Wednesday, April 29, 2015

"Back" to the Future

Marshall v. State, 2015 VT 47

By Andrew Delaney

If you’ve ever injured your back, you probably know that it’s never really the same as it was before the injury. Just twisting the wrong way can mean the better part of a week in bed annoying the hell out of one’s spouse asking for more pillows, the television remote, Tylenol, and food and drink. Or at least for me that’s what it means.

When you get injured at work, you usually qualify for worker’s compensation benefits. Once you’ve reached the end of your treatment, a doctor (or two or three) will assess whether the injury has a permanent effect and if so, to what degree. This analysis results in a so-called whole-person impairment rating.

The short story is that Mr. Marshall, a state employee, injured his back at work back in 2002. He received “an 8% whole-person impairment rating, with 6% of that rating referable to a previous injury.” He settled with his employer and the commissioner of the department of labor approved the settlement. Six years later, he completed “two more permanency evaluations with different doctors who both used a method that the first doctor had not used.” Both resulted in higher ratings. So Mr. Marshall made a claim for additional benefits. The commissioner ruled against him. So Mr. Marshall appealed to the superior court, which found in his favor after a bench trial and awarded additional benefits. 

Sunday, April 19, 2015

Ambiguity? What Ambiguity?

Cincinnati Specialty Underwriters Insurance Co. v. Energy Wise Homes, Inc., 2015 VT 52

By Andrew Delaney

Ah, insurance law—where “You get what you pay for” isn’t just a maxim, but a shield, sword, and everything else in between. We’re going to skip a lot of the finer details on this one—not because they’re completely unimportant but because they’re totally boring and they’re not really required to understand what’s going on. Also: (1) I’m lazy; (2) some of the terms are drier than the Sahara; and (3) there’s a link to the opinion at the top, so you can nerd out to your heart’s content should you so desire without me having to do it for you.

Energy Wise Homes specializes in insulation. It bought a commercial general liability policy from Cincinnati Specialty Underwriters Insurance Company, which I think we should just call “Cinci” for brevity’s sake. The policy was a “surplus lines” policy, which means it’s a policy written by a company not licensed in the state, usually because the insured activity represents a “unique” risk. The policy contained a “total pollution exclusion,” which—and this is where we’re going to skip some of those finer details—basically excluded coverage for injuries from anything airborne.

Thursday, April 16, 2015

Substantiation Stricken

In re K.R.2015 VT 58

By Elizabeth Kruska

This case is about an appeal of a DCF substantiation. A substantiation is a finding made by DCF upon doing an investigation and finding that a person has abused or neglected a child or placed a child at risk of harm. Risk of harm is a “significant danger that a child will suffer serious harm other than by accidental means.” If a person is substantiated, his or her name gets placed on a child protection registry list. This all happens at the administrative agency level; there might be a court case that goes with it or there might not.

The child protection registry is not accessible to the public, but can be checked upon request by certain employers doing background checks or by certain government agencies. Having your name on the list means you might not get certain jobs, you might not get to be a foster parent, or you might be on DCF’s radar with respect to your own kids, just to name a few things. Even though it’s not publicly-accessible, it is potentially hurtful to have your name on this list.

Tuesday, April 14, 2015

Sanction Starting-Points

In re PRB Docket No. 2012-1552015 VT 57

By Elizabeth Kruska

And we’re back with another client-trust-accounting issue from the Professional Responsibility Board. The facts here are pretty simple. Attorney has been in practice in one form or another for about 30 years. He set up an interest on lawyers trust account (IOLTA) for client funds, and created a separate subaccount within that account for some personal funds. He had a bookkeeper helping him with his books.

Attorney received a random audit request, which attorneys get from time to time. It’s like drawing a Chance card in Monopoly, except instead of passing Go and collecting $200, you have to audit your IOLTA account and make sure everything is accounted for, and if it’s not you can get into some trouble. It’s less fun than you’d think.

In any case, Attorney realized that he had been violating a rule of IOLTA accounting by putting personal funds into a subaccount. He hired a CPA and a lawyer, and he ordered all his banking records going back about 15 years in an effort to correct any errors. He overhauled his entire bookkeeping practice. He presented all this information to the PRB’s hearing panel. He went well beyond what was required of him in fixing the problem. He worked with Disciplinary Counsel and they agreed that he was negligent in his actions. The hearing panel took all this into account, along with Attorney’s remorse and the fact that no client was ever harmed by any of the accounting issues, and issued a sanction. The sanction started as a public reprimand, but due to the mitigating factors, was reduced to a private admonition.

