United States District Court, D. Vermont
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO
DISMISS (DOC. 5)
Christina Reiss, District Judge
Ara Lefrancois ("Plaintiff) brings this action against
Defendant Killington/Pico Ski Resort Partners, LLC
("Defendant") alleging three claims arising out of
a pending state court lawsuit related to injuries she
sustained in a skiing accident at Defendant's resort: (1)
abuse of process; (2) breach of the implied covenant of good
faith and fair dealing; and (3) tortious infliction of
emotional distress. Plaintiff seeks compensatory and punitive
damages in unspecified amounts.
before the court is Defendant's motion to dismiss,
asserting that the court should abstain from hearing this
case on the basis that there are ongoing parallel state court
proceedings. (Doc. 5.) Plaintiff opposes dismissal.
is represented by John Paul Faignant, Esq. Defendant is
represented by Andrew H. Maass, Esq.
Factual and Procedural Background.
The Complaint's Allegations.
9, 2014, Plaintiff, a Vermont resident, purchased an adult
season pass to Pico Mountain, which entitled her to the full
use and enjoyment of the ski lifts and tramways operated by
Defendant to access its ski resorts in Vermont. She alleges
that Defendant is a "foreign corporation authorized to
do business in the State of Vermont," (Doc. 1 at 1,
¶ 3), and that the court has diversity jurisdiction
pursuant to 28 U.S.C. § 1332.
February 8, 2015, Plaintiff was skiing at Defendant's
resort and boarded the "Knomes Knoll Triple" chair
lift. Id. at 2, ¶ 9. As Plaintiff boarded the
chair lift, Defendant's employee, Luicio Ianieri, was
allegedly engaged in "horse playing within the tramway
chairlift boarding area." Id. at 3, ¶ 11.
Mr. Ianieri lost control of his snowboard and "crashed
into Plaintiff, ripping her from the chair like a wishbone
and sl[a]mming her face first into the ground 8 feet
below." Id. at 3, ¶ 12. As a result of the
injuries she sustained in this incident, Plaintiff alleges
she "is now imprisoned in a life filled with physical
and mental pain. She will never ski again." Id.
at 3, ¶ 14.
two weeks later, Defendant completed its investigation and
allegedly "confirmed [Plaintiffs] account [of the
incident] in an email chain involving the risk manager, and
the top management officials of [Defendant]."
Id. at 3, ¶ 15. When the parties could not
agree regarding a resolution, she filed suit in Vermont
Superior Court against Defendant and Mr. Ianieri on February
5, 2016, alleging claims of negligence, negligence related to
Defendant's status as a common carrier, breach of its
statutory duty to operate its ski lift in a safe manner
pursuant to 21 V.S.A. §§701 and 704, and vicarious
liability for the actions of Mr. Ianieri (the "Vermont
course of the Vermont Civil Suit, Defendant's counsel
allegedly represented Mr. Ianieri as one of Defendant's
employees but declined to accept service on his behalf.
Because Mr. Ianieri is a citizen and resident of Argentina,
Plaintiff was required to effect service under the provisions
of the Hague Convention. Plaintiff incurred costs in her
efforts to serve Mr. Ianieri, including the cost of
translating the pleadings into Spanish and placing telephone
calls to a "freight delivery business in Argentina
believed to have been Mr. Ianieri's
then-employer[.]" (Doc. 1 at 4, ¶ 19.) To date, Mr.
Ianieri has not been served.
to her filing of the Vermont Civil Suit, Defendant allegedly
represented to Plaintiff through email that Mr. Ianieri was
working in the course and scope of his employment at the time
of the incident. Plaintiff characterizes this pre-suit
communication as a contract and asserts that she relied on
this representation in ceasing "all efforts to serve Mr.
Ianieri[.]" Id. at 5, ¶ 22. When Defendant
filed its Answer in the Vermont Civil Suit, it "denied
its attendant [Mr. Ianieri] was in the course and scope of
his employment 'at the time of the injury [, ]' for
the ulterior motive and purpose of breaching its contract
with Plaintiff." Id. at 5, ¶ 23. "Due
to [Defendant's] breach of its contract with Plaintiff,
Plaintiff was forced to renew her efforts to serve Mr.
Ianieri in Argentina, at additional expense."
