ROBINSON , J. 1. This case calls upon us to apply a "pollution exclusion" in an insurance policy for the second time in a year. Plaintiffs Neil and Patricia Whitney assert that damage to their home and personal property resulting from the spraying within their home of a pesticide known as chlorpyrifos is covered by their homeowners policy. Defendant Vermont Mutual Insurance Company (Vermont Mutual) argues that the pollution exclusion in the policy bars the Whitneys' claim. The Rutland...
REIBER , C.J. 1. This case presents the question of whether Mount Mansfield Company, Inc. (MMC) had unitary operations with AIG Insurance Management Services, Inc. (AIG) such that AIG was required to include MMC as part of the AIG unitary group on its Vermont corporate income tax return. It also raises the question of whether, and under what circumstances, an amended tax return restarts the statute of limitations period for collecting a deficiency. The trial court reversed the decision...
DOOLEY , J. 1. Defendants-counterclaimants Jeanmarie Leonard and Carol Sayour appeal from the superior court's grant of summary judgment on their counterclaims in favor of plaintiff Jennifer Weinstein and third-party defendants, Lloyd Weinstein, plaintiff's husband, and his law firm, The Weinstein Group, P.C. Defendants claim on appeal that there are disputed material facts to justify a jury trial on their counterclaims of breach of contract, tortious invasion of privacy, and abuse of...
DOOLEY , J. 1. This case arises out of a divorce proceeding between plaintiff Kenneth Felis and his former wife, Vicki Felis. Defendant Downs Rachlin Martin PLLC (DRM) represented Ms. Felis in the divorce proceeding, and defendant Gallagher, Flynn & Company, LLP (GFC) was retained by DRM on behalf of Ms. Felis to prepare business valuations related to the proceeding. Plaintiff appeals the decision of the Chittenden Superior Court, Civil Division, granting defendants' motions to dismiss...
EATON , J. 1. This is an appeal of a jury verdict in favor of Rutland Hospital, Inc., d/b/a Rutland Regional Medical Center, and related entities ("RRMC") 1 and Dr. Santiago Cancio-Bello arising from injuries due to claimed medical malpractice in connection with the birth of Amy and Robert Labates' daughter on August 3, 2007. A jury trial was held in Rutland Superior Court, Civil Division, between August 11 and August 22, 2014. Following the return of the jury verdict in favor of RRMC...
This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press. 1. REIBER , C.J. Claimant appeals from the Superior Court, Washington Unit, Civil...
DOOLEY , J. 1. Plaintiff Juanita Burch-Clay sought review in Rutland Superior Court of the West Rutland School Board's decision to terminate her employment contract. The superior court affirmed the Board's decision, and plaintiff appealed to this Court, arguing that procedural defects invalidated her post-termination hearing and that the Board lacked just and sufficient cause for her termination. We affirm. 2. The following facts are undisputed, except where otherwise noted. In 2011,...
SKOGLUND , J. 1. The City of Burlington and the Vermont Agency of Transportation (AOT) applied for an Act 250 permit amendment to complete a project known as the Champlain Parkway, a roadway designed to route traffic more efficiently from Interstate 89 in South Burlington to the City of Burlington's downtown area. The environmental court concluded that the application complied with Act 250's transportation criterion (Criterion 5) subject to conditions requiring that applicants monitor...
ROBINSON , J. 1. This case calls upon us to consider whether a post-1970 rock-crushing operation is exempt from Act 250 because it is located on a site within a large tract that includes multiple quarries and is a pre-1970 development itself exempt from Act 250 permitting requirements. The Superior Court, Environmental Division concluded that the pre-1970 dimension-stone-quarrying operations included intermittent crushing operations throughout the large tract, and that the new crushing...
REIBER , C.J. 1. Claimant appeals from the Superior Court, Washington Unit, Civil Division's dismissal of her complaint for lack of jurisdiction. Claimant, a former employee of the Vermont State Hospital, separated from state service and applied for ordinary disability-retirement benefits in November of 2011. The Medical Review Board denied benefits, and claimant requested an evidentiary hearing pursuant to 3 V.S.A. 461a, after which benefits were again denied. Claimant then pursued an...
