Saturday, February 25, 2023

SCOVT Affirms Rule 12 (b)((6) dismissal of wrongful death action against landlord, holding a landlord not in possession of defective property and with no “legal relationship” to injured person invited by tenant, has no liability for injuries regardless of foreseeability of harm

Fleurrey v. Department of Aging and Independent Living, 2023 VT 11 (filed 2/24/2023)

EATON, J. Plaintiff appeals from the civil division’s dismissal of her negligence claim against defendant landlord which alleged that landlord was responsible for the drowning death of a fifty-four-year-old man with developmental disabilities on the property that landlord leased to decedent’s caretakers.  Count III of the complaint alleged that landlord failed to fence the pond, thereby negligently failing to keep the property free of unreasonably dangerous conditions which it knew to exist. Landlord filed a Rule 12(b)(6) motion to dismiss Count III, arguing that it owed decedent no duty to fence the pond at the  property. The question on appeal is whether the civil division properly dismissed plaintiff’s claim. We conclude that it did and therefore affirm.

The purpose of a dismissal motion is to test the law of the claim, not the facts which support it. “[W]hether there is a cognizable legal duty that supports a particular tort action depends on a variety of public policy considerations and relevant factors.” Deveneau v. Wielt, 2016 VT 21, ¶ 8. The court considers “the relationship of the parties, the nature of the risk, . . . the public interest at stake, and the foreseeability of the harm.” Id. The existence of a duty is” primarily a question of law” and “[a]bsent a duty of care, an action for negligence fails.” Id.

More than a century ago we held that a suit could not be sustained against a landlord by a tenant’s invitee, explaining that “[l]iability for an injury due to defective premises ordinarily depends upon power to prevent the injury by making repairs, and therefor rests primarily upon him who has control and possession of the premises.” Beaulac v. Robie, 92 Vt. 27, 32 108 A. 88, 90 (1917).   This decision applies to this case. Here, plaintiff must seek redress from those who invited decedent to the property because the property was in their possession and under their control. Vermont law has recognized this rule for more than a century, and we find no reason to disturb this longstanding precedent now.

Plaintiff argues on appeal landlord owed decedent a duty to protect, relying mainly on §§ 343 and 343A of the Restatement (Second) of Torts. Sections 343 and 343A of the Restatement (Second) of Torts, covering duties that land possessors owe to their invitees. do not apply here because plaintiff did not allege that landlord was the “possessor” of the Elmore Road property. “Possessor” is  defined in Restatement (Second) of Torts § 328E as, ordinarily, “a person who is in occupation of the land with intent to control it.”

We reject Plaintiff’s further argument that a duty arises from foreseeability of harm and that this is jury issue.  Alleging foreseeable harm cannot sustain a negligence action where no legal relationship is alleged to have existed between parties. While Vermont courts consider foreseeability in determining whether one party owed a duty to another party in a negligence suit,  “[f]oreseeability of injury, in and of itself, does not give rise to a duty.” ¶ 8,2016 VT 21,¶ 8, ¶ 18.   Instead, a legal relationship must be alleged between parties before a court may reach the question of duty, See Haupt v. Triggs, 2022 VT 61, ¶ 12, (holding that no indemnification duty can arise where no legal relationship is alleged to have existed between parties).  Courts reach the duty question, where they may properly consider foreseeability, only where a legal relationship linking one party to the other is alleged because legal duties are dependent upon and coextensive with legal relationships. Haupt, 2022 VT 61, ¶ 12; Deveneau, 2016 VT 21, ¶ 18

Lastly, plaintiff argues that the civil division erred in drawing three inferences favorable to landlord: “[f]irst, the court made an inference that the landlord would not have reason to expect that Scott Fleurrey would nevertheless suffer physical harm from the pond because he lived with a caretaker at the property”; second, the civil division inferred “that the care provider would have Scott Fleurrey under her immediate supervision at all times”; and third, the civil division inferred “that the pond is a ‘natural’ pond.”  This Court “review[s] the trial court’s disposition of a motion to dismiss de novo, and may affirm on any appropriate ground.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 959 A.2d 990 (mem.).The inferences were harmless because plaintiff’s claim would not survive a dismissal motion in their absence.

Plaintiff’s claims cannot survive a dismissal motion, because (1) our precedents require an invitee to seek redress for injuries sustained on negligently maintained property from the land possessor who invited them to the defective property, rather than from the absentee landlord; (2) §§ 343 and 343A are inapplicable because plaintiff did not allege that landlord was the possessor of the Elmore Road property; and (3) no duty can arise where, as here, no legal relationship is alleged to have linked the parties.


SCOVT NOTE: The rule of Beaulac v. Robie is codified in the First and Second Restatements as §354. This section and its exceptions in §§ 355 to 362  have been replaced by the  Restatement (Third) of Torts: Phys. & Emot. Harm  §§ 7 & 53 (2012), the latter of which is  titled “Duty of Lessors.”

