Progressive Insurance v. Wasoka , 178 Vt. 337 ( 2005 )

Johnson, J.

¶ 1. Progressive Insurance Company appeals from a denial of its motion for summary judgment against its insured, Gregory Wasoka, for fraud in the inducement of an automobile insurance policy. Progressive claims on appeal that the trial court misunderstood its motion for summary judgment and erroneously dismissed the entire case when Progressive had filed its motion based on only one of its claims. Progressive contends the trial court also erred by treating Wasoka’s response as a cross-motion for summary judgment, which it claims raised new matters, without giving Progressive thirty days to respond. We affirm because we agree the motion asked the court to void the policy for fraud in the inducement as evidenced by Wasoka’s noncooperation, defendant’s response was directly related to fraud in the inducement, and the court’s decision nineteen days later indicated that the undisputed facts did not show that Progressive was entitled to judgment on this issue. As a result, no further issues were left and the complaint was dismissed. Moreover, if there was prejudice as a result of the procedure the trial court followed, Progressive failed to come forward with any evidence of it, other than the unsubstantiated claims of counsel, despite filing two post-judgment motions.

¶ 2. The agreed facts are as follows. In July 2000, Gregory Wasoka purchased a Vermont automobile insurance policy from agent Steve Shortle of C.G. McCullough Insurance Agency, Inc., of Killington, Vermont. In May 2001, Wasoka was involved in an automobile/bike accident in Connecticut with Robert Cerdeira. After informing Progressive of the accident, Wasoka agreed to be interviewed by Progressive agents on May 10, 2001 and May 22, 2001 respectively as part of the investigation. Progressive made no request that either of these first two interviews be given under oath. In a letter dated August 15, 2001, Progressive requested that Wasoka submit to a third interview, this time under oath. Wasoka received the letter but did not reply. In August 2002, Wasoka submitted to deposition by Progressive’s counsel.

¶ 3. In the course of investigating the accident, Progressive learned the following uncontested facts that it submitted for consideration with its motion: (1) at the time of the accident, Wasoka was a student at Naugatuck Valley Community College in Connecticut, (2) at the time of both of the May 2001 investigatory interviews Wasoka was staying with his parents in Connecticut, (3) at the time of the second interview Wasoka was employed by Gary Industries in Connecticut, and (4) while Wasoka received limited mail at his brother’s residence in Killington, Vermont, including his Progressive insurance bills, he received mail at his parents’ house in Connecticut.²

¶ 4. Additionally, the following facts were submitted by Wasoka in the course of the investigation and deposition. During his second May interview, Wasoka stated he worked at the Killington Ski Resort in the fall and winter of 2000 while staying at his brother’s condo in Killing-ton. In August 2002 Wasoka testified in deposition that he lived in four different places at the time he purchased his insurance policy including his brother’s residence in Killington, Vermont, his grandmother’s cottage on Lake Bomoseen in Vermont, a friend’s house in Winchester, New Hampshire, and his parents’ house in Connecticut. Wasoka also testified in deposition that all that was required to obtain his Vermont insurance policy was his Vermont driver’s license and a mailing address. He testified that he had known agent Shortle all his life as a family friend and that Shortle was aware, from conversations with Wasoka’s father, that Wasoka traveled between many different places when he purchased the policy.

¶ 5. Progressive filed suit against Wasoka and Cerdeira in January 2002 seeking a declaratory judgment that Wasoka’s insurance contract “is void ab initio due to [Wasoka’s] fraudulent representations, and that there is no coverage under its policy for any claims arising out of the incident with Mr. Cerdeira due to Mr. Wasoka’s failure to cooperate with Progressive and misrepresentations made in the course of presenting his claim.” The contract contains the following cooperation clause: “[a] person claiming coverage under this policy must... allow us to take signed or recorded statements, including statements under oath, and answer all reasonable questions we may ask, when and as often as we may reasonably require.”

