Workers Comp: SCOVT reverses DOL re PPD for CPRS; allows AMA Guide impairment rating without AMA diagnosis!

Brown v. W.T. Martin Plumbing & Heating, Inc., 2013 VT 38 (21-Jun-2013)(Robinson, J.)
The central question in this case is whether the workers’ compensation laws preclude an impairment rating and associated award of permanent partial disability (PPD) benefits to an injured worker on account of impairment associated with a condition known as Complex Regional Pain Syndrome (CRPS) where a claimant is not diagnosed with CRPS under the criteria listed in Chapter 16 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides, or Guides), but where a qualified expert confirms the existence of the condition pursuant to other legally admissible standards sufficient to meet a reasonable medical certainty.  The Commissioner of the Department of Labor (DOL) and the trial court both concluded that 21 V.S.A. § 648(b) denies the Commissioner discretion to assign an impairment rating and thus award PPD benefits for impairment associated with CRPS where the CRPS diagnosis does not meet the diagnostic standards in Chapter 16 of the AMA Guides.  We reverse.

Appeal untimely. Being away from mail during vacation or otherwise failing to open mail is not excusable neglect justifying extension of time for appeal. Extension of time for late “receipt’ of order under V.R.A.P. 4 unavailable because notice was “received” when order arrived in mailbox, not when lawyer looked in the mailbox.

Coles v. Coles 2013 VT 36 (Burgess, J.)

Father challenges the trial court’s denial of his motion to reopen the time in which to file an appeal from a maintenance and child support order. He asserts that his motion was timely under Vermont Rule of Appellate Procedure 4(c). We affirm.

Counsel failed to prove that he did not receive notice of the court’s decision within twenty-one days, and thus failed to meet the threshold requirements for relief under V.R.A.P.4(c), which provides:

In any civil action, the superior . . . court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 90 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal. 

(emphasis added.)

The court’s docket entries indicate that an order was mailed to the parties on Monday, March 14, 2011, twenty days after entry of the order. Counsel was on vacation beginning Thursday, March 17, 2011,  and returned to work on Monday, April 4, 2011. He indicated that the mail arrived during his absence and the thirty-day appeal period had expired by the time he opened his mail. Counsel did not offer any evidence as to when the notice actually arrived in the mailbox. Instead, counsel argued only that he “received” the order when he opened his mail.

This approach would obviate our jurisdictional time limits, and it would not serve the strong interest in finality of judgments. The rule is not designed to allow the trial court to reopen the time for appeal because an attorney has not opened his or her mail. Instead we hold the “receipt” of notice contemplated under Rule 4(c) is receipt in a party’s mailbox.

The delay was not due to excusable neglect under Rule 4(d). Jurisdictional time limits do not and cannot depend on the vagaries of an attorney’s vacation schedule. Being away from delivered mail during vacation or otherwise failing to open mail, without more, is not excusable neglect. In re Town of Killington, 2003 VT 87A, ¶ 17, 176 Vt. 60, 838 A.2d 98 (internal office procedure breakdown not excusable neglect as a matter of law); Bergeron v. Boyle, 2003 VT 89, ¶ 22, 176 Vt. 78, 838 A.2d 918 (lawyer’s vacation and internal office procedure breakdown not excusable neglect); In re Lund, 2004 VT 55, ¶ 7, 177 Vt. 465, 857 A.2d 279 (mem.) (mistaken reading of rule not excusable neglect).

Restitution for Mutual mistake. Neither negligence nor imputed knowledge on part of plaintiff is a defense if there is an actual mistake and circumstances show unjust enrichment.

 Dover Corp. v. First Wisconsin Mortg. Trust, 139 Vt. 217, 425 A. 2d 97 (1980).

Plaintiff requested restitution based on a mutual mistake of fact relating to tax pro-rations at a closing. The trial court concluded that defendants had been unjustly enriched, and awarded $19,620.58 plus interest, reflecting the credits given defendants because of the mutual mistake as to the taxable year. Defendants appeal. We affirm.

Plaintiff, Dover Corporation, purchased the Mt. Snow ski area from defendants for a specific amount, subject to certain closing adjustments. The parties agreed to prorate the sewage taxes for the taxable year 1977 as of the date of closing. At the closing August 10, 1977,  defendants' agent represented that the sewage taxes had been paid in full for the fiscal year April 1, 1977, to March 31, 1978. Based on this understanding, the sewage taxes were prorated so that defendants received a credit for those taxes paid by them for the period from the date of closing to March 31, 1978.  However in fact the tax year was from January 1, 1977 to December 31, 1977, and the taxes were paid only through June 30, 1977.

Defendants challenge the court's conclusion that plaintiff was mistaken as to the proper taxable year, because  Plaintiff had received a title certificate from a local attorney noting, correctly, that the taxable year for sewage assessments ran from January 1, 1977, to December 31, 1977. Defendants argue that the knowledge of plaintiff corporation controls the issue of mistake and that the court's finding that plaintiff had received the correct facts before the closing adjustment precludes a claim of mistake.

