Stinson v. Union Mut. Fire Ins. Co.

Decision Date01 April 2019
Docket Number103-7-18 Oecv
Citation2019 Vt Super 0401 01
PartiesDylan Stinson, Plaintiff v. Union Mutual Fire Ins. Co., John J. Boylan, Boylan Associates, PC, Defendants
CourtSuperior Court of Vermont

2019 Vt Super 0401 01

Dylan Stinson, Plaintiff
v.

Union Mutual Fire Ins.
Co., John J. Boylan, Boylan Associates, PC, Defendants

No. 103-7-18 Oecv

Superior Court of Vermont, Civil Division, Orange Unit

April 1, 2019


[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]

ENTRY ORDER

Michael J. Harris Superior Court Judge

Pending before the court are (by the court's count) eleven motions, which including the motions, have generated by the court's count a total of 32 or so motion memoranda for the court's consideration.

The undisputed relationships between the parties frames the legal claims asserted in this case, which in turn sets the stage for the pending motions.

Dylan Stinson ("Stinson"), then 17 years old, was present at a May 2009 party during which the trespassing teens started and outdoor chiminea fire. The fire later spread and destroyed Kevin and Linda Flanagan's Ludlow, Vermont home and contents. At the time Stinson was a family member residing with his mother, Michelle Stinson, who had purchased a homeowners insurance policy from Union Mutual Insurance Company ("UMIC"), via a local insurance agency (the "UMIC Policy"). The UMIC Policy had a liability coverage limitation of $300,000.

The destroyed home's owners were insured by Concord General Mutual Insurance Company ("Concord"), which, represented by Attorney Thomas Nuovo, pursued a subrogation action against Stinson for the fire loss. (The "Subrogation Action"). Potential damages exceeded $300,000. Certain liability issues existed, primarily as to Stinson's legal responsibility for the fire relating to his degree of participation in building, starting and attending to the chiminea fire. UMIC provided Stinson defense counsel in the Subrogation Action, namely John C. Boylan III, Esq. ("Boylan"), practicing with his firm Boylan Associates, PC. (collectively with Boylan, the "Boylan Defendants"). UMIC assigned a claims adjuster, Donna Graham ("Ms. Graham"), to the file. Certain pre-trial settlement offers were made, during and outside of a mediation that occurred, but no settlement was reached.

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A 2014 trial resulted in a $585,829.91 judgement (before post-judgment interest), that was affirmed on appeal on 4/22/16. Concord Gen. Mut. Ins. Co. v. Gritman, 2016 VT 45, 202 Vt. 155 ("Gritman"). UMIC paid $300,000 of the judgment, which left Stinson personally liable for a large unpaid judgment balance.

Since the trial, Stinson assigned his claims against UMIC and Boylan (as further described below) to Concord.

Under the Amended Complaint Stinson[1] asserts various tort claims. He has sued UMIC for insurer bad faith and for violation of the Vermont Consumer Protections Act, 9 V.S.A, Section 2451 et seq ("VCPA"). He has sued Boylan and his firm for malpractice.

With the stage set, the court springboards into the pending motions....

At the outset the court denies the Defendants' Motion to Strike the Plaintiff's Supplemental Statement of Undisputed Material Facts. Given the succession of competing motions for summary judgment on the substantive claims, the court finds the filing proper. As each party has asserted facts it deems undisputed, and pointed to alleged lack of proof orom the opposing side on some issues, the responding submissions have admitted some facts as undisputed, shown some facts to be disputed, and sometimes responded to assertions that no evidence existed on some issues. Rule 56(e)(1) allows the court to allow each party the opportunity to properly support or address a fact. The court will accept the statements of material disputed and undisputed facts as keeping the court well-informed as to the record citations correlating to the parties' factual assertions. The 9/17/19 Motion to Strike is denied.

In considering the three motions for summary judgment, the court applies the familiar standard, which it sets out here but applies as to each of the motions. Under Rule 56 a party is entitled to summary judgment in its favor if the movant shows that, there is no dispute as to any material fact and the movant is entitled to judgment as a matter of law. In determining whether genuine issues of fact exist, the non moving party is to receive the benefits of all reasonable doubts and inferences. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22 (1996); Messier v. Metro. Life Ins. Co., 154 Vt. 406 (1990). Although the nonmoving party should be

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given the opportunity to develop her factual case, Zukatis v. Perry, 165 Vt. 298 (1996), this matter has been pending for some time. Motions for summary judgment are and may be used to determine whether genuine issues of material fact exist, warranting the need for a trial. Bennett Estate v. Travelers Ins. Co., 138 Vt. 189 (1980); Sykas v. Kearns, 135 Vt. 610 (1978). Nonmoving parties who wish to contest facts properly asserted by affidavit or otherwise in a motion for summary judgment must file a statement of contested facts and present references to admissible documents, affidavits or other admissible materials. V.R.C.P. 56(c).