¶ 6. Progressive filed a “Motion for Summary Judgment” on January 28, 2003, claiming that “[defendant deliberately breached a policy provision that would have enabled his insurer to investigate the issue of fraud in the inducement of the policy, a legal issue that would void coverage____By this motion, Plaintiff requests judgment from the court that Defendant’s breach of contract voids the insurance contract ab initio.” The motion goes on to say, some pages later, that Wasoka’s actions, refusal to submit to an examination under oath and his refusal to sign a bilateral reservation of rights/nonwaiver agreement, must be viewed as “admissions of fraud in the inducement of the policy, voiding coverage ab initio.” At all times, the motion asked the trial court to find that the policy was void for fraudulent inducement as evidenced by Wasoka’s alleged noncooperation.

¶ 7. By the time Progressive filed the motion for summary judgment, it had deposed Wasoka under oath, exactly the result it was seeking prior to filing the declaratory judgment action. Not surprisingly, Wasoka used this deposition in filing his “Opposition to Summary Judgment” to show that, regardless of the circumstantial evidence that Progressive sought to rely on for voiding the policy, he had not, in fact, committed fraud in the inducement of the insurance policy. Wasoka devoted five full pages to why Progressive had failed to present sufficient evidence of residence fraud. He argued that he had not failed to cooperate under the terms of the contract, that Progressive had failed to produce evidence of prejudice resulting from his alleged noncooperation as is required under Smith v. Nationwide Mutual Insurance Co., 2003 VT 61, ¶ 10, 175 Vt. 355, 830 A.2d 108,³ and that he had an absolute right to refuse an examination under oath where the purpose of the examination was to further Progressive’s fraud claim against Wasoka. Wasoka asked for summary judgment in his favor pursuant to V.R.C.P. 56(c)(8).

¶ 8. Progressive did not respond to Wasoka’s memorandum. On August 4,2008, the trial court denied summary judgment for Progressive and instead granted judgment in favor of Wasoka. The trial court analyzed the issues by referencing the case that Progressive’s own motion identified as the “law applicable to the present matter,” Fireman’s Fund Insurance Co. v. Knutsen, 132 Vt. 383, 324 A.2d 223 (1974), and 8 V.S.A. § 4205 cited therein. Pl.’s Mot. at 6. It concluded, based on Fireman’s Fund, that under 8 V.S.A. § 4205 an automobile liability policy may not be voided for false statements in the application unless the insurer shows that the statements were made with actual intent to deceive or that the false statements materially affected the insurer’s risk. 132 Vt. at 387-88, 324 A.2d at 227. Because Progressive had not produced evidence capable of satisfying those requirements, it was not entitled to summary judgment on its fraud in the inducement claim. Likewise, the trial court found that the policy could not be void, on the same theory, for the refusal to cooperate because Progressive had not met the prejudice standard as reaffirmed in our recent decision in Nationwide. See 2003 VT 61, ¶ 10 (affirming summary judgment against insurer on noncooperation claim because insurer failed to “adduce any evidence that its insured’s breach placed the insurer in a substantially less favorable position than it would have been had the insured fully cooperated”).

¶ 9. Progressive subsequently filed a “Motion to Vacate the Court’s Opinion and Order of August 4,2003” in which it argued that the court had committed a “procedural impossib[ility]” in ruling against Progressive on the issue of fraud, an issue it claimed it did not raise.⁴ No additional documents were attached to this motion. The trial court denied the motion in September 2003. Towards the end of September 2003, nearly two months after the summary judgment order, Progressive filed a “Motion for Reconsideration or Clarification and Submission of Counsel’s Affidavit Regarding the Subjective Intent of Counsel in Filing Summary Judgment Motion.” There, Progressive argued it was entitled to relief pursuant to V.R.C.P. 60(b)(1) as the attached affidavit of Progressive’s counsel stated that it was not her subjective intent .to raise the issue of residency fraud in her motion. The court also denied this motion on two grounds: (1) Progressive’s summary judgment motion did not state it was seeking partial summary judgment on only one aspect of its claim for declaratory relief, and (2) the subjective intent of. Progressive’s counsel did not trump the objective language of the motion including the motion’s closing sentences which read: “In the present matter, Defendant’s failure to allow Progressive to investigate the fraud must be viewed as circumstantial evidence of fraud, as well as a clear breach of contract. Thus, Mr. Wasoka’s policy should be void ab initio.” This appeal followed.

¶ 10. Progressive’s claims on appeal are (1) that the trial court erred in granting summary judgment in favor of Wasoka because failure to cooperate, not residence fraud, was the basis of Progressive’s motion, (2) the trial court abused its discretion in denying Progressive’s motions to vacate and/or for relief from judgment, and (3) the trial court should have given Progressive an opportunity to brief the issue of prejudice before it ruled.

