Divided Court affirms disqualification of provider from food care program, rejecting due process argument that agency failed to follow its own rules and improperly considered post-hearing documentation

 Inre Butterfly Kisses Child Care Center, Inc. , 2025 VT 46 [8/14/2025]

CARROLL, J.   Childcare provider Butterfly Kisses Child Care Center, Inc. and its owner Cindy Boyce1 appeal a decision of the Agency of Education (AOE) to terminate and disqualify provider from participating in the Federal Child and Adult Care Food Program (CACFP) based on provider’s failure to correct noncompliance with program requirements.  Provider argues that the recurring serious deficiencies found by AOE were de minimis and did not require termination.  Provider also argues that the AOE hearing officer committed reversible error by allowing the parties to submit post-hearing documentation.  We hold that hearing officer applied the appropriate standard in terminating and disqualifying provider from the program.  As to the post-hearing submissions, we conclude that provider did not properly preserve this argument for appeal and, in any event, has failed to demonstrate reversible error.  We therefore affirm.

“Generally, administrative agencies must follow their own regulations until they rescind or amend them.”  In re Champlain Parkway SW Discharge Permit, 2021 VT 34, ¶ 12 (collecting cases).  The U.S. Supreme Court adopted an exception in American Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 538-39 (1970), which allows an agency to waive a procedural rule “adopted for the orderly transaction of business” if the waiver does not result in “substantial prejudice.”  This Court adopted American Farm Lines as a “sound principle of state administrative law.”  Champlain Parkway, 2021 VT 34, ¶ 16.

 

“To invoke the exception, the agency action must first and foremost be consistent with governing statutes. Second, the rule at issue must be a procedural rule adopted for the orderly transaction of business to aid the agency in exercising its discretion, not one intended to confer important procedural benefits upon individuals. Third, the agency action must not substantially prejudice a complaining party. Fourth, the agency action cannot constitute a failure to exercise independent discretion mandated by regulation. Finally, the agency must apply the rule consistently, not arbitrarily, unreasonably, or discriminatorily.” Champlain Parkway, 2021 VT 34, ¶ 17. (citations omitted)

 

The hearing officer’s action to allow post-hearing submissions by both parties meets this test. The limit on post-hearing memoranda is a “procedural rule” aiding the agency in exercising its discretion and is not intended to confer “important procedural benefits upon individuals.” It allows the review process to conclude in an efficient manner.

 

 The dissent claims that the rule against post-hearing submissions is meant to ensure that centers have a meaningful opportunity to respond to AOE materials.  But the allowance of post-hearing submissions had no impact on provider’s ability to respond. The hearing officer here allowed post-hearing submissions by both parties and provider filed its own post-hearing memoranda and also responded to AOE’s filing.

 

The  hearing officer allowed post-hearing submissions for a valid procedural reason and with fairness to both sides.  Allowing post-hearing submissions in this instance was not arbitrary or discriminatory and did not prejudice provider.  The hearing officer’s decision thus fell within the American Farm Lines exception.  

 

Affirmed.

 

 COHEN, J., joined by Chief Justice Reiber, dissenting.   The Vermont Agency of Education (AOE) terminated and disqualified petitioners Butterfly Kisses Child Care Center, Inc., and its owner, Cindy Boyce, from participation in the federal Child and Adult Care Food Program (CACFP) based on a hearing officer’s finding that, although there was no evidence of intentional dishonesty or fraud, petitioners nonetheless failed to fully and permanently correct certain “serious deficiencies” by stringently satisfying each of the procedural commitments in their corrective-action plan.  Ironically, however, AOE failed to adhere to its own administrative-review procedures in reaching this decision because the hearing officer summarily waived a rule barring post-hearing submissions.

 

 The majority concludes that petitioners did not preserve their challenge to this ruling, but nonetheless proceeds to analyze the issue, reasoning—in what I view as dicta—that the agency had discretion to waive this rule under the exception first articulated by the U.S. Supreme Court and adopted by this Court in In re Champlain Parkway SW Discharge Permit, 2021 VT 34.

 

I would instead conclude that petitioners’ argument is preserved, and that the Champlain Parkway exception does not apply because AOE’s bar on post-hearing submissions confers an important procedural benefit on those facing termination and disqualification from CACFP participation: it secures the fundamental requirement of due process, which is the right to be heard at a meaningful time and in a meaningful manner.  I conclude that the hearing officer lacked discretion to waive the rule and would reverse and remand for a fresh hearing. I therefore respectfully dissent.

 

  

SCOVT affirms denial of plaintiff’s motion for new trial in medical malpractice case, holding the court acted within its discretion in ruling the verdict was not against the weight of the evidence.

 

Watrous v. Porter Medical Center, 2025 VT 47 

COHEN, J.   Plaintiff Arthur G. Watrous, the administrator of the Estate of Arthur H. Watrous, appeals the denial of his motion for a new trial after a jury found for defendant Porter Medical Center on plaintiff’s claims of negligence and wrongful death by special verdict verdict form that asked, “Did [plaintiff] prove the standard of care?”  Plaintiff argues the trial court abused its discretion in denying him a new trial because the jury’s conclusion that plaintiff failed to prove the standard of care was against the weight of the evidence.  We affirm.

The sole issue in this case is whether the trial court abused its discretion in denying plaintiff’s motion for a new trial.

In denying plaintiff’s motion the court reasoned that the jury heard conflicting evidence regarding the components of a standard of care and there was no undisputed evidence regarding the specific standard of care applicable to decedent’s circumstances.

A trial court may only exercise its discretion to set aside the verdict if “the verdict is shown to be clearly wrong and unjust because the jury disregarded the reasonable and substantial evidence, or found against it, because of passion, prejudice, or some misconception of the matter.”  Pirdair v. Med. Ctr. Hosp. of Vt., 173 Vt. 411, 416, 2002) We give the trial court’s “all presumptive support similar to that owed the jury verdict.”  Id. We will hold a trial court abused its discretion only when “such discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.”  Weeks v. Burnor, 132 Vt. 603, 606 (1974).  

 

The parties presented conflicting evidence as to the proper standard of care. We agree with the trial court that the evidence of the applicable standard of care was not so clear that the jury erred in concluding that plaintiff had failed to establish that element.  The court acted within its discretion in denying a new trial given the state of the record. 

 

Affirmed.

____

SCOVT NOTE. Cases reversing the denial of a motion for new trial based on the weight of the evidence of liability.

No Vermont medical malpractice case reverses the denial of plaintiff’s motion for new trial based on the weight of the evidence. The  Court in both  Chater v. Central Vermont Hospital, 155 Vt. 230 (1990) and Pirdair v. Medical Center. Hospital, 173 Vt 411 (2002) affirmed the denial of a plaintiff’s motion. In Lockwood v. Lord, 163 Vt. 210, (1994) the Court reversed the grant of plaintiff’s motion.

The standard of review from denial of the motion is strict. In substance, the reviewing court must affirm unless the moving party shows it is clearly entitled to judgment as a matter of law. Otherwise, there is a presumption in favor of the jury verdict. It has been decades since the Court in any type of case has affirmed the grant of a weight-of-the-evidence motion to a party with the burden of proof. Weeks v. Burnor, 132 Vt. 603, 609 (1974); Grow v. Wolcott, 123 Vt. 490 (1963)(divided court).[i] Apparently the only Vermont cases of any type that proport to reverse the denial of a plaintiff’s motion, as requested in Watrous v. Porter Medical Center, are AI hallucinations.