"[A] mistake is an unintentional act or omission arising from ignorance, surprise, imposition or misplaced confidence, and it exists when a person under some erroneous conviction of law or fact does or omits to do some act which, but for the erroneous conviction, he would not have done or omitted." Ward v. Lyman, 108 Vt. 464, 472, 188 A. 892, 896 (1937). See also Restatement of Restitution § 6 (1937). The knowledge which may have been imputed to plaintiff from plaintiff's attorney is not the issue. Certainly here we have an example of misplaced confidence in the mistaken opinion of defendants' agent. We find no error.

Defendants further argue that the trial court abused its discretion in granting relief despite plaintiff's lack of care and vigilance. But negligence of the party injured should not prevent a court from correcting a mutual mistake of fact. Ward v. Lyman, supra. See also Restatement of Restitution § 59 (1937). Whether a mistake is to be corrected depends upon the circumstances of the case. Here defendants were found to be unjustly enriched and plaintiff alone would suffer injury if relief were not granted. We think the case affords a solid ground for relief.

Judgment affirmed.

Damages for negligent infliction of emotional distress rejected in legal malpractice case, not because there was no physical injury and no zone of danger, but because the type of representation did not involve deeply personal and emotional issues

Vincent v. DeVries, 2013 VT 34 (Robinson, J.)


This case involves a jury award of emotional a legal malpractice action. Defendant appeals, challenging the trial court’s denial of his motions for judgment as a matter of law Defendant argues that emotional distress damages are not available in a legal malpractice We reverse.

Defendant admitted breach of a duty to plaintiff, and, in the trial-within-a-trial, plaintiff proved that but for the breach plaintiff would not have been ordered to convey his home to buyers in exchange for $52,000. The jury awarded awarding a total of $183,000 in damages comprising $103,000 in economic damages—representing what plaintiff paid to settle the underlying case and retain his home—and $80,000 in emotional distress damages.

The general rule precluding emotional distress damages in ordinary negligence claims without physical impact is longstanding, well-established, and almost universally embraced. However, modern courts have allowed recovery in cases of certain relationships or undertakings that are “fraught with the risk of emotional harm.” Restatement (Third) Torts: Physical & Emotional Harm § 47 cmt. b. In legal malpractice cases some courts have concluded that emotional distress damages are recoverable without physical impact case if the lawyer is contracted to perform services involving deeply emotional responses in the event of a breach. Most cases allowing damages for emotional injury in the absence of physical impact require that the emotional injury be serious. Restatement (Third) of Torts § 47 cmt. l

Assuming without deciding that Vermont law allows damages under certain circumstances for serious emotional distress in legal malpractice claims and that the evidence in this case could support a finding of sufficiently serious emotional anguish to support such a claim, we conclude that the subject of defendant’s representation of plaintiff was not of such a personal and emotional nature that it would support an exception to the general rule disallowing recovery of emotional distress damages in the absence of either physical impact or substantial bodily injury or sickness.

Plaintiff did not lose his home but, rather, faced a threatened loss of his home, which he ultimately avoided by settling the case. We do not mean to suggest that the anxiety associated with the threatened loss of one’s home cannot be profound. But in contrast, for example, to the loss of liberty or one’s child—for which there may be no adequate measure of pecuniary damages, and in connection with which serious emotional distress can be readily expected – this not the type of representation or deeply emotional harm for which modern courts allow compensation. We reverse the trial court’s award of emotional distress damages to plaintiff.

Refurbisher of propane tank not strictly liable for defects causing explosion because refurbisher never “sold” the tank.

Betz v. Highlands Fuel Delivery, LLC, No. 5: 10-cv-102 (D. Vt. Jan. 31, 2013) (Reiss, Chief District Judge)

The case arises out of a 2009 explosion of a propane tank owned by Highlands. After Ditech refurbished and recertified the Propane Tank, Highlands placed it on Plaintiffs' property where it exploded and caught fire, destroying Plaintiffs' home and other property. Ditech contends that it provided refurbishment services and was not a "seller" of goods, and did not "sell" the propane tank to anyone. We agree.

Vermont law requires "seller" status as an essential component of a strict product liability or breach of implied warranty claim. See Darling v. Central Vt. Pub. Serv. Corp., 171 Vt. 565, 569, (2000)  ("Because CVPSC did not sell the electricity that allegedly caused the fire in this case, the trial court correctly refused to instruct the jury to apply the doctrine of strict product liability."); 9A V.S.A. § 2-314(1) (providing for an implied warranty of merchantability when "the seller [of goods] is a merchant with respect to goods of that kind"); Restatement (Second) of Torts § 402(A) cmt. a ("This Section states a special rule applicable to sellers of products.").

