United States District Court, D. Vermont
DECISION AND ORDER ON DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT (DOCS. 39, 51, 54)
Geoffrey W. Crawford, Chief Judge United States District
John Mabie, Esq. and his firm Corum, Mabie, Cook, Prodan,
Angell & Secrest, PLC move for partial summary judgment
under Fed.R.Civ.P. 56(a). Defendants move for summary
judgment dismissing Count II (Breach of Fiduciary Duty) and
Count III (Breach of Duty of Good Faith and Fair Dealing) as
duplicative of Count I (Professional Negligence).
Additionally, Defendants move for summary judgment dismissing
Count IV (violation of the Vermont Consumer Protection Act)
because the claim arises from Defendants' legal services.
also move for summary judgment on three issues pertaining to
Plaintiffs alleged damages. First, Defendants move to dismiss
Plaintiffs alleged damages for emotional distress, arguing
such damages are not available under Vermont law. Second,
Defendants ask this court to find that, for the purposes of
damages, Plaintiffs average weekly wage was $27.23. Third,
Defendants ask this court to exclude any damages for past or
future medical treatments of Plaintiffs neck injury.
court held a hearing on Defendants' motion on March 27,
2018, at which time the court took the motion under
advisement. For the reasons discussed below, Defendants'
motion for summary judgment is GRANTED in part and DENIED in
January 2008, Plaintiff worked as a volunteer "ski
ambassador" for the Killington Ski Resort
("Killington"). (Doc. 1 ¶ 7.) As a ski
ambassador, Plaintiff would ski trails and assist customers
with equipment or directions. (Id. ¶ 8.) On
January 12, 2008, Plaintiff fell and sustained serious
injuries while working at Killington. (Id. ¶
result of his fall, on July 23, 2008, Plaintiff entered into
an Agreement for Temporary Total Disability Compensation with
Killington's workers' compensation insurer, MEMIC
Indemnity Company (MEMIC). (Doc. 39-5.) MEMIC agreed to pay
Plaintiff $24.51 per week from January 16, 2008 up until the
end of Plaintiff s total disability. (Id.) MEMIC
came to this amount by calculating Plaintiffs average weekly
wage, which it determined was $27.23 based on the value of a
season ski pass that Killington gave to Plaintiff in lieu of
October 21, 2008, Plaintiff contacted Defendants to represent
him in connection with his workers' compensation claim
against Killington and MEMIC. Both parties agreed, and
Plaintiff entered into a fee agreement with Mr. Mabie on
December 29, 2008, which stipulated that Mr. Mabie would
receive 33 1/3% of the gross amount of permanency and/or
contested temporary benefits recovered on Plaintiffs behalf.
(Doc. 39-6.) Plaintiff then reached a partial settlement with
MEMIC. (Doc. 39-10.) Plaintiff and MEMIC signed a Modified
Form 15 (the form approved by the Vermont Department of Labor
for lump-sum settlement of workers' compensation claims)
and Addendum. Plaintiff received $50, 000 in return for full
and final settlement of "all claims occurring as a
result of the work incident including but not limited to
right ankle, head/TBI and right elbow/biceps," but left
open all future medical treatment relating to "cognitive
or other head injury, including neurological, psychological,
ophthalmological, TBI care and treatment."
(Id.) From this settlement, Defendants received $15,
000 in attorney's fees. (Doc. 39-11.)
the settlement, Mr. Mabie continued to represent Plaintiff in
his efforts to recover medical expenses for his head injury.
Plaintiff and Mr. Mabie did not enter into a new fee
agreement; Mr. Mabie says that he was essentially helping
Plaintiff without compensation. (Doc. 44-1 at 8.) The
Department of Labor ordered payment for approximately $1, 800
worth of items in an order dated January 31, 2012 and amended
on February 6, 2012. (Doc. 44-2 at 1.) The Department awarded
Mr. Mabie's firm $2, 500.00 in attorney's fees for
his work to obtain payment for these and other medical
treatment items. (See Id. at 2.)
April 16, 2013, Defendants filed a motion to withdraw as
counsel, citing a breakdown of communication and cooperation
between Plaintiff and Mr. Mabie. (Doc. 39-12.) After the
Department of Labor granted this motion, Plaintiff retained
new counsel to represent him in challenging the settlement
between Plaintiff and MEMIC, arguing it covered future
medical treatment of Plaintiff s "neck injuries."
In a February 23, 2016 ruling, the Department of Labor held
that the settlement did not require MEMIC to provide for past
or future medical coverage of plaintiffs neck injury. (Doc.
