Hemond v. Frontier Commc’ns of Am., Inc., No. S0991-09 CnC (Grearson, J., Oct. 18, 2012) 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

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STATE OF VERMONT 

SUPERIOR COURT CIVIL DIVISION 

Chittenden Unit Docket No. S0991-09 CnC 

MICHAEL HEMOND and 

TRACEY HEMOND 

 Plaintiffs 

 v. 

FRONTIER COMMUNICATIONS OF 

AMERICA, INC., f/k/a CITIZENS 

COMMUNICATIONS COMPANY, 

d/b/a CITIZENS ENERGY SERVICES, 

VERMONT ELECTRIC POWER COMPANY, INC., 

STANTEC CONSULTING, INC., STANTEC 

CONSULTING CORPORATION, STANTEC 

CONSULTING SERVICES, INC., f/k/a 

DUFRESNE HENRY, NAVIGANT CONSULTING, INC., 

TURNER ELECTRIC CORPORATION, TURNER 

ELECTRIC, LLC, GRAYBAR ELECTRIC COMPANY, INC. 

Defendants 

RULING ON NAVIGANT’S MAY 1, 2012 MOTION FOR SUMMARY JUDGMENT 

 Navigant’s motion in this personal injury case involves questions of contractual 

indemnity. The following introductory background is necessary to put the present motion 

in context. Plaintiff Michael Hemond suffered electrocution injury on September 28, 

2006 when, while working as a lineman for the Vermont Electric Cooperative, Inc. 

(VEC), he operated Switch 14E at the electrical substation in Richford, Vermont. In 

2009, Mr. Hemond and his wife brought this suit against the above-named defendants 

alleging, among other things, negligence in their respective roles in the design, 

manufacture, installation, and construction of the substation, the selection and use of 

switches in the substation, the planning and implementation of electrical switching 

operations, and related consulting, advising, and supervising work. 

Although Mr. Hemond’s injury occurred while he was working for VEC, the 

allegedly negligent acts occurred some years before then, at which time Citizens 

Communications Company (Citizens)1

 owned the utility assets at issue and employed Mr.

Hemond. Citizens contracted with Navigant Consulting Group, Inc. (Navigant) to 

provide design and engineering services with regard to Citizens’ work on the substation, 

which included installation of Switch 14E. 

 

1

 Now Frontier Communications of America, Inc. 
2 

 In December 2010, Citizens sought summary judgment on the grounds that it was 

entitled to the defense of the workers’ compensation exclusivity bar. The Court (Katz, J.) 

denied that motion at a hearing on June 15, 2011, and in its December 22, 2011 ruling 

(Grearson, J.) denied Citizens’ motion to reconsider and its alternative motion to take an 

interlocutory appeal. In an Entry Order filed on February 3, 2012, the Supreme Court 

granted Citizens’ motion for permission to appeal the December 22, 2011 decision 

denying Citizens’ motion for reconsideration.2

 Meanwhile, a mediation in February 2011 resulted in a settlement between 

plaintiffs and Turner, Navigant, VELCO, Graybar, and Stantec. Citizens participated in 

the mediation, but left after several hours, and was not a party to the settlement. See 

Shahi Aff. ¶ 3 (filed June 1, 2012). On February 7, 2011, Citizens filed cross-claims for 

indemnification against its co-defendants, including a claim against Navigant for implied 

indemnification. Having settled with all of the defendants except for Citizens, plaintiffs 

moved for their voluntary dismissal on February 25, 2011. Citizens took the position that 

its co-defendants should not be dismissed from the case entirely because it had filed 

cross-claims against them. Each of the co-defendants filed motions seeking dismissal or 

summary judgment on Citizens’ claims for indemnification against them. Each of those 

motions has now been granted. 

 In the midst of Citizens’ cross-claims seeking indemnification from its codefendants, Navigant filed its own cross-claim for indemnification against Citizens on 

March 3, 2011. The cross-claim alleges that Citizens’ contract with Navigant contains an 

express provision that requires Citizens to indemnify Navigant for any and all liability—

including attorney’s fees—that may arise in connection with work performed pursuant to 

the contract. Noting that it has paid a sum to plaintiffs to settle plaintiffs’ claims against 

Navigant, and incurred attorney’s fees in connection with the action, Navigant seeks a 

judgment against Citizens on the basis of the indemnification language in the contract. 