An important caveat is that the trial court must exercise discretion. It can be reversible error to deny a plaintiff’s motion for new trial “as a matter of law” where the motion calls for the exercise of discretion. Russell v. Pilger, 113 Vt. 537, 543–44 (1944) (“We have repeatedly held that when the trial court is properly called upon to exercise its discretion it must do so and to withhold it is error . . . It is error to rule, as the trial court did in this instance, as a matter of law upon a question which requires discretionary action.”); accord, Krupp v. State Highway Bd., 125 Vt. 25, 29 (1965)

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·         [i]  The Court has affirmed the grant of new trial to a plaintiff based on the insufficiency of evidence of a defenses.  Blondin v. Milton Town School District, 2021 VT 2, ¶ 31 (affirming grant of  new trial  to plaintiff because it was error to instruct on comparative negligence.); McKenna v. May, 134 Vt. 145(1976) (affirming grant of  new trial to plaintiff where by defendant’s own testimony he used more than necessary force in ejecting the plaintiff from his home).

 

SCOVT reverses judgment that declined to enforce a life insurance provision in a divorce order and remands for further proceedings, holding that – because it was stipulated – the life insurance provision is valid and enforceable; Court divided on whether plaintiff entitled to judgment to proceeds of policy purchased after the divorce that named another beneficiary.

 diMonda v. LincolnNational Corp , 2025 VT 45  [8/8/2025]

REIBER, C.J.   This appeal concerns entitlement to the proceeds of two life insurance policies.  Plaintiff Victoria diMonda claims an equitable interest in a portion of the proceeds based on her stipulated divorce agreement with decedent, which was adopted as a final order by the family division.  The civil division denied plaintiff’s motion for summary judgment and granted defendants’ motions for summary judgment and judgment on the pleadings.  We affirm the judgment granting interpleader relief to defendant USAA Life Insurance Co., but otherwise reverse and remand for further proceedings. 

 

The primary issue on appeal is whether the trial court correctly held that the life-insurance provision in the 2011 divorce order was invalid and as an attempt to secure postmortem maintenance.

 

The 2011 stipulated order provided that “[Decedent] shall maintain in place his present life insurance policy with SGLI with a payable on death benefit of $400,000, or a policy which has the same minimum death benefit, at his option [and] shall name Plaintiff as primary, 100% beneficiary on this life insurance policy for at least the next fifteen (15) years…”

 

Decedent retired from the military in April 2021, making him ineligible for the SGLI policy, and he did not thereafter obtain a new policy with the same minimum death benefit that named plaintiff as sole beneficiary.

 

However, when decedent died in December 2023, he held two other policies. In 2015, he obtained a $400,000 life insurance policy from USAA Life Insurance Co. and named Barrows as the sole beneficiary on this policy.  In 2020, he obtained a $250,000 life insurance policy from Lincoln National Life Insurance Co. and also named Barrows as the primary beneficiary. 

 

In January 2024. plaintiff filed this action against Lincoln, USAA, and Barrows, seeking a declaration that she was entitled to be paid $400,000 under the terms of the final divorce order. 

 

Barrows moved for judgment on the pleadings.  She argued that the life-insurance provision in the final divorce order was invalid because it would violate this Court’s caselaw prohibiting courts from awarding postmortem spousal maintenance. Lincoln also moved for judgment on the pleadings. It argued that even if the provision were enforceable, the plain language of the order did not apply to Lincoln’s $250,000 policy.  USAA moved for interpleader relief in the form of an order requiring it to deposit its policy’s death benefit with the court and dismiss USAA from the action.  Finally, plaintiff moved for summary judgment, arguing that the life-insurance provision was enforceable both because it was not tied to the spousal-maintenance provision and because decedent agreed to it.

 

The civil division granted defendants’ motions and denied plaintiff’s motion.  The court agreed with defendants that the life-insurance provision in the final order was intended to secure spousal maintenance beyond death and was therefore invalid and unenforceable.  The court held that Barrows was entitled to retain the $250,000 death benefit paid by Lincoln.  It ordered USAA to pay the $400,000 death benefit on its policy into escrow.

 

Our decisions make clear the family division does not have authority to order spousal maintenance to continue beyond the obligor’s death or to require the obligor spouse to name the obligee as a beneficiary on a life insurance policy for the purpose of securing unpaid maintenance.

 

 However, these decisions do not support the trial court’s conclusion that the life insurance provision in this case was unenforceable, for two reasons. First, it is not clear that the life-insurance provision was actually intended to secure post-mortem maintenance. 

 

Second, the provision was not imposed sua sponte by the family division.  Rather, the parties agreed to it as part of their stipulated property settlement. Because, as  we acknowledged in Justis and Meier, the parties can agree to postmortem maintenance, it follows that they may agree to secure a maintenance obligation with life insurance. Justis v. Rist, 159 Vt. 240, 244  (1992) (“[T]he courts have no authority to order maintenance to continue beyond the life of the obligor spouse unless the parties have agreed otherwise.” (emphasis added)).; Meier v. Meier, 163 Vt. 608, 610 (1994) (mem.)(  “the parties may agree to maintenance following the death of the obligor.” )

We reverse the trial court’s judgment, except for the portion of the order granting interpleader relief to USAA. No party challenges the court’s award of interpleader relief to USAA and our holding does not affect this aspect of the judgment.   

We remand for the court to consider whether plaintiff is equitably entitled to recover $400,000 or some other amount from the proceeds of either of the policies at issue in this case, and whether her claim takes priority.

The court should also address defendants’ claims that the life insurance provision does not entitle plaintiff to the proceeds of either the USAA or Lincoln policies because neither existed at the time of the divorce.

 

Affirmed as to the judgment granting interpleader relief to defendant USAA Life Insurance Co.; otherwise, reversed and remanded for further proceedings consistent with this opinion.

TEACHOUT, Supr. J. (Ret.), Specially Assigned, joined by EATON, J., dissenting in part.   I dissent as to that portion of the instructions on remand concerning distribution of the $400,000 USAA insurance proceeds.  Equity is the basis for plaintiff’s entitlement to life insurance for the reasons set forth in the majority opinion, but once plaintiff is entitled to receive life insurance, enforcement of the parties’ negotiated stipulation calls for her to have the full USAA policy proceeds, as that $400,000 amount was specifically provided for in the stipulation.

 

 Under both the court order and the contract created by the stipulation, plaintiff was guaranteed to be the “100% beneficiary” of $400,000 in life insurance for fifteen years. Decedent died within fifteen years of the stipulation.  Equitable enforcement of the insurance provision does not extend to giving the trial court the discretion to divide up the funds between plaintiff and other parties whose claims arose later.

 

I would order the trial court on remand to award plaintiff the $400,000 proceeds of the USAA insurance policy, award Barrows the full amount of proceeds of the Lincoln policy.

Procedural due process, under both the Vermont and United States Constitutions, does not require notice of the listers’ tax grievance decision to be mailed to counsel in addition to taxpayer.

