CARROLL,
J. Plaintiff appeals a judgment entered in favor of defendant following a trial
in which a jury determined that defendant breached an insurance contract with plaintiff’s
assignors. The jury awarded plaintiff $41,737.89 in damages. After the trial
the superior court concluded that, as a matter of law, plaintiff could not show
that his assignors were damaged by a breach of contract by defendant. We
reverse this determination, vacate the judgment that was entered in favor of
defendant, and remand with direction to the superior court to reinstate the
jury’s verdict and its award of damages.
Over
seventy insurance claims, which all arise under identical insurance policies,
have been combined in this breach-of contract case. For each insurance claim
plaintiff repaired a car belonging to an insured, restoring it to preaccident
condition, and, after receiving a post-loss assignment from an insured,
submitted itemized bills to defendant to recover for its services. In each
instance, defendant paid less than what plaintiff had billed to complete the
repair. The difference between the cost of repair billed by the repair shop and
the amount paid by the insurance company—to whatever extent it is covered by
the insurance policy—is called a short pay in the collision-repair industry.
The
jury returned a verdict finding defendant liable for breach of the insurance
policy and awarding plaintiff $41,737.89.
Defendant filed a renewed motion for judgment as a matter of law under
Vermont Rule of Civil Procedure 50(b), which the court granted. The court
reasoned that the insureds could not have sued defendant for sums that were
entirely within defendant’s discretion to award.
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