Citizens answered Navigant’s cross-claim, denying that Navigant is entitled to indemnity 

from Citizens, and asserting a variety of affirmative defenses.3

 On May 1, 2012, Navigant filed a motion for summary judgment on its March 3, 

2011 cross-claim. Citizens opposes the motion, arguing that the Court lacks jurisdiction 

to decide it because of the interlocutory appeal currently before the Supreme Court. 

Without waiving its jurisdictional argument, Citizens also opposes the motion on its 

merits. Navigant has not filed a reply memorandum. The Court begins with the 

jurisdictional question. 

 

2

 The interlocutory appeal in the Supreme Court is docketed No. 2012-006. As of this writing, the Supreme 

Court has not decided the appeal. 

3

 The affirmative defenses Citizens asserts are: (1) failure to state a claim; (2) no express or implied 

indemnification; (3) independent negligence; (4) acquiescence; (5) “[t]he denials and defenses of Citizens 

to the allegations against it by the plaintiffs . . . and . . . Navigant’s defenses to plaintiffs’ complaint”; (6) 

Navigant’s liability, if any, was not adjudicated by virtue of its settlement; (7) voluntary payment; (8) 

unreasonable settlement; (9) workers compensation exclusivity bar; (10) lack of consent; (11) waiver or 

failure to properly reserve or preserve the claim; (12) to the extent any settlement with plaintiffs was paid 

by Navigant’s insurer, lack of privity or standing. Answer at 2–3 (filed Mar. 17, 2011). 
3 

I. Jurisdiction4

 In Vermont, “when a proper notice of appeal from a final judgment or order of the 

lower court is filed the cause is transferred to [the Supreme] Court, and the lower court is 

divested of jurisdiction as to all matters within the scope of the appeal.” Kotz v. Kotz, 

134 Vt. 36, 38 (1975) (emphasis added). Citizens asserts that Navigant’s claim for 

indemnification is generally within the scope of the pending appeal, and that Citizens has 

specifically raised the worker’s compensation exclusivity bar as a defense to Navigant’s 

claim. 

 The Court fails to see how the worker’s compensation exclusivity bar could be a 

defense to Navigant’s indemnification claim. If the bar applies, it would immunize 

Citizens against plaintiffs’ claims. But it would not immunize Citizens against 

Navigant’s claim, since Navigant’s claim is not one for a workplace injury, but rather for 

contractual indemnification. The cases that Citizens cites in its September 4, 2012 filing 

are inapposite. New England Telephone & Telegraph Co. v. Central Vermont Public 

Service Corp. is more persuasive. See 391 F. Supp. 420, 427 (D. Vt. 1975) (holding that 

the exclusivity provision of Vermont’s Worker’s Compensation Act did not preclude an 

indemnification action by a tortfeasor against an employer because an express contractual 

obligation creates an independent duty owed by the employer to the third party, and 

because a contrary holding “would be to fail to give effect to the intent of the contracting 

parties”). 

 Citizens also maintains that Navigant’s cross-claim is more generally within the 

scope of the appeal. Of course it is not enough to say that the cross-claim arises out of 

Mr. Hemond’s injury and the events preceding it—the scope of the appeal does not 

involve every legal issue spawned by the facts of this case. But Citizens asserts that it 

has raised affirmative defenses to Navigant’s contractual indemnity claim that depend on 

the outcome of the appeal: voluntary payment, unreasonable settlement, and Citizens’ 

defenses to the plaintiffs’ claim. The problem with that assertion is that Citizens does not 

explain how the defenses it mentions involve the workers compensation exclusivity bar. 

The Court therefore concludes that Navigant’s claim for contractual indemnification 

against Citizens—and Citizens’ defenses to that claim—are not within the scope of the 

appeal pending with the Supreme Court, and that this Court retains jurisdiction to rule on 

Navigant’s summary judgment motion. 

II. Merits—Contractual Indemnity 

A. Background 

 The following facts are undisputed except where noted. Citing the affidavit of its 

Associate General Counsel Dawn M. Cassie, Navigant asserts that it acquired “REED 

Consulting Group (‘REED’)” in 1997, and that following the acquisition of REED, 

 

4

 The court has considered and appreciates the parties’ supplemental briefing on the jurisdictional question. 
4 

Navigant on occasion did business under the name “Navigant Consulting Inc./Reed.” 

