Thursday, November 7, 2013

Poker Face



State v. Kenvin, 2013 VT 104 

Today’s case provides a compelling look into a prevalent problem in our society today—that of our callous disregard for the safety of our neighbors when we get behind the wheel of a car.  It also demonstrates the frustrations experienced by, and the sentences issuing from, our judiciary when confronted with tragedy, which resulted from carelessness, and highlights an issue that I address in my criminal law class—the difficulty presented by situations involving negligence, as a criminal mental state combined with a tragic outcome.  

But today’s major holding isn’t about any of that. Instead, it’s about how much restriction on liberty prior to conviction or imposition of sentence constitutes “custody” for purposes of a convicted defendant receiving “credit” toward a sentence.  In other words, today’s case is a criminal defense practitioner’s dream.

Waiver of Service?


Rollo v. Cameron, 2013 VT 74

This is a pro se appeal from a final relief-from-abuse order.  Despite defendant–appellant’s putatively valid claims of improper service, the SCOV majority affirms.    

Plaintiff filed a complaint “to extend an existing relief-from-abuse order against defendant issued a year earlier based on threats that defendant would kill plaintiff when released from prison.”  Plaintiff didn’t show for the final hearing and the original order expired.  A few days afterward, plaintiff filed another complaint on the same basis, explaining that a death in the family caused her to miss the previously scheduled final hearing.  Defendant was [allegedly] served with the paperwork and notice of hearing in prison by a prison official.  Defendant [allegedly] refused to sign the acceptance of service.  The prison official’s return of service made it into the court’s file.  

[S]low Rider—Rides too Slow!

Fagnant v. Foss, 2013 VT 16A

The SCOV reverses itself—now there’s something you don’t see every day. 

Regular readers will recall the first opinion in this case, which is summarized here.  In that opinion, plaintiff–appellant more or less “won” a reversal and remand on an erroneous jury instruction.     

The sole issue this time around is whether the appeal was timely filed.  The SCOV concludes that it was not and dismisses the appeal. 

We’re on your side (for the time being)


GEICO Insurance Co. v. Bernheim, 2013 VT 77

You know those commercials insurance companies put out—the we’re-on-your-side-and-we’re-always-there-for-you types of ads?  I’m going to guess those are ruined for the defendants in this case.

Subrogation is an interesting and sometimes complicated concept.  It’s basically the idea that when an insurance company pays their insured and someone else is at fault, the insurance company has a right to collect from the at-fault person.  Because the right to recover flows from the insured, the insured has an obligation not to settle away the insurer’s right to recover; consequently, if the insured does settle away the insurer’s rights, then the insured is responsible for paying back the money the insurer paid the insured in the first place under an implied trust.

This case is an illustration in how this concept can work—or not work, depending on your perspective.

Subtle Discoveries


Clarke v. Abate, 2013 VT 52.

In September 2000, today’s Plaintiff, a 16-year old high school athlete, developed a hip injury playing soccer that caused her groin pain.  For the purposes of today’s case, we’ll call our Plaintiff, Teenager, even though she is now in her late 20s.

Teenager sought the help of Defendant Doctor, an orthopedic surgeon at the University of Vermont’s medical school.  Teenager’s parents initially went with her to her visits with doctor, but after the first few visits, Doctor told Teenager that she didn’t need her parents there.  Teenager continued to see Doctor weekly, alone, and sometimes after hours.  Oddly, there are no records of some of these visits.  Over the course of these many visits, Doctor slowly managed to convince Teenager that he was the only one who could help her.

The relationship migrated into the nonprofessional zone in late 2001 when Teenager began babysitting Doctor’s children.  Doctor paid Teenager an unusually high rate for her services, gave her his personal contact information, let her drive his car, and allegedly made “inappropriate comments” to her about his family.

Worsening Heights


Smith v.Wright, 2013 VT 68

The abuse and exploitation of people who cannot adequately care for themselves is a heinous and grotesque state of affairs.  It erodes confidence in our community, causes elected officials to enact laws and expend resources to enforce those laws, and it is just plain repugnant.

In today’s case, Defendant (our would-be “Heathcliff”)—who is 20 years older than Plaintiff (our “Catherine”)—appeals the trial court’s “relief from abuse” order, which order prevents Defendant from having contact with plaintiff for two years.

Plaintiff, we should also mention, is a 19 year old who was born deaf and who, as a result, had some amount of developmental delay.  During all times relevant to this case, Plaintiff lived with her parents.