I.

¶ 11. Progressive’s first claim is that the trial court committed an impossibility in ruling on an issue that was not before it. It claims it moved for summary judgment on the issue of whether Wasoka’s failure to cooperate voided the policy for fraud in the inducement, and that this was a separate legal claim from whether Wasoka had made misrepresentations about his residence to obtain an insurance policy, which was conduct that also amounted to fraud in the inducement. In other words, Progressive had the same legal claim, fraudulent inducement, supported by different pieces of evidence. It wanted the trial court to consider only one piece of circumstantial evidence, and disregard later evidence, to reach the same legal conclusion that the policy was void for fraud in the inducement.

¶ 12. Progressive relied on Fireman’s Fund, 182 Vt. at 387-88, 324 A.2d at 227, as the law governing its motion for summary judgment. In that case, we held that an insurance contract may be void ab initio⁵ due to fraud in the inducement of a policy, and that failure to comply with an investigation of fraud may be circumstantial evidence of fraud. See Fireman’s Fund, 132 Vt. at 388, 324 A.2d at 227 (“[P]ositive proof of fraudulent misrepresentation is seldom to be had, and the law will allow consideration of a wide range of circumstantial evidence____so long as that evidence... contributes something to the establishment of a rational basis for inferring the ultimate fact.”). The language of Progressive’s motion belies its appellate claim that its argument on noncooperation was not linked to its broader theory of fraud in the inducement.

Plaintiff Progressive moves for summary judgment on the grounds that Mr. Wasoka’s acknowledged contractual breach — his failure to submit to an examination under oath — voids the insurance contract ab initio since an examination under oath is a condition precedent to coverage. Further, Progressive moves for summary judgment on the grounds that Mr. Wasoka’s two breaches of duty, his refusal to submit to an examination under oath and his extended refusal to sign a bilateral reservation of rights/non-waiver agreement must be viewed as admissions of fraud in the inducement of the policy, voiding the coverage ab initio.

Pl.’s Mot. & Mem. at 5 (emphasis added).⁶

¶ 13. Although we have also held that an insurer may avoid its coverage obligations because of an insured’s failure to cooperate if the insured’s noncooperation actually prejudices the insurer’s defense of the underlying claim, see American Fidelity Co. v. Kerr, 138 Vt. 359, 362, 416 A.2d 163, 165 (1980), Progressive, states that this rule is “inapplicable” to its summary judgment motion.

¶ 14. Progressive tried to distinguish Nationwide by claiming it was not seeking summary judgment on whether Wasoka cooperated with the underlying claim investigation, i.e., the accident for which he was seeking coverage. Indeed, it could not, because Wasoka had submitted to an interview on that subject. It limited its noncooperation claim to Wasoka’s failure to submit to an examination under oath, claiming that this amounted to circumstantial evidence of fraud under Fireman’s Fund. Progressive’s motion stated that defendant “deliberately breached a policy provision that would have enabled his insurer to investigate the issue of fraud in the inducement of the policy, a legal issue that would void coverage.”

¶ 15. One of the difficulties with Progressive’s motion is that, by the time it had filed the motion, it had had the opportunity to investigate its fraud claim by taking Wasoka’s deposition. Thus, when the case came to the trial judge, many facts had been developed and Progressive was in a far different position from the point, some months earlier, when Wasoka had not responded to its request for an interview under oath. After Wasoka submitted to deposition, the significance of the inference that the trial court might draw from Wasoka’s previous failure to cooperate as evidence of fraud disappeared; the court had before it the direct evidence on the issue of residency fraud that Progressive claimed it was being deprived of because of Wasoka’s earlier noncooperation. If we take Progressive’s argument on appeal to its logical conclusion, it is essentially claiming that it was error for the trial court not to artificially halt the case at the point of Wasoka’s earlier refusal and void coverage for fraudulent inducement based on the circumstantial evidence of noncooperation.

