Messier v. Bushman ( 2017 )

Messier v. Bushman, No. 34-1-17 Wncv (Teachout, J., Aug. 10, 2017).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 34-1-17 Wncv
MICHAEL D. MESSIER
Plaintiff
v.
KAY H. BUSHMAN AND THE STANDARD FIRE
INSURANCE COMPANY D/B/A TRAVELERS,
Defendants
DECISION
Ms. Bushman’s Motion for Judgment on the Pleadings
Mr. Messier’s Motion for Partial Summary Judgment
Mr. Messier’s Motion for Entry of Default
Travelers’ Motion to Dismiss
Plaintiff Michael Messier alleges that Defendant Kay Bushman is liable for injuries he
suffered in an automobile collision with her, and that her auto insurer, Defendant The Standard
Fire Insurance Company d/b/a Travelers, is liable for consumer fraud for failing to settle his
claim pre-suit. Ms. Bushman has filed a motion for judgment on the pleadings arguing that Mr.
Messier failed to properly serve her with process and the statute of limitations now has run. Mr.
Messier has filed a motion for partial summary judgment seeking to establish Ms. Bushman’s
liability for the collision. Mr. Messier also has filed a motion for entry of default against
Travelers, which has filed a motion to dismiss the consumer fraud claim, arguing that the
relationship between a third-party tort plaintiff and the tortfeasor’s insurer does not fall within
the contemplation of the Consumer Protection Act.
Ms. Bushman’s Motion for Judgment on the Pleadings
The car accident occurred on January 16, 2014. The complaint was filed on January 13,
2017, a few days before the three-year statute of limitations, 12 V.S.A. § 512(4), would have
expired. Timely filing of the complaint tolls the statute of limitations so long as service is timely
under the rules. Bessette v. Dep’t of Corr., 2007 VT 42, ¶¶ 7–12, 182 Vt. 1; Clark v. Baker,
2016 VT 42, ¶ 15. Service was due within 60 days of filing the complaint. V.R.C.P. 3. There
has never been any Rule 6 request to extend the time for service.
The first attempt at service occurred at Ms. Bushman’s Vermont residence. It was
discovered that Ms. Bushman was out of the state for a semester abroad. Process was not left
with any other resident of the household.
Mr. Messier then attempted substitute service on the commissioner of motor vehicles
pursuant to 12 V.S.A. §§ 891–892. Section 892(a) provides in pertinent part:
Service of process shall be made by leaving a copy of the process with a fee of
$15.00 with the Commissioner, or in his or her office. Service shall be sufficient
upon the person, provided that a copy of the process with the officer’s return on it,
showing service upon the Commissioner as provided in this section, is sent by the
plaintiff to the defendant, or the personal representative of his or her estate, by
registered or certified mail, and provided further that the plaintiff’s affidavit of
compliance is filed with the process in court.
12 V.S.A. § 892(a). According to the return, Mr. Messier served the commissioner on February
21, 2017. He then was required to send a copy of the process and the return of service on the
commissioner to Ms. Bushman by registered or certified mail and file an affidavit of compliance
with the court.
Mr. Messier’s affidavit of compliance includes one relevant assertion: “We sent by
registered mail a copy of the summons, complaint and return of service to the Defendant at the
Chase Road address listed above pursuant to 12 V.S.A. § 892(a).” Ms. Bushman’s parents, at
whose address the mailing was sent, received the registered letter on February 25, 2017 and
opened it on March 4, once they had Ms. Bushman’s permission to do so. It included the
complaint and a summons and the return of service showing that service was not made on Ms.
Bushman personally at her residence.1 It did not include the return of service on the
commissioner of motor vehicles as required by § 892(a). It therefore provided no notice of the
substitute service.
With actual notice of the lawsuit, Ms. Bushman filed an answer on March 29 noting the
defect in service and, the next day, her Rule 12(c) motion asserting it as a basis for judgment on
the pleadings. Mr. Messier argues that service was properly completed, and Ms. Bushman
waived her defective service argument anyway by not asserting it in a timely manner.
