Glassford et. al. v. Dufresne & Assocs., PC, No. 682-9-12 Wncv (Toor, J. May 14, 2014).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]



                                                     VERMONT SUPERIOR COURT
                                                        WASHINGTON UNIT
                                                         CIVIL DIVISION

                                                                        │
JAMES and HEIDI GLASSFORD                                               │
 Plaintiffs                                                             │
                                                                        │
 v.                                                                     │      Docket No. 682-9-12 Wncv
                                                                        │
                                                                        │
DUFRESNE & ASSOCIATES, PC                                               │
 Defendant                                                              │
                                                                        │


                      RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

           Plaintiffs the Glassfords are homeowners who hired Defendant Dufresne & Associates,

PC (Dufresne) to investigate a failure of their septic system. The Glassfords allege that Dufresne

had actually been involved with certifying the appropriateness of the system when it was

constructed, and concealed that fact from the Glassfords. They allege breach of contract,

consumer fraud, and negligence. Both sides have filed motions for summary judgment. Plaintiffs

are represented by Kimberly Cheney, Esq.; Defendant is represented by Philip Woodward, Esq.

                                                        1. Undisputed Facts

           The court bases its decision upon the facts submitted with the parties’ motions, not the

additional facts submitted with Plaintiffs’ reply memorandum filed on May 1. If new facts could

be added to reply memoranda, motion practice could go on endlessly, with competing facts

added over and over. However, having reviewed the additional facts, they would not change the

court’s conclusions in any way.

           Plaintiffs do not dispute any of the facts in Dufresne’s statement of undisputed facts. See

Plaintiffs’ Statement of Undisputed Facts, p. 1 (noting that the “Statement of Undisputed Facts
filed by the Defendant” was “not objected to by Plaintiffs”)(emphasis added). Dufresne admits

some of the facts submitted in the Glassfords’ statement, but denies many others. The relevant

undisputed facts are, in sum, as follows.

       In 2005 Dufresne was hired by the builders of the home in question, D & L Homes, to

certify that the on-site mound sewage disposal system met state permit requirements for a three-

bedroom home. They did so. The contract between D&L and Dufresne states that it can only be

modified in writing and that it supersedes all earlier oral or written agreements. Nothing in that

language suggests any intent to create third-party beneficiaries of the contract.

       The state issued a wastewater system permit in April of 2005. In November of 2005, the

state certified that the requirements of the permit were satisfied. A wastewater system, properly

used and maintained, should have a life of 20 or more years. Surface water infiltration into a

septic system can cause it to fail. Hydraulic overload of a septic system can be caused by

discharge from the interior of the building the system serves, or from surface water entering the

system.

       In January 2006 the Glassfords bought their home from D & L Homes. Plaintiffs did not

see the certification letter prior to purchasing the home. In February 2006, the septic system

failed. The Glassfords sought professional advice about it at that time.

       In November 2008 the Glassfords hired Dufresne to investigate the failure of their mound

septic system. They hired Dufresne because they knew Dufresne had previously inspected it.

The report Dufresne wrote stated that it had “completed the original inspection” when the system

was installed “on October 18, 2005” and had found that it was installed “in accordance with the

permitted design.” The Glassfords has also received an opinion about the issues with the septic

system from the system’s designer before the Dufresne site visit in November 2008.




                                                 2
       The parties agree that all of the damages being sought in this case are economic losses.

Defendant’s Statement, ¶ 21. It is also undisputed that the contract between Dufresne and D & L

Homes was not a contract between Dufresne and a “consumer” as defined by the Consumer

Fraud Act. Id, ¶ 33. Dufresne had no direct role in the January 2006 sale of the house to the

Glassfords, and provided no documents or information to them in connection with the sale. The

Glassfords concede that they cannot prove that any of their claimed damages were caused by the

2008 inspection report done by Dufresne. Id, ¶ 34. The Glassfords’ expert testified at his

deposition that there was no reason to replace the septic system until after first trying to regrade

the surrounding area and make it watertight.

       Although Dufresne’s statement of material facts states that this case was “commenced on

August 28, 2012,” the court file instead shows that the complaint was filed on September 26,

2012. The return of service filed with the court shows that Dufresne was served with the

complaint prior to filing, on September 13, 2012.