Navigant’s Ex. 2 ¶¶ 2, 4 (filed May 1, 2012). Citizens asserts that Ms. Cassie “fails to 

specify whether Navigant Consulting Inc./Reed was a registered factitious business 

name.” Citizens’ SUMF in Opp’n ¶ 5 (filed June 1, 2012). 

It is undisputed that, in a letter dated July 23, 1999 and printed on “Navigant 

Consulting, Inc.” letterhead, Victor Blanchet, Jr. offered to Citizens the consulting 

services of “Navigant Consulting Inc./Reed (NCI/Reed).” Navigant’s Ex. 1-1 (filed May 

1, 2012). Specifically, the offer was to supply “on-going technical and professional 

support for [Citizens’] Vermont Electric Division.” Id. The letter recited the 

understanding that Citizens had requested that Eugene Shlatz would provide those 

services. Id. The July 23 letter makes no reference to the Richford Substation upgrade, 

although it does state the following: “We anticipate that Citizens will require Mr. Shlatz’s 

services for up to two to three days per week, and that much of his time would be spent 

on site in Newport, Vermont.” Id. On July 26, 1999, Citizens’ Vice President and 

General Manager Gary Kellogg accepted the offer by signing the July 23 letter. Id. 

Citizens suggests, without citing anything in the record, that “REED Consulting 

Group” is not the same as “Reed Consulting Group, Inc.,” and that the former has nothing 

to do with this case. The Court does not see how that fact, even if true, supports Citizens’ 

assertion—again without any citation to the record—that Navigant was not a party to the 

July 23 letter. See Citizens’ SUMF in Opp’n ¶ 2 (“[D]isputed as to the assertion that 

Navigant was the contracting party.”). The evidence is that Navigant occasionally did 

business under the name “Navigant Consulting Inc./Reed.” Whatever happened between 

Navigant and any Reed entity, and regardless of whether Navigant registered “Navigant 

Consulting Inc./Reed” as a trade name, that evidence amply supports the conclusion that 

Navigant was a party to the July 23 letter. Citizens has not offered any evidence to the 

contrary. 

 The July 23 letter included the following statement: “Our work would be 

performed under NCI/REED’s Standard Terms and Conditions, which are attached.” Id. 

Navigant asserts that those terms and conditions are spelled out in a document entitled 

“REED CONSULTING GROUP TERMS AND CONDITIONS,” which is included 

along with the July 23 letter in Navigant’s Exhibit 1-1. Citizens contends that there is no 

evidence to establish that this document was the document referred to in the July 23 

letter, noting that it is not signed or initialed by Mr. Kellogg, and is not titled 

“NCI/REED Standard Terms and Conditions” as the July 23 letter mentioned. The Court 

agrees that the document was not signed or initialed by Mr. Kellogg, and that the 

document is not entitled “NCI/REED Standard Terms and Conditions.” But Citizens has 

not come forward with affirmative evidence stating that the document is not the correct 

one, nor has it supplied a document that it thinks is the true statement of the terms and 

conditions. 

The Court concludes that Ms. Cassie’s affidavit is sufficient evidence to establish 

that the document included in Exhibit 1-1 is the document referenced in the July 23 letter. 

The Court also notes that the evidence is that Navigant had acquired REED Consulting 
5 

Group, so it makes sense that Navigant’s and REED’s terms would be the same. In any 

case, Citizens has not supplied any evidence to dispute Navigant’s evidence on this point. 

The document entitled “REED CONSULTING GROUP TERMS AND CONDITIONS” 

referenced in the July 23 letter includes the following provision: 

Responsibility Statement – REED agrees that the services provided for 

herein will be performed in accordance with recognized professional 

consulting standards for similar services and that adequate personnel will 

be assigned for that purpose. If, during the performance of these services 

or within one year following completion of the assignment, such services 

shall prove to be faulty or defective by reason of a failure to meet such 

standards, REED agrees that upon prompt written notification from you 

prior to the expiration of the one-year period following the completion of 

the assignment of any such fault or defect, such faulty portion of the 

services shall be redone at no cost to you up to a maximum amount 

equivalent to the cost of the services rendered under this agreement. The 

foregoing shall constitute REED’s sole liability with respect to the 

accuracy or completeness of the work and the activities involved in its 

preparation. In no event shall REED, its agents, employees, or others 

providing materials or performing services in connection with work on 

this assignment be liable for any direct, consequential or special loss or 

damage, whether attributable to breach of contract, tort, including 

negligence or otherwise; and except as herein provided, you release, 

indemnify, and hold REED, its agents, employees, or others providing 

materials or performing services in connection with work on this 

assignment harmless from and against any and all liability including costs 

of defense settlement and reasonable attorney’s fees, therefor. 

