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Kibbie v. Corum Mabie Cook Prodan Angell & Secrest, PLC

United States District Court, D. Vermont

September 6, 2018

CORUM MABIE COOK PRODAN ANGELL & SECREST, PLC, and JOHN MABIE, ESQ., in his individual capacity, Defendants.


          Geoffrey W. Crawford, Chief Judge United States District Court

         Defendants 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.

         Defendants 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.

         The 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 part.


         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. ¶ 10.)

         As a 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 salary. (Id.)

         On 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.)

         After 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.)

         On 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. (Doc. 39-15.)

         Plaintiff 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 ¶¶ 35-59.)


         I. Summary Judgment Standard and Applicable Substantive Law

         This 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. Vt. 2001).

         In this 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).

         II. Whether to Dismiss Claims as Duplicative

         Defendants 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.

         A. Breach of Fiduciary Duty (Count II)

         The 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 contract. Id.

         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).[1] 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 Tale").

         Here, 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 ...

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