Monday, April 13, 2015

Disparate Threads

State v. Congress, 2014 VT 129

By Ember Tilton

In this sad tale of murder and mental instability, SCOV was asked to tie together two stray threads of our jurisprudence and clarify whether diminished capacity can relieve a defendant of culpability for murder in such a manner as to permit her to be convicted voluntary manslaughter by a jury. The problem lies with the choice of words from prior cases. Ah, yes . . . definitions. See, voluntary manslaughter has been traditionally defined as an intentional killing that is excused because of provocation or heat of the moment irrational thinkinga.k.a. the "heat of passion" defense. However, diminished capacity has been widely used to reduce murder to manslaughter in Vermont as well.

Picture how you feel when Netflix won't load. Yeah, so if that was happening and a Netflix exec walked up to your door and you kicked him, you might be somewhat excused because there was a factor which caused you to act in a manner which you were not expecting. Also, if the judge had ever been unable to watch a favorite show, she might well identify with your mental unrest and feel some mitigation instruction was warranted.

Sunday, April 12, 2015

Nothin’ Funny ‘Bout College Tuition

Dyke v. Scopetti, 2015 VT 53

By Amy Davis

This case involves a separation agreement wherein Dad agreed to pay for the kids’ college tuition. Because THAT’S a good idea. Wasn’t there an entire movie made about how that’s a bad promise to make? Get the kids a nice rescue dog, instead. Jeez.

Mr. and Mrs. Scopetti separated back in 1998 in Pennsylvania. Their two-page, hand-written separation agreement stipulated that Dad would pay for their two daughters’ college tuition at “an institution acceptable to Frank Scopetti.” This probably seemed like a good idea back in 1998 but nobody would agree to that now. Not if you ever saw my student loan statements, all nicely organized in a shoebox marked “Do Not Open.”

Pennsylvania granted the divorce decree in 2000. Mom moved to Vermont and Dad moved to Arizona. In 2010, Mom registered the support order in Vermont, and that fall, Indie (the eldest daughter) started school at George Mason University (GMU) in Virginia. For the 2010-11 school year, Dad only paid a portion of the tuition.

Saturday, April 11, 2015

Don't Listen to Bon Jovi

In re PRB Docket No. 2013.160, 2015 VT 54 (mem.)

By Andrew Delaney

In Living on a Prayer, Jon Bon Jovi sings, “We’ve got to hold on to what we’ve got.” If “what we’ve got,” however, are checks written to our firm from one of our trust accounts, then Mr. Bon Jovi better shut his damned yapper.

The SCOV’s opinion in this case is really just one paragraph. I’ve made the Beyoncé-says-put-a-ring-on-it joke too many times— including once before on a similar PRB decision—to try to play it off as something new, though I steadfastly refuse to stop finding it amusing. Basically, the SCOV says, “Publish it!” to the hearing panel’s decision in this case.

“So what’s the decision?” you might ask. Well, respondent gets admonished by disciplinary counsel “for holding uncashed checks in the amount of $124,797.40 drawn on her trust account for a period of seven months.” Thanks, Bon Jovi. Real good advice, there. Livin' on a prayer, indeed. 

To Bail or Not to Bail . . . That is the Question

State v. Baker, 2015 VT 62 (mem.)

By Andrew Delaney

There are almost as many bail-review decisions as probation-condition decisions lately, which would make this the eleventy-billionth bail-review decision (or somewhere in that numerical neighborhood).

Mr. Baker was held without bail under the statute that provides for such a hold when the defendant is charged with an offense punishable by life in prison and the “evidence of guilt is great.” Mr. Baker is charged with felony domestic assault—in his case because he has a conviction for violating an abuse-prevention order within the last ten years. He’s also charged with a habitual offender “enhancement,” which means he faces life in prison if convicted.

So the way this whole thing works is that when there’s no constitutional right to bail and the State has a plausible case, the presumption is that the defendant will be held rather than released. Though the defendant gets “an opportunity to be heard,” the trial court’s discretion is “extremely broad” and the SCOV’s review is “strictly limited.” Those quotation marks aren’t me being sarcastic—that’s straight out of the opinion. This is a three-justice review (under V.R.A.P. 9(b)(2) for you citation junkies).