                                       I. Dufresne’s Motion
       Dufresne argues that it is entitled to judgment on several grounds. The court begins with

the argument relating to the statute of limitations, as that issue could be dispositive.

                                     a. Statute of Limitations

        Dufresne argues that because the septic system failed in February of 2006, and this case

was not filed until after February of 2012, the six-year statute of limitations for property loss and

economic loss had expired before suit was filed. 12 V.S.A. §§ 511-512. However, Dufresne’s

argument relies upon facts that are not set forth in its undisputed facts: that the Glassfords had

other contractors tell them the issue was ponding and grading in February 2006.Because those

facts are not established, the court cannot rule on the issue based upon the current record.




                                                  3
                                     b. Consumer Fraud Claims

       There are two Consumer Fraud Act claims asserted here. One relates to the 2005

certification and the other relates to the 2008 report. The 2005 claim is that Dufresne omitted

any certification as to grading, and that the omission was therefore an unfair and deceptive trade

practice. However, the certification, whether inadequate or not, was not made to the Glassfords

by Dufresne. It was made to the home builder and the State.

       The Glassfords argue that because permits run with the land, the lack of privity between

the parties is irrelevant. Essentially they assert that all members of the public are entitled to rely

upon such certifications because they are intended to protect public health. The court is

unpersuaded. There was no relationship between the parties here until years after the

certification. A consumer fraud claim requires a contract for goods and services between the

consumer and the seller/violator. 9 V.S.A. § 2461(b). There was no such contract in connection

with the certification. Statements made, or not made, to the builder of the home in 2005 cannot

serve as the basis for a consumer fraud claim by the Glassfords.

       The 2008 claim is that the report (1) contained false representations with regard to who

designed the septic system, the possible causes of its failure, and Dufresne’s competence to opine

on the issue, and (2) “failed to state that the septic system was overloaded because it was not

sited properly and surface water run off was permitted to flood the leach field.” Complaint ¶ 17.

The complaint alleges that the false representations affected the Glassfords’ “decision to contract

with” Dufresne, and that they were harmed because they were unable to identify someone to sue

for the funds to fix the system, were unable to enjoy the use of their home, suffered mental

anguish, and have been forced to live there without a working system because they could not

afford to fix it (until they borrowed funds). Id. ¶¶ 34-35.




                                                  4
       The claim that the alleged false representations made in the report in 2008 led the

Glassfords to contract with Dufresne make no sense, as the contract was for preparation of that

very report. Complaint ¶ 12. There are just no facts supporting a claim that the Glassfords acted

“in reliance upon” any misrepresentation made by Dufresne in 2008. 9 V.S.A. § 2461(b). Their

claim for consumer fraud in 2008 fails.

                                    c. The Contract Claim

       Count 1 alleges that Dufresne breached its contract with D&L Homes, the builder of the

home the Glassfords later purchased. It alleges that the contract was intended by both parties to

make “all assigns and successors in interest” third-party beneficiaries of the contract, and that the

Glassfords thus have a claim against Dufresne. Complaint, ¶ 27. The Glassfords admit, however,

that (1) the contract between D&L and Dufresne states that it can only be modified in writing

and that it supersedes all earlier oral or written agreements, and (2) nothing in that language

suggests any intent to create third-party beneficiaries of the contract. Defendant’s Statement of

Undisputed Material Facts, ¶¶ 2-3. The Glassfords argue instead that the certification “ran with

the land,” that it was made to the Agency of Natural Resources, and that the Agency was “an

agent of the Plaintiffs in helping them to obtain a home with a functioning septic system.”

Plaintiffs’ Mem. in Response at 16. An interesting idea, but unsupported by any case law.

       Generally, “a plaintiff who is not a party to a contract does not have standing to challenge

a breach of that contract.” Dernier v. Mortgage Network, Inc., 2013 VT 96, ¶ 28. To establish

that one is a third-party beneficiary entitled to enforce another’s contract, a plaintiff must show

that it was the intent of the contracting parties to create such a status. McMurphy v. State, 171

Vt. 9, 16 (2000). The Glassfords point to nothing in the contract between H&L and Dufresne

suggesting an intent to benefit the Glassfords. “There was no intention manifested in the




                                                 5
language of the contract that either [party] intended to confer” a cause of action upon later

purchasers of the home. Id. at 17. “The fact that plaintiffs have a contractual relationship with

defendants does not give them standing to challenge [H&L’s] contract with defendants.”