39-13.) Plaintiff appealed this decision to the Rutland
Superior Court where, on November 29, 2017, a jury returned a
verdict in Plaintiffs favor and found that the ongoing
treatment, medical services, and supplies related to
Plaintiffs neck were "necessary for the treatment of
[Plaintiffs] cognitive or other head injury," which
MEMIC was required to provide for pursuant to the settlement.
filed suit against Defendants on July 6, 2016, alleging
professional negligence (Count I), breach of fiduciary duty
(Count II), breach of the implied covenant of good faith and
fair dealing (Count III), and violation of the Vermont
Consumer Protection Act (Count IV). (Doc. 1 ¶¶
Summary Judgment Standard and Applicable Substantive
court may only grant summary judgment "if the movant
shows that there is no genuine dispute as to any material
fact and the movement is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). There is a genuine dispute of
material fact if "the evidence is such that a reasonable
jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Under this standard, the court must resolve all
ambiguities and draw all justifiable factual inferences in
the light most favorable to the nonmoving party. Id.
at 255; Purdy v. Zeldes, 166 F.Supp.2d 935, 940 (D.
diversity action, Plaintiffs professional negligence, breach
of fiduciary duty, breach of implied covenant of good faith
and fair dealing, and consumer protection claims each have
their source in state substantive law, and therefore Vermont
law applies. See Erie R.R. Co. v. Tompkins, 304 U.S.
64, 78 (1938); Rubens v. Mason, 527 F.3d 252, 254
(2d Cir. 2008); Achtman v. Kirby, Mcinerney & Squire,
LLP, 464 F.3d 328, 337 n.4 (2d Cir. 2006).
Whether to Dismiss Claims as Duplicative
argue that Plaintiffs claims for breach of fiduciary duty
(Count II) and breach of implied covenant of good faith and
fair dealing (Count III) are duplicative of his professional
negligence claim (Count I) and should therefore be dismissed.
The court will address the claims separately.
Breach of Fiduciary Duty (Count II)
court begins by reviewing the state of the law on
breach-of-fiduciary-duty claims for lawyers accused of
wrongdoing by their clients. Vermont recognizes that lawyers
owe fiduciary duties to their clients. See DeYoung v.
Ruggiero, 2009 VT 9, ¶ 28, 185 Vt. 267, 971 A.2d
627 (lawyer is a fiduciary); In re Conner, 2006 VT
131, ¶ 10, 181 Vt. 555, 917 A.2d 442 (mem.) (same);
In re Capriola, 134 Vt. 548, 367 A.2d 689 (1976)
(per curiam) (same). It is true that in Bloomer v.
Gibson, the Vermont Supreme Court stated that "an
action to recover for legal malpractice lies in tort, on the
theory of the attorney's negligence." 2006 VT 104,
¶ 24, 180 Vt. 397, 912 A.2d 424. But in context that
statement does not rule out all other potential theories; the
Court went on to state that a breach-of-contract theory might
be appropriate in a case where the plaintiff alleged breach
of "specific or special obligations" in the
Vermont Supreme Court has cited the Restatement (Third) of
the Law Governing Lawyers, which explicitly contemplates
actions based on negligence or on breach of fiduciary duty.
See Vincent v. DeVries, 2013 VT 34, ¶ 26, 193
Vt. 574, 72 A.3d 886 (citing Restatement (Third) of the Law
Governing Lawyers § 53 cmt. b). The Restatement acknowledges
the potential overlap between negligence and fiduciary breach
theories. Restatement (Third) of the Law Governing Lawyers
§ 49 cmt. c ("Many claims brought by clients
against lawyers can reasonably be classified either as for
breach of fiduciary-duty or for negligence without any
difference in result."). Yet nothing in the Restatement
suggests that fiduciary breach claims should be dismissed as
duplicative. See Id. § 49 (claims based on
fiduciary duty are available "[i]n addition to the other
possible bases of civil liability"). Nevertheless, some
commentators- including the Restatement's chief reporter,
Professor Charles W. Wolfram-maintain that claims against
lawyers for fiduciary breach raise concerns "because of
their almost complete and useless overlap with available
claims of negligence." Charles W. Wolfram, A
Cautionary Tale: Fiduciary Breach as Legal Malpractice,
34 Hofstra L. Rev. 689, 692 (2006) ("Cautionary
Defendants seek dismissal of Count II on the basis of court
decisions that have attempted to minimize that overlap.
Defendants rely on cases interpreting New York law holding
that "where a claim for breach of fiduciary duty is
'premised on the same facts and seeking the identical
relief as a claim for legal malpractice, the claim for
fiduciary duty 'is redundant and should be
dismissed.'" Nordwind v. Rowland, 584 F.3d
420, 432-33 (2d Cir. 2009) (quoting Weil, Gotshal &
Manges, LLP v. Fashion Boutique of Short ...