¶ 16. Progressive argues nevertheless that Wasoka, in defending against the legal issue of fraudulent inducement, raised a new issue to which Progressive was entitled to thirty days to respond. Instead, the trial court reached a decision after nineteen days. Progressive did not respond to Wasoka’s opposition to its motion, so the trial court reached a decision on Progressive’s original papers and Wasoka’s response.⁷

¶ 17. Wasoka’s response to summary judgment was wholly within the bounds of the legal issue raised by Progressive. Wasoka argued the contract was not void for fraudulent inducement because all of the circumstances of his residence had been made known to plaintiff’s agent, Shortle. He also argued that Progressive was required to show prejudice in a noncooperation case and that judgment could not be had on his failure to submit to an examination under oath because no prejudice was shown under Nationwide. Thus, when Wasoka pleaded facts that responded to the inference of residence fraud created by the circumstantial evidence of noncooperation, he was hardly raising a new or different legal issue. He pointed to evidence that he believed overcame Progressive’s evidence, and challenged Progressive’s idea that the prejudice requirement did not apply because of the manner in which it had framed the legal issue.

¶ 18. It strains credulity that Progressive could have been surprised by the trial court’s decision. Under the law Progressive relied upon, Fireman’s Fund, Progressive was entitled to show fraud in the inducement of the policy in different ways, with different pieces of evidence, and to try to convince the trial court to adopt the idea that prejudice was not relevant to its claim of noncooperation with an investigation of fraud. But proving the same legal claim in two different ways does not equal two different legal claims. At all times, Progressive had one legal claim — fraudulent inducement of the insurance policy by residency fraud. It was not entitled to artificially limit the trial court’s consideration to only a part of the evidence that bore on the claim.

¶ 19. As the trial court’s decision illuminates, it addressed the legal issue raised — fraudulent inducement. The totality of the evidence demonstrated that Progressive had no claim for fraudulent inducement under any theory, a conclusion Progressive does not challenge on appeal. Instead, Progressive chooses to cling exclusively to the notion that the trial court made a procedural mistake in not giving it thirty days to respond to the additional facts pled by Wasoka on the legal issue Progressive had asked the court to decide. There was no error.⁸

II.

¶ 20. Despite two subsequent requests for relief in the trial court over a period of two months, Progressive has failed to show it was prejudiced by the trial court’s interpretation of its motion.⁹ Progressive has consistently failed to present any additional evidence it would have brought forward had it known the trial court was considering summary judgment against it on this issue; It is a long-established rule in this state that for an error to be reversed the appellant must show how the error genuinely harmed the prosecution of its case. See Crawford v. State Highway Bd., 130 Vt. 18, 25, 285 A.2d 760, 764 (1971) (where the party against whom an error was committed has not been prejudiced by it, the judgment will not be reversed for such error); In re M.B., 147 Vt. 41, 44, 509 A.2d 1014, 1016 (1986) (same); V.R.C.P. 61 (“[N]o error or defect in any ruling or order ... is ground for ... vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice.”).

¶ 21. Specifically in the context of summary judgment, the Second Circuit has held that “when the moving party cannot plausibly claim that, had it been given notice of the district court’s consideration of summary judgment against it, it would have brought forth additional evidence, the district court’s failure to give notice is harmless and a remand is futile.” Bridgeway Corp. v. Citibank, 201 F.3d 134, 140 (2d Cir. 2000). Here, the trial court rendered judgment on the legal issue presented. Progressive has consistently failed to show it was prejudiced by this ruling. Progressive’s assertion of procedural error in this case is analogous to the moving party’s claim in Bridgeway that the court wrongly awarded summary judgment against it without notice. There the Second Circuit held that a remand was useless because the moving party presented no additional evidence it would have brought forward had it known summary judgment was being considered against it. Id. at 140. Similarly, assuming arguendo that the trial court erred by granting summary judgment after nineteen days instead of waiting thirty days for any Progressive reply, remanding now would unnecessarily waste judicial resources. Despite multiple post-judgment opportunities to present any additional evidence it would have brought forward if it had been given the full thirty days it believes it had to reply, Progressive has consistently failed to do so.

¶ 22. Five pages of Wasoka’s responsive memorandum are devoted to a defense of residency fraud. Had Progressive replied to Wasoka’s memorandum in opposition, it could have, and should have, brought forward any additional evidence it had of fraud at that time.¹⁰ Even though Progressive failed to reply to Wasoka’s memorandum after nineteen days, Progressive still could have presented additional evidence of the alleged fraud in either its “Motion to Vacate” dated August 8, 2003, or its “Motion for Reconsideration or Clarification” dated September 29, 2003. In these motions, however, Progressive makes only vague, unsupported assertions of additional facts of fraud.