 Salisbury AD 1, LLCv. Town of Salisbury, 2025 VT 43 [8/8/2025]

 REIBER, C.J.   This case arises out of a tax grievance before the Town of Salisbury listers.  The Town of Salisbury appeals the trial court’s denial of its motion for summary judgment and the granting of taxpayer’s motion for summary judgment including mandamus relief pursuant to Vermont Rule of Civil Procedure 75.  In so ordering, the trial court determined that the Town failed to satisfy due process by not mailing notice of the listers’ grievance decision to both taxpayer and taxpayer’s counsel.  In the circumstances of this case, procedural due process does not require notice to be mailed to counsel in addition to taxpayer.  We reverse.

Under the due-process test set forth in Mullane, Flowers, and Hogaboom, “[t]he reasonableness and hence the constitutional validity of [the] chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected.”  Mullane, 339 U.S. at 315.

The Town argues that taxpayer’s due-process right was not violated because taxpayer received actual notice of the listers’ determination by means of certified mail with return receipt. 

 

Taxpayer argues that it was entitled to summary judgment based on application of our holding in Perry v. Department of Employment & Training, 147 Vt. 621, 624,  (1987) that in the unemployment-benefits context that, notice of a referee’s decision must be sent both to the claimant and to the claimant’s attorney of record . The Town replies that Perry’s due-process directive is limited to the context of unemployment-benefits claims. Taxpayer counters that Perry was decided “under broad, generally applicable constitutional principles,” and, therefore, applies equally to a property-tax-grievance adjudication.

 

In Perry wee based our reasoning on the Colorado Supreme Court’s holding in Mountain States Telephone & Telegraph Co. v. Department of Labor & Employment, 520 P.2d 586 (Colo. 1974)  that when a litigant employs an attorney to represent their interests before an adjudicatory body “ ‘all notices required to be given in relation to the matters in controversy, including notice of the decision and entry thereof, should be given to the attorney of record’ ” to prevent “ ‘fundamental unfairness.’ ”  Perry, 147 Vt. at 624, 523 But Perry’s  analysis and holding are expressly limited to unemployment-benefits claims.  We agree with the Town that Perry is limited to its facts and does not announce a general principle of due-process requirements. Perry does not control in this instance because it is limited to its specific facts and the context of unemployment-benefit claims. 

 

In the context of a tax grievance before the Town of Salisbury listers, taxpayer’s actual receipt of notice of the listers’ decision satisfied procedural due process.  Due process, under both the Vermont and United States Constitutions, does not require notice to counsel. 

 

Reversed with instruction to enter summary judgment for the Town of Salisbury.

SCOVT reverses unlawful mischief conviction for plain error because the instruction allowed the jury to find a lower standard of intent than required by the statute; but affirms aggravated assault convictions holding, among other things, that court did not abuse its discretion in declining to exclude under Rule 602 for lack of personal knowledge, a neighbor’s statement in a 911call that "[h]e's beating the shit out of her”.

 

State v. Lyddy,  2025 VT 1 [1/3/2025]

COHEN, J. Defendant appeals his convictions of three counts of second-degree aggravated domestic assault and one count of felony unlawful mischief. He argues that the court erred by admitting a 911 caller’s statement that defendant was beating the complainant, and failing to sua sponte strike the complainant’s testimony that police had to tell her that she had been assaulted. Defendant claims that his convictions of the second and third counts of domestic assault violated the prohibition against double jeopardy because they were based on a single, continuous act. He contends that the trial court erroneously instructed the jury about the intent required to prove unlawful mischief. Finally, he argues that the court erred in allowing the jury to consider evidence of damage to a laptop and a cocktail recipe book as part of the unlawful mischief charge. We reverse and remand for a new trial on the unlawful mischief count but otherwise affirm.

Under V.R.E. 602 "The testimony of a witness may be excluded or stricken unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." Defendant moved to exclude the statement "[h]e's beating the shit out of her”. He argued that the 911 caller lacked personal knowledge to make this statement, because the 911 caller could not see what was happening in defendant's apartment. The court declined to exclude the statement, reasoning that the statement was a present sense impression and could be admitted if the 911 caller was subject to cross-examination.

We conclude the court did not abuse its discretion in declining to exclude the statement for lack of personal knowledge. The caller's statement is reasonably interpreted as \based on what he could hear through the walls. As one court has observed, "[w]e perceive events with our ears as much as with our eyes.” The fact that the caller witnessed the fight with his ears and not his eyes did not require the statement's exclusion under Rule 602. See also V.R.E. 803(1) (providing that "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition" is not excluded by the hearsay rule even if declarant is available to testify)

Defendant also argues that the court erred by failing sua sponte to exclude as hearsay complainant's testimony during cross-examination, that the police chief “had to explain to me that I had been assaulted . . . I didn't even know what happened. But I was in such shock." To reverse for plain error, defendant must demonstrate three factors: "First, there must be an error; second, the error must be obvious; and third, it must affect substantial rights and result in prejudice to the defendant." State v. Koons, 2011 VT 22, ¶ 11.

We conclude that the admission of the complainant's statement does not meet this standard. Assuming there was error, defendant has not shown that it struck at the heart of his constitutional rights or resulted in prejudice. There was ample other evidence to support the assault charges. See State v. Burgess, 2007 VT 18, ¶ 9, (explaining that if wrongly admitted evidence is cumulative, error is harmless beyond a reasonable doubt). Viewed in light of the evidence as a whole, the court's failure to sua sponte strike the statement or take other curative action was not plain error.

Defendant argues that the court improperly instructed the jury on the intent element of unlawful mischief by stating the jury could find him guilty if it found he acted knowingly. Because defendant did not object to the jury instruction, we review this issue for plain error

13 V.S.A. § 3701(a) requires the State to prove defendant acted “with intent to damage property”. The trial court erred in instructing the jury that it could find the requisite intent for unlawful mischief if it found that defendant acted knowingly.

As in Jackowski, the “instruction may have led the jury to ignore any evidence of defendant’s intent and to convict solely based on [his] knowledge.” State v. Jackowski. 2006 VT 119, ¶ 9.

The State argues that the error was harmless because defendant conceded that he threw the complainant's phone, Defendant admitted that he threw the phone but denied that he did so in order to break it. Similarly, defendant testified that he shut the laptop because he "wanted the noise to stop," and that he "felt horrible" when he realized the screen had cracked and offered to pay for the damage. His intent was therefore the central disputed issue for this charge.

Where, as here, defendant's intent was the central element at issue, and the trial court's instruction suggested that knowledge was sufficient to satisfy that element, we cannot conclude the error was harmless beyond a reasonable doubt. We therefore reverse defendant's conviction on the unlawful-mischief count.

Defendant’s unlawful-mischief conviction is reversed and remanded for a new trial. His convictions are otherwise affirmed.

SCOVT reverses and enters summary judgment in favor of employee’s attorney, holding that payment by insurer to employee’s attorney as part of settlement of employee's personal-injury lawsuit against employer was not a “common fund,” such that the law of unjust enrichment requires employee’s attorney to contribute to employer’s attorney’s fees incurred in a separate suit concerning insurance coverage for employee’s claim.)