Mr. Messier never perfected service. Service on the commissioner required that he send
a copy of the return of service on the commissioner to Ms. Bushman and he never did. He also
was required to file an affidavit with the court showing compliance with the statute. While he
filed an affidavit, it did not show compliance with § 892(a). It neither asserted that the
commissioner had been served or that a return of service on the commissioner had been sent to
Ms. Bushman. This was, in effect, no different from simply mailing a copy of the summons and
complaint to a defendant at her Vermont residence knowing that she was temporarily out of the
country, which is not contemplated by either Rule 4 or 12 V.S.A. §§ 891–892.
Substituted service statutes must be complied with strictly. Brammall v. LaRose, 105 Vt.
345, 349 (1933); see generally, e.g., Taft-Blakely v. Reinhart Foodservice, LLC, No. 2015-314,
2016 WL 3248841 (Vt. June 9, 2016) (noting that failure to strictly adhere to requirements of 12
V.S.A. § 892 led to dismissal in trial court). Actual notice does not render a defect in formal
service moot. Fercenia v. Guiduli, 2003 VT 50, ¶ 12, 175 Vt. 541 (“That defendants had notice
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Ms. Bushman argues that the summons is void because it was misdated as executed in 2016 rather than 2017. It is
unnecessary to address this argument due to the court’s ruling on the defective service and statute of limitations
issues.
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of plaintiff’s claim is of no moment.”). There is no evidence that Ms. Bushman was attempting
to avoid service or of any other basis for an estoppel against her.
Mr. Messier argues, however, that Ms. Bushman waived this matter by not raising it in a
timely manner. Rule 12(h)(1) establishes that certain defenses, including insufficiency of service
of process, are waived if not raised in a viable Rule 12 motion or included in a responsive
pleading. A party with actual notice of the suit, despite any defect in service, remains subject to
that rule. Myers v. Brown, 143 Vt. 159, 167 (1983). The Myers Court described the rule as
follows: “absent a failure of due process, a party who has received actual notice of a suit against
him must raise all the jurisdictional objections listed in V.R.C.P. 12(h)(1) within the time and in
the manner prescribed by that rule, else they are waived.” Id.Mr. Messier argues that Ms. Bushman was in default at the time of her motion.
Ordinarily, the answer is required to be filed within 20 days of service. V.R.C.P. 12(a)(1)(A).
Mr. Messier notes that Ms. Bushman’s answer was not filed within 20 days of receipt of his
mailing at her residence or the day her parents opened the letter. He apparently considers that a
default and a waiver under Myers and Rule 12(h)(1).
Myers does not require the result urged by Mr. Messier, and the court declines to so
interpret it. The issue is explained in a leading treatise as follows:
Although this approach has the desirable effect of compelling the early assertion
of the Rule 12(b)(2) through Rule 12(b)(5) defenses, it is premised on an overly
strict interpretation of the language of Rule 12(a) and Rule 12(h)(1). The former
provision only deals with the time at which the pleading must be served and is
silent on the question of waiver. The latter provision does not call for the
assertion of the defense within the time provided in Rule 12(a) for serving a
responsive pleading; it merely dictates waiver if the defense is not made by
motion or included in the responsive pleading, presumably whenever it may
happen to be served. There do not appear to be any recent cases applying the
Rule 12(a) benchmark for waiver.
5C Wright & Miller et al., Federal Practice & Procedure: Civil 3d § 1391 (footnote omitted); see
also Rollo v. Cameron, 2013 VT 74, ¶ 12, 194 Vt. 499 (describing the holding of Myers as
follows: “we have held that where, as here, a party was afforded actual notice of an action, and
later suffers a default judgment, the failure to plead defective service results in a waiver of the
issue on appeal” (emphasis added)); In re Stocker, 133 Vt. 161, 163 (1975) (“[T]he failure to
raise a defense based on insufficiency of service of process for thirteen months after the bringing
of the appeal puts the question out of reach by waiver.” (emphasis added)).
Unlike in Myers, this is not a case where a defendant perceived a service defect, did
nothing, allowed a default judgment to enter, and much later sought to avoid that judgment under
Rule 60(b). Ms. Bushman promptly filed an answer and Rule 12 motion asserting the defect in
service and there was never any motion for entry of a default judgment. Accordingly, she did
not waive the defect in service issue under Rule 12(h)(1).
