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Lefrancois v. Killington/Pico Ski Resort Partners, LLC

United States District Court, D. Vermont

December 19, 2019

ARA LEFRANCOIS, Plaintiff,
v.
KILLINGTON/PICO SKI RESORT PARTNERS, LLC, Defendant.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS (DOC. 5)

          Christina Reiss, District Judge

         Plaintiff 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.

         Pending 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.

         Plaintiff is represented by John Paul Faignant, Esq. Defendant is represented by Andrew H. Maass, Esq.

         I. Factual and Procedural Background.

         A. The Complaint's Allegations.

         On June 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.

         On 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.

         Approximately 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 Civil Suit").

         In the 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.

         Prior 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.

         "In 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.

         Plaintiff 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.

         With 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] orthop[]edic 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 Defendant:

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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.)

         B. The ...


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