Sunday, May 17, 2015

"Back" to the Future: Part II

Marshall v. State, 2015 VT 47A

By Andrew Delaney

This opinion, which we reported on just a couple weeks ago, “differs from the original opinion only in ¶ 21 and the mandate.” If you haven’t already read that summary, shame on you.

So what’s this update all about? Well, in the original opinion, the SCOV reasoned that Mr. Marshall wasn’t entitled to further permanent-partial-disability benefits, and therefore didn’t get attorney’s fees because he didn’t “substantially prevail,” which as all o’ y’all know, is required for an attorney’s-fee award in a worker’s-compensation case. In paragraph 21 of this opinion, the SCOV notes that the superior court’s determination that Mr. Marshall is entitled to further medical benefits actually stands, and so the superior court needs to reassess attorney’s fees in light of Mr. Marshall’s partial success.

That’s all, folks.

Thursday, May 7, 2015

Mental Health Issues Are Hard

In re T.S.S., 2015 VT 55

By Elizabeth Kruska

T.S.S. is a man in his mid-30s. He lives in Rutland. He has a form of schizophrenia that causes him to have delusions and that can cause deterioration in his functioning. For the last fifteen years or so, he’s worked with doctors and case managers, and has taken medication. Off and on since 2000 he was ordered by various courts to take medication..

Here’s what we know. T.S.S. started showing symptoms of schizophrenia in 1999, and started to show signs of hurting himself. He went to the Vermont State Hospital, and was released in 2000 on an order of non-hospitalization (ONH). T.S.S. did well on the ONH. The State wanted the ONH continued and so filed in court to extend it. That request was denied. T.S.S. is a talented musician, and went to California to be a drummer in a band for a while. He came back to Vermont in 2003 and started having delusions again. This time, the delusions could have been harmful to him, as he believed people were poisoning his food. He was hospitalized again, and later released on another ONH, which was continued by the court for an additional year. He was under an ONH until 2008, when his service providers decided not to ask to continue it. From 2008–2012 T.S.S. doesn’t seem to have gotten any services, but nobody heard a peep from him, either.

Wednesday, May 6, 2015

Why Rent When You Can Litigate?

B & C Management Vermont, Inc. v. John, 2015 VT 61

By Amy Davis

Back in 1987, a lease was established on a commercial property in Brattleboro for $26,500 annually. The lease also set out how rent would increase in subsequent years. The part of the lease that matters here put forth increasing rent based on cost-of-living increases. Because of that provision, the landlord calculated the annual rent increase each year and sent a notice to the tenant. The increase was added to the old rent to arrive at the new rent.

In 2007, the tenants assumed the lease and the rent increases went uncontested from 2008-2012. In 2013, the landlords sent notice to the tenants that the new rent was $54,060. The tenants objected to both the amount and the way rent had been calculated. I don’t really blame themmath is pretty hard. Landlord and tenant couldn’t work it out, so tenant sought a declaration that its interpretation of the lease language was correct, and also wanted damages for overpaid rent.

Both parties moved for summary judgment. Tenant based on the plain language of the lease, and the 4% cap on the difference between the Consumer Price Index and blah blah blah (I told you math is hard, so I’m not about to explain it now). Tenant said they should pay $45,819.83. Landlords had some jiggery pokery math of their own, and calculated the rent as $57,836. They also argued that if the lease was ambiguous, then the court should use the method of calculation the parties had used in the years prior.

Wednesday, April 29, 2015

"Back" to the Future

Marshall v. State, 2015 VT 47

By Andrew Delaney

If you’ve ever injured your back, you probably know that it’s never really the same as it was before the injury. Just twisting the wrong way can mean the better part of a week in bed annoying the hell out of one’s spouse asking for more pillows, the television remote, Tylenol, and food and drink. Or at least for me that’s what it means.

When you get injured at work, you usually qualify for worker’s compensation benefits. Once you’ve reached the end of your treatment, a doctor (or two or three) will assess whether the injury has a permanent effect and if so, to what degree. This analysis results in a so-called whole-person impairment rating.

The short story is that Mr. Marshall, a state employee, injured his back at work back in 2002. He received “an 8% whole-person impairment rating, with 6% of that rating referable to a previous injury.” He settled with his employer and the commissioner of the department of labor approved the settlement. Six years later, he completed “two more permanency evaluations with different doctors who both used a method that the first doctor had not used.” Both resulted in higher ratings. So Mr. Marshall made a claim for additional benefits. The commissioner ruled against him. So Mr. Marshall appealed to the superior court, which found in his favor after a bench trial and awarded additional benefits. 

Sunday, April 19, 2015

Ambiguity? What Ambiguity?

Cincinnati Specialty Underwriters Insurance Co. v. Energy Wise Homes, Inc., 2015 VT 52

By Andrew Delaney

Ah, insurance law—where “You get what you pay for” isn’t just a maxim, but a shield, sword, and everything else in between. We’re going to skip a lot of the finer details on this one—not because they’re completely unimportant but because they’re totally boring and they’re not really required to understand what’s going on. Also: (1) I’m lazy; (2) some of the terms are drier than the Sahara; and (3) there’s a link to the opinion at the top, so you can nerd out to your heart’s content should you so desire without me having to do it for you.

Energy Wise Homes specializes in insulation. It bought a commercial general liability policy from Cincinnati Specialty Underwriters Insurance Company, which I think we should just call “Cinci” for brevity’s sake. The policy was a “surplus lines” policy, which means it’s a policy written by a company not licensed in the state, usually because the insured activity represents a “unique” risk. The policy contained a “total pollution exclusion,” which—and this is where we’re going to skip some of those finer details—basically excluded coverage for injuries from anything airborne.

