Boland v. Smith
| Decision Date | 26 June 2020 |
| Docket Number | No. 20-009,20-009 |
| Citation | 237 A.3d 723 |
| Court | Vermont Supreme Court |
| Parties | Awen R. BOLAND and Diana F. Boland v. ESTATE OF Paul SMITH, V-Twin, LLC, Scott Abbott, and Magma Properties LLC |
Mary P. Kehoe of The Kehoe Law Firm, P.C., and Thomas J. Sherrer of Thomas J. Sherrer, PLLC, Burlington, for Plaintiffs-Appellees.
Harold B. Stevens of Stevens Law Office, Stowe, for Defendants-Appellants.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. Defendants Scott Abbott and V-Twin, LLC, doing business as the Corner Pocket, appeal the trial court's order denying their motion to dismiss plaintiffs Awen and Diana Boland's claims under Vermont's Dram Shop Act (DSA). Awen, age three, brings her claim individually through Diana, her mother and financial guardian; Diana brings her claim in her capacity as administrator of Leonard Audet's estate. Defendants argue that Awen cannot recover under the DSA because she was a previability fetus at the time her father, Leonard Audet, died and therefore is not a "child" or "other person" "injured in ... means of support." See 7 V.S.A. § 501(a) (). We affirm the denial of the motion to dismiss.
¶ 2. We accept as true the facts stated in plaintiffs’ complaint for the purpose of reviewing the trial court's order denying defendants’ motion to dismiss. Amiot v. Ames, 166 Vt. 288, 291, 693 A.2d 675, 677 (1997). On November 25, 2016, Paul Smith was drinking at the Corner Pocket, a bar owned and operated by V-Twin, LLC. Defendant Scott Abbott is a former member of V-Twin who owned and operated the Corner Pocket on the date in question. Smith left the Corner Pocket in an intoxicated state and drove a car in which Leonard Audet was a passenger. Smith and Audet died when Smith drove off the road and crashed. Awen Boland is the child of Audet and Diana Boland. At the time of the incident, she was an unborn fetus with a gestational age of one-to-two months. She was born twenty-eight weeks after her father's death.
¶ 3. Plaintiffs filed claims for loss of support against defendants under Vermont's Dram Shop Act, see 7 V.S.A. §§ 501 - 503, and Wrongful Death Act, see 14 V.S.A. §§ 1491 - 1492. Defendants moved to dismiss the DSA claim for failure to state a claim upon which relief can be granted, arguing that Awen had no claim as a "child" or "other person" under the DSA because she was not a viable fetus at the time of her father's death.1 See V.R.C.P. 12(b)(6) (). The trial court denied defendants’ motion because it concluded that Awen had a valid DSA claim, reasoning that she is currently a living child denied the financial support of a father who would have had a legal duty to support her.2
¶ 4. On appeal, defendants reiterate the argument raised below, claiming Awen is not entitled to recover for loss of support under the DSA because she was not a viable fetus at the time of her father's death. Plaintiffs’ response to this contention is threefold: (1) Awen's DSA claim did not accrue until she was born; (2) the DSA is a remedial statute and should be construed broadly to include Awen's claim; and (3) prohibiting recovery for a nonviable fetus under the DSA violates the Common Benefits Clause of the Vermont Constitution. See Vt. Const. ch. I, art. 7. Because our decision turns on when a DSA claim accrues, and we find the accrual date to be dispositive, we do not address the question of whether a previability fetus is a "child" under the DSA or plaintiffs’ constitutional argument.3
¶ 5. We review the trial court's decision on a motion to dismiss de novo. Birchwood Land Co. v. Krizan, 2015 VT 37, ¶ 6, 198 Vt. 420, 115 A.3d 1009. "A motion for failure to state a claim may not be granted unless it is beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief." Kaplan v. Morgan Stanley & Co., 2009 VT 78, ¶ 7, 186 Vt. 605, 987 A.2d 258 (mem.) (quotations omitted). "Motions to dismiss for failure to state a claim are disfavored and are rarely granted." Colby v. Umbrella, Inc., 2008 VT 20, ¶ 5, 184 Vt. 1, 955 A.2d 1082.
