Greene v. Stevens Gas Service
Decision Date | 30 July 2004 |
Docket Number | No. 03-221.,03-221. |
Parties | Gary GREENE v. STEVENS GAS SERVICE and CI Co-operative Fire Insurance. |
Court | Vermont Supreme Court |
v.
STEVENS GAS SERVICE and CI Co-operative Fire Insurance
No. 03-221.
Supreme Court of Vermont.
July 30, 2004.
Richard P. Foote of Conley & Foote, Middlebury, for Defendant-Appellee.
William H. Sorrell, Attorney General, and David B. Borsykowsky, Assistant Attorney General, Montpelier, for Amicus Curiae State of Vermont.
Present: AMESTOY, C.J., DOOLEY, JOHNSON, SKOGLUND and REIBER, JJ.
¶ 1. DOOLEY, J.
Plaintiff, Gary Greene, appeals a grant of summary judgment dismissing claims against his insurer, Co-operative Insurance Company (Co-op), for breach of contract, breach of implied covenant of good faith and fair dealing, and also for consumer fraud under Vermont's Consumer Fraud Act, 9 V.S.A. §§ 2451-2480g. The Vermont Attorney General filed a brief amicus curiae in support of plaintiff, arguing that the 1985 amendments to the Consumer Fraud Act have broadened the act's scope such that it now applies to insurance, and Wilder v. Aetna Life & Casualty Insurance Co., 140 Vt. 16, 433 A.2d 309 (1981), is no longer controlling law. Without reaching whether the consumer fraud law now extends to insurance, we affirm.
¶ 2. The facts before us are in the summary judgment record and plaintiff's complaint. In September 1995, plaintiff obtained homeowner's insurance from defendant through its local agent, Williston Insurance Agency. The policy covered a log home plaintiff intended to build at his site in Underhill, Vermont. Construction began that fall, but was not complete by winter. In order to ensure that construction could continue through the winter, plaintiff hired Stevens Gas Service1 to provide propane space heaters at the building site.
¶ 3. According to plaintiff's complaint, on December 7 or 8, 1995, an employee of Stevens Gas Service left the heaters on at full power for over 12 hours, causing the interior of the house to reach a temperature of approximately 192 F. As a result, the logs split, cracked, and twisted causing the walls to become uneven, twisted and bowed. Also, the superheating caused an
¶ 4. Over the next six months, plaintiff obtained at least two repair estimates. However, he never provided these estimates to defendant or notified the company that he disputed its decision not to pay the claim.2 The next exchange between the parties did not occur until nearly a year after the heating incident, on December 5, 1996, when plaintiff's roommate called defendant's claims representative to request information from the company's file. The representative mailed a letter to plaintiff the following day providing the requested information. It reiterated that Co-op had found no monetary loss, but also stated that plaintiff's claim would not be covered in any case because the policy's Errors, Omissions, and Defects exclusion applied.3
¶ 5. In January 1997, plaintiff obtained two more repair estimates. Two months later, on March 25, 1997, plaintiff's attorney left a message with the claims representative, who returned the call the next day. The attorney requested information concerning a possible suit by plaintiff against Stevens Gas Service. According to the facts available in the record, there was no further contact between plaintiff or his attorney and defendant until December 3, 2001, when the present suit was filed.
¶ 6. Plaintiff's complaint alleged three counts: (1) violation by defendant of the Consumer Fraud Act; (2) negligence by Stevens Gas Service; and (3) breach of contract and breach of implied covenants
¶ 7. In February 2002, defendant filed a motion to dismiss counts one and three — that is, all counts against it — because (1) all the claims against it were barred by the suit time limitation provision in the insurance contract; and (2) the Consumer Fraud Act violation claim could not be sustained because the act does not apply to insurance transactions. In response to plaintiff's answer that the motion to dismiss was based on facts beyond the complaint, defendant converted it to a motion for summary judgment on the same grounds, attaching an affidavit of the claims representative and a statement of undisputed material facts consistent with our recitation of the facts above. Plaintiff filed his affidavit, a statement of disputed facts and a memorandum arguing that the limitation period in the insurance contract could not be enforced because defendant failed to give notice of it pursuant to a state insurance regulation, that defendant's denial of coverage was wrong and that the complaint stated a valid consumer fraud claim.
¶ 8. Initially, the court granted summary judgment with respect to the consumer fraud claim, on the basis that the act did not cover insurance transactions, but denied defendant's motion with respect to plaintiff's claim that defendant breached the insurance contract and violated the covenants of good faith and fair dealing because there was a question of fact relating to whether defendant should have notified plaintiff of the imminent expiration of the notice period. The court refused to reconsider its dismissal of the consumer fraud claim, adding as an additional ground that the undisputed facts do not show consumer fraud as alleged in plaintiff's complaint. It did reconsider its denial of the summary judgment motion with respect to plaintiff's claim in the complaint that defendant breached the insurance contract and violated the covenants of good faith and fair dealing, dismissing that count because the contract time limitation applied and had expired before the complaint was filed and defendant had no obligation to inform plaintiff of the imminent expiration of the limitation period. Because no claims remained against defendant, the superior court awarded it final judgment under V.R.C.P. 54(b) to allow this appeal to go forward. Plaintiff now appeals the trial court's dismissal of his claims against defendant.
¶ 9. We review a grant of summary judgment using the same standard of review applied by the trial court. Al Baraka Bancorp (Chicago), Inc. v. Hilweh, 163 Vt. 148, 153, 656 A.2d 197, 200-01 (1994). "Summary judgment is appropriate only where the moving party establishes that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law." Samplid Enters., Inc. v. First Vt. Bank, 165 Vt. 22, 25, 676 A.2d 774, 776 (1996); V.R.C.P. 56(c)(3)...
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