claim against an employer short of intentional injury. Since defendant was exercising a nondelegable duty of the employer and was thus acting as the employer, defendant must have either had a specific intent to injure or have known with substantial certainty that injury would result, for the exclusivity provision not to bar plaintiff’s claim. Plaintiff has not alleged such facts.
Plaintiff Michael Garger appeals from the superior court’s order dismissing his complaint against his former co-employee and supervisor. Plaintiff filed an action for damages, alleging that defendant negligently ordered him to surmount a steep incline while driving an all-terrain vehicle, which resulted in an accident that caused him severe injury. The court dismissed the complaint as barred by the Workers’ Compensation Act . On appeal, plaintiff argues that his cause of action is not barred because it is not against his employer. We affirm.
For someone to be “other than the employer” and not per se immune from suit, the person must not be acting as the employer—that is, he must not be performing a nondelegable duty of the employer and must not be exercising “managerial prerogatives.” We conclude that defendant can be acting as the employer even though he is not an owner or officer of the employer corporation. The order was given as a managerial duty in that, as plaintiff alleges, defendant was acting as his supervisor at the time.
A failure to ensure that the equipment is appropriate for the job is part of an employer’s nondelegable duty to provide a safe workplace. Any negligence was in failing to assure that the equipment and the operator were safe and appropriate for the task of driving up the steep slope. Whether the alleged negligence is characterized as arising from an affirmative act or from an omission, the fact remains that defendant may not be sued because any breach was of the duty to provide a safe work environment. Thus, defendant’s act is not excepted from § 624(a)’s exclusivity clause.
The exclusivity provision bars any claim against an employer short of intentional injury. Since defendant was exercising a nondelegable duty of the employer and was thus acting as the employer, defendant must have either had a specific intent to injure or have known with substantial certainty that injury would result, for the exclusivity provision not to bar plaintiff’s claim. Plaintiff has not alleged such facts.
Failure to exhaust administrative remedies bars VPAA hostile school environment claims based on peer harassment.
Allen v. University of Vermont (2008-132) (27-Mar-2009) 2009 VT 33 (Burgess, J.) (Johnson, J., dissenting.)
Plaintiff, a former University of Vermont (UVM) student, sued the university for monetary damages, claiming discrimination under the Vermont Public Accommodations Act (VPAA). The VPAA, 9 V.S.A. §§ 4500-4508 creates a private right of action for persons discriminated against in places of public accommodation, including educational institutions. See Washington v. Pierce, 2005 VT 125, ¶ 18, 179 Vt. 318, 895 A.2d 173 (concluding that “the VPAA encompasses hostile school environment claims based on peer harassment”). Plaintiff complained that UVM did not treat her report of rape by another student as a harassment claim and did not investigate her charge as required by 16 V.S.A. § 14, a statute designed to prevent harassment in educational institutions. The superior court granted summary judgment in favor of UVM on the ground that plaintiff failed to exhaust her administrative remedies, which the same statute requires as a precondition to her cause of action. Id. § 14(b).
Absent an applicable exemption, a private cause of action under the VPAA against an educational institution is generally barred unless the plaintiff first satisfies the statutory precondition of bringing a claim of harassment to the attention of the persons designated by the institution to handle such complaints. 16 V.S.A. § 14(b). It was undisputed that plaintiff did not complain to the officials specifically designated by UVM to receive and respond to harassment claims. On appeal, plaintiff argues that (1) UVM’s failure to provide her with a copy of its harassment policy at the time she reported the assault precluded UVM’s failure-to-exhaust-administrative-remedies defense; (2) existing statutory exceptions to the exhaustion requirement apply to this case; and (3) even if those existing exceptions are not applicable here, the facts in this case should compel this Court to recognize an additional, extra-statutory exception to the legislated exhaustion requirement. We disagree with each of these arguments and affirm the superior court’s judgment.
In Washington, rather than adopt the subjectively based “deliberately indifferent” or “knew or should have known” standards applied respectively in Title IX and Title VII cases, we focused on the Legislature’s exhaustion requirement to satisfy the second element of a student-to-student hostile-school-environment claim. Id. ¶¶ 23-34. UVM is entitled to have its designated employees answer an express harassment claim before its opportunity to examine and correct its position is foreclosed. The reality is that plaintiff never expressed her complaint in terms of “harassment.” Plaintiff complained about being raped, and the Victim’s Advocate, as well as the Center’s Assistant Director, simply responded to a rape complaint. As the trial court concluded, nobody—neither plaintiff nor university officials—apparently perceived that they were dealing with harassment. Not too surprisingly, the Victim’s Advocate did not view plaintiff’s report of rape as one of civil harassment.