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While the timely filing of the complaint tolled the statute of limitations for 60 days, it
resumed thereafter when service on Ms. Bushman was not perfected and no extension of time for
service was requested or granted. Now the limitations period has expired. Mr. Messier’s tort
claim against Ms. Bushman is untimely and must be dismissed.
Mr. Messier’s Motion for Partial Summary Judgment
Mr. Messier seeks partial summary judgment on the issue of Ms. Bushman’s tort liability.
This matter is moot as the tort claim is untimely.
Mr. Messier’s Motion for Entry of Default against Travelers
Mr. Messier filed a motion seeking the entry of default because Travelers failed to plead
or defend in a timely manner. V.R.C.P. 55(a). The court declines to enter any default. The
record is clear that the attorneys for Mr. Messier and Travelers were in communication,
Travelers verified that it was properly served on Mr. Messier’s request, and Mr. Messier assented
to an open-ended extension for Travelers’ answer or defense on its request. See Desjarlais v.
Gilman, 143 Vt. 154, 158–59 (1983) (“[T]he rules relating to default judgments should be
liberally construed in favor of defendants, and of the desirability of resolving litigation on the
merits, to the end that fairness and justice are served.”).
Travelers’ Motion to Dismiss
Mr. Messier claims that Travelers failed to voluntarily pay his claim pre-suit. It offered,
he asserts, a settlement amount that he was unwilling to accept. This, he claims, violated
Vermont’s Consumer Protection Act, 9 V.S.A. §§ 2451–2466b. Travelers argues that the selling
of insurance falls outside the scope of the Act altogether and, in any event, Mr. Messier is a
stranger to the transaction to which it otherwise might apply: Ms. Bushman’s purchase of
insurance from Travelers.
In 1981, the Vermont Supreme Court ruled that insurance is not a good or service within
the meaning of the Consumer Protection Act. Wilder v. Aetna Life & Cas. Ins. Co., 140 Vt. 16,
18 (1981). As explained in a recent trial court decision, subsequent statutory amendments appear
to undermine the basis for this holding of Wilder. See Blake v. Progressive Northern Ins., No.
164-9-15 Oecv, 2016 WL 1167746, *1–2 (Vt. Super. Ct. Feb. 4, 2016) (concluding that
insurance now is within the meaning of good or service and subject to the Act). As the Blake
decision explains, there now is a split among the few trial courts to have addressed whether
Wilder remains good law on this issue.
The court need not add its voice to the debate over Wilder here. If the Act now applies to
first party insurance transactions, matters between the insurance company and its insured, the
court concludes that it nevertheless does not apply to the claims of third parties such as Mr.
Messier. Mr. Messier is a tort plaintiff only. He had nothing to do with Ms. Bushman’s
purchase of insurance from Travelers. He therefore is not a consumer under the Act. See 9
V.S.A. § 2451a(a) (“‘Consumer’ means any person who purchases, leases, contracts for, or
otherwise agrees to pay consideration for goods or services not for resale in the ordinary course
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of his or her trade or business but for his or her use or benefit or the use or benefit of a member
of his or her household.”). Mr. Messier neither bought nor attempted to buy anything from
Travelers.
There also was no misleading act “in commerce.” Commerce refers to the “consumer
marketplace.” Foti Fuels, Inc. v. Kurrle Corp., 2013 VT 111, ¶ 21, 195 Vt. 524. “[T]ransactions
resulting not from ‘the conduct of any trade or business’ but rather from ‘private negotiations
between two individual parties who have countervailing rights and liabilities established under
common law principles of contract, tort and property law’ remain beyond the purview of the
statute.” Id. This is the case here. The Act simply does not apply to Mr. Messier’s pre-suit
settlement negotiations with Travelers.
ORDER
For the foregoing reasons:
(a) Ms. Bushman’s motion for judgment on the pleadings is granted;
(b) Mr. Messier’s motion for partial summary judgment is denied as moot;
(c) Mr. Messier’s motion for entry of default is denied; and
(d) Travelers’ motion to dismiss is granted.
A separate judgment is issued this date.
Dated at Montpelier, Vermont this 10th day of August 2017.
_____________________________
Mary Miles Teachout
Superior Judge
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