Id. at 5, ¶ 24.
refusing to accept service, [Defendant] was ensuring
Plaintiff (who spent $1, 000 dollars in unnecessary attempts
to serve in Argentina) would be unable to depose the
attendant [Mr. Ianieri] to confirm [his] course and scope of
employment at the time of injury." Id. at 5,
¶ 25. Plaintiff further alleges that when she requested
emails concerning the event, Defendant denied under oath the
existence of an email chain that confirmed her version of the
accident. Plaintiff asserts Defendant's contention that
she was at fault for her injuries is "without any basis
in fact." Id. at 6, ¶ 29.
alleges that Defendant's risk manager lost his internal
file which reflected Defendant's investigation of
Plaintiff s injuries three days prior to his deposition and
thereafter denied under oath that the investigation
"confirm[ed] the attendant [Mr. Ianieri] had been
horsing around when Plaintiff was injured" despite the
risk manager's participation in the email chain
confirming those findings. (Doc. 1 at 6, ¶ 33.) He
further "admitted under oath that [Defendant] had filed
false and misleading pleadings" in the Vermont Civil
Suit. Id. at 6, ¶ 34. According to Plaintiff,
Defendant has since "admitted what it had been lying
about all along" and has conceded liability.
Id. at 7, ¶ 36.
respect to her medical care, Plaintiff alleges that Defendant
"enjoyed a special relationship with many of the local
medical service providers, and in particular, [P]laintiff s
primary care provider, hospital, [and] orthopedic and
mental health services Plaintiff required as a result of her
injuries." Id. at 7, ¶ 37. "In
addition to [Defendant's] special relationship, it was
aware that its chosen attorney also represented those
providers who treated [P]laintiff for injuries caused by
[Defendant]." Id. at 7, ¶ 38. Plaintiff
asserts that Defendant's counsel requested to depose some
of those providers and then allegedly "used these
special relationships to prohibit Plaintiff from meeting with
her own doctors prior to their being deposed."
Id. at 7, ¶¶ 39-40. Plaintiff alleges that
was aware that its attorney had an actual conflict of
interest in that its attorney's medical center client
was/is adverse to [Defendant], in that the medical center
client physicians have rendered reports and testimony
contradicting [Defendant's] denial of causation of
Plaintiff s injuries, and have opined that Plaintiffs
physical and mental health injuries were all directly and
proximately caused by the action of [Defendant].
(Doc. 1 at 7, ¶ 42.) Plaintiff further contends that
Defendant "used its attorney's dual representation
of both Plaintiffs medical center physicians and [Defendant]
on material issues, which resulted in its attorney
cross-examining or criticizing his own medical center
client's standards and qualifications in an attempt to
diminish the effect of their testimony against
[Defendant]." Id. at 8, ¶ 43. In response
to Plaintiffs "claim of interference with her treating
physicians," Defendant also allegedly "made a false
denial on a material issue" by speaking on those
providers' behalf, without their knowledge, "about
their unwillingness to speak with Plaintiff and her
counsel[.]" Id. at 8, ¶ 44.
asserts that Defendant filed a series of false pleadings in
the Vermont Civil Suit and "wasted court time and
resources on a material issue, without any basis in fact,
forcing Plaintiff to file multiple unnecessary motions to
address the course and scope [of the] issue."
Id. at 8, ¶ 48. She further alleges that
Defendant "willfully and falsely denied the existence of
material documents in discovery and intentionally withheld
their production[, ]" id. at 8, ¶ 49, and
that it "knowingly served false responses to discovery
on material issues." Id. at 9, ¶ 50.
further alleges that Defendant "[gave] false testimony
under oath, and issu[ed] an improper subpoena[, ]" which
she asserts "constitutes an improper and unauthorized
use of the court process." (Doc. 1 at 9, ¶ 53.) As
a result, she "suffered . . . unnecessary expenses and
attorney's fees." Id. at 11, ¶ 64.
asserts that Defendant's conduct "as set out in the
Complaint" breached the covenant of good faith and fair
dealing implied in her season pass contract and the
"pre-suit contract" created by Defendant's
email regarding the incident. Id. at 11,
¶¶ 71-72. She alleges that Defendant engaged in
"outrageous conduct which was done intentionally and/or
with reckless disregard of the probability of causing
emotional distress to Plaintiff, and which in fact did result
in the suffering of extreme emotional distress[.]"
Id. at 12, ¶ 74.
seeks emotional distress damages, as well as punitive
damages, based on Defendant's "willful and
intentional breach of its obligation of good faith and fair
dealing in willful and wanton disregard of the Plaintiffs
rights[, ]" its "willful and intentional breach of
its obligations as a litigant[, ]" and its
"wrongful conduct toward the Plaintiff[.]" (Doc. 1
at 12-13, ¶¶ 77-79.)