Weekly Update February 27, 2022

Now, THAT is a hat. 

By Andy Delaney

I know, I know; you thought I skipped a week. I didn't! No cases last week. Two cases this week. 

First up, we have a situation many personal injury lawyers have dealt with: a car wreck on the clock, which includes a worker’s compensation claim and a potential claim against co-worker who was driving. The wreck happened in Virginia, which adds a wrinkle. 

Plaintiff settled the Vermont workers’ comp case at mediation. Plaintiff’s former attorney had plaintiff sign a broad general release. Plaintiff then hired another attorney to sue his co-worker, but that got blocked because . . . release. So, plaintiff sued former attorney for malpractice and violation of the consumer protection act. We have the relatively typical complaint-motion-to-dismiss-amended-complaint-discovery-summary-judgment tango, which ultimately ends up with—you guessed it—summary judgment for the defense. Plaintiff appeals, arguing that the trial court done messed up (1) when it granted defendant’s motions to dismiss; (2) when it granted summary judgment for the defense; and (3) when it refused to make findings on summary judgment. Long story short, SCOV affirms. Interestingly, here we get into Virginia versus Vermont choice of law principles, which are important in this case because Virginia law generally bars plaintiff’s my-coworker-is-at-fault claim in the workers’ comp context. SCOV comes down on the Virginia-law-applies side of the equation and that pretty much ends the debate. On the consumer-protection-act piece, SCOV holds that defendant’s actions were not “entrepreneurial” in nature, reading this into the “in commerce” language in the statute. I could have fun with this. But we’ll move on. In the end, SCOV reasons that even if some of the motions to dismiss were granted in error, it was harmless error, and summary judgment was properly granted in the end (of note, findings weren’t required—at least in part—because plaintiff didn’t submit his own statement of material facts, contradicting defendant’s). Rodrigue v. Illuzzi, 2022 VT 9.

Case number two for the week is about deficiency and discretion. I really don’t want to get into the loans and assignments and rules of procedure in this case, so I’m not going to. There were loans, there were defaults, there were assignments. And then the murders began (I took that last sentence from a meme about making the first few lines of a book way more interesting. It works, no?). The assignee went for foreclosure, attempted to get a deficiency judgment, didn’t get it, and tried to go back under the rule of civil procedure it should have followed the first time. Trial court says, “Yeah, no.” and assignee/plaintiff appeals. SCOV reasons that deficiency judgments are discretionary but that the trial court abused its discretion when it refused to consider the factors it ought to have under the rule. Kicked back to the trial court for further findings. New England Phoenix Company, Inc. v. Grand Isle Veterinary Hospital, Inc., 2022 VT 10.