¶ 6. Defendants’ argument that Awen does not have a valid DSA claim is based on the assertion that Awen's claim accrued when Audet died and she was not a "child" or "other person" at that time. Determination of the date of accrual under the DSA is typically a fact question decided by the jury. Pike v. Chuck's Willoughby Pub, Inc., 2006 VT 54, ¶ 18, 180 Vt. 25, 904 A.2d 1133. However, when there is no dispute as to the material facts and "those facts [are] sufficient, as a matter of law, for plaintiff's dram shop action to accrue," it is proper for the court to decide the issue. Rodrigue v. VALCO Enters., Inc., 169 Vt. 539, 541, 726 A.2d 61, 64 (1999) (mem.). The material facts relevant to accrual are undisputed and sufficient to decide this issue as a matter of law. Id. ().
¶ 7. Under the DSA, a "child ... who is injured in ... means of support by an intoxicated person ... shall have a right of action." 7 V.S.A. § 501(a). The date of accrual "seeks to identify the point at which a plaintiff should have discovered the basic elements of a cause of action: an injury caused by the negligence or breach of duty of a particular defendant." Earle v. State, 170 Vt. 183, 193, 743 A.2d 1101, 1108 (1999). We have abandoned the rule that accrual occurs at the date of the negligent act; rather, accrual occurs "when the plaintiff discovered both the injury and its cause." Pike, 2006 VT 54, ¶¶ 13-14, 180 Vt. 25, 904 A.2d 1133. Therefore, Awen's dram shop claim accrued when she was injured. See Earle, 170 Vt. at 193, 743 A.2d at 1108 ().
¶ 8. However, Awen was not "injured" until she was born. Under the DSA, "injury" occurs when the individual is deprived of her "means of support." 7 V.S.A. § 501(a). The DSA allows claims for loss of support by persons for whom there is "a legislative judgment that an individual in decedent's circumstances had an obligation to support" the plaintiff. Thompson v. Dewey's S. Royalton, Inc., 169 Vt. 274, 281-82, 733 A.2d 65, 70 (1999). Such injury cannot predate the point at which the decedent was obligated to provide her with financial support. See Valicenti v. Valenze, 68 N.Y.2d 826, 507 N.Y.S.2d 616, 499 N.E.2d 870, 871 (1986) (). No Vermont statute "embodies a legislative judgment" that a putative father has an obligation to support his child prior to its birth. Thompson, 169 Vt. at 281-82, 733 A.2d at 70 (); see 15 V.S.A. § 650 (); Patnode v. Urette, 2015 VT 70, ¶ 11, 199 Vt. 306, 124 A.3d 430 (); In re Estate of Murcury, 2004 VT 118, ¶ 5, 177 Vt. 606, 868 A.2d 680 (mem.) ; see also Heustess v. Kelley-Heustess, 259 P.3d 462, 471 (Alaska 2011) . Awen's injury did not occur until she was born alive; therefore, her DSA claim accrued when she was born alive.
¶ 9. The concept that a decedent's child is not injured in her means of support until she is born finds reinforcement in the Supreme Judicial Court of Massachusetts's holding on similar facts. See Angelini v. OMD Corp., 410 Mass. 653, 575 N.E.2d 41, 45 (1991) (). In Angelini, the court determined that the child was injured at birth because that was the point at which she could feel the effects of loss of consortium. See id. (). Likewise, here, Awen's injury occurred at her birth because that is when she was actually deprived of her father's support. When her claim accrued at her live birth, Awen was clearly a "child" within the meaning of the DSA.
¶ 10. Moreover, Diana Boland could not bring a DSA claim on her daughter's behalf until Awen was born alive. The DSA creates a claim for a "child ... in his or her own name." 7 V.S.A. § 501(a) ; see also V.R.C.P. 17(a) (); V.R.C.P. 17(b) (). When a "statute expresses and presumes physical existence and juridical capacity to sue," the incapacity to sue informs the date of accrual. See LaBello v. Albany Med. Cent. Hosp., 85 N.Y.2d 701, 628 N.Y.S.2d 40, 651 N.E.2d 908, 909, 911 (1995) (). Awen was neither injured, nor able to bring her claim, until she was born alive. At the time her claim accrued and she was able to sue, Awen was a "child" within the meaning of 7 V.S.A. § 501(a).
¶ 11. Other jurisdictions agree with the conclusion that a child who is born alive has a right to recover for loss...
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