 

WWSAF Special Partners Group, LLC v. Costello, Valente & Gentry, P.C., 2025 VT 40 [7/18/2025]

CARROLL, J.   This case involves a dispute between two law firms over attorney’s fees in separate litigation.  As relevant to this appeal, plaintiff Gravel & Shea PC sued defendant Costello, Valente & Gentry, P.C., claiming defendant was unjustly enriched for receiving attorney’s fees without compensating plaintiff for the work plaintiff did to procure a settlement from which defendant received its fees.  Defendant appeals a trial court order granting summary judgment that defendant contribute to plaintiff’s attorney’s fees under the common-fund doctrine. We agree with defendant that the trial court improperly expanded the common-fund doctrine to apply to this case and thus reverse the court’s order granting summary judgment to plaintiff and remand for the court to enter summary judgment in favor of defendant. 

 

The trial court granted summary judgment to plaintiff because defendant benefited from legal work plaintiff did that led to a settlement from which defendant received its fees, concluding that equities entitled plaintiff to a portion of defendant’s fees under the common-fund doctrine. The court reasoned that although defendant’s client (employee) was not a party to employer’s lawsuit concerning insurance coverage, defendant would not have obtained fees from a settlement with an insurer in a separate suit by the employee but for plaintiff’s attorney’s efforts representing the employer.

 

This Court applied the common-fund doctrine for the first and only time in Guiel v. Allstate Ins. Co., 170 Vt. 464, 468 (2000).In general, the common-fund doctrine allows a prevailing party—whose lawsuit has created a fund that is intended to benefit not only that party but others as well—to recover, either from the fund itself or directly from those others enjoying the benefit, a proportional share of the attorney’s fees and costs incurred in the lawsuit.   Guiel, 170 Vt. at 468

 

The common-fund doctrine arises out of the equitable theory of unjust enrichment. The threshold issue on appeal is whether the common-fund doctrine applies in this case and thus whether the court could award attorney’s fees to plaintiffs under this theory.

 

In Guiel, we held the common fund doctrine may be applied to require an insurer to pay a proportionate share of the attorney’s fees incurred by its insured in obtaining a judgment or settlement that satisfies the insurer’s subrogated interest. We decline to extend the common-fund doctrine beyond the insurance subrogation context to the circumstances before us here because there is no common fund.

 

The common-fund doctrine as an exception to the American Rule in which fees are awarded not, as in a ‘prevailing party’ case, to make the plaintiff whole by shifting all costs to the wrongdoer, but instead to spread the costs among those on whose behalf the case was brought and who benefitted from plaintiff’s efforts. Whether the doctrine applies in a particular case is not determined by a label, but rather by a proper understanding of the doctrine and its limitations. The doctrine is not limited to the context of class actions, insurance subrogation cases, or any type of case.  Guiel, 170 Vt. at 470, 756 A.2d at 781 (noting it depends on whether “it is equitable to do so because of the facts of the particular case at hand” and “the nature and extent of the [beneficiary’s] activities”).

 

The common fund doctrine is limited, however, to cases in which a party has “successfully created a ‘common fund.’”  Robes v. Town of Hartford, 161 Vt. 187,199 (1993).. Savoie v. Merchs. Bank, 84 F.3d 52, 56 (2d Cir. 1996) (The doctrine does not apply if “the fee award would not come from a common fund.”)

 

A common fund, as defined by the Restatement, is a fund that “consists of money or other property in which two or more persons (the ‘beneficiaries’) are entitled to share by reason of their common or parallel interests therein.”  Restatement (Third) of Restitution & Unjust Enrichment § 29(1).

 

Here, plaintiff argues that it should be awarded fees for the work it did for its client in one case, that benefitted the attorney of its client’s adversary in another.  Notwithstanding any benefit conferred on defendant, the common-fund doctrine cannot apply.  The client  on whose behalf plaintiff was acting, was not a beneficiary to the settlement proceeds or the fund from which plaintiff seeks compensation.  Plaintiff’s efforts on behalf of its client have not created a common fund.

 

Accordingly, plaintiff cannot maintain an unjust-enrichment claim as a matter of law under these facts.  We thus reverse the court’s order granting summary judgment to plaintiff and remand for the court to enter summary judgment in favor of defendant.

 

Reversed and remanded for the trial court to enter summary judgment in favor of defendant.

SCOVT affirms judgment for defendant in wrongful death claim, holding the evidence supported the verdict, no error in evidentiary rulings, that the speed at which the jury returned its verdict was not reversible error and erroneous submission of comparative negligence charge to the jury was harmless.

 Shaffer v. Northeast Kingdom Human Services, Inc., 2025 VT 31 [6/20/2025]

REIBER, C.J.   In this wrongful-death action, plaintiff the Estate of Jared Shaffer, through Daniel Shaffer as administrator, appeals from a jury verdict and judgment in favor of defendant Northeast Kingdom Human Services, Inc.  The estate argues the court erred by instructing the jury on comparative negligence, by providing jury instructions that it claims were misleading, and by sustaining defendant’s objections to certain questions the estate attempted to ask defendant’s corporate representative at trial.  The estate further argues the jury verdict must be reversed because the jury deliberated too quickly and because the evidence overwhelmingly supported the estate’s claim that defendant acted negligently in performing its duty to oversee and monitor developmental disabilities services and care for decedent.  We find error in the proceedings but no prejudice to the estate and therefore affirm.

 

A.  Comparative Negligence . On appeal, the estate first claims that the trial court erred by denying its pretrial motion to strike the affirmative defense of comparative negligence.  We agree the trial court committed error in its analysis by conflating the identity of the “plaintiff,” the administrator of the estate, with decedent’s co-guardian and father, Daniel Shaffer.  However, the court acted within its discretion to consider the motion, determine that the defense of comparative negligence should remain because of disputed questions  of law and fact, and charge the defense to the jury at the conclusion of evidence.  The court’s error was rectified by correction in the jury charge and jury instructions and, ultimately, the estate was not prejudiced because the jury never reached the affirmative defense because it concluded there was no negligence on defendant’s part.  The estate also claims that the court should not have instructed the jury on comparative negligence, failed to preserve this objection to the jury instructions by not raising it below.

 

B.  Evidentiary Rulings. Next, the estate argues the trial court erred in preventing its attorney from questioning defendant’s corporate representative about the master grant agreement between defendant and the state, The court ruled, that the witness did not have an understanding of the document and therefore could not offer testimony about the document. On appeal, the estate argues that the witness should have known about the master grant agreement, because he was the designated corporate representative and a 2019 deposition notice to him indicated that the estate would question him about the agreements.  The Vermont Rules of Evidence provide “the testimony of a witness may be excluded . . . unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”  V.R.E. 602.  Where, as here, the witness testified that he had no knowledge of the agreements, the trial court did not abuse its discretion in prohibiting further questioning about the agreements.  

