Michael D. Messier
Kay H. Bushman and The Standard Fire Insurance Company d/b/a Travelers
Appeal from Superior Court, Washington Unit, Civil Division,
Mary Miles Teachout, J.
William L. Durrell of Bookchin & Durrell, P.C.,
Montpelier, for Plaintiff-Appellant.
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.
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
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
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