Two opinions on Friday. Let's get to it.
First up we have a tiff between Travelers and the Department of Financial Regulation (DFR). Travelers wanted records from DFR about Middlesex Assurance Company, a Vermont captive insurer. If you don't know what captive insurance is, it's essentially an insurance company that is wholly owned and controlled by its insureds. In this case, there's ongoing litigation in New Jersey and Middlesex Assurance is Johnson & Johnson's Vermont captive insurer. Why Vermont, you might ask? Well, since 1981, when Vermont was one of the first states to pass captive insurance legislation, Vermont has more or less been the captive insurance capital of the United States.
Now, certain information has to be filed with DFR in order for a captive insurance license to be issued. This info is considered confidential and DFR can only release these confidential records about captive insurers under specific conditions.
So, we turn to the question: Did Travelers meet these conditions?
To get these records from DFR, Travelers needed to show the information was: (a) relevant and necessary for their case; and (b) unavailable from other non-confidential sources. The trial court quashed Travelers' subpoena for the DFR records. It found that Travelers didn't clearly state what was being sought, so it failed on the necessary front. The trial court also found that Travelers failed to demonstrate that the records from DFR were unavailable from other nonconfidential sources (like in the ongoing litigation in New Jersey).
And that would be the end of it, but Travelers appeals.
We're in Abuse of Discretion Land. This is a magical place for the trial court judge because SCOV generally ain't gonna mess with nothin' unless the trial court really messed up. Like A-A-Ron.
SCOV really doesn't get into the "necessary and relevant" prong. It focuses on the "unavailable" requirement. Unavailable means more or less impossible to acquire. We ain't there yet. SCOV reasons that Travelers hasn't exhausted efforts to get the information through normal discovery in the New Jersey case. As it turns out, SCOV reasons that Middlesex, as a party to the New Jersey litigation, is probably a non-confidential source for Travelers.
So, because discovery was ongoing in New Jersey and Travelers hasn't used all available methods to get the information there, SCOV reasons the information wasn't "unavailable." SCOV affirms. In re Department of Financial Regulation, 2025 VT 10
Next up, we have a case that clarifies the applicability of Vermont's anti-SLAPP statute. We've written about anti-SLAPP a few times (throw it in the search bar above if you feel like it). But for a quick refresher, SLAPP is an acronym that stands for "strategic lawsuit against public participation." And "anti" means . . . well, you know.
The Polaks (plaintiffs) and the Ramirez-Diaz-Sanchez family (defendants) are neighbors who have had what we'll call a "contentious" relationship. According to plaintiffs, after they reported that defendants were burning plastic in their yard, defendants "began a campaign of psychological warfare against plaintiffs." Defendants alleged that the plaintiffs had assaulted them and threatened them with a gun. Litigation ensued, including the State filing a petition for an Extreme Risk Protection Order (ERPO) against wife (first I've heard of such a thing) and the defendants filing for anti-stalking orders. All this resolved in plaintiffs' favor.
So, plaintiffs filed a complaint for defamation (x2), malicious prosecution, and intentional infliction of emotional distress. Defendants filed a motion to dismiss the lawsuit under our anti-SLAPP law. The trial court dismissed most of plaintiffs' claims reasoning that the statements were regarding a matter of public interest protected under the statute and that any "outside" statements were incidental to the protected speech. The court left what we'll call a "half" a defamation count based on its reasoning that defendants' statements to neighbors and community members that the plaintiffs were racists who discriminated against defendants weren't protected speech.
Plaintiffs moved for reconsideration and to amend their complaint. The court denied both motions. They then moved for permission for interlocutory appeal. Denied.
Defendants moved for summary judgment on the remaining claim and the court granted it, while noting that the plaintiffs' response was lacking in form and substance.
Plaintiffs appeal.
SCOV first deals with a jurisdictional timing argument. The short version is that SCOV reasons that it does have jurisdiction to consider plaintiffs' appeal because although the statute provides one avenue for appeal, it's not the only avenue.
Turning to the merits, SCOV acknowledges that past decisions would indicate a trend toward finding protection under the statute for most reporting of criminal activity. SCOV even notes that the trial court's going that direction was not unreasonable under the circumstances. SCOV explains: "While reports of criminal activity are frequently a matter of public concern, we decline to create a blanket exemption for such statements that ignores their content or to whom they are made." In this case, SCOV concludes that the defendants' statements were not protected because they did not involve a "public issue."
In amongst all this is a discovery dispute. Plaintiffs didn't respond to some discovery requests and after the trial court granted a motion to compel, plaintiffs moved for a (granted) extension to file responses, and when they didn't make the deadline, defendants moved to dismiss. The trial court didn't grant the motion to dismiss but reasoned sanctions were warranted and precluded plaintiffs from using the information in there responses at trial. While plaintiffs mount a de facto dismissal argument, SCOV is not swayed. The trial court acted within its discretion in imposing sanctions.
So, this one ends like so: "The trial court’s May 13, 2024 order awarding partial summary judgment is affirmed. The trial court’s August 17, 2021 order granting defendants’ motion to strike is reversed and the matter is remanded for further proceedings on plaintiffs’ remaining claims." Polak v. Ramirez-Diaz, 2025 VT 9.
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