In the view of the Third Restatement, “foreseeability” is an element in the determination of negligence but not  the determination of duty. Restatement (Third) of Torts: Phys. & Emot. Harm §7, comment j (2010) See Kuligoski v. Rapoza, 2018 VT 14 (Reiber CJ, dissenting)


Wednesday, February 1, 2023

SCOVT declines to overrule 200-year-old precedent and holds that the voter- citizenship requirement of Chapter II, § 42 of the Vermont Constitution does not apply to municipal elections.

 Ferry  v. City of Montpelier, 2023 VT 4 [filed 1/20/2023]

EATON, J. In this declaratory-judgment action, we are asked to consider whether a statute allowing noncitizens to vote in City of Montpelier elections violates the voter-eligibility requirements set forth in Chapter II, § 42 of the Vermont Constitution. We conclude that the statute allowing noncitizens to vote in local Montpelier elections does not violate Chapter II, § 42 because that constitutional provision does not apply to local elections. We accordingly affirm the trial court’s grant of the City’s motion to dismiss.

Chapter II, § 42 of the Vermont Constitution provides: Every person of the full age of eighteen years who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the following oath or affirmation, shall be entitled to all the privileges of a voter of this state:

Because § 42 is an older constitutional provision with a complicated history, our analysis of the text requires historical analysis. When we look to the plain text of a constitutional provision, we often simultaneously rely “on historical context to illuminate [its] meaning.” State v. Misch, 2021 VT 10, ¶ 12, 214 Vt. 309, 256 A.3d 519 (per curiam) 

From this history, we know that “voter” in § 42 is synonymous with “freeman,” and since 1828, at the latest, citizenship has been required to exercise the “privileges of a freeman in this State.” The operative question then becomes: what does it mean to have the “privileges of a freeman” under § 42? ¶ 33. Our precedents answer this question.

Marsh and Woodcock demonstrate that a “freeman” is an individual with the ability to vote in statewide elections in Vermont. State v. Marsh, N. Chip. 17 (1789); Woodcock v. Bolster, 35 Vt. 632 (1863) Therefore, under § 42, to exercise the “privileges of a freeman in this State” is to vote in statewide elections. These cases dictate that § 42 does not apply to municipal elections.

Plaintiffs assert that this conclusion is incorrect. First, they argue that the plain text of § 42 clearly applies to voters in all Vermont elections. Second,they argue Woodcock and Marsh , “outmoded” and should not be applied because of changes over time. 

Principles of stare decisis are a necessary lens through which to evaluate these arguments. “[T]his Court is not a slavish adherent to the principle of stare decisis, but we will not deviate from policies essential to certainty, stability, and predictability in the law absent plain justification supported by our community’s ever-evolving circumstances and experiences.” State v. Carrolton, 2011 VT 131, ¶ 15; see Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 14 (recognizing that changes in social and economic circumstances over time may require deviation from precedent). 

Plaintiffs’ arguments do not convince us that Woodcock and surrounding precedents were wrongly decided then or that changed circumstances since those decisions require us to reach a different conclusion now.

Plaintiffs claim was properly dismissed on the merits because our precedents demonstrate that § 42 does not apply to municipal elections and we decline to overrule or abrogate those precedents in this case. Affirmed.


This case involving a test of an ancient interpretation the Vermont Constitution recites a standard requiring “plain justification"supported by evolving community experience, to overrule a precedent.. 

The cases cited by the Ferry Court for this standard did not involve a constitutional issue. State v. Carrolton, 2011 VT 131, ¶ 15; Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 14.  They are in a line of authority that says “mere disagreement” is not grounds to overrule recent precedent, "especially where the precedent could be changed easily by legislation at any time.” O’Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.); State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem)

The Ferry Court holds the challenged precedent was correctly decided, thus leaving the requirement of “plain justification” in constitutional cases mere dictum.

Just months ago the Court applied a different standard and overruled a constititional interpretation simply because the it  was “decided incorrectly.” State v. Downing, 2020 VT 101 ¶ 22 (overruling a case that interpreted a bail statute expressed in terms identical to the Constitution).

Downing is consistent with decisions of the U. S. Supreme Court that the rule of stare decisis is relaxed in constitutional cases, because judicial action is the only recourse short of constitutional amendment.. E.g. Smith v. Allwright, 321 U.S. 649, 665 (1944). But cf. Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands "special justification")

The most recent Vermont Supreme Court cases involving statutory interpretation do not follow the O’Connor caution. Instead, it is said the Court will overrule prior case law when it is determined that an earlier decision is "simply wrong." In re SD 2022 VT 44 (overruling a 2007 case and holding the statutes grant no right for the State to appeal the dismissal of a delinquency petition,) This simply-wrong standard traces back to a comment of Justice Jackson that there is “no reason why [the Court] should be consciously wrong today because [it] was unconsciously wrong yesterday."  Massachusetts v. United States, 333 U.S. 611, 639-40, (1948) (Jackson, J., dissenting).

