Liability

Statutes of Limitation

BI, PD.

1. Bodily Injury:

3 years from date of the discovery of the injuries for actions for personal or bodily injury. 12 V.S.A. § 512(4). There are exceptions, such as actions for injuries sustained while skiing shall be brought within one year and injuries from ionizing radiation or from other noxious agents being brought within 20 years of date of last occurrence to which the injury is attributed. 12 V.S.A. §§ 513 and 518. The statute of limitations is tolled for minors or individuals lacking mental capacity or having a psychiatric disability until after the disability is removed. 12 V.S.A. § 551.

2. Property Damage:

3 years after the date of the accrual of the cause of the action. 12 V.S.A. § 512(5.)

Breach of Oral/Written Contract

Breach of Contract

Generally, a civil action must be commences within 6 years after the cause of action accrues unless otherwise specified by statute. 12 V.S.A. § 511. An action for breach of any contract for sale of goods must be commenced within four years after the cause of action has accrued; the parties may reduce the period of limitation to not less than one year by agreement but may not extend the statute of limitations. 9A V.S.A. § 2-725(2). Actions for default of a lease contract, including breach of warranty or indemnity, must be brought within 4 years of the action accruing. 9A V.S.A. § 2-506(1)

Claim for cargo loss/damage

1. Intrastate Transport

The statute of limitations for a claim for cargo damage or loss for damage or loss incurred when cargo is being transported solely within state lines, the time period to bring the action depends on the cause of action. Where the claim is for negligence resulting in property damage, the statute of limitations is 3 years. 12 V.S.A. § 512(5.) Where the claim is based on breach of contract, the statute of limitations is 6 years unless the claim is being brought as part of a breach of a contract for sale of goods, in which case it is 4 years unless reduced by agreement of the parties, but not less then 1 year. 12 V.S.A. § 511 and 9A V.S.A. § 2-725(2).

2. Interstate Transport

Federal law applies to claims for cargo damaged or loss resulting from its interstate transport. 49 U.S.C. §14706, also known as the “Carmack Amendment”, pursuant to which the statute of limitations for a claim for loss or damage to cargo is 2 years from date of the receipt of the notice of denial of claim, or 4 years from date of accrual if no denial was served.

Negligent Entrustment, Hiring, Retention, Supervision
What if Course and Scope is Admitted?

Vermont permits separate actions for negligent hiring, training, supervision and retention of an employee even where the employer admits vicarious liability for the actions of an employee. Brueckner v. Norwich University, 730 A.2d 1086 (Vt. 1999); Sessions v. State, 2003 Vt. Super. LEXIS 16, *7 (Vt. 2003)

Course and Scope of Employment

To establish that an employee was acting within the scope of employment, the plaintiff must prove that the alleged tortuous conduct “(a) . . . is of the kind the servant is employed to perform; (b) . . . occurs substantially within the authorized time and space limits; (c) . . . is actuated, at least in part, by a purpose to serve the master; and (d) in a case in which force is intentionally used by the servant against another . . . is not unexpectable by the master.” Brueckner v. Norwich University, 730 A.2d 1086, 1091 (Vt. 1999); Sweet v. Roy, 173 Vt. 418, 430-31(2002); Doe v Forrest, 176 Vt. 476 (2004). The conduct of an employee falls outside the scope of employment if it is "different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master." Id., 173 Vt. at 431.

An employer may also be held liable for the actions of an employee outside the scope of employment if there was reliance on the apparent authority of the employee or the employee was “aided in accomplishing the tort by the existence of an agency relationship” Doe v. Forrest, 176 Vt. 476 (2004) (where a citizen sued a sheriff and sheriff’s department for a sheriff’s deputy forcing the citizen to perform sexual acts, the court denied motion for summary judgment finding that there was a question of fact of whether the deputy’s relationship with the sheriff created special access to the citizen.)

Comparative or Contributory Negligence

Comparative Negligence

Vermont has a modified form of comparative negligence. To recover, the plaintiff’s negligence has to be less then that of the defendant or all defendants combined. If the plaintiff’s negligence is less then that of all the defendants combined, any damages awarded to the plaintiff are reduced by the percentage of negligence allocated to him. 12 V.S.A. §1036.

Sudden Emergency Defense?