Bischoff v. Bletz, 2008 VT 16 , ¶16, 183 Vt. 235. As another court has noted in rejecting a claim

that a home buyer was a third-party beneficiary of a former owner’s contract for soil testing and

site planning for a septic system, “both contracting parties must intend to confer enforceable

rights in a third party.” Grigerik v. Sharpe, 721 A. 2d 526, 536 (Conn. 1998).

        Dufresne cites cases from other jurisdictions for the proposition that the mere fact that the

contracting parties know that later owners will incidentally benefit from the work does not cerate

third-party beneficiary status. For example, in 155 Harbor Drive Condo Ass’n v. Harbor Point,

Inc., 568 N.E. 2d 365, 374 (Ill. App. 1991), the court explained:

                There is no question that the parties were aware that the building
                was being built for subsequent purchasers. However, “[i]t is not
                enough that the parties know, expect or even intend that” such
                people may benefit or that they are referred to in the contract…

(citation omitted). Here, the Glassfords cite no contrary cases, no language of the contract, and

no other evidence to support their argument. They cite no authority to support their alternate

theory of the law: that some sort of third-party beneficiary status exists separate from the intent

of the parties. Their claim fails.

                                     d. Negligence Claim

        The remaining claim is one for negligence, based upon the 2005 contract between D&L

and Dufresne. The Glassfords allege that it was a professional           service contact by which

Dufresne was to (1) determine whether the septic system was constructed according to the plans,

(2) certify to the ANR that the construction was done properly, and (3) certify that other terms

and conditions of the permit were complied with. Complaint ¶ 48. They go on to allege that



                                                 6
Dufresne “negligently failed to determine that the septic system had not been constructed in

conformity with the Chase & Chase plans,” and that this negligence “proximately caused

Plaintiffs to purchase the House and experience the harm alleged in this Complaint. . . ” Id. ¶¶

51-52.

         Dufresne argues that this claim fails for several reasons: (1) that Dufresne owed no duty

of care to the Glassfords, (2) that the claim is barred by the economic loss rule, (3) that the

Glassfords did not rely upon the certification and thus cannot prove causation.

         The duty to which the Glassfords point is described as follows: “Defendant had a duty

imposed by law to certify the Plaintiffs’ wastewater system had been constructed in accordance

with the permitted Chase & Chase plan.” Plaintiffs’ Mem. in Response at 11-12. However, they

fail to cite what law creates such a duty.1 They also cite absolutely no authority for the

proposition that such a duty, even if it existed, was owed to the Glassfords. The only case they

cite relates to a duty of care in a completely different context. Kennery v. State of Vermont, 2011

VT 121, ¶¶ 11-12, 191 Vt. 44. It is of no use in determining whether a duty of care runs from an

engineer certifying a septic system to a later purchaser of the property.

         However, it appears that what the Glassfords are really arguing is what the Restatement

of Torts refers to as “information negligently supplied for the guidance of others.” Restatement

of Torts (Second) § 552 (1977)(Westlaw updated March 2014). The Restatement explains:

                  One who, in the course of his business, profession or employment,
                  or in any other transaction in which he has a pecuniary interest,
                  supplies false information for the guidance of others in their
                  business transactions, is subject to liability for pecuniary loss
1
  Although not in connection with this issue, Plaintiffs discuss a statutory duty for engineers to properly certify
septic systems. However, they have offered no citation to such a statute. The references to 10 V.S.A. § 1973 do not
assist the court, as nowhere in that statute does the court find any duty imposed on engineers. Instead, the statute
addresses requirements for permits, which include certifications by engineers. That is not the same thing. The
Glassfords also argue that because certifications “run with the land” they create a tort duty to later purchasers, but
again fail to offer anything other than their own theorizing to support this argument.



                                                          7
                  caused to them by their justifiable reliance upon the information, if
                  he fails to exercise reasonable care or competence in obtaining or
                  communicating the information.

This applies only to “loss suffered . . . by the person or one of a limited group of persons for

whose benefit and guidance he intends to supply the information or knows that the recipient

intends to supply it,” and the loss must be the result of “reliance upon it in a transaction that he

intends the information to influence or knows that the recipient so intends or in a substantially

similar transaction.” Id.2 That is what is claimed here: that Dufresne negligently supplied H&L

inaccurate information which it knew a purchaser of the home would rely upon, that the

Glassfords so relied in buying the home, and that they have suffered financial harm as a result.

