Entry Regarding Motion Page 1 of 2

24-CV-00266 Matthew G. Westcott v. Kurt Cooper; et al

VERMONT SUPERIOR COURT CIVIL DIVISION

Franklin Unit

17 Church Street

St. Albans VT 05478

802-524-7993

www.vermontjudiciary.org

Case No. 24-CV-00266

Matthew G. Westcott v. Kurt Cooper; et al

ENTRY REGARDING MOTION

Title: Motion to Dismiss (Motion: 2)

Filer: Mark F. Werle

Filed Date: March 14, 2024

Plaintiff Matthew Westcott sues three individuals who he asserts were responsible for the 

murder of his uncle, Richard Westcot. He asserts three claims: one under Vermont’s wrongful 

death statute, another for loss of consortium, and a third for intentional infliction of emotional 

distress. Two of the three defendants have moved to dismiss all counts. The court grants the 

motion.

With respect to the first claim, Mr. Wescott lacks standing. Per statute, a wrongful death 

claim must “be brought in the name of the personal representative of the deceased person.” 14 

V.S.A. §1492(a). Moreover, Mr. Wescott is not even a putative beneficiary of any wrongful 

death recovery; he is clearly neither the decedent’s spouse or next of kin, as required by 14 

V.S.A. § 1492(c). Thus, any injury he has suffered is not one “that can be redressed in a court of 

law.” Parker v. Town of Milton, 169 Vt. 74, 77 (1998). Count 1 therefore fails.

Equally, Vermont law has never recognized a right of action for loss of consortium in 

anyone other than a spouse or a child. See 12 V.S.A. § 5431 (“An action for loss of consortium 

may be brought by either spouse.”); Whitney v. Fisher, 138 Vt. 468, 471 (1980) (“the action for 

loss of consortium is for the remedy of injuries sustained by one who has been deprived of the 

affection, aid and cooperation in conjugal relations, conjugal society and support of another 

whom the law recognizes as a marital partner”); Hay v. Medical Center Hosp. of Vermont, 145 

Vt. 533, 537-45 (1985) (recognizing child’s right of action for loss of parental consortium). 

While the court has allowed loss of companionship—akin to consortium—to siblings, that was in 

the context of a wrongful death action, in which the siblings were entitled to recover as “next of 
VermontSfipsrior Court

FrankflI/x 11%?

kin.” Dubanawicz v. Houman, 2006 VT 99, 1H] 6—1 5,180 Vt. 367. Here, Mr. Wescott is not his uncle’s spouse, child, or “next of kin”; he therefore has no right ofrecovery for loss of

consortium, either at common law or under the wrongful death act. Count also fails.

Finally, where claimant is not the direct target of allegedly tortious conduct, Vermont

law allows recovery for intentional infliction of emotional distress only if the claimant is present

at the time of the conduct. Leo v. Hillman, 164 Vt. 94, 102—03 (1995). Here, the complaint makes clear that Mr. Wescott was not present at the time of his uncle’s murder. Thus, he has no

claim for intentional infliction of emotional distress. Count fails. ORDER

The court grantsthe motion. All claims against Defendants Macca and Gillespie are

dismissed with prejudice.

Electronically signed pursuant

to V.R.E.F. 9(d): 4/23/2024 6:38 PM

muel ar

3115 Court Judge

Entry Regarding Motion Page of 24—CV—00266 Matthew G. Westcott v. Kurt Cooper; et a1