Montpelier Sch. Dist. v. Morrison-Clark, Inc., No. 540-7-09 Wncv (Crawford, J., Mar. 8, 2010) 

[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 

COUNTY OF WASHINGTON 

MONTPELIER SCHOOL DISTRICT 

v. WASHINGTON SUPERIOR COURT 

 DOCKET NO.: 540-7-09 Wncv 

MORRISON-CLARK, INC. 

DECISION ON MOTION FOR PARTIAL SUMMARY JUDGMENT 

This is a construction dispute concerning the removal of vinyl asbestos tiles from a 

portion of a school building during the summer vacation months of 2008. In addition to 

claims of negligence and breach of contract, the school district seeks treble damages, the 

return of all moneys paid to defendant and attorneys fees under the Vermont consumer 

fraud statute, 9 V.S.A. § 2451. 

FACTS 

The facts not in dispute are: 

In 2008, the parties contracted for the removal and replacement of carpet and floor tiles in 

a portion of a Montpelier elementary school during the summer vacation months. The 

contract resulted from a bid process in which Morrison-Clark was the only participant. 

Before the contract between the parties was signed, Don Lorinovich, Director of 

Facilities for the school district, met in person with representatives of Morrison-Clark to 

discuss the scope and nature of the work. Mr. Lorinovich told Morrison-Clark that the 

tiles contained asbestos and asked if they were qualified to do the removal work. The 

representatives said “yes, they have done it before and know what needs to be done.” 

Mr. Lorinovich recommended to the school board that the Morrison-Clark be accepted 

and the contract was signed. 

In an affidavit, John Hollar, the school board chair, states that the school district would 

not have hired Morrison-Clark to remove the floor tiles “had it known that MorrisonClark did not have a sufficient understanding of the governing regulations to ensure that 

it complied with all of their requirements.” Mr. Hollar states that the school district 

relied upon Morrison-Clark’s representations that it would follow the required procedures 

for tile removal. 

The removal work was underway in July 2008 when an asbestos contractor working for 

the school district on an unrelated matter phoned in an anonymous tip to the Vermont 

Department of Health. The Department of Health inspector determined that the work did 

not comply with the Vermont Regulations for Asbestos Control and ordered the work 
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stopped. The school district contracted with other companies for a clean-up and has 

brought suit against Morrison-Clark. The clean-up has been completed at a cost of about 

$86,000 and the school is open. 

FACTS IN DISPUTE 

The parties disagree over whether Morrison-Clark failed to follow the asbestos 

regulations. In this case and in a separate regulatory proceeding, Morrison-Clark defends 

its work practices. The school district contends that the Department of Health acted 

correctly in shutting down the work-site and ordering a clean-up process. 

ANALYSIS 

Morrison-Clark argues that a statement that a contractor has done similar work and 

knows what to do does not qualify as an “unfair or deceptive act” for purposes of 9 

V.S.A. § 2453(a). The school board contends that there is evidence in the record that 

Morrison-Clark failed to understand or follow the asbestos regulations and therefore the 

company’s statement that it knew what to do was false. 

For purposes of deciding the summary judgment issue, the court will consider the 

evidence in the light most favorable to the school district. The court accepts as true Mr. 

Lorinovich’s account of his meeting with Morrison-Clark at which the assurance that the 

floor company knew what to do was offered. The court also accepts as true Mr. Hollar’s 

statement that the school board relied upon this statement when it contracted with 

Morrison-Clark. Finally, the court accepts as true the school district’s claim that the 

work did not comply with Vermont’s asbestos regulations. 

To meet its burden of proof under the Act, the school district must demonstrate: 

 1. that Morrison-Clark made a representation, omission or practice likely to 

mislead consumers; 

 2. that the school district interpreted the statement reasonably; and 

 3. that the misleading statement was material. 

The court is satisfied that for purposes of summary judgment, there is sufficient evidence 

in the record to satisfy the second and third elements. The statement was an 

unambiguous assurance that Morrison-Clark knew how to do the work. The statement 

was obviously material since asbestos removal is highly regulated and presents some risk 

to users of the building. It is unsurprising that a school board would rely on an assurance 

that a contractor knew the rules and other requirements before hiring a contractor. 

The only issue for the court to decide is whether the statement made to Mr. Lorinovich 

meets the legal standard for an “unfair or deceptive act” for purposes of the Consumer 

Fraud Act (the “Act). 
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Two recent Vermont Supreme Court decisions have set limits on the westward expansion 

of contract disputes found to be subject to the Act. 

In Heath v. Palmer, 181 Vt. 545 (2006), statements by a developer that it “take[s] pride in 

offering cost efficient, quality construction with exceptional value” did not constitute 

fraud for purposes of the Act because the statements “unquestionably fall within the 

category of opinions as subjective evaluations of workmanship rather than objectively 

verifiable statements of fact.” Id. at 549. 