         The Vermont Supreme Court has adopted this provision of the Restatement. Howard v.

Usiak, 172 Vt. 227, 230-31 (2001). Thus, the court concludes that the Glassfords may be able to

establish a duty owed to them. See, e.g., Burbach v. Radon Analytical Laboratories, Inc., 652

N.W.2d 135 (Iowa 2002) (allowing claim of home purchasers to proceed against home

inspection company that had done inspection for seller).

         The next issue is whether this claim is barred by the economic loss rule. The general idea

of the economic loss rule is that it “prohibits recovery in tort for purely economic losses.”

EBWS, LLC v. Britly Corp., 2007 VT 37, ¶ 30, 181 Vt. 513. It essentially draws a line between



2
  One example provided is as follows: “[W]hen a vendor of beans employs a public weigher to weigh beans, the
weigher, who gives to the vendee a certificate which through his carelessness overstates the weight of the beans, is
subject to liability to the vendee for the amount that he overpays in reliance upon the certificate.” Id., cmt g. Another
is this: “The City of A is about to ask for bids for work on a sewer tunnel. It hires B Company, a firm of engineers,
to make boring tests and provide a report showing the rock and soil conditions to be encountered. It notifies B
Company that the report will be made available to bidders as a basis for their bids and that it is expected to be used
by the successful bidder in doing the work. Without knowing the identity of any of the contractors bidding on the
work, B Company negligently prepares and delivers to the City an inaccurate report, containing false and misleading
information. On the basis of the report C makes a successful bid, and also on the basis of the report D, a
subcontractor, contracts with C to do a part of the work. By reason of the inaccuracy of the report, C and D suffer
pecuniary loss in performing their contracts. B Company is subject to liability to C and to D.” Id., cmt h, illustration
9.



                                                           8
tort and contract claims, assigning certain types of relationships to the contract category. The

Vermont Supreme Court has explained:

                  In tort law, duties are imposed by law to protect the public from
                  harm, whereas in contract the parties self-impose duties and protect
                  themselves through bargaining. Thus, negligence actions are
                  limited to those involving unanticipated physical injury, and
                  claimants cannot seek, through tort law, to alleviate losses incurred
                  pursuant to a contract.

Id. “Negligence law does not generally recognize a duty to exercise reasonable care to avoid

intangible economic loss to another unless one’s conduct has inflicted some accompanying

physical harm, which does not include economic loss.” Gus’ Catering, Inc. v. Menusoft Sys., 171

Vt. 556, 558 (2000) (mem.).3

         However, the tort duty discussed above for negligently supplying inaccurate information

appears to be an exception to the rule. It expressly provides a tort remedy for “pecuniary loss,” as

opposed to personal injury. Restatement (Second) of Torts § 552, subsection (1). For a claim of

“negligent misrepresentation, the damages recoverable are those necessary to compensate the

plaintiff for the pecuniary loss suffered.” Pearson v. Simmonds Precision Products, Inc., 160 Vt.

168, 173 (1993). See also, Eastwood v. Horse Harbor Foundation, Inc., 241 P. 3d 1256, ¶¶ 14, 24

(Wash. 2010) (citing negligent misrepresentation as an exception to the economic loss rule); 5

Bruner & O’Connor on Construction Law § 17:19, Theories of Design Professional Liability –

Negligence Liability (Westlaw updated July 2013)(Noting that the economic loss limitation “is

3
  The economic loss doctrine is one of the messier areas of the law. “Doubts about the coherence of a generally
applicable economic loss rule have frequently been raised.” Vincent R. Johnson, The Boundary-Line Function of the
Economic Loss Rule, 66 Wash. & Lee L. Rev. 523, 529 (Spring 2009). “Courts and commentators struggle to define
the doctrine and its scope.” Benjamin Edwards, Rolling Back The Economic Loss Doctrine In Securities Disputes
Against Financial Intermediaries, 20 No. 1 PIABA Bar Journal 39 (2013). It has been called “one of the most
confusing doctrines in tort law.” R. Joseph Barton, Drowning in a Sea of Contract: Application of the Economic
Loss Rule to Fraud and Negligent Misrepresentation Claims, 41 William and Mary Law Review 1789 (May 2000).
Its outlines “are difficult to define and vary by jurisdiction.” Rolling Back at 41. The origin of the rule “is subject to
some debate and its application and parameters are somewhat ill-defined.” Moransais v. Heathman, 744 So. 2d 973,
979 (Fla. 1999).