It appears that "plain justification" is no longer required to overrule even  a statutory interpretation, and that  Ferry is better viewed as an interpretation of the Constitution, rather than as an application of stare decisis to a constitutional question..

Friday, December 16, 2022

Legal malpractice. Successor attorney who committed alleged errors in resolving case not liable to predecessor attorney for indemnity or contribution


Haupt v. Triggs , 2022 VT 61 [filed December 16, 2022]

REIBER, C.J. This appeal stems from third-party claims in a legal-malpractice action. Plaintiffs filed suit against defendant, attorney Daniel S. Triggs, who represented plaintiffs in a property dispute for allowing 12 V.S.A. § 501’s statute of limitations for recovery of lands to run without filing an ejectment suit against neighbors. Triggs filed a third-party complaint for contribution and indemnification against the attorneys who succeeded Triggs as counsel to plaintiffs in the matter. The third-party complaint for indemnity and contribution, alleges that the underlying adverse-possession suit against plaintiffs was meritless and that third-party defendants should have obtained a merits judgment instead of settling the dispute. Third-party defendants filed a motion to dismiss Triggs’s complaint, and the civil division granted their motion. Triggs appeals this dismissal and urges this Court to overturn its longstanding precedent regarding contribution and indemnity. We decline to do so and affirm the civil division’s dismissal

In granting Third-party defendants filed a Vermont Rule of Civil Procedure (12)(b)(6) motion to dismiss the civil division concluded that Triggs had failed to allege any relationship between himself and third-party defendants that might give rise to an implied right of indemnity, and that his claim “is at best a claim for contribution among joint tortfeasors, which Vermont law does not recognize.”

“[A]lthough we are not ‘slavish adherents’ to [the doctrine of stare decisis], neither do we lightly overturn recent precedent, especially where the precedent could be changed easily by legislation at any time.” O’Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.). To overturn precedent, “we generally require more than mere disagreement.” State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem.

Triggs argues that Vermont’s no-contribution rule should not apply to claims brought by prior counsel against successor counsel in legal-malpractice suits. He cites cases from California, Illinois, Maine, Massachusetts, Maryland, Washington, and Wisconsin, where courts allowed contribution claims under similar circumstances, and he discusses the public-policy concerns underlying these cases. Unlike Vermont, however, those jurisdictions recognized contribution, either by statute or at common law, at the time these cases arose.

We have for decades declined to revisit our no-contribution rule, preferring not to substitute judicial fiat for legislative action. Triggs cites no Vermont authority supporting his argument that this Court should overturn its well-settled precedent regarding contribution, and, even if he did so, we are not inclined to weigh the comparative merits of competing public-policy arguments, which is a matter best left to the Legislature.

Because Triggs does not allege that third-party defendants expressly agreed to indemnify him, his indemnity claim will survive only if implied by a legally cognizable relationship. It is axiomatic that a party seeking implied equitable indemnity may recover only where its potential liability is vicariously derivative of the acts of the indemnitor and it is not independently culpable. Heco v. Foster Motors, 2015 VT 3, ¶ 10, 198 Vt. 377, 114 A.3d 902. Triggs does not allege that any legal relationship—contractual or otherwise— existed between him and third-party defendants. Instead, Triggs alleges that third-party defendants’ independent actions caused plaintiffs’ injury. This is not a basis for implied indemnity. Triggs has alleged no legally cognizable relationship linking him to third-party defendants and, therefore, his indemnification claim must fail as a matter of law.


SCOVT note: 

Stare decisis. Compare Whippie v. O'Connor, 2011 VT 97 (mem.)(cotenant who excludes his cotenants from possession and enjoyment of the jointly owned property is entitled to contribution for necessary maintenance costs such as mortgage, taxes and insurance during the period of ouster, overruling Massey v. Hrostek, 2009 VT 70, as based on an incorrect statement of prior law).

