Saturday, October 29, 2011

What Am I Missing?


In re SP Land Co., LLC, Act 250 Land Use Permit Amendment, 2011 VT 104.

Today’s case is an appeal from an Act 250 Amendment and asks the head-stumping question, Can you seek an administrative amendment when the underlying permit is not there?  The answer is a closer call than you might think.

Making a Capital Case Out of Things


Towslee v. Callanan, 2011 VT 106 (mem.).

Here is what I think happened in today’s case.  The parties briefed and argued the case in the fall of 2010.  The justices then took a vote on the outcome of the case.  A strong voice emerged and a majority was constituted.  One justice was assigned to draft the opinion and work began.  During this time one or more of the justices started having second thoughts.  Maybe those thoughts were there the day of the conference.  Maybe they began to emerge slowly as drafts of the opinion started to circulate between chambers.  However it occurred, the doubts built up steam, and before everyone knew it, three justices were aligned on the other side of the opinion, and the original majority was now the dissent. 

Friday, October 28, 2011

A Simple Point of View


DeSantis v. Pegues, 2011 VT 114

Our perceptions of a scene often depend in large part upon the perception of the people populating the story.  Think for a moment about the story of a mugger.  Imagine Robert De Niro playing the mugger.  Now think of Owen Wilson playing the same criminal.  Now think of Will Ferrell in the role. 

Chances are that you saw three very different muggers and very different stories.  No doubt it went from a brooding, scary drama, to a whimsical romance, to an absurdist comedy.  Your perception of the stakes also shifted from serious to farce. 

Stay for Awhile


White and Searles v. Harris, 2011 VT 115 (mem.)

Here is the game for attorneys representing plaintiffs and defendants in a personal injury case.  Plaintiffs want to sue as many defendants with as deep pockets as possible.  Defendants want to exit the case as soon as they can.  Both sides are held by the rules of the larger game, which require plaintiffs to have a legitimate basis for bringing a defendant into a lawsuit and defendants to stay in so long as there is such a claim pending against them.  The reasons behind each party’s position should be obvious, but at the forefront, a defendant is trying to terminate or limit any potential liability while plaintiff is trying to keep the defendant in the game for the purposes of either hooking them for a portion of the settlement or judgment.  For proof of any of this, one need not look any further than the full caption and the substance of today’s case. 

Deemed Denied


In re Appeal of Morrill House LLC and Smith Variance, 2011 VT 117 (mem.)

Today’s decision, if it had been issued by K-Tel could also be called Deemed Approved’s Greatest Hits.  It is a minor compendium, but an important summary for an area of law that confuses most practitioners and causes fear in citizen boards across the state.

Improper Search Terms


Rutanhira v. Rutanhira, 2011 VT 113

Some parents freak out when their children leave their sight.  These so-called helicopter parents hover around their children whether they are at home, on the playground, or hanging out with other kids.  It is an extreme outcropping of a common desire that parents have to keep their children safe.  Today’s case concerns what happens when parents disagree about what is safe.

Thursday, October 27, 2011

The Suspicious Subdivision Blues


Pease v. Windsor Dev. & Rev. Bd., 2011 VT 103 (mem.)

The reason they teach so much procedure in law school is so that when you get out, you at least have a shot at understanding a case like this.  In this case, the SCOV says, more or less, “Look—you got what you asked for.  So what’s the problem?”    

Wednesday, October 26, 2011

Take Me Away


Chickanosky v. Chickanosky, 2011 VT 110.

Family division cases, particularly contested family division cases, are rarely pleasant to read.  The reader is forced to confront a family in crisis that is devolving into different states of dysfunction.  The one who usually feels the brunt of this is the child who is treated as a human shuttlecock careening off of one parent to the other.  The problem is usually not a lack of love.  Both parents to continue litigation must have love for the child close to their respective hearts.  It is that each parent’s love and affection is incompatible with the other’s.

Dad Always Liked You Best


In re Estates of Allen, 2011 VT 95.

Sometimes the practice of law brings you into situations where the family dynamic at play makes you glad that you are not the psychiatrist who has to untangle all of the personal issues driving the parties.  As attorney, you just have to drive the car and make your clients’ action go forward.  Forget about the father issues, and damn the torpedoes!

Friday, October 21, 2011

The Price at the Pump


Bradford Oil Company, Inc. v. Stonington Insurance Company, 2011 VT 108

The Anglo-French billionaire Sir James Goldsmith once said, “[i]f you pay peanuts, you get monkeys.”  The SCOV used a few more paragraphs and a bit more law to tell the Agency of Natural Resources—and by extension, the plaintiff-passive-polluter—basically the same thing in today’s case of how to allocate damages for a hazardous waste clean-up.  The SCOV concluded that the defendant-insurance company is only responsible for paying a small fraction of the remediation costs represented by the sliver of time during which the plaintiff-polluter was buying coverage.