Ex. 1-1 ¶ 7. 

 In a letter dated May 30, 2001, Mr. Shlatz wrote to Andrew Letourneau at 

Citizens indicating that “Navigant Consulting Inc. (NCI) is pleased to offer its services to 

provide technical and economic consulting assistance to support a Certificate of Public 

Good (CPG)” for “the HK Webster and Troy Street substations located in Richford, 

Vermont.” Ex. 1-2. The letter goes on to say that “Navigant proposes to perform these 

tasks under Navigant’s existing services contract.” Id. In a letter dated June 7, 2001, Mr. 

Letourneau replied to Mr. Shlatz, writing: “I have reviewed your proposal regarding the 

Richford and HK Webster Section 248 Project and find the content and estimate to be 

acceptable. You are hereby authorized to begin work as outlined in your letter dated May 

30, 2001.” Shlatz Dep. 63:17–21, Aug. 23, 2010 Ex. 76. 

 As mentioned above, Mr. Hemond’s injury occurred in Richford on September 

28, 2006. Navigant was served with the complaint in this case on August 19, 2009, and 

entered an appearance through counsel shortly after September 1, 2009. Navigant twice 

tendered the defense of this lawsuit to Citizens, and demanded that Citizens defend and 
6 

indemnify Navigant, the first time within a month of service of the complaint. Citizens 

refused to undertake the defense and provide indemnification. 

 After tender of the defense, Navigant entered into settlement discussions with the 

plaintiffs. Those discussions culminated in a mediation session on February 1, 2011, and 

a settlement agreement was executed between the plaintiffs and all defendants except 

Frontier on or about February 2, 2011.5 Pursuant to the settlement agreement, Navigant 

paid to plaintiffs the sum of $225,000. Cassie Aff. ¶ 16 (filed May 1, 2012). 

 Paul Frank + Collins, P.C. (PFC) has represented Navigant throughout this 

proceeding. PFC has billed Navigant for attorney’s fees and for costs in connection with 

defending the suit. Navigant expects that PFC will bill it for further fees and expenses in 

its continued defense of Citizens’ cross-claim. There is no evidence as to whether 

Navigant’s insurer has been paying or will pay PFC’s bills. 

B. Analysis 

 Navigant asserts that it is entitled to summary judgment on its cross-claim against 

Citizens for indemnification because Citizens has expressly agreed to indemnify 

Navigant for the fees and costs billed to Navigant in this action. Citizens maintains that 

summary judgment is not appropriate because: (1) there are disputes about who the 

contracting entity was, the applicable agreement, and its terms; (2) an exception within 

the indemnification provision applies; and (3) summary judgment is precluded by 

defenses Citizens has raised that require factual adjudication. The Court takes up each of 

Citizens’ arguments in turn. 

1. Whether Factual Disputes Preclude Summary Judgment 

 Citizens asserts that there are factual disputes over whether: (1) Navigant was the 

entity that contracted with Citizens; (2) the terms in the “REED CONSULTING GROUP 

TERMS AND CONDITIONS” were part of the agreement with Citizens; and (3) whether 

those terms applied to the services that Navigant provided with respect to the Richford 

substation. 

 As described above, the Court has concluded that Navigant has come forward 

with evidence to support its contentions that Navigant was the entity that contracted with 

Citizens, and that the terms in the “REED CONSULTING GROUP TERMS AND 

CONDITIONS” were part of the agreement with Citizens. The Court has also concluded 

that Citizens has failed to come forward with any evidence that would create a dispute on 

those points. 

 

5

 Citizens disputes the facts in this paragraph, asserting that Navigant has failed to support them with 

reference to any evidence. It is true that Navigant did not cite anything in the record for these assertions. 

However, these facts are well established in the record as well as prior court rulings. E.g., Ruling on 

Motions to Reconsider at 2 (filed Dec. 22, 2011) (“The parties participated in mediation in early February 

2011, the result of which was that Plaintiffs reached a settlement with defendants Turner, Navigant, 

VELCO, and Stantec.”). 
7 

 That leaves Citizens’ third basis for claiming that there is a factual dispute. 

