Messier v. Bushman, 2018 VT 93
By Elizabeth Kruska
Civil litigation is not something I do as a part of my practice. Much of this particular opinion is entirely about a very specific part of civil practice. I’m just going to describe this as easily as possible, since I know if I wander into the weeds on various details things are not going to go well for this summary and it’ll end up being less summary than it ought to be.
Mr. Messier and Ms. Bushman got into a car collision in 2014. They were each driving their own cars, and at the time, both were Vermont residents as far as we know. Mr. Messier filed suit against Ms. Bushman in 2017, 3 days before the statute of limitations ran. Herein lies the problem.
He sent a sheriff over to serve Ms. Bushman. Nobody at the home accepted service on her behalf. The sheriff was informed that Ms. Bushman was out of the country on a study abroad semester. No worries, though. There’s an alternative method of service available that involves serving the Commissioner of Motor Vehicles, which Mr. Messier says he tried to do. There are rules about this – you have to serve the Commissioner, pay a fee, get a copy of the service return and send all this to all the parties and the court.
From the sounds of things, Mr. Messier served the Commissioner of Motor Vehicles, and also sent something to Ms. Bushman’s home address. Several days later, Ms. Bushman’s mother opened the envelope. I guess she got in touch with her daughter before opening it; that seems like the appropriate thing to do, and who knows how easily they were in contact if she was away for a semester. Anyway, according to Mother, there was nothing in the envelope about service on the Commissioner.
So, Ms. Bushman responded to the complaint, asserting insufficiency of service as an affirmative defense. She also filed a motion for judgment on the pleadings, which was granted.
Part I – Mr. Messier appealed this dismissal and SCOV reversed.
I’ll make this as summary as I can, since I don’t want to make it confusing. There are rules that need to be followed for service and for notice. Personal service couldn’t be made here, and the alternative method – serving the Commissioner – has rules that perhaps weren’t followed.
SCOV reverses this for a couple reasons. First of all, there’s a difference between a dismissal and a judgment on the pleadings. The former is just dismissing – the case goes no further and potentially could be filed again. The latter ends the whole thing all together. It basically adjudicates the case on the merits and it’s done and that’s it.
SCOV feels that shouldn’t have happened here. Motions to dismiss shouldn’t be granted unless there are legitimately no facts or circumstances under which the movant could be entitled to relief. Judgment on the pleadings should happen only where the movant is entitled to a judgment as a matter of law as based on the pleadings. In this case, even though Ms. Bushman’s motion was styled as a motion for judgment on the pleadings, the thrust of the argument was that service wasn’t properly completed. Service issues should go to dismissal, not to the merits of the underlying case.
Here, there might have been material facts that were in dispute. Also, it wasn’t entirely clear whether or not service on the Commissioner was done correctly. Mr. Messer says it was. Ms. Bushman says no – that when her mom opened the envelope there was nothing inside about it. SCOV says there should have been an evidentiary hearing to figure out if service was sufficient and what actually happened.
Also, Mr. Messier tried to argue that Ms. Bushman couldn’t even file her response because it was late. SCOV finds that she didn’t waive her right to raise the defense. As noted above, the suit got filed just before the statute of limitations ran, and then service happened thereafter, albeit with some bumps in the road. Even though the envelope arrived at her house, she might not have known about the contents of the envelope until some time after due to the factual circumstances here. She filed her answer a few days after the deadline. SCOV isn’t saying it’s ok to file things late, but given the circumstances here and the pretty minimal delay (if any), SCOV finds there was no waiver.
Part I – Mr. Messier appealed this dismissal and SCOV reversed.
I’ll make this as summary as I can, since I don’t want to make it confusing. There are rules that need to be followed for service and for notice. Personal service couldn’t be made here, and the alternative method – serving the Commissioner – has rules that perhaps weren’t followed.
SCOV reverses this for a couple reasons. First of all, there’s a difference between a dismissal and a judgment on the pleadings. The former is just dismissing – the case goes no further and potentially could be filed again. The latter ends the whole thing all together. It basically adjudicates the case on the merits and it’s done and that’s it.
SCOV feels that shouldn’t have happened here. Motions to dismiss shouldn’t be granted unless there are legitimately no facts or circumstances under which the movant could be entitled to relief. Judgment on the pleadings should happen only where the movant is entitled to a judgment as a matter of law as based on the pleadings. In this case, even though Ms. Bushman’s motion was styled as a motion for judgment on the pleadings, the thrust of the argument was that service wasn’t properly completed. Service issues should go to dismissal, not to the merits of the underlying case.
Here, there might have been material facts that were in dispute. Also, it wasn’t entirely clear whether or not service on the Commissioner was done correctly. Mr. Messer says it was. Ms. Bushman says no – that when her mom opened the envelope there was nothing inside about it. SCOV says there should have been an evidentiary hearing to figure out if service was sufficient and what actually happened.
Also, Mr. Messier tried to argue that Ms. Bushman couldn’t even file her response because it was late. SCOV finds that she didn’t waive her right to raise the defense. As noted above, the suit got filed just before the statute of limitations ran, and then service happened thereafter, albeit with some bumps in the road. Even though the envelope arrived at her house, she might not have known about the contents of the envelope until some time after due to the factual circumstances here. She filed her answer a few days after the deadline. SCOV isn’t saying it’s ok to file things late, but given the circumstances here and the pretty minimal delay (if any), SCOV finds there was no waiver.
So – SCOV remands this part to the trial court to have an evidentiary hearing to figure out this service issue under the alternative service method.
Part II – Mr. Messier also sued the insurance company, saying they engaged in unfair settlement practices. The insurance company, Travelers, moved to dismiss. SCOV affirmed the dismissal.
In short, Mr. Messier didn’t have a right of action. Mr. Messier tried to argue that the Insurance Trade Practices Act covered his claim. He alleged that Travelers didn’t engage in appropriate investigation and action in an effort to settle the claim. SCOV says no – this particular law provides an administrative remedy against unfair and deceptive practices in the insurance industry, not a court right of action.
Part II – Mr. Messier also sued the insurance company, saying they engaged in unfair settlement practices. The insurance company, Travelers, moved to dismiss. SCOV affirmed the dismissal.
In short, Mr. Messier didn’t have a right of action. Mr. Messier tried to argue that the Insurance Trade Practices Act covered his claim. He alleged that Travelers didn’t engage in appropriate investigation and action in an effort to settle the claim. SCOV says no – this particular law provides an administrative remedy against unfair and deceptive practices in the insurance industry, not a court right of action.
He also moved for relief under the Consumer Fraud Act (now known as CPA). To even cross that hurdle, he would have to show that he was a consumer. The problem is that Travelers was Ms. Bushman’s insurance company, not his. In this instance, he doesn’t stand in the shoes of a “consumer” with respect to the company, so there’s no space for him to file suit under this act.
So, partly reversed and remanded, partly affirmed.
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