Tuesday, October 18, 2011

Here's to You, Justice Robinson

News today out of Montpelier is that Governor Shumlin has appointed Beth Robinson to be the next Associate Justice of the Vermont Supreme Court.



Justice Robinson brings 18 years of practice experience with her to the bench, which include a large number of cases representing parties in workers' compensation cases, students and families in education cases, and, oh yeah, one little case about 12 years ago involving a town clerk and some licensure issue.  

Did anyone ever see what happened to that one on remand?

Congratulations to the new justice who, in the humble opinion of this blog, represents an excellent and solid addition to the SCOV.  As summarizers and commentators, we look forward to see where you will be taking things.

Monday, October 10, 2011

No Coverage for Dr. Feelgood


ProSelect Ins. Co. v. Levy, 2011 VT 109 (mem.).

Insurance is a business.  As part of its business model, insurance companies are in the regular practice of excluding intentional and obvious sources of damages.  There is, for example, no general liability policy available to a serial killer.  If you are in the business of purposefully killing other people, insurance companies do not want to talk to you and will not insure against your inevitable losses. 

Double Secret Indemnity


State v. Wetter, 2011 VT 111.

There are times when art imitates life, but there are also times when life, in its messy, awkward, sprawling nature seems to imitate art.  And then there are cases like today that reads like a second-rate Lifetime movie as imagined by the Cohen brothers.

Friday, October 7, 2011

Remembrance of Voluntary Consent Past

By Nicole Killoran

State v. Weisler & State v. King, 2011 VT 96

Today’s opinion, a lengthy and rare double-header, grants us a brief glimpse into a concept with enormous importance for appellate courts: the standard of review.  While the concept may seem esoteric to those outside the cloistered world of appeals, it is in fact grounded in human behavior.  Due to the dual nature of appellate review, and the need for appellate sensitivity when reviewing lower court decisions, the standard of review is the threshold for consideration, the lens through which the lower court’s findings and conclusions will be scrutinized.  Today’s case considers what standard of review should apply to trial court decisions regarding whether consent to a police search was truly voluntary.

Don’t Text Us. We’ll Text You


Porter v. AT&T Mobility, LLC, 2011 VT 112 (mem.).

In these times of protest against corporations, what better case could be made than an individual's triumph over the forces of organized business?  Let us say Hurrah for common man (or woman) who sticks to his (her) guns and beats back an action by large, multi-national company.  Moreover, let us fete such triumph when it comes on the incorporated entity's home turf: a lawsuit involving complex consumer contracts.  Or better yet, chalk today’s case up to corporate overreach and a simple twist of evidence that let the underdog prevail.

All Your Container Are Belong to Us


State v. Lamonda, 2011 VT 101 (mem.).

Oh!  To be young, carefree, and easily intimidated by police officers during a traffic stop. 

Defendant in today’s case was pulled over by police for driving too slow.  Upon exiting the car, the officer observed that Defendant was a little sluggish and a bit slow on the draw.  Officer asked Defendant if she had been doing any drugs, and Defendant admitted that she had been smoking marijuana.  Officer then asked what he would find if he searched Defendant’s car.  Her answer was probably “a roach,” which qualifies as an honest but not particularly self-preserving response. 

Make It So


State v. F.M., 2011 VT 100 (mem.)

Although today’s case is remanded to the trial court, the SCOV breaks the fourth wall and notes that it actually directed toward the court administrator.  At issue is a charge against Defendant that was subject to expungement upon Defendant's successful completion of probation. 

Sleight of Coverage


McGoff v. Acadia Insurance Co., 2011 VT 102 (mem.).

Keep your eye on the ball with this case. 

Plaintiff is a Barre resident.  At the time of his accident, he was employed as a regional sales manager for a chain of gas stations headquartered in Massachusetts.  His job required him to regularly visit stores throughout Vermont and New Hampshire, and for his benefit his employer had furnished him with a company car, which Plaintiff kept at his home when he was not on the road. 

In June 2004, coming through Richmond, Vermont, Plaintiff was clobbered by another car and sustained serious injuries.  Plaintiff filed a claim against the driver and the driver’s car insurance.

Tuesday, October 4, 2011

Drinking, and Driving, and Lies, OH MY!

By Michael Tarrant

State v. Charland, 2011 VT 107

There aren’t many things out there that make getting convicted and sentenced for committing a crime worse.  But when lies are told at trial by someone other than you that end up “enhancing” your sentence . . . well, that might just be one of those few things.  

Cover Me Part II: The Attorney’s Fees Special Edition


Southwick v. City of Rutland, 2011 VT 105

If this case sounds familiar, that’s because it is.  We wrote about it a few months back.  That time, the issue was whether an indemnification provision was applicable to require a swim club to indemnify the City for an incident that occurred at a club meet held at the City’s pool.  This time it’s whether the attorney’s fees portion of the same indemnification provision applies to indemnity and third-party claims.  The SCOV holds that it does not.