Citizens asserts that the July 23, 1999 letter predates any planning for the Richford 

Substation upgrade, and does not (and cannot) refer to any such work. Citizens invites 

comparison to the May 30, 2001 letter from Mr. Shlatz, which does specifically refer to 

the substation project in Richford. Citizens maintains that the May 30, 2001 letter’s 

reference to “Navigant’s existing services contract” does not identify which contract it is 

referring to. 

 It is true that the July 23, 1999 letter does not specifically refer to the substation 

project in Richford. But that does not mean that its terms do not apply to the Richford 

project. The July 23, 1999 letter indicated that NCI/Reed would provide “on-going 

technical and professional support for [Citizens’] Vermont Electric Division.” The terms 

of the agreement were plainly intended to apply to the on-going support, regardless of the 

particular project in which that support was offered. Moreover, on the present record, the 

reference in the May 30, 2001 letter to “Navigant’s existing services contract” can only 

mean the July 23, 1999 letter. Citizens has not provided any evidence suggesting that 

there was some other services contract in force. Finally, to the extent the May 30, 2001 

letter can be said to contain more specific provisions that might control over the more 

general provisions of the July 23, 1999 letter, the rule about specific contractual terms 

controlling over more general ones applies when the terms relate to the same matter. 

Trinder v. Ct. Attorneys Title Ins. Co., 2011 VT 46, ¶ 19, 189 Vt. 492. In this case, there 

are no terms regarding indemnity in the May 30, 2001 letter, so the rule does not apply. 

2. Whether an Exception to the Indemnification Provision Applies 

 Citizens notes that the indemnification provision includes the phrase “except as 

herein provided,” and argues that the exception applies because it covers third-party 

liability claims like Mr. Hemond’s claim for negligence against Navigant. According to 

Citizens, “Navigant’s promise to provide professional engineering services that met 

industry standards could be the basis for imposition of liability on it by third parties such 

as Mr. Hemond who were the foreseeable victims of Navigant’s breach.” Opp’n at 21 

(filed June 1, 2012). Citizens also asserts that Navigant could not limit Mr. Hemond’s 

remedies in a contract with Citizens. Id. Citizens says that it therefore “follows that the 

way Navigant structured and wrote section 7, it created an exception to the declaration 

therein of no liability for the work other than to fix it within a year.” Id. 

 In indemnity cases, the Court interprets the language “to give effect to the intent 

of the parties as that intent is expressed in their writing.” Hamelin v. Simpson Paper (Vt.) 

Co., 167 Vt. 17, 19 (1997). The exception at issue is Citizens’ agreement that, “upon 

prompt written notification from you prior to the expiration of the one-year period 

following the completion of the assignment of any such fault or defect, such faulty 

portion of the services shall be redone at no cost to you . . . .” Here, the parties’ clear 

intent was that Navigant’s liability would be limited to the cost of redoing the faulty 

services. The Court can discern no intent for Navigant to be liable to any greater extent, 
8 

even when third parties bring claims against Navigant. The indemnity provision does not 

limit any third parties’ claims, but shifts responsibility to the indemnitor (Citizens). 

3. Whether Citizens’ Other Defenses Preclude Summary Judgment 

 In its opposition, Citizens focuses on two of its affirmative defenses: voluntary 

payment of an unreasonable settlement, and Navigant’s alleged lack of privity or standing 

by reason of payment to plaintiffs by Navigant’s insurer rather than Navigant itself. 

Opp’n at 22–23. The Court begins with the latter defense. 

 Initially, although the “standing” concept is, at a general level, used to test 

whether a plaintiff possesses a sufficient interest in the action, using the standing doctrine 

in a case (like this one) involving only private claims is problematic. It can create 

“conceptual confusions [that] make unnecessary work” and may cause incorrect 

conclusions regarding the Court’s subject matter jurisdiction, the availability of 

substitution to correct a real party in interest defect, capacity, intervention, etc. Wright & 

Miller, et al., Federal Practice and Procedure: Jurisdiction § 3531 (3d ed.) (WL updated 

Apr. 2012). Neither does there really appear to be any lack of contractual privity on 

Navigant’s part, since the Court has concluded that there is no genuine dispute that 

Navigant and Citizens entered into the contract at issue. 

 Of course, if Navigant did have an insurer that paid the settlement, costs, and fees, 

that insurer may be subrogated to any right Navigant may have to indemnity from 

Citizens. See Bank of the W. v. Valley Nat’l Bank of Ariz., 41 F.3d 471, 480 (9th Cir. 