Indemntiy: The opinion contains a restatement of Vermont law of implied indemnity, which it characterizes as requiring "a legally cognizable relationship" linking indemnitee and indemnitor:
According to our precedents, “indemnity is a right accruing to a party who, without active fault, has been compelled by some legal obligation, such as a finding of vicarious liability, to pay damages occasioned by the negligence of another.” Morris v. Am. Motors Corp., 142 Vt. 566, 576, 459 A.2d 968, 974 (1982). “Unlike contribution in which liability is shared by joint tortfeasors, the right of indemnity shifts the entire loss upon the real wrongdoer.” Peters, 159 Vt. at 428, 620 A.2d at 1270. In Vermont, indemnity arises in two ways: (1) through “an express agreement by one party to indemnify the other, or (2) [because] the circumstances are such that the law will imply such an undertaking.” Id. at 427, 620 A.2d at 1270. The latter, “[i]mplied indemnity[,] will apply only when the party seeking indemnity is vicariously or secondarily liable to the third person because of a legal relationship with the third person or because of the party’s failure to discover a dangerous condition caused by the indemnifying party.” Hemond v. Frontier Commc’ns of Am., Inc., 2015 VT 67, ¶ 11, 199 Vt. 272, 123 A.3d 1176 (quotation omitted). “[I]ndemnity is imputed only when equitable considerations concerning the nature of the parties’ obligations to one another or the significant difference in the kind or quality of their conduct demonstrate that it is fair to shift the entire loss occasioned by the injury from one party to another.” Hemond v. Frontier Commc’ns of Am., Inc, 2015 VT 66, ¶ 9, 199 Vt. 259, 122 A.3d 1205 (quotation omitted). Lastly, “[i]t is axiomatic that a party seeking implied equitable indemnity may recover only where its potential liability is vicariously derivative of the acts of the indemnitor and it is not independently culpable.” Heco v. Foster Motors, 2015 VT 3, ¶ 10, 198 Vt. 377, 114 A.3d 902. Because Triggs does not allege that third-party defendants expressly agreed to indemnify him, his indemnity claim will survive only if implied by a legally cognizable relationship. Triggs has alleged no legally cognizable relationship linking him to third-party Triggs has alleged no legally cognizable relationship linking him to third-party defendants and, therefore, his indemnification claim must fail as a matter of law.

Haupt v. Triggs , 2022 VT 61 ¶¶ 10, 11.

Sunday, December 11, 2022

Divided Court reverses judgment on the pleadings and rules that allegations of contamination by SARS-CoV-2 was sufficient to trigger coverage as “direct physical loss or damage to property” under a business interruption policy and to survive a Rule 12(c) motion.

Huntington Ingalls Industries, Inc. v. Ace American Insurance Co.,  2022 VT 45 (filed 9/23/2022)

EATON, J. Insured Huntington Ingalls Industries, Inc. and insurer Huntington Ingalls Industries Risk Management LLC seek a declaratory judgment stating there is coverage under a property insurance policy for certain losses incurred by Huntington Ingalls Industries due to the COVID-19 pandemic. The trial court concluded that the complaint did not allege facts that would trigger coverage under the policy and granted judgment on the pleadings in favor of reinsurers. We reverse.

In September 2020, insured and insurer sued reinsurers seeking a declaratory judgment that they are entitled to coverage under the policy for property damage, business interruption, and other losses suffered as a result of SARS-CoV-2, the pandemic, and civil authority orders. The complaint alleges the pandemic caused “direct physical loss or damage to property” when the virus adhered to surfaces for several days and lingered in the air for several hours at the shipbuilding yards. The alleged losses include disruption in orderly construction and repair of vessels, schedule impacts in the construction and repair of vessels, expenses—including increased labor and information technology costs—incurred to continue as near to normal operations as practicable, loss of profit.

Before any discovery, insured and reinsurers filed cross-motions for judgment on the pleadings pursuant to Vermont Rule of Civil Procedure 12(c). Reinsurers sought complete judgment on the pleadings, arguing that insured had not sufficiently alleged that “direct physical loss or damage to property” had occurred. Insured filed three motions for partial judgment on the pleadings. In the first motion, it argued that reinsurers’ affirmative defense that the presence of SARS-CoV-2 in or on property cannot constitute “direct physical loss or damage to property” was incorrect as a matter of law.The trial court granted reinsurers’ motion for judgment on the pleadings and consequently denied all of insured’s motions. The inquiry below focused on the meaning of “direct physical loss or damage to property” under the policy. The trial court t concluded that insured did not experience loss of property but instead suffered an uncovered loss of income because the shipbuilding yards remained in operation despite the presence of the virus.

On appeal, the overarching issue remains the same: how do we interpret “direct physical loss or damage to property” in this insurance policy?

The phrase “direct physical loss or damage to property” is unambiguous, and the common meaning of these terms therefore controls the interpretation of the property insurance policy in this case The phrase “direct physical loss or damage to property” includes two distinct components, either of which will trigger coverage unless an exclusion applies: “direct physical damage” and “direct physical loss.” “Direct physical damage” requires a distinct, demonstrable, physical change to property. “Direct physical loss” means persistent destruction or deprivation, in whole or in part, with a causal nexus to a physical event or condition. Purely economic harm will not meet either of these standards.

The complaint adequately allege that the virus physically altered property in insured’s shipyards when it adhered to surfaces. That the virus “adheres” to property, thus “altering and impairing” it in a tangible way, that provides reinsurers with notice of insured’s allegations for how the virus can cause “direct physical loss or damage to property.” This description of the process of how the virus causes damage to property also raises the complaint beyond the threshold of mere “conclusory allegation[s].” Colby, 2008 VT 20, ¶ 13. 

Insured’s complaint contains sufficient allegations to survive a Rule 12(c) motion for judgment on the pleadings under Vermont’s extremely liberal pleading standards. The losses it alleges are either “direct physical loss” or “direct physical damage” to property We therefore reverse the trial court’s grant of judgment on the pleadings in favor of reinsurers and the trial court’s denial of insured’s motion for partial judgment on the pleadings on the issue of reinsurers’ affirmative defense.