Thursday, April 9, 2015

Double Trouble Jeopardy, Y’All

State v. Breed, 2015 VT 43

By Amy Davis

If you’re looking for a summary full of witty puns and poorly colored jokes, this isn’t it. Sorry folks, but I had to draw the line somewhere. There’s a joke about a lawyer having a soul in there somewhere . . .

In 2013, a jury convicted defendant Breed for sexual assault and sexual assault of a vulnerable adult based on a single incident. Defendant, in his seventies and living in a residential facility for disabled adults and senior citizens, was charged in February 2012 with: (1) engaging in a sexual act with another person without her consent, in violation of 13 V.S.A. § 3252(a)(1); and (2) engaging in sexual activity with a vulnerable adult without her consent, in violation of 13 V.S.A. § 1379(b)(1). The charges were based on a single incident where defendant lured the complainant into his apartment under false pretenses, then forced her to engage in a sexual act without her consent.

The trial court scheduled a final calendar call and jury draw and held a two-day trial. The jury convicted the defendant on both charges, and the court denied defendant’s motion for judgment of acquittal and his motion for a new trial.

Saturday, April 4, 2015

Timeliness Troubles

In re New England Police Benevolent Association Petition, 2015 VT 51

By Andrew Delaney

Ain’t no party with a late-filed petition ‘cause a late-filed petition don’t pop. Unfortunately (and apologies to Coolio).

The New England Police Benevolent Association (NEPBA) petitioned for election of a collective-bargaining representative. The Vermont Labor Relations Board dismissed the petition as untimely.

Here’s what happened. NEPBA filed a petition with the Vermont Labor Relations Board (VLRB) for election of a collective bargaining representative for certain Vermont sworn law-enforcement officers (Fish & Wildlife, Liquor Control, and the DMV) on January 30, 2014. These officers are part of the non-management bargaining unit “which is covered by a collective-bargaining agreement between the Vermont State Employees Association (VSEA) and the State of Vermont.” A vote was already scheduled for the next day on ratification of a successor agreement. This is starting to sound really complicated, so let’s simplify it. Basically, there was a group of officers who wanted somebody else to represent their interests in the collective-bargaining process so they filed a petition, but not during the correct timeframe.

Friday, April 3, 2015

Risks and Priorities

In re Ambassador Insurance Co., Inc (National Indemnity Co., Appellant), 2015 VT 4

By Elizabeth Kruska

Think of Ambassador Insurance Company as James Dean. Handsome, daring, a little bit of a bad boy, and unfortunately, deceased. Think of National Indemnity Company (NICO) as the responsible sibling who has to step in and clean up afterward.

Ambassador was a Vermont insurance company (domiciled in New Jersey, and I am really resisting making New Jersey jokes right now). Ambassador specialized in surplus-line insurance, and insured high risk entities and others that couldn’t otherwise get insurance. They apparently insured asbestos companies. I can only imagine the business meeting for that one:

Ambassador Bad Boy 1: I have one word for you.

Probation Precision

State v. Campbell, 2015 VT 50

By Elizabeth Kruska

Ah, probation conditions. Here we are for something like the eleventy-billionth case on probation conditions. OK, maybe there haven’t been that many. But there have been a lot, and this is another.

Gordon Campbell was charged with aggravated assault, sexual assault, and violation of conditions of release back in 2006. The thumbnail version of the facts is that Mr. Campbell drank at a bar in Burlington, and when he left, encountered a young man on the street who asked for directions and cocaine. Mr. Campbell offered him money for oral sex, and when the man said no, Mr. Campbell beat him up behind a restaurant. He pled to the charges, got sentenced once, filed a PCR which vacated the sentence, and then went back for a new plea and sentencing.

A pre-sentence investigation was done, and suggested several certain probation conditions, two of which are the subject of this particular appeal. There was some procedural confusion. The parties had a plea agreement, but Mr. Campbell objected to certain conditions. If a defendant objects to conditions being imposed, he or she has to do so at the time of sentencing, even if there is a so-called plea agreement in place. It’s a weird posture to agree but also to object. But, if you don’t object, and if there’s a problem later on, the court will say that the objection was waived and you’re stuck with what you’ve got. The opinion suggests that there was some discussion of this on the record as the hearing began.