                                                            9
tempered somewhat by § 552 of the Restatement Second, Torts, wherein tort recovery for

pecuniary loss is permitted in situations where one negligently supplies information to another

anticipating that the other will be guided and rely upon the information.”); William H. Hardie,

Liability of Professionals for Negligent Certification, 55 Alabama Lawyer 226, 231 (July 1994)

(“All professionals who issue opinions and certifications must be aware that their work product

can be the source of liability beyond their own clients unless they take an active role to limit the

dissemination of their opinions or certifications.”).

       The next question is whether the Glassfords cannot prove that they relied upon the 2005

certification. The Glassfords admit they did not see it until years later. However, they assert that

their lawyer’s title search flagged that no certification had been filed, he then obtained a copy in

time for the closing, and they relied upon their lawyer’s advice that title was good. Thus, they

argue, they “relied” upon the certificate because title would have been unmarketable without it

and they would never have bought the house. Plaintiff’s Response Mem. at 12.

       The problem with this theory is that the case law makes clear that reliance under Section

552 of the Restatement must be direct, not indirect. “The predicate to a finding of justifiable

reliance is actual reliance.” Marble v. First American Flood Data Services, Inc., 2004 WL

5582088, *2 (Vt. 2004)(mem.). An argument similar to the Glassfords was made in Brinkman v.

Barrett Kays & Associates, P.A., 575 S.E. 2d 40 (N.C. App. 2003). In that case, the plaintiff

homebuyers sued the designer of a waste disposal system for their development. The court noted

that the allegedly incorrect statements by the engineers

               were made to the [state permitting] department, which relied upon
               them and issued permits to defendants. Plaintiffs relied upon the
               department to fully investigate defendants’ application for permits.
               Plaintiffs relied upon the original permits and the re-issuance of the
               permits to conclude that their waste disposal system was
               functioning correctly. . . . However, there is no evidence that



                                                 10
                plaintiffs relied upon statements made by defendants as required
                by Restatement § 552(1).

Id. at 44. Thus, there was no actual reliance and the claim failed to meet the requirements of a

negligent misrepresentation claim.

        Another case in which an analogous argument was rejected for lack of actual reliance is

White v. BDO Seidman, LLP, 549 S.E.2d 490, 493-94 (Ga. App. 2001). In that case, investors

sued an accounting firm for negligently certifying financial statements of companies in which

plaintiffs invested to their detriment. Their negligent misrepresentation argument was as follows:

                [T]their decision to buy the securities was “causally dependent”
                upon or “closely connected” to BDO’s audit opinions in that (1)
                the Securities & Exchange Commission (“SEC”) would not have
                approved the public offering without BDO’s audit opinions; and,
                (2) the appellants’ brokers would not have sold the securities
                without SEC approval. Therefore, the appellants indirectly relied
                upon BDO’s audits because the audits were necessary to make the
                securities available to them.

Id. at 493. The court rejected the argument, finding that actual reliance is required. See also,

Hernandez v. Coldwell Banker Sea Coast Realty, 735 S.E.2d 605, 614 (N.C.App. 2012)

(rejecting claim by purchaser against appraiser on theory that she would not have been able to

purchase the property but for the appraisal, even though she never saw it, noting that “the

plaintiff’s actual reliance on the information in the report, not reliance via a third party such as

the lender,” is required).

        It is undisputed that there was no actual reliance here. The indirect reliance argument

cannot succeed, and this is fatal to the Glassfords’ claim.

                                      II. The Glassfords’ Motion

        The Glassfords have filed a cross-motion for summary judgment. It addresses all of the

same issues discussed above. Thus, the rulings above dispose of their claims.




                                                 11
                                           Order

       Dufresne’s motion for summary judgment is granted. The Glassfords’ motion is denied.

Judgment will be entered for Dufresne.

       Dated at Montpelier this 14th day of May, 2014.



                                                         _____________________________
                                                         Helen M. Toor
                                                         Superior Court Judge




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