To be clear, this opinion does not state that what occurred in insured’s shipyards is “direct physical loss or damage to property” under the policy. We merely conclude that insured has alleged enough to survive a Rule 12(c) motion under our extremely liberal pleading standards. See Colby, 2008 VT 20, ¶ 5 n.1 (declining to adopt heightened federal pleading standard). Reinsurers may well be correct that insured’s losses were not caused by any “direct physical loss or damage to property,” but instead from the risks employees posed to each other or some other non-covered reason; however, we cannot agree that this is an “obvious fact” that undermines the various allegations in the complaint, which, at this stage, we must accept as true.

Reversed and remanded for further proceedings consistent with this opinion.

CARROLL, J., dissenting. As a matter of law, human-generated droplets containing SARS-CoV-2 cannot cause “direct physical loss or damage to property” under this insurance policy. No future litigation can change that reality. While I agree with the majority’s conclusion that the insurance contract term in dispute is unambiguous, I cannot agree that insured’s claim survives beyond the pleadings stage. Accordingly, I respectfully dissent

The gist of insured’s allegations on this point is that virus-infected droplets have continuously landed on surfaces in its facilities, and the presence of these droplets—known as “fomites” when they land on surfaces—renders the property incapable of functioning for its intended purpose. But a fomite cannot cause damage to property if damage is defined as a “distinct, demonstrable, physical change.” SARS-CoV-2 does not “alter the appearance, shape, color, structure, or other material dimension of the property.” No matter what verb insured uses, whether “adheres,” “attaches,” or even “on,” a fomite does not physically change property. Verveine Corp. v. Strathmore Ins. Co., 184 N.E.3d 1266, 1276 (Mass. 2022) (“Evanescent presence of a harmful airborne substance that will quickly 36 dissipate on its own, or surface-level contamination that can be removed by simple cleaning, does not physically alter or affect property. “)

To sum up, insured’s allegation that fomites cause physical damage to its property cannot be proven because fomites demonstrably have no effect on the tangible, physical dimension of insured’s property. No reasonable person in insured’s position would think otherwise. It is one thing to conclude that a disputed insurance policy term is ambiguous and permit litigation to proceed in a Rule 12(c) posture. It is quite another to conclude that one phrase—“direct physical damage”—is unambiguous and accept as true the implausible claim that human-generated, infectious droplets can damage property,. Accordingly, to save valuable time and energy for both the court and the parties from litigation with a preordained outcome, I would affirm the trial court’s order granting reinsurers’ motion for judgment on the pleadings and affirm the trial court’s order of dismissal.

I am authorized to state that Judge Bent joins this dissent.

Friday, December 9, 2022

Divided Court rules a moot appeal of health insurance rates can not be decided as a case “capable of repetition yet evading review.”


In re Blue Cross and Blue Shield 2022 Individual & Small Group Market Filing, 2022 VT 53 (filed 11/4/2022)

CARROLL, J. Blue Cross Blue Shield of Vermont (Blue Cross) appeals from the Green Mountain Care Board’s (GMCB) decision modifying its proposed health-insurance rates for 2022. The case is moot because health-insurance rates for 2022 cannot now be changed. Because Blue Cross cannot demonstrate that this kind of case is capable of repetition yet evading review or subjects it to continuing negative collateral consequences, Blue Cross fails to meet the exceptional thresholds necessary for us to reach the merits in a moot case. We affirm.

We have recognized the mootness exception for cases that are capable of repetition yet evading review. The exception applies when two conditions are met: (1) “the challenged action must be in its duration too short to be fully litigated prior to its cessation or expiration, and [(2)] there must be a reasonable expectation that the same complaining party will be subjected to the same action again.” Price v. Town of Fairlee, 2011 VT 48, ¶ 24, 190 Vt. 66, 26 A.3d 26.

In considering the first prong, “we have examined whether, in the future, the complaining party ‘would not be able to challenge [the action] effectively.’ ” In re Vt. Dep’t of Pub. Serv. (Vermont Yankee), 2008 VT 89, ¶ 11, 184 Vt. 613, 959 A.2d 564 (mem.) (quoting Hunters, Anglers & Trappers Ass’n of Vt., 2006 VT 82, ¶ 16); see also Hamamoto v. Ige, 881 F.3d 719, 723 (9th Cir. 2018) (per curiam) (“The question . . . [is] whether the underlying action is almost certain to run its course before . . . the [court] can give the case full consideration.” (quotation omitted)).