The estate next argues the court erred in preventing it from questioning the corporate representative about a report from a third-party audit of defendant’s operations. After defendant objected  , the court allowed the estate to ask additional questions after which the estate  turned to a completely different line of questioning.  At no point did counsel for the estate attempt to move the audit report into evidence, and the court never made a definitive ruling excluding the testimony or the report.  “Where counsel abandons a question or line of questioning before the court has ruled that he must do so, there is no basis for a claim of error.”  State v. Kasper, 137 Vt. 184, 206, 404 A.2d 85, 97 (1979)

C.  Jury Verdict.  Finally, the estate argues the jury failed to understand the court’s instructions and the speed at which the jury returned its verdict was reversible error.   There is no requirement that a jury deliberate any longer than may be necessary to agree upon a verdict. From the evidence in the light most favorable to the verdict, the jury could reasonably conclude that defendant did not owe decedent a duty to provide or oversee his medical care.  Therefore, the jury’s verdict must stand.   

SCOVT affirms dismissal of defamation and emotional distress claims, holding an alleged false report to police was absolutely privileged, and that trial court correctly ruled the anti-SLAPP statute applies, but remands for evaluation of plaintiff’s constitutional challenge that attorney fee award under anti-SLAPP statute deprives him of his right to a remedy under Article 4, to a jury trial under Article 12, and impermissibly burdens his attempt to exercise his rights to free speech and petition the court)

 Talandar v.  Manchester-Murphy, 2024 VT 86 [12/20/2024]

CARROLL, J.   Plaintiff Draxxion Talandar appeals from a civil division order granting judgment on the pleadings to defendant Elizabeth Manchester-Murphy and awarding her attorney’s fees under Vermont’s anti-SLAPP (strategic lawsuit against public participation) statute, 12 V.S.A. § 1041.  In his complaint, plaintiff raised claims of defamation and intentional infliction of emotional distress (IIED), alleging that defendant maliciously made a false report of sexual and physical assault to the police that resulted in plaintiff being criminally charged, arrested, and held without bail for almost two years before his ultimate acquittal.  On appeal, plaintiff argues that the trial court erred in: (1) concluding that his claims were barred by a common-law absolute privilege for witness communications preliminary to a proposed judicial proceeding and therefore entering judgment on the pleadings; and (2) granting defendant’s special motion to strike his complaint under § 1041(a).  We agree that defendant’s police report was absolutely privileged and thus affirm the trial court’s grant of judgment on the pleadings.  While we conclude that plaintiff’s challenges to the court’s interpretation of 12 V.S.A. § 1041 are without merit, we remand for the court to consider plaintiff’s unaddressed constitutional challenges to that statute.

***

Finally, plaintiff contends that applying the  anti-SLAPP statute applies to his suit  unconstitutionally deprives him of his right to a remedy under Article 4 and to a jury trial under Article 12, and the compulsory fee award impermissibly burdens his attempt to exercise his rights to free speech and petition the court.  See Vt. Const. ch. I, arts. 4, 12. The trial court failed to meaningfully engage these arguments when plaintiff raised them below, instead observing that the anti-SLAPP statute already represented a legislative balancing of the conflicting constitutional rights at issue.  This does not answer plaintiff’s argument, and we decline to address these contentions for the first time on appeal, and therefore remand to the trial court for the purpose of considering plaintiff’s constitutional challenges to the anti-SLAPP statute. 

 

The trial court’s entry of judgment on the pleadings is affirmed.  Its ruling on defendant’s special motion to strike is affirmed in part but remanded for evaluation of plaintiff’s constitutional challenges to the anti-SLAPP statute.

SCOVT reverses order granting Anti-SLAPP motion because the speech underlying the claim was not made in connection with a public issue; also holding the failure to take interlocutory appeal did not preclude challenge to the order. Affirms summary judgment dismissing defamation claim, holding - even if summary judgment was based on discovery sanction precluding use of evidence =- no special finding was required to support the discovery sanction, and that plaintiff in any event failed to demonstrate evidence of pecuniary loss specifically attributable to the claim or other actual harm, as required to support a defamation claim.

  Polak  v. Ramirez-Diaz, 2025 VT 9 [2/28/2025]

EATON, J.   Plaintiffs appeal the trial court’s order granting defendants’ special motion to strike plaintiffs’ claims of defamation, malicious prosecution, and intentional infliction of emotional distress (IIED) pursuant to Vermont’s anti-SLAPP law, 12 V.S.A. § 1041.  We conclude that the court erred in granting the special motion to strike because the speech underlying the affected claims—defendants’ allegedly false statements to police and the court accusing plaintiffs of criminal activity—was not made in connection with a public issue.  We therefore reverse the order granting the motion to strike and remand for further proceedings on the claims that were stricken. 

Plaintiffs also challenge a discovery sanction imposed by the trial court for plaintiffs’ failure to respond to defendants’ interrogatories and requests for production related to their remaining defamation claim, arguing that it amounted to dismissal without the requisite findings.  However, we hold that the court acted within its discretion in imposing the discovery sanction and affirm that order and the subsequent order awarding summary judgment to defendants on the related defamation claim.  

Despite court order plaintiffs did not timely produce the requested discovery, The court denied defendants’ request for dismissal but prohibited plaintiffs from introducing at trial any evidence that plaintiffs should have disclosed in response to defendants’ discovery requests. .” Citing John v. Med. Ctr. Hosp. of Vermont, Inc., 136 Vt. 517, 519,  (1978), plaintiffs argue this order effectively amounted to a dismissal of the defamation claim without sufficient findings. But our cases carefully distinguish imposition of a sanction of dismissal or default from a sanction that effectively results in dismissal. No special findings are required when there is no outright dismissal or default.  Stella ex rel. Estate of Stella v. Spaulding, 2013 VT 8, ¶ 22,  State v. Howe Cleaners, Inc., 2010 VT 70, ¶ 22, The sanction precluding plaintiff from offering certain evidence, was not a dismissal, and no special findings were required.  Stella, 2013 VT 8, ¶ 22.

 Plaintiffs failed to respond to defendants’ requests or the court’s orders, despite having had nearly nine months to do, and the court did not abuse its discretion by prohibiting them from submitting evidence relating to those discovery requests.  

 The court’s decision awarding summary judgment on the defamation claim, is supported by the record. Plaintiffs failed to demonstrate that they had evidence to support their defamation claim.   “To survive a defendant’s motion for summary judgment, the plaintiff must respond with specific facts to raise a triable issue and demonstrate sufficient admissible evidence to support a prima facie case.”  Gates v. Mack Molding Co., 2022 VT 24, ¶ 14, 216 Vt. 379, 279 A.3d 656; Cate v. City of Burlington, 2013 VT 64, ¶ 11, 194 Vt. 265, 270, 79 A.3d 854 (“A party opposing summary judgment may not rest on allegations or denials, but must demonstrate, with citations to the record, that a fact is genuinely disputed.”). 

The court granted summary judgment to defendants on the defamation claim, noting that in their response to defendants’ statement of undisputed facts, plaintiffs did not provide specific citations to parts of the record that demonstrated a genuine dispute as to any factor  identify any specific defamatory statements or produce evidence of pecuniary loss, attorney’s fees specifically attributable to the claim, or other actual harm, as required to support a defamation claim. Even when they finally responded to defendants’ interrogatories, they did not identify any specific defamatory statements or produce evidence of pecuniary loss, attorney’s fees specifically attributable to the remaining claim, or other actual harm. Thus, summary judgment on the defamation claim was appropriate.

