Nautilus Ins. Co. v. Loomis, No. 194-9-10 Oecv (Eat on, J., Feb. 29, 2012)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the
accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION Orange Unit Docket No. 194-9-10 Oecv

│
Nautilus Insurance Company │

Plaintiff │ │

v. │ │

Jason Loomis │

Defendant │ │

v. │ │
The Clerkin Agency │
Third Party Defendant │ │

DECISION ON MOTION TO DISMISS

The Clerkin Agency, as third party defendant, has filed a motion to dismiss the claims asserted against it by defendant, Jason Loomis, all eging that his third party complaint does not state a cause of action against it. Mr. Loomis has opposed the motion.

Factual Background

Plaintiff Nautilus Insurance Co. brought this acti on against Loomis for unpaid premiums

which it claims are due to them as a result of an a udit conducted in connection with a commercial liability policy issued by Nautilus to L oomis. Proceeding pro se, Loomis has asserted a third party claim against the Clerkin Ag ency, his insurance agent who procured the commercial liability policy. Mr. Loomis alleges var ious acts by Clerkin violated the Insurance Trade Practices Act, 8 V.S.A. § § 4721 et seq., and also Vermont’s Consumer Fraud Act, 9 V.S.A. § § 2451 et seq. The Clerkin Agency asserts that neither statute provides defendant with a

cause of action.

Discussion

Motions to dismiss are not favored, and are rarely granted. Gilman v. Maine Mutual Fire

Ins. Co. , 2003 VT 55, ¶ 14, 175 Vt. 554 (mem.). The purpos e of a motion to dismiss is to test the law of the case, not the facts which underlie t he complaint. Kane v. Lamothe , 2007 VT 91, ¶ 14, 182 Vt. 241. In considering a motion to dism iss, the court assumes all factual allegations in the complaint to be true and gives the benefit of a ll reasonable inferences to the non-moving

party. Richards v. Town of Norwich , 169 Vt. 44, 48 (1999). A motion to dismiss shoul d not be granted unless it is beyond doubt that there exist no facts or circumstances which would entitle2

the plaintiff to relief. Assoc. of Haystack Property Owners, Inc. v. Sprague , 145 Vt. 443, 446–47 (1985).

Claims under the Insurance Trade Practices Act

Defendant asserts that Clerkin violated the Insura nce Trade Practices Act (ITPA), 8 V.S.A. § 4721 et seq. Defendant further asserts tha t because a private right of action exists against insurance finance companies under 8 V.S.A. § 7009, a private right of action should exist under 8 V.S.A. § 4721 et seq. as well.

It is not alleged that the Clerkin Agency is an in surance financing company. As a result, 8 V.S.A. § 7009 does not apply in this instance. Defe ndant’s assertion that a private cause of action should exist under the ITPA, as it does against ins urance finance companies, is inconsistent with

well established Vermont law.

In 1981, the Vermont Supreme Court held that no pr ivate cause of action existed under

the ITPA. Wilder v. Aetna Life & Casualty Insurance Co. , 140 Vt. 16 (1981). The ITPA is a regulatory statute that provides public administrat ive sanctions against unfair and deceptive acts within the insurance industry, but it does not crea te a private cause of action or imply a duty toward any one person. Wilder has been consistently followed in the 30 years sin ce it was

decided. Denis Bail Bonds v. State of Vermont , 159 Vt. 481 (1993); Larocque v. State Farm

Insurance , 163 Vt. 617 (1995); City of Burlington v. Hartford Steam Boiler Inspect ion and

Insurance Co ., 190 F. Supp 2d. 663 (D. Vt. 2002).

There is no private cause of action for claimed vi olations of the ITPA.

Claims under the Consumer Fraud Act

Defendant’s claims under the Consumer Fraud Act (C FA), 9 V.S.A. § 2451 were also

addressed in Wilder . The Wilder Court held that the CFA did not apply to insurance since the provision of insurance is neither a good nor a serv ice.

Four years after Wilder , the CFA was amended with respect to the definitio n of goods and services. The combined definition of goods and services contained in 9 V.S.A. § 2451a (b)

now reads as follows:

(b) “Goods” or “services” shall include any objects , wares, goods, commodities, work, labor, intangibles, courses of i nstruction or training, securities, bonds, debentures, stocks, re al estate, or other property or services of any kind. The term also inc ludes bottled liquified petroleum (LP or propane) gas.

Defendant asserts that the amended definition in t he CFA covers the provision of insurance because the new language includes “intang ibles” and “property or services of any kind.” Defendant has provided the court with the a micus brief of the Vermont Attorney General

in the matter of Greene v. Stevens Gas Service , 2004 VT 67, 177 Vt. 90, a case which squarely3

presented the question of whether the amended defin ition of “goods” and “services” applied to

insurance. In Greene , however, the Vermont Supreme Court declined to de cide the issue, determining instead that the facts of the case did not establish CFA liability even if such liability existed. Defendant has also provided a Vermont Bar Journal article discussing the applicability of the CFA to the provision of insurance, and both parties have submitted portions of legislative history in support of their positions.