Available as a defense to a negligence claim as long as the emergency is not the fault of the party raising the defense. Newkirk v Towsley, 134 Vt. 237, 238 (1976).

Contribution or Implied Indemnity from Third-Parties

Contribution

The right of contribution does not exist in Vermont. Howard v. Spafford, 132 Vt. 434, 435 (1974), Levine v Wyeth, 183 Vt 76, 101 (2006).

Indemnification

Vermont permits a claim for common law indemnification where the party seeking indemnity is compelled by some legal obligation to pay for the fault of another through no active fault of their own. Chapman v. Sparta, 167 Vt. 157, 159 (1997); Investment Properties, Inc. v. Lyttle, 169 Vt. 487, 491 (1999). Contractual indemnification is also permitted by express agreement or by application of law, such as the principles of unjust enrichment where one party assumes the debt of another. Id.

Exclusivity of Workers Compensation

Except for a few narrow exceptions, the Vermont Workers’ Compensation Act prohibits an employee from suing the employer for workplace injuries. 21 V.S.A. § 622. An exception is where the employer has failed to provide workers compensation insurance benefits. 21 V.S.A. § 618(b). Another exception is where the injury results from the specific intent to injure the employee. Kittell v. Vermont Weatherboard, 138 Vt. 439 (1980).

Seat Belt and Helmet Use

1. Seat Belt

Failure to wear a seat belt is not admissible as evidence in any civil proceeding and does not constitute negligence or contributory negligence in any civil or criminal proceeding. 23 V.S.A. § 1259(c) and (d).

2. Helmet

The statutory requirement for motorcycle operators to wear a helmet under 23 V.S.A. 1256 may be introduced at trial.

Spoliation

Spoliation is not a separate cause of action in Vermont. Naylor v Rotech Healthcare, Inc., 679 F Supp 2d 505, 511 (D. Vt. 2009). However, Vermont courts have a variety of sanctions at their disposal to punish the party which destroys evidence. “The law so abhors the act of an intentional despoiler for gain that all sorts of inferences of fact in odium spoliatoris may arise from the act.” In re Campbell's Will, 102 Vt 294, 306 (1929). See Lavalette v. Noyes, 124 Vt. 353 (1964) (considering whether to apply a presumption of falsity as a sanction for destruction of evidence); Ellis J. Gomez & Co. v. Hartwell, 97 Vt. 147, 122 A. 461 (Vt. 1923) (noting the rule that willful destruction of evidence gives rise to rise to an inference that the contents would be injurious to the one who destroys it); Judevine v. Weaks, 57 Vt. 278 (1884) (noting a deposition is presumed to contain evidence against a party who suppresses it).

Damages

Caps?

None.

Joint & Several Liability

Vermont has abrogated joint and several liability in cases where there are allegations that the plaintiff has contributory negligence.

12 V.S.A. §1036, Plante v. Johnson, 152 Vt. 270, 272 (1989); Levine v. Wyeth, 183 Vt. 76, 101 (2006). However, where there are no clams of contributory negligence against the plaintiff or the defendants are sued in separate actions, joint and several liability does apply. Id.

Standard of Proof Required for Compensatory Damages

Collateral Source (Meds billed v. paid)

Vermont law does not permit either set-offs for damages paid by collateral sources or reductions of damages based on the amount of insurance adjustments. Hall v. Miller, 143 Vt. 135, 141 (1983), Prouty v. Southern Vt. Med. Center, 2015 Vt. Super. LEXIS 25, *4 (2015); Heco v. Johnson, No. S08692010 (Vt. Super. Ct., Nov. 1, 2013).

Hedonic Damages

Vermont courts require a jury instruction on hedonic damages, i.e. for loss of enjoyment of life as part of the standard instructions in personal injury cases. Vt. Model Jury Instruction 11.2. Failure to award such damages can result in a motion for additure. Wetmore v. State Farm Mutual Auto Ins. Co., 182 Vt. 610 (2007)

Life Care Plans

Yes, provided that the opinions set forth therein satisfy the requirements for the admissibility of expert opinions.