Plaintiffs argue that because defendants did not seek an immediate appeal from the trial court’s decision on the anti-SLAPP motion.  defendants’ challenge to the anti-SLAPP decision is untimely. Defendants rely on 12 V.S.A. § 1041(g), which states: “An order granting or denying a special motion to strike shall be appealable in the same manner as an interlocutory order under Rule 5 of the Vermont Rules of Appellate Procedure.”

 

Viewed in context, § 1041(g) clarifies that, for purposes of Vermont law, an order granting or denying an anti-SLAPP motion is not a collateral final order.  Instead, it is an interlocutory order that must satisfy the Rule 5 criteria to be immediately appealed. . However, § 1041(g) does not state that an order resolving a motion to strike is only appealable under Rule 5, and we decline to read such a requirement into the statute. 

Absent an express indication of a contrary intent from the Legislature, we conclude that a timely appeal from a final judgment preserves a challenge to an interlocutory order resolving an anti-SLAPP motion.  We therefore have jurisdiction to consider plaintiffs’ claims

The trial court’s May 13, 2024, order awarding partial summary judgment is affirmed.  The trial court’s August 17, 2021, order granting defendants’ motion to strike is reversed and the matter is remanded for further proceedings on plaintiffs’ remaining claims.  

SCOVT reverses, for inadequate findings, Labor Board ruling that predoctoral fellows and trainees are “employees” for purposes of the State Employees Labor Relations Act.

 In re United Auto Workers, Local 2322, 2025 VT 8 [filed 2/21/2025]

CARROLL, J. The University of Vermont appeals from a Vermont Labor Relations Board decision concluding that predoctoral fellows and trainees are employees for purposes of the State Employees Labor Relations Act (SELRA). We reverse and remand for further consideration of the issue. 

 

The term “employee” is broadly defined under the SELRA in relevant part as “any individual employed on a permanent or limited-status basis by . . . the University of Vermont” The Board, explaining that the term “employed” is not further defined in the statute, adopted the ordinary dictionary definition of employee, which it described as a person “who provide[s] work to someone for pay” or “any person who works for another in return for financial or other compensation.”

The Board concluded that graduate assistants are employees because they work for the University in exchange for compensation. The Board made no such findings with regard to predoctoral fellows and trainees. The Board’s decision fails to address its own findings that predoctoral fellows and trainees apparently have no obligations to the University beyond academic requirements, do not receive W-2s, or that the funding for predoctoral fellows is tied to the individual student. 

 

It is not clear that predoctoral fellows and trainees fall under the Board’s definition of employee based on the record and findings available to us in this appeal. Without such findings or more detailed reasoning supplied by the Board as to why differences between graduate assistants and predoctoral fellows and trainees are immaterial to the outcome, we can only “speculate” as to how the Board reached its decision. Page v.Smith-Gates Corp, 143 Vt. 280, 283 (1983).  Accordingly, the Board’s order with respect to the employee status of predoctoral fellows and trainees is reversed and the matter is remanded to the Board for further proceedings consistent with this opinion.

SCOVT reverses E-Court ruling denying reimbursement from the Petroleum Cleanup Fund, holding the court’s findings were inadequate to show how the decision was reached.

 

In re Cote/Maquam Shore Market, 2025 VT 42 [Filed 7/25/2025]

EATON, J.   This appeal concerns a dispute over reimbursements from the Petroleum Cleanup Fund (PCF).  Appellant Janet Cote owns a property which was once the site of a gas station.  After the discovery of significant petroleum contamination in the soil on her property, she applied for and received reimbursement from the PCF.  The issues on appeal stem from the Agency of Natural Resources’ decision to deny further reimbursement for costs associated with a licensed engineer and with a “punch list” of additional items on Cote’s property.  The Environmental Division affirmed the Agency’s decision in part and reversed in part.  Cote now appeals the reimbursements she claimed which were denied by both the Agency and then the Environmental Division.  We reverse and remand. 

“The purpose of findings is to make a clear statement to the parties, and to this Court, if appeal is taken, of what was decided and how the decision was reached.”  New England Power Co.,. New England Power Co. v. Town of Barnet, 134 Vt. 498, 503,  (1976)  A trial court’s findings are “insufficient when [this Court is] left to speculate as to the basis of the trial court’s decision.”  Bonanno v. Bonanno, 148 Vt. 248, 251, 531 A.2d 602, 604 (1987). 

Here the court failed to provide an adequate basis for its conclusion that the Agency correctly denied reimbursement for the engineer Specifically, the court did not adequately explain why it considered the Agency’s denial of this expense to be reasonable.  The decision merely restates the Agency’s conclusory arguments that the cost was ineligible because all eligible work was complete and that the costs 8 were in excess of what was reasonable.  

In its findings of fact, the court listed the twenty items on the punch list that the Agency identified as ineligible for reimbursement. As above, the court did not explain why the Agency’s denial for each specific item was reasonable.  The court’s use of the terms “many” and “in general” when describing the punch list items forces us to speculate about whether and how each item is ineligible .The decision provides no analysis of the Agency’s reasoning for denying each vastly dissimilar punch list item request—merely restating the Agency’s generalized and conclusory arguments.

Without more findings or analysis of the Agency’s reasoning, “we are left to speculate as to the basis of the trial court’s decision” which we decline to do.  Bonanno, 148 Vt. at 251. We reverse and remand to allow the Environmental Division to make adequate factual findings and any additional conclusions as may be necessary on the disputed restitution claims.

 

 Reversed and remanded for further proceedings consistent with this opinion.

SCOVT overrules Kuhling v. Glaze, 2018 VT 75, ¶ 11, as to the standard of review of conclusions of law, holding de novo review is limited to “pure questions of law” and that a trial court's conclusions will be affirmed where they are "reasonably drawn from the evidence presented."

Jackson v. Jackson , 2025 VT 29 [June 6, 2025.] (Affirms superior court merits ruling and fee award on appeal from probate court in dispute between beneficiaries and a trustee, holding the record supports the findings and the findings support the court's conclusions, including the award of attorney’s fees for work in both courts under 14A V.S.A. § 1004 of the Vermont Trust Code,)

EATON, J.   Petitioners Anne and Jeffrey Jackson sought to remove their father Willard Jackson as trustee of two trusts for which Willard is an income beneficiary and they are remainder beneficiaries.  Petitioners sought to terminate Willard’s beneficial interest in the income of the trusts, terminate the trusts, and distribute the trust assets to the beneficiaries based on an allegation of breach of trust.  Petitioners also sought to have Willard pay restitution to the trust from his personal assets to restore the value of the trust assets that they argued were improvidently spent.  Petitioners initiated their action in the probate division in April 2021 against Willard individually and in his capacity as trustee.  The probate division granted their request to remove Willard as trustee and granted petitioners’ request for attorney’s fees from Willard personally under 14A V.S.A. § 1004.  Willard appealed to the civil division, which considered the matter de novo.  Following a five-day bench trial, the civil division rejected petitioners’ arguments and granted judgment to Willard.  The court also granted Willard’s request for attorney’s fees from petitioners pursuant to 14A V.S.A. § 1004.  Petitioners appeal, arguing that the court erred in rejecting their claims and in awarding attorney’s fees to Willard.  We affirm.