Thursday, April 16, 2015

Substantiation Stricken

In re K.R.2015 VT 58

By Elizabeth Kruska

This case is about an appeal of a DCF substantiation. A substantiation is a finding made by DCF upon doing an investigation and finding that a person has abused or neglected a child or placed a child at risk of harm. Risk of harm is a “significant danger that a child will suffer serious harm other than by accidental means.” If a person is substantiated, his or her name gets placed on a child protection registry list. This all happens at the administrative agency level; there might be a court case that goes with it or there might not.

The child protection registry is not accessible to the public, but can be checked upon request by certain employers doing background checks or by certain government agencies. Having your name on the list means you might not get certain jobs, you might not get to be a foster parent, or you might be on DCF’s radar with respect to your own kids, just to name a few things. Even though it’s not publicly-accessible, it is potentially hurtful to have your name on this list.

Tuesday, April 14, 2015

Sanction Starting-Points

In re PRB Docket No. 2012-1552015 VT 57

By Elizabeth Kruska

And we’re back with another client-trust-accounting issue from the Professional Responsibility Board. The facts here are pretty simple. Attorney has been in practice in one form or another for about 30 years. He set up an interest on lawyers trust account (IOLTA) for client funds, and created a separate subaccount within that account for some personal funds. He had a bookkeeper helping him with his books.

Attorney received a random audit request, which attorneys get from time to time. It’s like drawing a Chance card in Monopoly, except instead of passing Go and collecting $200, you have to audit your IOLTA account and make sure everything is accounted for, and if it’s not you can get into some trouble. It’s less fun than you’d think.

In any case, Attorney realized that he had been violating a rule of IOLTA accounting by putting personal funds into a subaccount. He hired a CPA and a lawyer, and he ordered all his banking records going back about 15 years in an effort to correct any errors. He overhauled his entire bookkeeping practice. He presented all this information to the PRB’s hearing panel. He went well beyond what was required of him in fixing the problem. He worked with Disciplinary Counsel and they agreed that he was negligent in his actions. The hearing panel took all this into account, along with Attorney’s remorse and the fact that no client was ever harmed by any of the accounting issues, and issued a sanction. The sanction started as a public reprimand, but due to the mitigating factors, was reduced to a private admonition.

Monday, April 13, 2015

Disparate Threads

State v. Congress, 2014 VT 129

By Ember Tilton

In this sad tale of murder and mental instability, SCOV was asked to tie together two stray threads of our jurisprudence and clarify whether diminished capacity can relieve a defendant of culpability for murder in such a manner as to permit her to be convicted voluntary manslaughter by a jury. The problem lies with the choice of words from prior cases. Ah, yes . . . definitions. See, voluntary manslaughter has been traditionally defined as an intentional killing that is excused because of provocation or heat of the moment irrational thinkinga.k.a. the "heat of passion" defense. However, diminished capacity has been widely used to reduce murder to manslaughter in Vermont as well.

Picture how you feel when Netflix won't load. Yeah, so if that was happening and a Netflix exec walked up to your door and you kicked him, you might be somewhat excused because there was a factor which caused you to act in a manner which you were not expecting. Also, if the judge had ever been unable to watch a favorite show, she might well identify with your mental unrest and feel some mitigation instruction was warranted.

Sunday, April 12, 2015

Nothin’ Funny ‘Bout College Tuition

Dyke v. Scopetti, 2015 VT 53

By Amy Davis

This case involves a separation agreement wherein Dad agreed to pay for the kids’ college tuition. Because THAT’S a good idea. Wasn’t there an entire movie made about how that’s a bad promise to make? Get the kids a nice rescue dog, instead. Jeez.

Mr. and Mrs. Scopetti separated back in 1998 in Pennsylvania. Their two-page, hand-written separation agreement stipulated that Dad would pay for their two daughters’ college tuition at “an institution acceptable to Frank Scopetti.” This probably seemed like a good idea back in 1998 but nobody would agree to that now. Not if you ever saw my student loan statements, all nicely organized in a shoebox marked “Do Not Open.”

Pennsylvania granted the divorce decree in 2000. Mom moved to Vermont and Dad moved to Arizona. In 2010, Mom registered the support order in Vermont, and that fall, Indie (the eldest daughter) started school at George Mason University (GMU) in Virginia. For the 2010-11 school year, Dad only paid a portion of the tuition.

Saturday, April 11, 2015

Don't Listen to Bon Jovi

In re PRB Docket No. 2013.160, 2015 VT 54 (mem.)

By Andrew Delaney

In Living on a Prayer, Jon Bon Jovi sings, “We’ve got to hold on to what we’ve got.” If “what we’ve got,” however, are checks written to our firm from one of our trust accounts, then Mr. Bon Jovi better shut his damned yapper.

The SCOV’s opinion in this case is really just one paragraph. I’ve made the Beyoncé-says-put-a-ring-on-it joke too many times— including once before on a similar PRB decision—to try to play it off as something new, though I steadfastly refuse to stop finding it amusing. Basically, the SCOV says, “Publish it!” to the hearing panel’s decision in this case.

“So what’s the decision?” you might ask. Well, respondent gets admonished by disciplinary counsel “for holding uncashed checks in the amount of $124,797.40 drawn on her trust account for a period of seven months.” Thanks, Bon Jovi. Real good advice, there. Livin' on a prayer, indeed.