Gould v. Town of Barnet, No. 75-3-12 Cacv (Teachout, J., October 29, 2012)

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                                                STATE OF VERMONT

SUPERIOR COURT                                                                                      CIVIL DIVISION
Caledonia Unit                                                                                   Docket # 75-3-12 Cacv


THOMAS GOULD,
    Plaintiff

v.

TOWN OF BARNET
  For RICHARD WOODWARD,
      Defendant

                                           DECISION
                           Motion for Summary Judgment, filed July 5, 2012

        This motion calls upon the Court to address and harmonize two separate
legislative provisions relating to liability of a municipality on behalf of its workers: the
Workers’ Compensation Act and 24 V.S.A. § 901(a).

        In March of 2006, both Plaintiff Thomas Gould and Richard Woodward were
employees of the Town of Barnet. Thomas Gould was seriously injured, allegedly as the
result of negligence of co-employee Richard Woodward in operating a backhoe. Mr.
Gould has severe permanent injuries, and sought and obtained workers’ compensation
benefits. He has received $115,215.00 in past medical benefits, $22,835.79 in temporary
total disability benefits, $17,304.66 in permanent partial disability benefits, and
$2,678.05 in miscellaneous benefits through workers’ compensation through the
Town. He is also entitled to receive lifetime benefits concerning any future medical
expenses related to that work-related injury.

       He has now filed this civil suit seeking compensatory damages for the alleged
negligence. Pursuant to 24 V.S.A. § 901(a), a municipality, in a tort action against a
municipal employee alleged to be negligent in the course of employment, assumes the
place of the municipal employee and waives all defenses not available to the municipal
employee. Hence, the Plaintiff has filed suit against the Town of Barnet standing in the
place of Richard Woodward.

        The Town has moved for summary judgment, arguing that as a matter of law, the
Workers’ Compensation Act has provided the exclusive remedy for employees against
their employers since its enactment in 1915, and that this principle of exclusivity trumps
the more recently enacted (2003) provisions of 24 V.S.A. § 901(a). It argues that
Plaintiff’s only remedy against the Town has already been provided in the form of
workers’ compensation benefits, and is ongoing, and that if the Legislature had intended
24 V.S.A. § 901(a) to constitute an exception to the WCA, it could have made that
explicit, as it has done in the case of other exceptions. It argues that because 24 V.S.A. §
901(a) is silent as to any effect on the WCA, § 901(a) does not constitute an exception to
the exclusivity of the workers’ compensation remedy.

        Plaintiff argues that the WCA has never barred civil suits against co-employees
who injure a person covered by workers’ compensation, so that Plaintiff has a right to sue
Mr. Woodward. He argues that the purpose of § 901(a) was to indemnify municipal
workers such as Mr. Woodward who may become liable to others in the course of their
work on behalf of the municipality, thus putting the Town in the role of insurer for the
benefit of its employees. Thus, he argues that he is not suing the Town in its capacity as
employer, but rather is suing Mr. Woodward, and under§ 901(a) the way to do that is to
sue the Town, who assumes the place of Mr. Woodward as insurer. He further argues
that the Town as insurer (under the liability policy provided through the Vermont League
of Cities and Towns) would be able to pursue its right of subrogation, and that § 901(a)
would not apply to such a suit.

        The Court concludes that the Plaintiff’s argument is more persuasive. The effect
of the Town’s argument would be to deprive a municipal worker of the opportunity to sue
a co-employee for negligence, which would reduce the rights of municipal employees
compared to non-municipal employees: municipal employees would lose the right to sue
co-employees for negligence, while non-municipal employees would have such a right
even when the plaintiff receives workers’ compensation benefits. The legislative history
indicates that the purpose of § 901(a) was to provide negligent municipal employees with
insurance, and not to diminish any right of recovery of any injured person.

        Moreover, the Town is sufficiently protected in that the suit against it is in its
capacity as Mr. Woodward’s insurer, in which case it can protect itself through liability
insurance in the first instance (which is what it is expected to do for its municipal
employees under § 901(a)), and pursue compensation through exercise of its subrogation
rights in the second. This is the intended effect of § 901(a) and does not violate the
principle of exclusivity of workers’ compensation benefits as the only available remedy
between an employee and an employer.


                                         ORDER

       Defendant’s Motion for Summary Judgment is denied.

       Dated at St. Johnsbury this 26th day of October, 2012.


                                                             ________________________
                                                               Hon. Mary Miles Teachout
                                                                    Superior Court Judge




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