If a litigant “could have taken actions to expedite the appellate process” but did not, the matter does not fit within this exception. State v. Rooney, 2008 VT 102, ¶ 12, 184 Vt. 620, 965 A.2d 481 (mem.); see Paige v. State, 2017 VT 54, ¶¶ 4 n.*, 9, 205 Vt. 287, 171 A.3d 1011 (explaining that appellant filed motions to extend time to file main brief and reply brief and waited until long after event mooting appeal before requesting oral argument from Supreme Court); Hamamoto, 881 F.3d at 723 (concluding capable-of-repetition-but-evading-review exception was not met in case where plaintiffs did “not demonstrate[] that expedited review would have been unavailable”).

We have not established a firm period of time that is “too short” to allow judicial review, though our cases draw broad parameters. In State v. Rooney we held that less than four months was sufficient time to complete appellate review. 2008 VT 102, ¶ 12 In Vermont Yankee, we held that ten months was sufficient time to complete appellate review. 2008 VT 89, ¶ 11. However, in Price, we applied this exception where the statutes at issue created a ninety-day window to review the challenged action at both the trial and appellate levels. 2011 VT 48, ¶¶ 24-25. We also applied the exception to a six-month window for judicial review at both trial and appellate levels. In re Durkee, 2017 VT 49, ¶¶ 10-13, 205 Vt. 11, 171 A.3d 33.

In this case, the Department of Vermont Health Access (DVHA) apparently required Blue Cross to provide its final approved rates eleven days after GMCB’s August 5 approval so that it could review and certify the health insurance plans, incorporate final plan information into brochures and comparison tools, and then update, populate, and test the online exchange system in time for customers to browse plans by October 15. However, it is not clear from the record which of these events may constitute a firm deadline, if any, for completion of appellate review. Blue Cross never alerted the Court to the matter’s expedient nature. if it had immediately appealed the GMCB’s August 5 decision and requested an expedited timeline under Rule 2, the Court most likely would have had sufficient time to decide the appeal. The ten weeks which elapsed between August 5 and October 18 was enough to complete appellate review.

To prevail the second prong, Blue Cross must “show that there is a reasonable expectation” that it “will be subjected to the same action again.” The circumstances surrounding the pandemic were, as Blue Cross concedes, “extraordinary,” resulting in a “year like no other.” Accordingly, Blue Cross simply cannot demonstrate that it is more than a “theoretical possibility” it “will become embroiled again in this same situation.” Even if this case did not evade review it is also not capable of repetition.

Because Blue Cross cannot demonstrate that this kind of case is capable of repetition yet evading review or subjects it to continuing negative collateral consequences, Blue Cross fails to meet the exceptional thresholds necessary for us to reach the merits in a moot case.

COHEN, J., dissenting. I agree that this matter is technically moot because Blue Cross’s 2022 rates can no longer be changed, but I disagree with the majority’s conclusion that this case does not meet the mootness exception for matters capable of repetition but evading review.

Assuming for the sake of argument that Blue Cross should have foregone reconsideration, the review period began on August 5, 2021, when the GMCB issued its initial decision. This appeal became effectively moot on August 16—when the DVHA required insurers to provide their final rates—or very shortly thereafter.  Insofar as the majority is suggesting that appeals from the GMCB could be briefed, argued, and decided in a couple of weeks or less, and that this timetable should be the new bar for satisfying the evading-review prong, I disagree.

Because the timeline for health-insurance-rate regulation and administration remains essentially the same year to year, this case inherently evades review The fact that Blue Cross did not take steps to expedite its appeal should not be relevant because there would have been insufficient time for review even if the appeal were expedited as much as possible. The first prong of the mootness exception is met.

There is also “a reasonable expectation that [Blue Cross] will be subjected to the same action again,” and thus the second element of the mootness exception is met here. Blue Cross has presented a discrete legal question regarding a criterion that the GMCB is legally obligated to consider in every annual-rate review: whether the GMCB misinterpreted the term “excessive.” Nowhere does the GMCB claim that its interpretation of the term “excessive” depended on the pandemic’s extraordinary factual circumstances. In other words, the GMCB does not contend that the way it applied “excessive” was a one-time anomaly justified by the pandemic. Instead, the GMCB argues that , properly interpreted, its governing rules and statutes require it to consider nonactuarial evidence in determining whether a proposed rate is excessive. This legal position would be relevant in any rate year. Though the specific facts will change year to  year, our case law compels us to reach the merits of this appeal. Blue Cross has presented a novel legal issue that is nearly certain to affect future rate proceedings.

Because in my view the majority opinion effectively forecloses appellate review of a recurring issue, I respectfully dissent.. I am authorized to state that Chief Justice Reiber joins this dissent.


Thursday, December 8, 2022

Rule 60(b)(5) does not apply to require relief from judgment which has been “effectively overruled” by newer precedent.


  In re Benoit Conversion Application , 2022 VT 39 (filed 8/19/2022)


COHEN, J. The Benoits seek to set aside a 2008 judgment under Vermont Rule of Civil Procedure 60(b)(5). They contend that the decision was effectively overruled by a later case involving different parties. The Environmental Division denied their request and we affirm its decision.