The Vermont standard for admissibility of expert opinions is first “whether the proffered testimony will shed light on a subject matter that is beyond the ken of the average lay person. Next, the trial court must be satisfied that the expert has sufficient skill, knowledge and experience to make it appear his opinion will probably aid the jury in its search for the truth.” State v Onorato, 142 Vt. 99, 104, (1982)

Wrongful Death Standing and Damages

An administrator or an executor of the estate may bring an action for wrongful death under Vermont law. 14 V.S.A. § 1492(a).

The statute of limitation to bring the action is 2 years from the date of the discovery of the death or if the death results in a charge of homicide, within 7 years of the discovery of death but no more then 2 years after the judgment in that criminal action has become final. Id.

Damages sought may include medical and funeral expenses, loss of the financial support and services the next of kin would have received, loss of income for the duration of the decedent’s injury, conscious pain and suffering, the grief and mental anguish that the decedent’s next of kin suffered and will continue to suffer in the future, and loss of consortium. Vt. Model Jury Instructions 11.8 – 11.11. The damages are to be adjusted to present value. Id. 11.14. The jury may not consider federal or state income taxes in deciding on the amount of damages. Id. 11.18. “No share of such damages or recovery shall be allowed in the estate of a spouse to his or her surviving spouse who has abandoned the decedent or in the estate of a wife to a husband who has persistently neglected to support his wife prior to her death” 14 V.S.A. § 1492(c)(5).

Punitive Damages

Recoverable? If so, standard for it?

Yes. The standard for punitive damages in Vermont requires more proof of malice. Brueckner v. Norwich University, 169 Vt. 118 (1999).

“[T]he culpability necessary for an award of punitive damages based on reckless or wanton misconduct requires evidence that the defendant acted, or failed to act, in conscious and deliberate disregard of a known, substantial and intolerable risk of harm to the plaintiff, with the knowledge that the acts or omissions were substantially certain to result in the threatened harm. In keeping with our consistent preconditioning of punitive damages upon outrageously egregious misconduct, the reckless malfeasance or nonfeasance and its attendant risk of harm must all be more reprehensible than simply wrongful or illegal behavior. We incorporate recklessness as a component of malice, but establish a measure by which heedless or wanton misconduct reaches the point of actual malice. Thus, punitive damages are not limited to intentional egregious torts only, but can extend to egregious harm resulting from reckless conduct amounting to malice.” Fly Fish Vermont, Inc. v Chapin Hill Estates, Inc., 187 Vt 541, 553-554 (2010).

Caps?

No.

Insurable?

Yes. Punitive damages are insurable in Vermont. See American Protection Ins. Co. v. McMahan, 151 Vt. 520, 526-527 (1989); State v. Glens Falls Ins. Co., 137 Vt. 313, 319 (1979).

Offers of Judgment

At any time prior to ten days before beginning of trial or within such shorter time as ordered by the court, a party defending against a claim may serve on the adverse party an offer to allow judgment to be taken against the defendant for the money or property or the effect specified in the offer, with the costs then accrued. If within 10 days service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with the proof of service, and thereupon the clerk shall enter judgment. An offer not accepted is deemed withdrawn, and evidence thereof is not admissible except in a proceeding to determine costs. If the party rejecting the offer does not obtain a more favorable verdict then the offer, that party must pay the costs incurred by the offering party after the making of the offer. Vermont Rules of Civil Procedure, Rule 68.

Biomechanics

Yes, provided that the opinions set forth therein satisfy the requirements for the admissibility of expert opinions.

As described above, the standard for admissibility of expert opinions in Vermont is two pronged; first the court must determine “whether the proffered testimony will shed light on a subject matter that is beyond the ken of the average lay person. Next, the trial court must be satisfied that the expert has sufficient skill, knowledge and experience to make it appear his opinion will probably aid the jury in its search for the truth.” State v Onorato, 142 Vt. 99, 104, (1982)

Must policy limits be disclosed pre-suit?

The Vermont statute on Insurance Trade Practices includes a subsection defining unfair claim settlement practices. 8 V.S.A. § 4724(9). The provisions includes a prohibition against “misrepresenting pertinent facts or insurance policy provisions relating to coverage issues” and “failing to affirm or deny coverage of claims within a reasonable time after proof of loss staemetns have been completed” Id. § 4724(9)(A) and (E).

May claimant recover general damages if the claimant does not have own auto-insurance? So called no pay no play rules.

Yes.