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Messier v. Bushman

Supreme Court of Vermont

August 24, 2018

Michael D. Messier
v.
Kay H. Bushman and The Standard Fire Insurance Company d/b/a Travelers

          On Appeal from Superior Court, Washington Unit, Civil Division, Mary Miles Teachout, J.

          William L. Durrell of Bookchin & Durrell, P.C., Montpelier, for Plaintiff-Appellant.

          Marie Peck Fabian of Miller Faignant & Fabian, P.C., Rutland, for Defendant-Appellee Bushman.

          Kristin C. Wright of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Defendant-Appellee Travelers.

          PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Morris, Supr. J. (Ret.), Specially Assigned.

          EATON, J.

         ¶ 1. On January 16, 2014, Michael Messier and Kay Bushman were involved in an auto accident in Berlin. Both were the drivers of their respective vehicles and were then-alleged to be Vermont residents. On January 13, 2017, shortly before the statute of limitations was to expire, Messier filed suit against Bushman and her auto insurer, Travelers, for damages he claimed to have sustained in the accident. The claim against Bushman sounded in negligence, the claim against Travelers asserted breach of the Vermont Consumer Protection Act (CPA). The trial court granted a motion for judgment on the pleadings filed by Bushman and a motion to dismiss filed by Travelers. Messier appeals both decisions. We affirm as to Travelers, but reverse and remand concerning Bushman.

         ¶ 2. The background leading to the motion for judgment on the pleadings filed by Bushman is as follows. Messier attempted to serve Bushman with the summons and complaint by sheriff's service at her home. The deputy sheriff's return indicated two dates of attempted service, January 6 and February 1, 2017. The deputy sheriff indicated on his return that service was unable to be accomplished because "Ms. Bushman is in Europe for a semester for school purposes and may return in summer of 2017." No copy of the summons and complaint was left with anyone residing in the household.

         ¶ 3. Messier then attempted substituted service on Bushman through the Commissioner of Motor Vehicles, pursuant to 12 V.S.A. §§ 891-892. In relevant part, 12 V.S.A. § 892(a) requires that: a copy of the process be left at the Commissioner's office along with a $15 fee; a copy of the process with the officer's return showing service upon the Commissioner be sent by plaintiff to defendant by registered or certified mail; and an affidavit of compliance be filed with the process in court. Service on the Commissioner was made on February 21, 2017. On March 1, apparently in an attempt to comply with 12 V.S.A. § 892(a), Messier's counsel filed an affidavit with the trial court indicating the attempt to personally serve Bushman and enclosing that unsuccessful return of service, stating, "We sent by registered mail a copy of the summons, complaint and return of service to the Defendant at the . . . address listed above pursuant to 12 V.S.A. § 892(a)." The affidavit does not reference that service was made on the Commissioner or specify that the return of service that had allegedly been mailed to Bushman was the return documenting completion of service on the Commissioner.

         ¶ 4. A registered letter from Messier's counsel was received at Bushman's home on February 25. After speaking with her daughter, Bushman's mother opened the envelope received from Messier's counsel on March 4, 2017. In addition to the summons and complaint, she asserts that the only return of service in the envelope was the return showing the unsuccessful attempt to serve her daughter at her residence. Bushman's mother also asserts neither the return showing service on the Commissioner nor Messier's counsel's affidavit were in the envelope.

         ¶ 5. Bushman filed an answer to the complaint on March 29, asserting insufficiency of service as an affirmative defense. The next day she filed what she styled as a motion for judgment on the pleadings pursuant to V.R.C.P. 12(c). Following responsive pleadings on the motion, the trial court granted Bushman's motion for judgment on the pleadings on the basis that neither personal nor substituted service had been accomplished on Bushman. In so doing, the court denied Messier's assertion that Bushman had waived any claim of insufficient service by failing to file a timely answer. Thereafter the trial court denied Messier's motion for relief from judgment.

         ¶ 6. Messier's claim against Travelers asserted that Travelers violated the CPA by engaging in unfair claims settlement practices as set forth in 8 V.S.A. § 4724(9). Plaintiff's complaint indicated that Travelers had made at least two settlement offers, which Messier felt were so low as to constitute unfair claims settlement practices under the CPA.

         ¶ 7. Travelers responded to the complaint with a motion to dismiss under V.R.C.P. 12(b)(6), asserting that Messier had no valid cause of action against Travelers under the CPA and that Messier was not a consumer under the terms of the CPA. Following responsive pleadings, the trial court granted Travelers' motion to dismiss, holding that Messier was not a consumer under the CPA and that Travelers did not commit any misleading act in commerce. I. Judgment on the Pleadings Concerning Bushman

         ¶ 8. Bushman's motion for judgment on the pleadings, challenged, inter alia, the sufficiency of service of process. In granting the motion, the trial court entered judgment in favor of Bushman. Messier asserts both that the motion should have been denied and that the court should have dismissed ...


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