1994). But the Court does not see how that fact would relieve Citizens of any obligation 

it might have to indemnify Navigant. See Lesmark, Inc. v. Pryce, 334 F.2d 942, 945 

(D.C. Cir. 1964) (fact that indemnitees carried liability insurance which covered the 

plaintiffs’ claims did not relieve the indemnitor of its obligation to indemnify). 

 The court turns now to Citizens’ voluntary-payment defense. “To protect the 

indemnitor’s right to defend against liability, a voluntary payment by an indemnitee, 

without notice to the person sought to be charged, may foreclose restitution.” 

DiGregorio v. Champlain Valley Fruit Co., 127 Vt. 562, 566 (1969). Citizens’ attorney 

has stated in an affidavit that “Navigant did not provide notice to Citizens of its intention 

to settle.” Shahi Aff. ¶ 7. However, it is undisputed that on two separate occasions 

Navigant called upon Citizens to defend the suit. Furthermore, Citizens admits that it 

was aware of the February 2011 mediation session that resulted in the settlements, and 

was in fact present for at least part of that mediation. It is therefore irrelevant that 

Navigant did not provide further notice to Citizens of its intention to settle—once 

Citizens refused to defend and it became necessary for Navigant to defend itself, 

Navigant was entitled to proceed in good faith to reach a reasonable settlement. 

DiGregorio, 127 Vt. at 566 (citing Boston & Me. R.R. v. Howard Hardware Co., 123 Vt. 

203, 210 (1962)); accord Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1094 (1st 

Cir. 1989) (noting that where indemnitor had notice of the plaintiff’s suit but declined to 

defend it, the indemnitor will be bound by any reasonable, good faith settlement the 

indemnitee might thereafter make). 
9 

 An indemnitee’s payment is “voluntary” if the indemnitee is under no obligation 

to pay or where no interest of his is protected by the payment. Norfolk & Dedham Fire 

Ins. Co. v. Aetna Cas. & Sr. Co., 132 Vt. 341, 344 (1974); see also Peerless Cas. Co. v. 

Cole, 121 Vt. 258, 263 (1959) (payment of settlement prior to any judgment was 

voluntary because the plaintiff was not under any compulsion to effect the settlements 

made). Here, no judgment compelled Navigant to pay the plaintiffs, so in that sense 

Navigant’s payment was voluntary. In order to ensure that Navigant’s payment was not 

voluntary in the sense that it was facing no exposure to legal liability at all, Navigant 

must prove its potential liability. See One Beacon Ins., LLC v. M & M Pizza, Inc., 8 A.3d 

18, 23 (N.H. 2010) (where indemnitor receives notice and opportunity to defend, 

indemnitee needs only to show potential liability); see also Grand Trunk W. R.R., Inc. v. 

Auto Warehousing Co., 686 N.W.2d 756, 763 (Mich. Ct. App. 2004) (“[T]he indemnitee 

who has settled a claim need show only potential liability if the indemnitor had notice of 

the claim and refused to defend.”); Camp, Dresser & McKee, Inc. v. Paul N. Howard 

Co., 853 So.2d 1072, 1080 (Fla. Dist. Ct. App. 2003) (“Only if the indemnitor is not 

given notice and an opportunity to assume responsibility for the claim must the settling 

indemnitee show that it was actually liable to the plaintiff.” (emphasis added)). 

 On the present record, and in the absence of a reply memorandum from Navigant, 

the Court cannot determine whether Navigant has proven its potential liability to the 

plaintiffs. The Court therefore also cannot at present make a determination about the 

reasonableness of the settlement. Consequently, it is premature to rule on whether 

Citizens’ defense of voluntary payment precludes Navigant’s recovery on its contractual 

indemnity claim. 

III. Conclusion 

 The Court concludes that the pending appeal before the Supreme Court does not 

deprive this Court of jurisdiction to decide the contractual indemnity issue. However, for 

the reasons discussed above, and because Citizens has asserted several other defenses to 

Navigant’s contractual indemnification claim that have not been discussed at all, the 

Court concludes that Navigant is not entitled to summary judgment. 

ORDER 

 

 Navigant’s motion for summary judgment (filed May 1, 2012) is denied 

Dated at Burlington this ___ day of October 2012. 

 

 ______________________________ 

 Brian Grearson 

 Superior Court Judge