This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press. ROBINSON , J. 1. This case encompasses two main related sets of disputes. One...
EATON , J. 1. New England poet Robert Frost once observed that "[g]ood fences make good neighbors." Robert Frost, Mending Wall, in North of Boston (Edward Connery Latham ed., 1977). The same, it appears, cannot be said of good trees. This is a case of protracted litigation, with extensive motion practice, between neighbors over a maple tree. For the reasons stated herein, we vacate the injunction and remand to the trial court for entry of judgment in favor of appellants Claudia Berger...
DOOLEY , J. 1. Defendant appeals an order of the Windham Superior Court 1 concluding that he violated a condition of his probation requiring him to notify his probation officer if he is planning to begin a sexual relationship. We reverse. 2. On October 29, 2009, defendant was convicted of several felony and misdemeanor offenses and placed on probation. In August 2013, after two separate probation violations in 2010 and 2013, defendant was placed on stricter conditions regarding...
SKOGLUND , J. 1. Appellant Allstate Bail Bonds ("Allstate") challenges the trial court's decision granting the State's motion for forfeiture of bond. On appeal, Allstate argues that the trial court abused its discretion in declining to reduce the amount of bail forfeiture when Allstate could not produce defendant due to his out-of-state incarceration. We agree that Allstate is entitled to a reduction in bail forfeiture, and therefore reverse. 2. On June 17, 2013, defendant was...
SKOGLUND , J. 1. This appeal stems from a condominium construction project in Stratton, Vermont. Owner and developer The Stratton Corporation and Intrawest Stratton Development Corporation (collectively "Stratton") sued Engelberth Construction, Inc., the project's general contractor, seeking to recover for alleged construction defects and faulty workmanship that resulted in water damage to the project. Engelberth filed third-party complaints for indemnification against its subcontractors....
SKOGLUND , J. 1. The parties were formerly in a relationship and are parents to a girl born in April 2006. After their break-up, mother filed this parentage action in 2010 and the parties have been engaged in litigation regarding parent-child contact and child support ever since. In this appeal, mother argues that the family court erred in determining the amount of father's income for purposes of calculating child support. Mother argues that the court should have imputed income to father...
REIBER , C.J. 1. Defendant Frontier Communications of America, Inc. appeals decisions denying its cross-claims for indemnity against three codefendants, Stantec Consulting, Inc., Turner Electric Corporation, and Graybar Electric Company. 1 Frontier asserts that it is entitled to implied indemnification from all three codefendants and express indemnity from Graybar, and the court erred in granting summary judgment because there are disputed questions of fact. We affirm. 2. This case...
EATON , J. 1. This appeal stems from a decision by the Town of Middlebury Development Review Board (DRB) approving appellee Jolley Associates, LLC's (Jolley) application for a Planned Unit Development (PUD) to add a car wash to an existing gas station and convenience store within the Town of Middlebury. Appellant MDY Taxes, Inc. (MDY) operates an H&R Block tax franchise in property rented in a shopping center adjacent to the Jolley lot. Appellant Village Car Wash, Inc. (Village)...
REIBER , C.J. 1. This case involves an indemnity dispute between two defendants in a suit arising after plaintiff Michael Hemond suffered a tragic electrocution injury while working on an electrical switch. Defendant Frontier Communications of America, Inc., 1 who owned the electrical equipment on which the accident took place, claimed implied indemnity from Navigant Consulting Group, Inc., a contractor. Navigant cross-claimed for indemnification from Frontier based on express...
DOOLEY , J. 1. The New England Police Benevolent Association (NEPBA) appeals the Vermont Labor Relations Board's dismissal of NEPBA's petition for election of a collective-bargaining representative for NEPBA's failure to provide justification for its untimely filing. We affirm. 2. On January 30, 2014, NEPBA filed a petition for the election of a collective-bargaining representative to represent the sworn law enforcement officers of the Vermont Department of Fish and Wildlife, Vermont...