Although there has been lengthy discussion of the issue of the applicability of the CFA to insurance contracts, as exemplified by the Bar Jour nal article and the briefs submitted in Greene

, the Supreme Court has not re-examined the issue in any detail. On several recent occasions the federal district court judges have struggled with t he question and noted that it is an open question

whether the amended definition was meant to “extend [] the CFA to insurance.” Sullivan v.

Allstate Insurance Co. 2010 WL 3323726 (D. Vt. Aug. 3, 2010); R.L. Vallee, Inc. v. American Specialty Lines Insurance Co ., 431 F.Supp.2d 428, 442 (D.Vt. 2006).

In reviewing the issue here, the parties have prov ided excerpts from the legislative history, as researched by the Attorney General and the parties to the Greene case. Although the excerpts include commentary from legislators pertai ning to the scope of the amended definition, there is no mention in the record at all of the top ics of insurance or Wilder . Instead, it appears that the legislature was primarily concerned at the time with extending the protections of the consumer-fraud statutes to farmers. It further app ears that the actual amendment was included as part of an act relating to the regulation of compan ies which furnish bottled gas. 1985, No. 34, §

1. Given the amount of research that has been devo ted to the legislative record on this issue, this court finds the absence of any reference to insuran ce or Wilder to be significant.

It is possible to read the statutory language as s upporting either position when the

amended definition is considered in the context of its enactment. At the time of the 1985 amendment, some states had held the provision of in surance to be a “good” or “service” under their consumer-fraud statutes, but other states had expressly held that insurance did not fall within that definition. See generally Annotation, Coverage of insurance transactions under state consumer protection statutes , 77 A.L.R.4th 991 (1989 & Cum. Supp. 2011) (collec ting cases). In Vermont, of course, the legislature was not pain ting upon a blank canvas because the Supreme Court had held just four years earlier in Wilder that insurance was neither a “good” nor a “service.” If the legislature had wished to abroga te that holding and include the provision of insurance as a good or service, it would have been a simple matter to so indicate by including the term “insurance” within the definition of a “good” or “service.” Instead, the legislature did not mention insurance at all, but rather chose to amend the definition to include the terms “intangibles” and “property or services of any kind ” within the definition of “goods” and “services,” without any indication that it was doin g so with Wilder or insurance in mind.

It would be reasonable to include insurance within the definition of an intangible or otherwise as a property interest of some kind. See Showpiece Homes Corp. v. Assurance Co. of

America , 38 P.3d 47, 57 (Colo. 2001) (describing insurance as “intangible property”). It would also be reasonable to point out that (1) the CFA is a remedial statute that should construed liberally so as to protect the public from deceptiv e acts in commerce, and (2) there is a canon of statutory construction that holds that the legislat ive intent is best reflected in the plain meaning4

of the statutory language. Elkins v. Microsoft Corp. , 174 Vt. 328, 330–31 (2002). From these premises, one might well conclude that, by amending the definition of “goods” and “services” to include “intangibles,” the legislature must have me ant to include the provision of insurance within the scope of the CFA.

On the other hand, trial courts are instructed to consider not only the language of the statute and the purposes of the legislation, but al so “the legislative history and the circumstances surrounding [the] enactment” of a statute when seek ing to determine the legislative intent. Garbitelli v. Town of Brookfield , 2011 VT 122, ¶ 12 (quoting Perry v. Med. Practice Bd. , 169 Vt. 399, 406 (1999)). In this case, as noted above , there is the issue that neither the legislative history nor the circumstances surrounding the amend ment of the definition support the conclusion that the legislature intended to abrogat e Wilder and extend consumer-fraud liability to the insurance industry. Adding to this is the cano n of statutory interpretation that cautions the legislature to be more explicit about its intent if it truly means to disapprove a recent judicial interpretation of a statute. See, e.g., Dubaniewicz v. Houman , 2006 VT 99, ¶ 13, 180 Vt. 367.

It is also important to keep in mind that the exte nsion of consumer-fraud liability to the insurance industry is an issue of significant state wide economic consequence upon which numerous parties have established settled expectati ons based on the existing state of the law. It would not be desirable for one trial court in one p art of the state to upset those expectations by proclaiming that a decided opinion of the Vermont S upreme Court is no longer good law without some clear indication from the Supreme Court or the legislature to that effect.

In the final analysis, therefore, there are good a rguments why insurance could be included within the amended definition of “goods” a nd “services,” but there are not any indications that the legislature actually intended to include insurance within the scope of consumer-fraud liability when it amended the statut e. In the absence of a more specific expression of legislative intent to abrogate Wilder , and in the absence of any post-amendment suggestion by the Supreme Court to that effect, thi s court considers the decision in Wilder to remain controlling precedent. Accordingly, the pro vision of insurance, as was done by Clerkin, is not a “good or service” and therefore is not wit hin the provisions of the CFA.

Based upon the foregoing, The Clerkin Agency’s Mot ion to Dismiss is GRANTED

.

Dated at Chelsea this 29th day of February, 2012.

_____________________________ Harold E. Eaton, Jr. Superior Court Judge