Washington, 2005 VT 125, ¶ 35 also holds that a plaintiff bringing a VPAA action based on a hostile school environment created by student-student harassment must show, in addition to exhaustion of administrative remedies, that “he or she was the victim of harassing conduct so severe, pervasive, and objectively offensive that it deprived him or her of access to the educational opportunities or benefits provided by the school”. Nothing of that sort was brought to the attention of the Victims’ Advocate or to the Center’s Assistant Director. For the reasons stated in Washington, we will not undermine the plain intent of the Legislature to require administrative exhaustion as an express precondition to civil harassment claims under the VPAA
Justice Johnson, in dissent, would not allow the university to escape the lawsuit at this stage, given the labyrinth it created, its failure to disclose critical information to the student, and its failure to respond to the complained-of conduct, claiming the majority ruling “makes a mockery of the Legislature’s purpose.”
Plaintiff, a former University of Vermont (UVM) student, sued the university for monetary damages, claiming discrimination under the Vermont Public Accommodations Act (VPAA). The VPAA, 9 V.S.A. §§ 4500-4508 creates a private right of action for persons discriminated against in places of public accommodation, including educational institutions. See Washington v. Pierce, 2005 VT 125, ¶ 18, 179 Vt. 318, 895 A.2d 173 (concluding that “the VPAA encompasses hostile school environment claims based on peer harassment”). Plaintiff complained that UVM did not treat her report of rape by another student as a harassment claim and did not investigate her charge as required by 16 V.S.A. § 14, a statute designed to prevent harassment in educational institutions. The superior court granted summary judgment in favor of UVM on the ground that plaintiff failed to exhaust her administrative remedies, which the same statute requires as a precondition to her cause of action. Id. § 14(b).
Absent an applicable exemption, a private cause of action under the VPAA against an educational institution is generally barred unless the plaintiff first satisfies the statutory precondition of bringing a claim of harassment to the attention of the persons designated by the institution to handle such complaints. 16 V.S.A. § 14(b). It was undisputed that plaintiff did not complain to the officials specifically designated by UVM to receive and respond to harassment claims. On appeal, plaintiff argues that (1) UVM’s failure to provide her with a copy of its harassment policy at the time she reported the assault precluded UVM’s failure-to-exhaust-administrative-remedies defense; (2) existing statutory exceptions to the exhaustion requirement apply to this case; and (3) even if those existing exceptions are not applicable here, the facts in this case should compel this Court to recognize an additional, extra-statutory exception to the legislated exhaustion requirement. We disagree with each of these arguments and affirm the superior court’s judgment.
In Washington, rather than adopt the subjectively based “deliberately indifferent” or “knew or should have known” standards applied respectively in Title IX and Title VII cases, we focused on the Legislature’s exhaustion requirement to satisfy the second element of a student-to-student hostile-school-environment claim. Id. ¶¶ 23-34. UVM is entitled to have its designated employees answer an express harassment claim before its opportunity to examine and correct its position is foreclosed. The reality is that plaintiff never expressed her complaint in terms of “harassment.” Plaintiff complained about being raped, and the Victim’s Advocate, as well as the Center’s Assistant Director, simply responded to a rape complaint. As the trial court concluded, nobody—neither plaintiff nor university officials—apparently perceived that they were dealing with harassment. Not too surprisingly, the Victim’s Advocate did not view plaintiff’s report of rape as one of civil harassment.
Washington, 2005 VT 125, ¶ 35 also holds that a plaintiff bringing a VPAA action based on a hostile school environment created by student-student harassment must show, in addition to exhaustion of administrative remedies, that “he or she was the victim of harassing conduct so severe, pervasive, and objectively offensive that it deprived him or her of access to the educational opportunities or benefits provided by the school”. Nothing of that sort was brought to the attention of the Victims’ Advocate or to the Center’s Assistant Director. For the reasons stated in Washington, we will not undermine the plain intent of the Legislature to require administrative exhaustion as an express precondition to civil harassment claims under the VPAA
Justice Johnson, in dissent, would not allow the university to escape the lawsuit at this stage, given the labyrinth it created, its failure to disclose critical information to the student, and its failure to respond to the complained-of conduct, claiming the majority ruling “makes a mockery of the Legislature’s purpose.”
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