In the 2008 Hayford decision the environmental court ordered the Hayfords and the Benoits to stop using the rear building as a residential unit and imposed fines. On appeal this Court found it unnecessary to address argument that the enforcement action should be barred by the fifteen-year statute of limitations in 24 V.S.A. § 4454(a) because the Court agreed with the environmental court there had been a fresh violation in 1998.

Eleven years later, in, in re 204 N. Ave., 2019 VT 52, ¶ 3, 210 Vt. 572, 218 A.3d 24., the Court held that the statute of limitations in § 4454(a) does not allow a municipality “to pursue use violations as long as they continue.” Id. ¶ 7.

Based on in re 204 N. Ave., the Benoits moved to set aside the Hayford decision. The Environmental Division denied the parties’ request, finding no grounds to set aside the decision under Rule 60(b)(5).
The court concluded that Hayford was decided and affirmed on grounds independent of the holding in 204 North Avenue.

On appeal, the Benoits argue that they are entitled to relief under Rule 60(b)(5) because 204 North Avenue “effectively overruled” Hayford. They assert the Court rejected the notion that use violations are analyzed as continuing or recurring violations. They contend the asserted holding of 204 North Avenue should be retroactively applied and Hayford should be set aside.

The trial court has discretion in ruling on a Rule 60(b) motion and its decision is not subject to appellate review unless it clearly and affirmatively appears from the record that such discretion was withheld or otherwise abused.)). The Benoits fail to show an abuse of discretion here

First, we reject the argument that 204 North Avenue “effectively overruled” Hayford. Our decision in Hayford did not rest on a “continuing use” theory. We expressly declined to reach that alternate rationale offered by the trial court and affirmed the trial court’s decision on a separate and independent ground. Hayford, 2008 VT 36, ¶ 11.

Even assuming arguendo that Hayford was “effectively overruled,” that would not entitle the Benoits to relief under Rule 60(b)(5). That rule provides relief from a judgment where “the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.” V.R.C.P. 60(b)(5).

Rule 60 (b)(5) “does not apply merely because a case relied on as precedent by the court in rendering the present judgment has since been reversed.” 11 C. Wright & A. Miller, Federal Practice and Procedure Civil § 2863 (3d ed. 2022); see also Reporter’s Notes, V.R.C.P. 60 (indicating that V.R.C.P. 60 is “substantially identical to Federal Rule 60”); Reporter’s Notes, V.R.C.P.1 (“Federal cases interpreting the Federal Rules are an authoritative source for the interpretation of identical provisions of the Vermont Rules.”).

This approach promotes the finality of judgments, which is “fundamental to our judicial system.” Comfort v. Lynn Sch. Comm., 560 F.3d 22, 26 (1st Cir. 2009); For that reason, courts recognize that “a case cannot be re-opened simply because some new development makes it appear, in retrospect, that a judgment on the merits long since settled was brought about by judicial error.” Id. (citing Hoult 7 v. Hoult, 57 F.3d 1, 5 (1st Cir. 1995) (explaining that incorrectly decided point of law, without more, cannot provide ground for relief from final judgment) (citing cases).

Mindful of these principles, the language at issue here in Rule 60(b)(5) “is limited to cases in which the present judgment is based on the prior judgment in the sense of claim or issue preclusion.” 11 Wright & Miller, supra, § 2863 “The mere emergence of controlling precedent in some other case that shows the incorrectness of the prior judgment” does not suffice. Comfort, 560 F.3d at 27;

Even assuming arguendo that Hayford rested on a “continuing use” theory, the rejection of that theory in a later, unrelated case would not entitle the Benoits to the relief they seek. “In the absence of . . . a direct connection [between the two cases], ‘a change in applicable law does not provide sufficient basis for relief.’ ” Comfort, 560 F.3d at 27 (quoting Lubben, 453 F.2d at 650).

The Benoits do not squarely argue that they are entitled to relief under the third prong of Rule 60(b)(5), which states that relief from judgment may be appropriate “where it is no longer equitable that the judgment should have prospective application.”. Even if the Benoits did raise this argument on appeal, we would reject it. The trial court plainly found that there was no clear showing of a grievous wrong here that would warrant setting aside the 2008 judgment. In other words, there was no equitable basis for doing so, particularly as the continuing-use theory was not reached in Hayford.

There is no basis to disturb this discretionary determination on appeal. The court did not err in denying the Benoits’ request for relief from judgment.


SCOVT NOTE. For a case confirming Rule 60(b)(5) specifically contemplates relief only from "prospective application" of a judgment because of intervening change in law see Agostini v. Felton, 521 U.S. 203, 238–39, (1997) (ongoing injunctive relief based on a decision that been “effectively overruled’ was inequitable under Rule 60(b)(5)). In Aguilar the Court noted that “ Intervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6), the only remaining avenue for relief on this basis from judgments lacking any prospective component.”

Wednesday, December 7, 2022

Divided Court reverses order granting motion to suppress, holding the trial court erred in concluding the totality of the circumstances did not provide reasonable suspicion that defendants were driving while impaired.