¶ 23. In its motion to vacate, Progressive states, “the evidence available from the insurance agent does not match that provided by Mr. Wasoka.” This assertion finds no support in any documentation. In its “Motion for Reconsideration or Clarification” filed almost two months later, Progressive asserts, “[t]here are significant factual disputes regarding the issue of fraud in the inducement of the policy, and if given an opportunity by the Court, Plaintiff can present these facts.” Again, this is a bare assertion unsupported by any specific evidence appropriate for a court deciding summary judgment.

¶ 24. On appeal, Progressive points to the conspicuous lack of an affidavit by its agent as support for its position that it did not intend to raise the issue of residency fraud on summary judgment. This argument is without merit. In light of the fact that Progressive presumably had easy access to its own agent, we see no reason why Shortle’s affidavit would not have been submitted in either of Progressive’s subsequent requests for relief had it been of material use to Progressive’s case. This is especially true where “the evidence available from the insurance agent” is directly referenced in Progressive’s motion to vacate. Furthermore, as an issue of judicial efficiency, Progressive should have submitted this affidavit, and any other documentation it had of Wasoka’s alleged fraud, to the trial court when the case was still before that court. Progressive cannot credibly contend that the trial court made a mistake based on a lack of evidence when Progressive did not submit the very evidence the trial court would need to correct its alleged mistake.

¶ 25. It is a basic principle of summary judgment that mere allegations of counsel unsupported by documented evidence are not enough to create a genuine issue of material fact. See Foster & Gridley v. Winner, 169 Vt. 621, 624, 740 A.2d 1283, 1286 (1999) (mem.) (defendant’s unsupported allegations are insufficient to create a genuine issue of material fact); Kelly v. Town of Barnard, 155 Vt. 296, 299, 583 A.2d 614, 616 (1990) (trial court may enter judgment against a party who makes mere allegations and denials, and who fails to set forth specific facts to show the existence of a genuine issue for trial); see also 10B C. Wright, et al., Federal Practice and Procedure § 2738, at 356 (3d ed. 1998) (“[M]ere reargument of a party’s case or the denial of an opponent’s allegations will be disregarded [in the consideration of summary judgment].”). By relying entirely on an affidavit of its attorney’s subjective intent, Progressive has apparently sought to direct this Court’s attention away from the fact that Progressive was not genuinely prejudiced by the trial court’s interpretation of its motion. There is no reason to remand this case to grant Progressive even more time to present evidence of residency fraud when, after multiple opportunities over more than two months, Progressive has already failed to do so.

III.

¶ 26. Additionally, the trial court did not abuse its discretion in denying both Progressive’s motion to vacate and its Rule 60(b) “Motion for Reconsideration or Clarification.” Having decided that the trial court reasonably interpreted Progressive’s motion as raising the issue of residency fraud, and having already discussed Progressive’s lack of substantive evidence in support of its assertions of error, we affirm the trial court’s denial of the motion to vacate. As to Progressive’s Rule 60(b) motion, “[t]he decision on a Rule 60(b) motion is committed to the sound discretion of the trial court and will stand on review unless the record clearly and affirmatively indicates that such discretion was withheld or otherwise abused.” Bingham v. Tenney, 154 Vt. 96, 99, 573 A.2d 1185, 1186 (1990). The burden is on the party challenging the denial to demonstrate an abuse of discretion. Id. Here, Progressive fails to show an abuse of discretion.

¶ 27. Progressive again relies solely on its affidavit of counsel in support of its claim that it is entitled to relief based on “mistake, inadvertence, surprise, or excusable neglect” pursuant to V.R.C.P. 60(b)(1). An award of Rule 60(b) relief in this case based solely on the stated subjective intent of counsel would be inconsistent with our case law. In the context of Vermont Rule of Civil Procedure 68 offers, we have held that “objective intent” controls and that no relief pursuant to Rule 60(b) is warranted based on an attorney’s stated subjective intent behind an offer. Rule v. Tobin, 168 Vt. 166, 174, 719 A.2d 869, 874 (1998) (citing Webb v. James, 172 F.R.D. 311, 316 (N.D. Ill. 1997)). This case is analogous to those in which attorneys have argued, after the fact, for a different interpretation of a Rule 68 offer based on their subjective intent. In relying entirely on counsel’s sworn statement of her intent, Progressive’s Rule 60(b) motion failed to articulate a ground upon which relief can be granted. Accordingly, we find no abuse of discretion in the court’s decision to deny it.

