Wilder v. Aetna Life & Cas. Ins. Co.
| Decision Date | 12 June 1981 |
| Docket Number | No. 274-80,274-80 |
| Citation | 433 A.2d 309,140 Vt. 16 |
| Court | Vermont Supreme Court |
| Parties | Brett WILDER, Brian Wilder and Jason Wilder, minors, by Emma Wilder, duly appointed Guardian v. AETNA LIFE & CASUALTY INSURANCE COMPANY; Nationwide Insurance Company. |
Dworkin & Jerome, South Londonderry, and Davis, Rounds & Mayhew, P. C., Windsor, for plaintiffs.
Robinson E. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for defendant.
Before BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ.
This is an interlocutory appeal from the granting of defendant Aetna's motion to strike from plaintiffs' complaint allegations regarding the Vermont Consumer Fraud Act, 9 V.S.A. Chapter 63 and the Insurance Trade Practices Act, 8 V.S.A. Chapter 129. The trial court granted the motion on the ground that those allegations did not state a claim upon which relief could be granted; it struck the allegations.
The dispute arises from a settlement agreement following an automobile accident involving plaintiffs and defendants' insured. Prior to trial on the merits, defendant insurance companies entered into a settlement agreement whereby the three minor plaintiffs were to receive a total of $4,000.00. Shortly after settlement, plaintiffs' mother, as their guardian, executed a general release on behalf of the minors.
Plaintiffs alleged that defendant had intentionally and unreasonably withheld payment of the agreed amount. Defendant claimed a $4,890.00 set-off against the settlement amount, because it mistakenly paid plaintiffs' guardian that amount in addition to the $20,000 settlement reached with the guardian for her own injuries.
Plaintiffs alleged that the refusal to pay was an unfair insurance practice, 8 V.S.A. §§ 4723, 4724, and constituted deceptive and false practice in commerce, 9 V.S.A. § 2453. They demanded treble damages and attorney fees pursuant to 9 V.S.A. § 2461(b). From the trial court's granting of the motion to dismiss that portion of the complaint resting on those two acts, plaintiffs received permission to appeal before final judgment. V.R.A.P. 5(b). Two questions, involving those claims, were certified.
The Consumer Fraud Act was created to protect citizens from unfair and deceptive acts in consumer transactions. Christie v. Dalmig, Inc., 136 Vt. 597, 600-01, 396 A.2d 1385 (1979). 9 V.S.A. § 2461(b), providing for treble damages, was added to the original enactment to encourage prosecution of individual consumer fraud claims.
To fall within the scope of the Act, the "unfair methods of competition" or "unfair or deceptive acts or practices" must occur "in commerce." 9 V.S.A. § 2453(a). The business of insurance is clearly within commerce, United States v. South-Eastern Underwriters Ass'n., 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944). However, the selling of an insurance policy is not a contract for "goods or services" within the meaning of 9 V.S.A. § 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. §§ 2451a(b), (c). In addition, we are not dealing with a contractual situation between buyer and seller. We are asked to read into the Act a transaction one step removed. However, as Bowe v. Eaton, 17 Wash.App. 840, 565 P.2d 826 (1977), interpreted similar legislation: "The Consumer Protection Act, and more specifically the ...
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