State v. Sinquell-Gainey, 2022 VT 19 [filed 5/6/2022]


CARROLL, J. The State appeals from a trial court order granting defendants’ motion to suppress evidence obtained by law enforcement after an automobile stop. The State argues that a Newport police officer had reasonable suspicion to stop defendants because the totality of the circumstances supported reasonable suspicion of impaired driving. We agree that the stop was justified based on reasonable suspicion of impairment. We therefore reverse and remand.

As to a purported centerline violation on the interstate, the trial court credited dash-mounted camera footage, which showed that defendants’ vehicle touched but did not, in fact, cross the centerline. The statute cited as the basis for the violation, 23 V.S.A. § 1031, driving to right, does not apply on a multi-lane roadway restricted to one-way traffic. The court reasoned that even if defendants had crossed the centerline,  defendants would have not violated § 1031 because the statute does not apply “upon a roadway restricted to one-way traffic.” Id. § 1031(a)(4). 

The trial court rejected the State’s argument under a totality-of-the- circumstances analysis. The court concluded that the entry into the gas station through an exit-only access, the unprovoked stop at the flashing yellow light, the wide left turn onto the access road, and the brief activation of the high beams did not collectively give rise to reasonable suspicion of driving under the influence.

Our review of a grant of a motion to suppress involves a mixed question of fact and law. When reviewing the decision to grant a suppression motion, we review a trial court’s findings of fact for clear error and its legal conclusions de novo. We look to the totality of the circumstances in judging the reasonableness of a DUI stop where a traffic violation does not form the basis of the stop. This avoids a “divide-and-conquer analysis” that scrutinizes each factor independently and accords no weight to conduct that alone is innocuous. The totality-of-the-circumstances standard allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.

For example, in State v. Pratt, we affirmed a denial of a motion to suppress evidence where a state trooper pulled over a car for drifting back and forth within a lane on Interstate 89 for approximately five miles. 2007 VT 68, ¶ 7. Reasonable suspicion of driving while intoxicated is assessed by examining the totality of the circumstances and consequently may be supported by evidence of erratic driving, whether or not it amounts to a specific traffic violation. Further, we rely on the expertise of the officer in recognizing signs of impaired operation. Id. ¶ 6

We do not disagree with the trial court’s conclusion that the driver’s wide left turn may be “insufficient” on its own to develop reasonable suspicion, but we disagree that this was irrelevant in the context of the other factors the trial court found. Likewise, we disagree that defendants’ entrance through a marked exit into the gas station forty minutes after the bars had closed in the area, the complete stop at the flashing yellow light, the brief activation of the high beams, and the wide left turn, when considered together, did not provide reasonable suspicion of impaired driving. Alone, any one of these events may not give rise to reasonable suspicion. But the occurred in a continuous stream of activity in a relatively short amount of time, all observed by the same police officer.

This is not a close case. The trial court erred when it concluded that the totality of the circumstances did not provide reasonable suspicion that defendants were driving while impaired.

The dissent’s suggestion that all the operator’s driving maneuvers were consistent with cautious driving, post, misunderstands our standard of review. The recognition that law enforcement may draw on their experience and training is precisely the reason why courts must not analyze each factor independently.

Reversed and remanded for further proceedings.  

COHEN, J., dissenting. I would affirm the trial court’s decision to grant defendants’ motion to suppress based on lack of reasonable suspicion, and therefore respectfully dissent. None of the alleged infractions individually create reasonable suspicion of a traffic violation, and the totality of the circumstances does not amount to reasonable suspicion of driving under the influence (DUI).

The majority concludes that the following facts supported reasonable suspicion of impaired driving: the bars closed at 1:00 a.m.; within an hour of the bars closing, defendant drove an out-of-state vehicle two to three miles per hour under the speed limit; defendant stopped at a flashing yellow light; defendant failed to put on his turn signal before turning left onto the interstate access road; defendant swung wide on his turn; defendant briefly flashed the car’s high beams before using his turn signal; and defendant’s left wheels touched the highway centerline. In my view, these facts do not, as a whole, create an objectively reasonable suspicion of impaired driving.

In determining the legality of a stop, courts consider from an objective standpoint whether, given all the circumstances, the officer had a reasonable and articulable suspicion of wrongdoing. It is this objective standard that causes the State’s arguments to fail. As Justice Johnson wrote in her dissent in Pratt, “[w]hile otherwise innocent behavior might sometimes appear suspicious to a trained police observer, the standard for a constitutionally permissible stop of a vehicle nevertheless remains that of ordinary common experience.” Pratt, 2007 VT 68, ¶ 10 (Johnson, J., dissenting).

Given the lack of objectively reasonable suspicion of any traffic violation or impaired driving under the totality of the circumstances, I would affirm the trial court’s decision to grant defendants’ motion to suppress. I am authorized to state that Chief Justice Reiber joins this dissent.