¶ 28. Progressive’s appeal does not challenge the trial court’s grant of summary judgment on the merits. Instead it focuses exclusively on what it perceives as procedural defects of the trial court’s rulings. In light of our rejection of Progressive’s procedural arguments, we affirm the trial court’s grant of summary judgment without discussion of the merits. See Rowe v. Brown, 157 Vt. 373, 379, 599 A.2d 333, 337 (1991) (“Issues not raised on appeal are deemed waived.”).

Affirmed.

2 Progressive’s summary judgment motion also states that following the second May interview, a Progressive agent learned that Gary Industries had continually employed Wasoka for thirty-five hours per week since 1999. This assertion, however, is not supported in any documentation, nor is it cited in the statement of undisputed facts.

3 In playing up the purportedly unfair aspects of the court’s ruling, the dissent claims that Wasoka’s responsive memorandum cited “substantial new facts and law.” Post, ¶ 31. After reviewing Wasoka’s memo and the trial court’s opinion, the only “new” law we find cited is Smith v. Nationwide Mutual Insurance Co., which, the dissent notes post, ¶ 35, we handed down after Progressive filed its memo. In Smith, we rejected an insurer’s disclaimer of coverage based on the insured’s refusal to cooperate with his insurer’s defense of the underlying liability case at trial. 2003 VT 61, ¶1. In so doing, we reaffirmed our holding in American Fidelity Co. v. Kerr that an insurer seeking to avoid coverage based on the insured’s noncooperation must demonstrate both the noncooperation and ‘“the actual prejudice resulting therefrom.’” Id. ¶ 10 (quoting Amer. Fid. Co., 138 Vt. 359, 362, 416 A.2d 163, 165 (1980)); see also id. ¶22. Progressive cited and distinguished American Fidelity in its brief. See infra, ¶ 13. Moreover, as the dissent notes, Progressive has not appealed the trial court’s application of Smith to its case as either procedurally unfair or substantively incorrect. Accordingly, we fail to see why this Court’s issuance of Smith, after Progressive filed its motion, should factor into our analysis of whether Progressive was entitled, as a matter of law, to thirty days to respond to Wasoka’s memo.

4 Vermont Rule of Civil Procedure 56(c)(3) states in pertinent part that

(¡Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, referred to in the statements required by Rule 56(c)(2), show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.

(Emphasis added.) In its post-judgment motion to vacate the court’s opinion, Progressive acknowledged V.R.C.P. 56(c)(3) as the procedural source of the court’s authority to rule against it, recognizing no less than four times that Wasoka’s response was not a “separate motion for summary judgment.” Progressive protests that V.R.C.P. 56(c)(3) does not, however, provide the court with the authority to decide, sua sponte, an issue that Progressive did not raise. We express no opinion here on sua sponte summary judgment under the rule because we reject Progressive’s claim that its motion did not raise the issue of residency fraud in the inducement.

5 Black’s Law Dictionary defines “void ab initio” as “[n]ull from the beginning, as from the first moment when a contract is entered into.” Black’s Law Dictionary 1568 (7th ed. 1999).

6 The dissent quotes selectively from Progressive’s motion, avoiding passages like the one above, and claims that Progressive’s “actual argument” was that “failure to cooperate should have the same remedy as fraud in the inducement.” Post, ¶ 34. The dissent claims that “[w]hen read in context, all of Progressive’s references to fraud in the inducement relate to the need for a similar remedy and not to a claim of fraud in the inducement in this case.” Id. The passage cited above, and Progressive’s reliance on Fireman’s Fund, does not support the dissent’s claim. Progressive sought the same remedy — voiding the policy ab initio — for the same wrong — fraud in the inducement. Under Fireman’s Fund, Progressive sought to prove the fraud with circumstantial evidence in the form of Wasoka’s noncooperation with yet another interview, under oath, at which Progressive could have pursued the issue of residency fraud. While Fireman’s Fund provides two different ways to prove the claim, either by direct evidence or circumstantial evidence, it does not provide for two different claims. 132 Vt. at 388, 324 A.2d at 227.