A) Stinson's VCPA Claims Against UMIC

UMIC's 3/27/18 Motion for Partial Summary Judgment (with subsequent party filings on 4/23/18 4/27/18)
Stinson's 7/30/ 18 Motion For Summary Judgement (portion as to VCPA claims) (with subsequent party filings on 9/17/18; 10/1/18)
Stinson's 3/21/19 Motion For Additional Responsive Pleading to Address Additional Arguments for the Court to Consider on Application of the Consumer Protection Act (with subsequent party filings on 3/22/19 and 3/27/19)

UMIC moved for summary judgment on VCPA claim on 3/27/18. It asserts VCPA claims cannot lie against an insurance company, and alternatively a VCPA claim can not be shown as a matter of law in this case even if such claims may be asserted against an insurance company.

Stinson in turn moved on 7/30/18 for summary judgment on the VCPA count against UMIC. He argues the VCPA can apply to insurance related transactions, and UMIC's underlying conduct, akin to first party insurance bad faith, is also actionable under the VCPA.

Long after the briefing period ran, Stinson filed a motion to file a sur-brief. The court denies the motion for file yet another brief. The parties had ample briefing period that they fully used. By the court's estimate (using "rule of thumb", or more precisely ruler measurement estimates) of the pre-3/29/19 briefs - easily exceed 1500 pages of submitted motion materials to date. To allow this sur-brief would mean the court in fairness would have to allow other requested surbriefs. The court declines to extend and complicate the briefed issues even further after the parties have had fair opportunity. Stinson's 3/21/19 Motion for additional briefs is DENIED.

At least three initial issues are raised by the parties' motions. First, is if the Wilder v. Aetna Life &Casualty Ins., 140 Vt. 16 (1981) VCPA exclusion of insurance contract matters is still viable in 2019. Second, is whether Dylan Stinson has the standing to bring a VCPA claim. Third is whether the VCPA's 9 V.S.A. section 2461(b)'s private cause of action, for alleged "damages or injuries as the result of any false or fraudulent practices prohibited by section 2453

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[prohibiting "unfair or deceptive acts or practices in commerce."]" apply to the alleged conduct here. To the extent Stinson may have a claim, it does not involve the typical Carter v. Gugliuzzi, 168 Vt. 48 (1998) situation involving deceptive or misleading, statement, practice or omission occurring involving the purchase of a good or service (i.e., the HO policy), but UMIC's conduct following the sale of the HO insurance policy.

1. Are insurance transactions excluded from VCPA coverage under Wilder v. Aetna Life &Casualty Ins., 140 Vt. 16 (1981)?
The first issue is whether the VCPA may apply to claims against insurance companies. In Wilder v. Aetna Life &Casualty Ins., 140 Vt. 16 (1981), the Vermont Supreme Court stated:
[T]he selling of an insurance policy is not a contract for "goods or services" within the meaning of 9 V.S.A. s 2461 allowing for civil penalties. Insurance cannot legitimately be labelled either goods or services as the Legislature has defined those terms. See 9 V.S.A. ss 2451a(b), (c)."

Wilder, (emphasis added). This conclusion was pre-ordained by the then existing statutory definition of "goods and services" contained in the VCPA.[2]

In 1985, 9 V.S.A. § 2451a was amended generally and the current definition of "goods" or "services" was adopted:

(b) "Goods" or "services" shall include any objects, wares, goods, commodities, work, labor, intangibles, courses of instruction or training, securities, bonds, debentures,
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stocks, real 1estate, or other property or services of any kind. The term also includes bottled liquified petroleum (LP or propane) gas.

9 V.S.A. § 2451a(b)(1993)(emphasis added). This current definition is much broader than the definition in effect when Wilder was adopted. Our Supreme Court has oft stated that the VCPA is to be given a liberal interpretation. Ianelli v. U.S. Bank, 2010 VT 34, ¶ 9, 187 Vt. 644; Wright v. Honeywell Int'l, Inc., 2009 VT 123, ¶ 7, 187 Vt. 123, 989 A.2d 539 (the VCFA "is to be liberally construed to protect the public and encourage fair and honest competition"); Elkins v. Microsoft Corp., 174 Vt. 328, 331 (2002); State v. Custom Pools, 150 Vt. 533, 536 (1988); Carter v. Gugliuzzi, 168 Vt. 48, 52, 716 A.2d 17, 21 (1998) (VCFA should be applied "liberally to accomplish its purposes").

In Greene v. Stevens Gas Corp., 2004 VT 67, 177 Vt. 190, the Vermont Supreme Court noted that the 1985 amendments to the VCPA left an open question as to whether the VCPA's c "goods" and "services"...

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