In EBWS, LLC v. Britly Corp., 181 Vt. 513 (2007), a building contractor stated that his 

company was capable of building a creamery building and that it had “built buildings 

‘substantially more complex’ and that ‘this is an easy building.’” The statements were 

held to be unlikely to mislead in the absence of evidence that the contractor was actually 

incapable of building the creamery or that building a creamery was uniquely demanding. 

The statement in question is sufficiently specific and factual that the exception for 

subjective expressions of opinion identified in the Heath case do not apply. 

The more difficult question is whether there is record evidence sufficient to establish that 

the statement was objectively false when made. The school district alleges 8 specific 

violations of the Asbestos Removal Rules. These are: 

 Rule 1.1.1 – “No person shall perform asbestos abatement in any facility without 

obtaining certification and a permit from the Commissioner.” 

 Rule 2.4.2B – “The area where asbestos abatement activities are conducted shall 

be isolated from the remainder of the facility by air-tight barriers ...” 

 Rule 2.4.2F – “A worker decontamination enclosure system consisting of a clean 

room, shower room and equipment room, each separated from each other and from the 

work area by airlocks ... shall be provided.” 

 Rule 2.4.2H – “Asbestos danger signs shall be displayed...” 

 Rule 2.4.2I – “Following abatement, clean-up procedures using HEPA vacuuming 

and wet cleaning techniques shall be performed.” 

 Rule 2.4.2J – “Negative pressure ventilation units with HEPA filtration .. shall be 

operated for the duration of the project.” 

 Rule 6.3A – “All asbestos-containing materials shall be adequately wetted prior to 

removal and kept wet until disposed.” 

 Rule 6.3B – “Asbestos-containing materials shall not be sanded, sawn, chipped, 

ground, abraded, drilled, or subjected to any other dust producing activity.” 
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In addition, Rule 6.1 provides an exception to the highly complex and expensive 

measures required by the subsections of Work Rule 2. The abatement of “vinyl asbestos 

flooring” is not subject to Rule 2 so long as the material does not become “friable during 

the abatement” and the requirements for wetting and dust-suppression in Work Rule 6 

are observed. 

Morrison-Clark claims that the removal of the tiles qualified for the exception under Rule 

6 and that it did not violate the Rule 6 requirements concerning wetting and chipping. 

The school district contends that at a minimum, Morrison-Clark failed to get a permit as 

required by Rule 1.1.1 and failed to follow Rule 6. In the school district’s view, the 

violation of Rule 6 triggered the Rule 2 requirements for plastic enclosures, shower 

rooms and other decontamination measures. 

Returning to the issue at hand, the question is whether there is record evidence that the 

statement that “Morrison-Clark knows how to remove the tile in compliance with 

asbestos requirements” was objectively false when it was made. The court concludes 

that there is insufficient evidence for the plaintiff to go forward on the consumer fraud 

claim. At most there is evidence that Morrison-Clark undertook the work on the basis of 

the Rule 6 exception and that the workers used tools and generated dust without sufficient 

wetting in ways which violated the terms of this exception. These are events which 

followed the statement at issue by several months. There is no evidence that the 

Morrison-Clark principals who assured Mr. Lorinovich that the company knew how to do 

the work could anticipate that the job would get too dusty or the employees would not 

follow the wetting requirements. Like EBWS, this is a case about failed performance – at 

least as alleged by the plaintiff – and not about an objective falsehood at the time the 

contract was formed. 

Similarly, there is no evidence that in the spring of 2008 when their principals met with 

Mr. Lorinovich, Morrison-Clark had knowledge that the containment and 

decontamination requirements of Rule 2 could apply to this job and that they provided an 

assurance to Mr. Lorinovich which was false. The removal of vinyl asbestos tiles 

become subject to the Rule 2 requirements only if the work is performed incorrectly 

under Rule 6 or the material becomes “friable.” If these things happened in his case, 

they happened long after the statements to Mr. Lorinovich. They reflect problems in 

workmanship or floor conditions (friability), but they are not evidence of false 

statements. 

The remaining claim of false statement concerns the permitting requirement. MorrisonClark did not take out a permit from the Department of Health. Permits are not required 

for work undertaken pursuant to the lighter requirements of Rule 6. Since vinyl asbestos 

tiles are normally removed pursuant to Rule 6, Morrison-Clark did not mislead the 

customer when it commenced the job without a permit. The same analysis applies to the 

certification requirements which apply to work performed under Rule 2. 
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The court admits that its analysis makes it difficult for a customer to sue a contractor for 

poor workmanship under the Consumer Fraud Act. By requiring objective proof of 

falsehood at the time the statements were made, many subsequent shortcomings and 

failures in workmanship are excluded from the Act. But the Act was never intended to 

replace common law breach of contract claims. The extraordinary severity of the scope 

of damages is reserved for fraud – statements which were demonstrably false when made. 

These have not been shown to be present in this case despite discovery and a full inquiry 

by zealous counsel. 

CONCLUSION 

The court grants the motion for partial summary judgment with respect to Count III 

(Consumer Fraud Act). 

Dated: _________________ 

 Geoffrey Crawford, 

 Superior Court Judge