 

Petitioners ask this Court to consider the probate decision as persuasive. We decline to do so. The trial court here conducted a de novo bench trial and the trial court's decision is the only decision before this Court on appeal.

 

The arguments here involve fact-specific inquiries, appropriately subject to a deferential standard of review:

“This Court's review of a trial court's findings . . . following a bench trial is limited. A trial court's factual findings will not be disturbed on appeal unless clearly erroneous when viewed in the light most favorable to the prevailing party. A finding will not be disturbed merely because it is contradicted by substantial evidence; rather, an appellant must show there is no credible evidence to support the finding. This Court gives due regard . . . to the opportunity of the trial court to judge . . . the credibility of the witnesses, and will accordingly defer to the court's determinations regarding the credibility of witnesses and . . . the persuasive effect of the evidence. Finally, a trial court's conclusions will be affirmed where they are reasonably drawn from the evidence presented.”

Lofts Essex, LLC v. Strategis Floor & Décor Inc., 2019 VT 82, ¶ 17 

 

This case does not present pure questions of law subject to de novo review. To the extent that we suggested otherwise in Kuhling v. Glaze, 2018 VT 75, ¶ 11, 208 Vt. 273, 196 A.3d 1125 (“On appeal, we review the trial court's findings of fact for clear error, and its legal conclusions de novo”), the language to that effect conflicts with Lofts Essex, LLC and is overruled.

Petitioners fail to show that the court's findings are clearly erroneous. Petitioners essentially challenge the trial court's assessment of the weight of the evidence and the credibility of witnesses and we do not reweigh the evidence on appeal. While petitioners disagree with the trial court's conclusions, they do not demonstrate error. The court applied the appropriate legal standard. Its findings are supported by the record, and the findings in turn support the court's conclusions. We therefore affirm the court's merits decision in Willard's favor.

 

Two weeks after the merits decision in his favor, Willard moved for attorney's fees under 14A V.S.A. § 1004 of the Vermont Trust Code, which is based on the Uniform Trust Code. Section 1004 provides:

In a judicial proceeding involving the administration of a trust, the Probate Division of the Superior Court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.

 The court granted Willard's motion in the full amount requested.   On appeal petitioners argue that there is no basis in "justice or equity" for the award and that the court did not make sufficient findings to support its award. While the court's findings are not extensive, it provided a reasoned basis for its decision and acted within its discretion in awarding fees. We can discern from the court's decision "what was decided and why," which is the purpose of findings. Petitioners did not object below to the time spent by counsel or the rates charged. Petitioners do not show where in the record they argued that the court should not award fees associated with the probate proceeding. The court acted within its discretion in awarding attorney's fees to Willard and we find no grounds to disturb its decision

Affirmed.

SCOVT NOTE 1. Attorney's fees under 14A V.S.A. § 1004.

Compare Curran v. Building Fund of the United Church of Ludlow, 2013 VT 118 ) (where beneficiaries successfully defended settlor's capacity to execute trust trial court did not abuse its discretion in determining “justice and equity” did not require an award of attorney’s fees under 14A V.S.A. § 1004.)

SCOVT NOTE 2: STANDARD OF REVIEW OF "LEGAL CONCLUSIONS"

The statement in Kuhling v. Glaze (EATON, J.), which is here overruled - that a trial court's legal conclusions are reviewed de novo - derives from N.A.S. Holdings, Inc. v. Pafundi, 169 Vt 437 (1999). Pafundi was an adverse possession case where the Court said the trial court's own findings established a different outcome as a matter of law. The Court reversed a ruling that the appellant had established title only to the floor of a slate quarry but not to its walls and held the appellant established adverse possession of the entire quarry on the basis of facts found by the trial court. The Court reviewed the trial courts' conclusions de novo, stating:

Adverse possession is a mixed question of law and fact . . .When reviewing the factual findings of a trial court, . . .findings will stand if there is any reasonable and credible evidence to support them. Review of conclusions of law, however, is nondeferential and plenary. See State v. Pollander, 167 Vt. 301, 304, 706 A.2d 1359, 1360 (1997) (questions of law reviewed de novo); State v. Madison, 163 Vt. 360, 371, 658 A.2d 536, 543 (1995) ("review de novo" commonly used to describe nondeferential on-the-record standard of review that appellate courts apply to lower court determinations regarding questions of law or mixed questions of law and fact)

169 Vt. at 438-39 (Citations omitted.).

The standard in Lofts Essex quoted by the Jackson Court-- that a trial court's conclusions will be affirmed where they are "reasonably drawn from the evidence presented." -- derives from tax appeal cases. E.g. Dewey v. Town of Waitsfield, 2008 VT 41 ¶ 3. But it also   appears in other contexts. E.g..In re Burton Corp. Conditional Use/Act 250, 2024 VT 40 ¶ 18 (" The Environmental Division's legal conclusions are reviewed de novo but will be upheld 'if they are reasonably supported by the findings.'"); Hirchak v. Hirchak, 2024 VT 81 ¶ 15 ("'Where the trial court has applied the proper legal standard, we will uphold its conclusions of law if reasonably supported by its findings.' . . . However, we review pure questions of law de novo")

SCOVT declines remittitur and affirms substantial damage awards for emotional distress (PTSD), without physical impact, holding such damages may be recovered from an employer for negligent supervision of an employee who commits intentional or other torts for which emotional-distress damages are available

Kilburn v. Simmon, 2025 VT 32 [filed 6/20/2025]

COHEN, J. This is an appeal from a jury verdict awarding damages to plaintiffs Ciara and Brona Kilburn for negligent supervision by defendant Vermont Community Access Media, Inc. (VCAM) of its employee, defendant Bill Simmon. In 2012, Simmon used VCAM's video cameras to secretly record plaintiffs while they were changing clothes, then shared the videos online, where they have been viewed more than a million times. The jury found that Simmon invaded plaintiffs’ privacy and recklessly caused plaintiffs severe emotional distress. It found that VCAM negligently supervised Simmon. It awarded each plaintiff compensatory damages of $1.75 million against Simmon and $1.75 million against VCAM. It awarded each plaintiff $2 million in punitive damages against Simmon. On appeal, VCAM argues that the trial court erred in admitting evidence that in 2011, a VCAM manager found child pornography on a hard drive used by Simmon but took no action. VCAM further argues that the trial court erred in allowing the jury to award damages for emotional distress because there was no evidence that plaintiffs were physically injured. Finally, VCAM argues that the court should have granted its request for remittitur because the damage award was duplicative and excessive. In their cross-appeal, plaintiffs claim that the trial court erred in denying their request to hold VCAM jointly and severally liable for Simmon's share of compensatory damages. We affirm.

Availability of Emotional-Distress Damages for Negligent Supervision

VCAM's primary argument on appeal is that the trial court erred in instructing the jury that it could award compensatory damages to plaintiffs for emotional distress resulting from VCAM's negligent supervision of Simmon even though there was no evidence that plaintiffs were physically injured. Below, Plaintiffs argue, and the trial court apparently agreed, that this Court should recognize a new exception to the Vincent rule that applies to their case because the nature of Simmon's acts guarantees the genuineness of their emotional distress.


