Truhan v. Bailey, No. 152-3-03 Wncv (Katz, J., June 1, 2005) 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted 

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STATE OF VERMONT SUPERIOR COURT 

Washington County, ss.: Docket No. 152-3-03 WnCv 

TRUHAN 

v. 

BAILEY 

 ENTRY 

On the basis of 24 V.S.A. ' 901(a), this court, at prior term, granted 

Plaintiff Truhan=s motion to dismiss the counterclaim against him and also 

granted Defendant Bailey permission to amend that counterclaim to name 

the Town of Barre instead of Truhan. Now, the Town seeks to have the 

claims against it dismissed on the ground of municipal or sovereign 

immunity. 

Initially, the court was struck by the improbability that the 

Legislature had enacted a statute immunizing officers and substituting 

vicarious liability on the town while the town’s liability goes for naught 

because of its own immunity. That seems to be the sort of irrational 

statutory interpretation that should be avoided if possible. See Rowell v. 

Tunbridge, 118 Vt. 23, 27-28 (1953). 

Upon reviewing the statute and relevant caselaw, we conclude that 

this case presents a more complex problem than earlier envisioned. 
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The statutory language at issue – Athe action given against such 

officers@ – is in fact very old. ABy the statute passed in 1817, all actions 

which are given by law to the selectmen, must be brought in the name of the 

town.@ Middlebury v. Case, 6 Vt. 165, 168 (1834). That particular case 

dealt with a note, made payable to the selectmen; the town was seeking to 

collect on the note. The court ruled that the action must be sued out in the 

name of the town. This points us to the first sentence of ' 901(a) (emphasis 

added): “Where an action is given to any appointed . . . municipal 

officer . . ., the action shall be brought in the name of the town in which the 

officer serves . . . .” Other early cases citing the statute involved a bond, 

Town of Fairfax v. Soule, 10 Vt. 154 (1838), and a contract, Town of Grand 

Isle v. Kinney, 70 Vt. 381 (1898). Interestingly, none of these early cases 

sounded in tort or involved issues of immunity. Whether its original 

purpose was to cover torts at all may be a question. See Soule, 10 Vt. at 

156-57 (describing the purpose of the original enactment as distinctly 

procedural in nature). 

Why should a tort victim, just for being a municipal officer, have to 

give up the personal remedy and hand it over to the town? Yet, if the 

second sentence of ' 901(a) requires that the officer be personally immune 

from torts, with the town vicariously liable, does not the parallel language 

in the first sentence suggest that the town should get symmetrical treatment 

when the officer happens to be the plaintiff? That is, that the claim inures 

to the benefit of the town, not the officer? This, of course, does not explain 

why the Legislature would have created this statutory vicarious liability 

when its intention was that the vicarious party would enjoy its own 

immunity. We think the better answer is suggested by the early cases, 

evincing as they do a contemporaneous understanding of the circumstances 

under which the statute was enacted: This statute was enacted to ensure 

that rights and liabilities of the town be preserved as such, even though 

contracts or notes might be drawn in the name of incumbent selectmen. 

More recently, the statute has been applied in the context of tort 

actions against municipal officers. In Holmberg v. Brent, 161 Vt. 153 

(1993), the first of the contemporary tort cases addressing § 901, the 

Vermont Supreme Court states without explanation that § 901 “amounts to 

an assumption of the officer’s liability” and nowhere discusses that § 901 
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had never before been so interpreted, at least in any cases, or acknowledges 

the difficulties attending such an interpretation. The Court in Holmberg

concluded that where § 901 and 24 V.S.A. § 1313 (allowing an 

incorporated village to indemnify its officers) overlap, § 1313 applies. 

Having so ruled, of course, the Court was relieved of any need to explore 

the meaning of § 901 further. Subsequent cases apply § 901 to immunize 

municipal officers but do not mention of any these issues. Nevertheless, 

consistent with the description of § 901 in Holmberg, in 1995 the 

Legislature granted immunity to employees of conservation districts by 

stating that they “shall be immune from liability under the provisions of 

section 901 of Title 24 regarding municipal officers.” 10 V.S.A. § 747a(b). 

 We have found no case or statute predating Holmberg similarly suggesting 

that the purpose of § 901 is to immunize officers from torts. There have 

been no cases, such as this one, in which a plaintiff municipal officer seeks 

the benefit of § 901 against a counterclaim sounding in tort. 

The new statute on tort claims against municipal employees, 24 

V.S.A. ' 901a, was enacted after the acts that form the basis for this civil 

action, August 10, 2002, and therefore does not apply. 

Even were the old statute held to apply to Officer Truhan, and confer 

on him a measure of immunity, the latter would be an extension of 

municipal sovereign immunity. Section 901, as applied in Holmberg and 

subsequent cases, does not per se provide a complete defense to a claim in 

the nature of tort arising out of the conduct of municipal officers; it merely 

requires that such an action be pursued against the town, not the town’s 

officers. The town’s sovereign immunity then comes into play, as it has in 

this case. In other words, § 901 brings the municipality’s officers within 

the protection of the municipality’s sovereign immunity; it does not create a 

variety of immunity personal to the officer and distinct from the officer’s 

relation to the municipality. Consequently, when Truhan raised § 901 as a 

defense to Bailey’s counterclaim, he in essence was using the 

municipality’s sovereign immunity as a sword in this litigation in aid of his 

own claim against Bailey. 

Sovereign immunity is a shield, however, not a sword. United States 

v. Bankers Ins. Co., 245 F.3d 315, 320 (4th Cir. 2001) (“Sovereign 
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immunity does not permit the Government to sue a third party and then pick 

and choose the judicial constraints . . . with which it will abide.”). When an 

entity entitled to sovereign immunity commences an action, it waives that 

immunity for any compulsory counterclaim arising out of the same 

occurrence or transaction. See Ruppenthal v. State of Wyoming, 849 P.2d 

1316, 1321 (Wyo. 1993) (collecting cases and other authorities). Although 

the Vermont Supreme Court has never had occasion to rule on such a 

waiver of immunity by initiating the litigation, we are persuaded it is fully 

congruent with our court’s statements on immunity. The purpose of 

according officials with immunity from suit is “to prevent exposing state 

employees to the distraction and expense of defending themselves in the 

courtroom.” Cook v. Nelson, 167 Vt. 505, 509 (1998). Here, of course, it 

is Officer Truhan who made the decision to involve himself in the 

distraction and expense of litigation. While that is certainly his right, the 

underlying reason for affording him immunity is vitiated. To afford him 

immunity on the counterclaim would therefore not only be unfair it would 

elevate form over substance. 

On the basis of the foregoing, we think dismissal of the counterclaim 

against Officer Truhan, personally, based on ' 901(a), was ill considered. 

The counterclaim against the Town of Barre is dismissed. The 

counterclaim against Officer Truhan is reinstated. 

Dated at Montpelier, Vermont, _______________________, 20___. 

 __________________________ 

 Judge