7 The dissent protests that Wasoka’s introduction of “substantial new facts” with his filing required the court to provide Progressive thirty days to respond to the new information. What Wasoka filed was hardly “new.” Wasoka’s statement of additional uncontested material facts included four items. Of these, ¶¶ 19 and 21 were verbatim quotations from Wasoka’s insurance policy with Progressive. Pl.’s Mot. & Mem. at 4. Similarly, the information contained in additional fact ¶ 22 was derived from Wasoka’s deposition. Progressive’s own statement of uncontested facts drew heavily upon the same deposition, and pages of it were attached as an exhibit to its motion; therefore, this too cannot be considered new information as far as Progressive was concerned. The final piece of “new information” Wasoka included was drawn from Progressive’s own response to Wasoka’s interrogatory, which indicated that Wasoka’s “Application [was] purchased by phone.” This is plainly not new information because it was all known by and available to Progressive at the time it filed its motion. It was, however, information that was omitted by Progressive.

Moreover, the dissent claims that material facts going towards Wasoka’s residency were not “covered in Progressive’s filings that accompanied its summary judgment motion.” Post, ¶ 41. To the contrary, Progressive material facts ¶¶ 6, 7, 9,10,11, and 12 all go to the issue of his residency by demonstrating the significant ties that he had to Connecticut prior to purchasing, and during the pendency of, the insurance coverage. Furthermore, Progressive filed a transcript of Wasoka’s second recorded interview as its exhibit 5. The entire content of this interview deals with (1) where Wasoka lived and worked, (2) when he lived and worked at those various places, and (3) the details of the interactions between Wasoka and the insurance agent who sold him the policy. This information is relevant because the substantive fraud claim underlying Progressive’s noncooperation allegations is that Wasoka lied about where he was living and working when he purchased the policy. Progressive claimed it was entitled to an inference of fraud because Wasoka refused to come to the interview under oath to discuss these matters.

8 By creating the specter that this opinion will work major changes in summary judgment law, the dissent attempts to obscure the fact that, as is often the case, Wasoka’s response was limited to issues raised by Progressive’s own motion. Despite any reliance that the trial court may have placed upon timetables in V.R.C.P. 78, our decision on this issue applies existing summary judgment law and does not intend or warrant any changes to it. As we have pointed out, the dissent’s procedural argument relies on its assertion that Wasoka’s memorandum and motion raised “new” issues supported by “new” facts. Neither the issues, nor the facts submitted, were new to Progressive, and in such a case we cannot agree with the dissent’s assertion that V.R.C.P. 56(c)(1) automatically affords the original moving party thirty days to respond. While it may be a good idea to clarify the rules of summary judgment, no such clarification is needed to resolve eases like this one.

9 We do not agree with the dissent’s assertion that our harmless error analysis in this case creates a new procedural requirement for parties against whom summary judgment is granted. We agree that our rules impose no duty to make post-judgment filings prior to appeal. Nonetheless, we cannot ignore the fact that Progressive chose to make such filings in this case, having as its only support counsel’s affirmations about her subjective intent in drafting and filing the motion. By filing these motions, Progressive created its own opportunity to expand the record on appeal — an opportunity that it has squandered by failing to demonstrate, with properly supported facts, that it was truly prejudiced by the trial court’s ruling on the summary judgment motion. Infra, ¶¶ 24425.

10 Progressive did not argue before the trial court that it was working on a response to Wasoka’s memorandum when the court ruled on Progressive’s motion, nor did it assert that it intended to respond to Wasoka’s memorandum. Although Progressive claimed in oral argument that it intended to reply, it failed to make this assertion below in either of its two motions subsequent to the trial court’s summary judgment ruling. Thus, we decline to consider it here. See Spencer v. Killington, Ltd., 167 Vt. 137, 140, 702 A.2d 35, 36 (1997) (“[W]e will not reverse a lower court when a party’s failure to raise some matter below denied the court an opportunity to consider it.”) (quotations omitted).