At best, Highlands asserts that Ditech's refurbishment of the Propane Tank was so extensive that it was like the sale of a new product. This will not suffice where the primary objective of the transaction remains the provision of a service. The fact that Ditech supplied a new valve or other items in the processing of refurbishing the Propane Tank does not alter this conclusion. 

Because Highlands cannot establish that Ditech was a "seller" of the Propane Tank, or furnished a defective component part, summary judgment on their strict product liability and breach of implied warranty crossclaims is hereby GRANTED in Ditech's favor.

Untimely appeal. Appeal period, tolled once by a motion for new trial, cannot be tolled again by a motion to “reconsider” under Rule 59(e).

Fagnant v. Foss, 2013 VT 16A (mem.) (August 30, 2013) (on reargument).
A motion to reconsider an order disposing of a time tolling post-trial motion of the kind enumerated in Rule 4(a)(4) does not again terminate the running of the time for appeal.

This Court's March 15, 2013 opinion is withdrawn. The appeal is dismissed as untimely filed.

Fagnant v. Foss, 2013 VT 16 (March 15, 2013)
Robinson J. Plaintiff appealed after the court denied plaintiff’s motion to reconsider the denial of plaintiff’s motion for new trial. Defendant contends the appeal is untimely. Although a timely motion for new trial terminates the running of time for the appeals period, defendant argues that once a motion for new trial is denied, then the full time for filing a notice of appeal begins to run again, unaffected by defendant’s later motion to reconsider. We hold plaintiff’s appeal was timely filed.

A “motion to reconsider” is not expressly recognized in the Vermont Rules of Civil Procedure. The Court will treat a motion to reconsider as a motion under V.R.C.P. 59(e) that terminates the running of the appeal period.when the timing and content of the motion to reconsider indicate that it was, for all intents and purposes, a motion to alter or amend. Although Plaintiff’s motion for reconsideration here was directed at the court’s denial of a Rule 59 motion, rather than at its initial judgment, it was essentially a motion to alter or amend, and the appeal period did not begin to run again until the court ruled on plaintiff’s motion to reconsider. Plaintiff’s appeal was timely filed.

Torts. Causation. SCOVT reverses defendant’s verdict in low impact whiplash case because causation charge required jury to find the injury was reasonably foreseeable.

On reargument the Court's March 15, 2013 opinion which follows is withdrawn. The appeal is dismissed as untimely filed .Fagnant v. Foss, 2013 VT 16 (Robinson, J.) 

This case involves a low-impact, rear-end car collision. Plaintiff appeals from a jury verdict finding that defendant’s conceded breach of a duty of care, and the resulting auto accident, was not the proximate cause of any injuries and harm to plaintiff. We conclude that the trial court’s instruction concerning proximate cause improperly and prejudicially directed the jury to consider the foreseeability of plaintiff’s injuries, even though “duty” and “breach” had been established as a matter of law, and we reverse.

The court included the following paragraph at the end of the proximate cause instruction:

“The exact occurrence, or the precise injuries and damage which result need not have been actually anticipated; a person may be held liable for the results of her own negligent conduct if those consequences can be fairly regarded as normal incidents of the risk created by the circumstances. However, injury of the type or kind which did occur as a result of negligent conduct must have been not merely possible, but reasonably foreseeable.”

What makes this instruction problematic, is the court’s linkage of “foreseeability” to the concept of proximate cause, particularly where the defendant’s breach of a legal duty to plaintiff was established as a matter of law and the only issues left to the jury were causation and damages. The foreseeability of the consequences of a defendant’s actions is relevant only to the question of whether the defendant had and breached a legal duty to the plaintiff.

It has been so long settled in this jurisdiction that proximate cause relates only to cause-in-fact, with no foreseeability required, that extended discussion is unnecessary. Although relevant to the determination of duty and breach, foreseeability “is not a factor in determining proximate cause. A defendant who has breached a legal duty to a plaintiff is liable for all the injurious consequences that flow from the negligence until diverted by the intervention of some efficient cause that makes the injury its own, or until the force set in motion by the negligent act has so far spent itself as to be too small for the law’s notice.

In this case, rather than clearly instructing the jury that defendant was liable for all injurious consequences that flowed from her admitted breach of a duty to plaintiff, the trial court expressly directed the jury to consider the foreseeability of the type of injury plaintiff alleged as an element of proximate cause, even though duty and breach had been established as a matter of law by the court and the jury had been so instructed.

Defendant’s closing argument, in addition to directly refering to the instruction on foreseeability, reiterated the notion that “this kind of event doesn’t cause injury.” In light of the court’s instruction concerning foreseeability and defendant’s focus on that instruction in closing, the jury could easily have concluded that plaintiff was not entitled to recover for her ongoing injuries, even if they were caused by defendant’s actions, because the kind of injuries she suffered was not foreseeable. Thus, we find the instruction was prejudicial.