The general rule of Vincent is that "[a]bsent physical contact, one may recover for negligently caused emotional distress only when the distress is accompanied by substantial bodily injury or sickness." Vincent v. DeVries, 2013 VT 34, ¶ 10

Further, Zeno-Ethridge v. Comcast Corp., recently held that "PTSD is a mental or emotional harm, not a physical one," and therefore "a PTSD diagnosis alone is insufficient to satisfy the `actual injury' requirement of a negligence claim." 2024 VT 16, ¶ 35

In this case, plaintiffs did not allege or show that there was any physical contact between Simmon and themselves, or any other "physical impact" resulting from VCAM's negligence. Nor does this case involve either of the exceptions to the general rule identified in Vincent for "special circumstances where the nature of the tortious act guarantees the genuineness of the claim." Id. ¶ 13 (recognizing mishandling of bodily remains or negligent transmission of message announcing death as exceptions).

We conclude that it is unnecessary to decide whether to recognize a new exception because emotional-distress damages are are available as a matter of course for VCAM's breach of its duty to prevent its employee from using its equipment and premises to commit intentional torts for which emotional-distress damages are available. The Restatement (Second) of Agency § 213 (1958) and cases from other jurisdictions do not limit liability for negligent supervision to physical harm. Instead, the underlying tort or wrongful conduct determines the compensability of the injury. If a negligent-supervision claim is premised on an employee's commission of a tort for which emotional-distress damages are available even without physical impact, then such damages are available for the negligent-supervision claim as well.

In this case, plaintiffs' negligent-supervision claim against VCAM was premised on invasion of privacy and IIED—both intentional torts for which pure emotional distress damages are recoverable. Therefore the court properly instructed the jury that it could award compensatory damages to plaintiffs for emotional distress resulting from VCAM's negligent supervision of Simmon in this case.

We emphasize the limited nature of our holding. Emotional-distress damages may be assessed against VCAM in this case because plaintiffs met the difficult burden of proving both (1) that Simmon committed the underlying intentional torts of IIED and invasion of privacy and (2) that VCAM breached its duty to prevent Simmon from committing those torts using its premises and chattels, thereby causing harm to plaintiffs.[5] Our ruling in this case should not be interpreted to alter the Vincent rule, or to suggest that pure emotional-distress damages are automatically available for all negligent-supervision claims.

Motion for Remittitur.

VCAM argues the court should have granted its request for remittitur because the verdict was duplicative and excessive. VCAM first argues that by awarding each plaintiff $1.75 million against Simmon and $1.75 million against VCAM, the jury gave plaintiffs a double recovery for the same injury. “[A] plaintiff is generally not permitted to recover twice for the same injury.” Will v. Mill Condo. Owners’ Ass’n, 2006 VT 36, ¶ 7, 179 Vt. 500, 898 A.2d 1264. VCAM has failed to demonstrate that this occurred here, however. The identical awards do not by themselves prove that the jury improperly compensated plaintiffs twice for the same injuries. An equally plausible explanation is that the jury found each plaintiff suffered $3.5 million in damages and Simmon and VCAM were each responsible for one-half of the injuries the verdict form, expressly asked the jury to indicate whether it was awarding the same damages to be shared by the two defendants. The jury did not so indicate, and instead awarded separate damages for each defendant We are unpersuaded that there was double recovery in this case.

Further, we are unpersuaded that the award here was grossly excessive. “We are in the field of unliquidated damages, where judgments may vary widely and yet be within permissible range.” English v. Myers, 142 Vt. 144, 148, 454 A.2d 251, 253 (1982). Recordings of plaintiffs are practically impossible to remove from the internet. As the trial court noted, plaintiffs will have to live their lives knowing that friends, neighbors, colleagues, employers, and others may have seen them partially naked and that viewers might incorrectly assume that plaintiffs posted the pictures themselves. These acts caused plaintiffs severe and continuing emotional distress. Cf. State v. VanBuren, 2018 VT 95, ¶¶ 56-57 (noting substantial harm that victims of nonconsensual pornography may suffer, and observing that “[t]he personal consequences of such profound personal violation and humiliation generally include, at a minimum, extreme emotional distress”). Given the ongoing invasion of plaintiffs’ privacy and the proof presented of the attendant effects on their mental and emotional health, we cannot say that the award was excessive. See English, 142 Vt. at 147-48 (affirming “somewhat high” verdict because defendant presented no evidence of passion or prejudice on part of jury); In re Estate of Peters, 171 Vt. 381, 393, 765 A.2d 468, 478 (2000) (“Calculating damages is the jury’s duty, and considering [decedent’s] humiliation and emotional suffering, the size of the verdict alone does not show that the award was “entirely excessive.”). The cases cited by VCAM involve different factual scenarios and legal claims and are not helpful comparators. We therefore affirm the jury’s award of damages against VCAM.

Joint and Several Liability

Finally, we consider plaintiff’s claim, made following the verdict in a proposed judgment, that the trial court improperly declined to hold VCAM jointly and severally liable for Simmon’s share of compensatory damages. The court declined to make VCAM jointly liable for Simmon’s damages, stating: “The proposed judgment is not the place to raise legal issues that should have been addressed prior to or during the trial. The judgment must reflect the verdict of the jury,”reasoning that plaintiffs had agreed to have the jury allocate damages to each defendant and could not subsequently seek to recover the entire award against VCAM. We agree with the trial court that plaintiffs implicitly waived their joint-and several-liability claim by failing to object to the jury instructions or the verdict form.

Plaintiffs assert that notwithstanding the jury verdict, they were legally entitled to joint and several liability under Vermont law and the Restatement (Third) of Torts: Apportionment of Liability § 14 (2000), which makes a negligent tortfeasor, who had a duty to protect the plaintiff from the specific risk of an intentional tort, jointly and severally liable for the share of compensatory damages allocated against the intentional tortfeasor.

This Court has never addressed the Restatement provision cited by plaintiffs, which is complicated by 12 V.S.A. § 1036 applies. Given the apparent uncertainty surrounding whether joint and several liability applied in this situation, and plaintiffs' reliance on a Restatement provision that has not previously been adopted by this Court, the question of apportionment of liability should have been raised with the court before the jury was instructed and given the verdict form above. We conclude that plaintiffs waived their claim that VCAM is liable for the damages awarded against Simmon.

Affirmed.

REIBER, C.J. joined by Justice Waples, concurring. The majority determines that plaintiffs' mental and emotional harm, as well as physical effects arising from that harm, does not establish the "substantial bodily injury or sickness" necessary for recovery of emotional-distress damages in a negligence case. Vincent v. Devries, 2013 VT 34, ¶ 10, 193 Vt. 574, 72 A.3d 886 (quotation omitted). While that is true under current Vermont law, I write separately to underscore the substantial impacts of serious mental and emotional injuries and to draw attention to an unfairness in how these injuries are treated under our tort law.

This Court said in Zeno-Ethridge v. Comcast Corp., 2024 VT 16, ¶ 35 that PTSD alone is "insufficient to satisfy the `actual injury' requirement of a negligence claim." But this case illustrates that such a limitation imposes an actual unfairness on these plaintiffs. I respectfully encourage development of this aspect of tort law to incorporate our growing understanding of PTSD when we meet the facts of this and similar matters that come before us. We should take the next step by making it unequivocally clear that PTSD is a legitimate and recoverable injury in tort law.