Lomberg v. Crowley

• Decision Date: 03 June 1980
• Docket Number: No. 290-79,290-79
• Citation: 138 Vt. 420,415 A.2d 1324
• Court: Vermont Supreme Court
• Parties: John L. LOMBERG v. Thomas M. CROWLEY and State of Vermont.

Page 1324

415 A.2d 1324

138 Vt. 420

John L. LOMBERG v. Thomas M. CROWLEY and State of Vermont.

No. 290-79.

Supreme Court of Vermont.

June 3, 1980.

Valsangiacomo & Detora, Barre, for plaintiff.

M. Jerome Diamond, Atty. Gen., and Michael R. Gadue, Asst. Atty. Gen., Montpelier, for defendants.

Before BARNEY, C. J., BILLINGS and HILL, JJ., KEYSER, J. (Ret.), Specially Assigned, and HAYES, Superior Judge, Specially Assigned.

BILLINGS, Justice.

This action arises by reason of a complaint filed by the plaintiff-appellant against the defendant-appellee, Crowley, as an agent and employee of the defendant-appellee the State of Vermont, alleging that the plaintiff was libeled and slandered. The defendants answered by claiming, inter alia, that the action is barred by sovereign immunity, that to the extent there has been a waiver of sovereign immunity by the purchase of insurance coverage, 29 V.S.A. § 1403, the coverage is inadequate, and that the alleged statements were privileged or fair comment by a public official. Later, the defendants moved to dismiss the complaint for failure to state a cause of action, V.R.C.P. 12(b) (6), and the trial court, without hearing, dismissed the action, from which order the plaintiff appeals.

The plaintiff, as a field auditor, submitted an audit report to the executive director of the Vermont Commission on the Administration of Justice (VCAJ) in connection with a federal grant to the Department of Public Safety, in which he concluded that approximately $10,000 was spent on unallowable costs. The then executive director of the VCAJ, who had the duty to act on the audit report, disqualified himself, and the defendant Crowley assumed that position in order to make the decision on the final audit clearance. After review, the defendant Crowley issued a report unfavorable to the plaintiff's audit, and contained therein certain comments concerning the quality of the plaintiff's audit report. Later, the defendant Crowley was interviewed on a Burlington radio station, at which time he made certain remarks relative to the plaintiff and his report.

It is clear that the complaint states a cause of action against the defendant Crowley, and, therefore, meets the requirements of V.R.C.P. 8(a). Whether, as a matter of law, he had an absolute defense, depends entirely on a factual determination. See McDonald v. Woodruff, 133 Vt. 362, 340 A.2d 90 (1975). These factual issues may include, among others, whether, at the time of the radio interview, the defendant Crowley was acting within the scope of his employment, whether his actions involved the exercise of discretion afforded his office, whether he had legislative or judicial immunity, and whether his comments were "fair comments" in an official capacity. In order to determine whether the defendant Crowley has an absolute defense a hearing and trial must be held on these factual issues. The trial court's dismissal, without hearing, of the complaint against the defendant Crowley was error.

The defendants claim that sections of the tort claims act, 12 V.S.A. § 5602(1) and (6), grant them sovereign immunity from claims arising out of libel and slander, or based on a discretionary function of a state official, acting within the scope of his office. The plaintiff claims that the defendant State has waived its immunity from liability to the extent of insurance coverage, both for itself and its employees, 29 V.S.A. §§ 1403; 1406(a), and that since the two statutes are in conflict, the latter controls as a partial waiver of immunity.

29 V.S.A. § 1403 is a general waiver of sovereign immunity to the extent of insurance coverage. This statute became effective in 1960. The tort claims act, 12 V.S.A. §§ 5601-5605, was enacted in 1961 to limit the waiver provisions of 29 V.S.A. § 1403. In the construction of statutes, the intent of the legislature must be ascertained, and if the language is plain, the intent is to be ascertained from the act itself. If the provisions seem in conflict, interpretations that harmonize and give effect to both are favored. State v. O'Connell, 135 Vt. 182, 184, 375 A.2d 982, 983 (1977); Glabach v. Sardelli, 132 Vt. 490, 492, 321 A.2d 1, 3 (1974). Specific statutes control over a general statute, and if two statutes deal with the same subject matter, the more recent legislative enactment will control. State v. Lynch, 137 Vt. 607, 610, 409 A.2d 1001, 1003 (1979).

Here, 12 V.S.A. § 5602(1) and (6) control, since it is the later enactment of two statutes dealing with the same subject matter. This interpretation gives effect to both statutes. The...