SCOVT: July 2025

Saturday, July 5, 2025

SCOVT Affirms dismissal of one count of environmental contamination for failure to join a necessary party, but reverses dismissal of remaining counts and remands for further consideration of municipal immunity defense

Belter v. City of Burlington, 2025 VT 35 (Cohen J.) [filed June 27, 2025]

Plaintiffs John Belter, Joyce Belter, David Belter, and the Belter Family Partnership seek to hold defendant City of Burlington liable for soil and water contamination caused by runoff from Burlington International Airport, which abuts their property in South Burlington. Plaintiffs appeal the civil division’s order dismissing their complaint for failure to join a necessary and indispensable party, and on the basis of municipal immunity. Plaintiffs claim the trial court erred in its analysis of Vermont Rule of Civil Procedure 19 by ignoring Vermont’s common law lack of contribution among joint tortfeasors and not considering the specific claims brought in the case below. Plaintiffs further argue the trial court erred in its analysis of the extent of municipal immunity by failing to acknowledge the property-maintenance functions at the center of plaintiff’s claims against defendant. We affirm in part and reverse in part.

Count 1 of the complaint alleged negligence in allowing the Guard to use firefighting foams that contaminated plaintiffs’ property with PFAS. The remaining counts alleged trespass in the form of PFAS entering plaintiffs’ property; private nuisance due to the infiltration of PFAS into the drinking water; a de facto taking of the property by defendant through the contamination of the 2 property by PFAS; violation of the Vermont Groundwater Protection Act, 10 V.S.A. § 1410(a)(4); and direct negligence by defendant for discharging polluted water onto plaintiff’s property.

The trial court dismissed plaintiffs’ complaint for failure to join a party under Vermont Rule of Civil Procedure 12(b)(7). This Court has not stated the standard of review for dismissal under Rule 12(b)(7). Because our rules are modeled on the Federal Rules of Civil Procedure, we look to federal case law for guidance on the applicable standard. We adopt the federal abuse of discretion standard for a dismissal under Rule 12(b)(7) for failure to join a party.

Rule 19(a)(2) requires joinder of a person if the person claims an interest in the action and disposition in their absence "may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the person's claimed interest." Plaintiffs claimed in Count 1 that “on multiple occasions [the Guard] provided firefighting services, and practiced fighting fires, at [Burlington airport] and on its Base in a negligent manner, directly and proximately causing the PFAS contamination of Plaintiffs’ property.”

We agree with the trial court that Count 1 is entirely based in the negligence of the unjoined third parties. The Guard and the United States clearly have an interest in Count 1 and a finding on this count by a trial court could lead to inconsistent determinations of fault for the United States, which is currently involved in similar litigation in another court. The trial court properly concluded that the United States and the Guard were necessary parties to this claim and acted within its discretion in dismissing it under Rule 12(b)(7). The dismissal of Count 1 is affirmed.

However, the remaining counts are all based on the spread of contaminated water from defendant’s property, not the Guard’s firefighting activities. We conclude that the Guard and the United States were not necessary parties to Counts 2-5 and 7 of the complaint under either prong of Rule 19(a)(2) and their joinder was therefore not required. The court abused its discretion is dismissing Counts 2-5 and 7.

Because we conclude that the court improperly dismissed Counts 2-5 and 7 for nonjoinder, we must consider the court’s ruling that to the extent insurance is not available to cover plaintiffs’ claims, they are barred by municipal immunity for Counts 2-3, 5, and 7.The trial court dismissed plaintiffs’ complaint on this ground under Rule 12(b)(1) for lack of subject-matter jurisdiction. We review this decision de novo, taking all facts pled in the complaint as true and resolving all doubts in favor of the nonmoving party. Jordan v. State Agency of Transp., 166 Vt. 509, 511, 702 A.2d 58, 60 (1997) (applying de novo standard when reviewing dismissal for lack of subject matter jurisdiction).

Here, the trial court focused on the Guard’s firefighting function and found that activity to be shielded by municipal immunity. It is undisputed that firefighting has long been recognized as a governmental function. However, a determination of immunity must be based on the purpose of the activity at the root of plaintiffs’ complaint. Vt. Gas Sys. v. City of Burlington, 153 Vt. 210, 214, (1989). In Counts 2-3, 5, and 7, plaintiffs are not seeking to hold defendant liable for its firefighting functions, but for alleged failures of maintenance and operation of the airport that caused polluted water to run onto their land. These broader functions are arguably proprietary. But the record before us is insufficient to allow us to make such a determination in the first instance, however. We therefore reverse and remand for the court to consider whether municipal immunity applies to the maintenance and operation activities alleged in the surviving counts of the complaint.