Blair v. Frank Whitcomb Construction Corp., No. 498-01 CnC (Norton, J., July 6, 2005)


[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.]


STATE OF VERMONT
Chittenden County, ss.:



HOPE BLAIR, Individually and as Administratrix
of the Estate of Brian K. Blair, and NIKI BLAIR, In her
capacity as guardian of Bryana Blair

v.

FRANK W. WHITCOMB CONSTRUCTION
CORPORATION and STATE OF VERMONT



                                            ENTRY
        This matter concerns two motions by the State of Vermont in this action, which is
based on a traffic accident in which the passenger, Brian K. Blair, was killed. The
plaintiffs have filed survival, wrongful death, and loss of consortium claims against the
State of Vermont. The State’s first moves for judgment on the pleadings with respect to
the plaintiff’s loss of consortium claim. The State has also filed a motion in limine to
limit damages to $250,000, pursuant to 12 V.S.A. § 5601(b).
       In its first motion, the State argues that the court must issue judgment in its favor
on the loss of consortium claim because such loss is not remediable in a wrongful death
action. The State also argues that the case should be recaptioned to exclude Niki Blair, in
her capacity as guardian for Bryana Blair, as a plaintiff.
        In a motion for judgment on the pleadings under V.R.C.P. 12(c), the court “takes
as true all well-pleaded factual allegations in the nonmovant's pleadings and all
reasonable inferences to be drawn from them, and takes as false all contravening
assertions in the movant's pleadings.” Knight v. Rower, 170 Vt. 96, 98 (1999). Loss of
consortium is a remediable loss under a common law negligence claim. 12 V.S.A. §
5431; Whitney v.
Fisher, 138 Vt. 468, 471–72 (1980). The loss “is directed to the loss of affection, aid and
cooperation in every conjugal relation, and conjugal society.” Whitney, 138 Vt. at 471.
Minor children can also recover for loss of consortium related to the deprivation of the
physical, moral, and intellectual training from an injured parent, as well as the
deprivation of affection, society, love, protection, and companionship. Hay v. Med. Ctr.
Hosp. of Vt., 145 Vt. 533, 535, 545 (1985).
        Wrongful death actions, however, do not exist at common law. Quesnel v. Town
of Middlebury, 167 Vt. 252, 256 (1997). Therefore, damages in a wrongful death action
are limited to those recognized by the Vermont Wrongful Death Act, 14 V.S.A. §§ 1491–
1492. The Act limits damages for the spouse and the next of kin to “pecuniary injuries,”
14 V.S.A. § 1492(b), although the Vermont Supreme Court has interpreted these injuries
expansively to include “recovery for the loss of companionship of a spouse or child, as
well as ‘compensation for lost intellectual, moral and physical training, or the loss of
care, nurture and protection.’” Mears v. Colvin, 171 Vt. 655, 657 (2000) (mem.) (citation
omitted) (quoting Mobbs v. Central Vt. Ry., 150 Vt. 311, 316 (1988)). Loss of
companionship, however, may be more limited than loss of consortium. Hay, 145 Vt. at
537; see also Black’s Law Dictionary 328 (8th ed. 2004) (defining consortium to include
“benefits that one person . . . is entitled to receive from another, including
companionship, cooperation, affection, aid, financial support, and (between spouses)
sexual relations”). Thus, loss of consortium is not recoverable in a wrongful death action,
as the statute does not provide for such damages.
      The plaintiffs avoid this issue by arguing that they do not claim loss of consortium
damages from Brian Blair’s death. Rather, they claim these damages from the period in
which Brian Blair was injured, but before he died.
       At first glance, such damages would appear rather small. Brian Blair died in a
truck accident, so one would assume that he died nearly instantaneously. Of course, it is
not beyond the realm of possibility that he lived for some time, and the complaint says
nothing of an instant death. Hence, there is a reasonable inference that the plaintiffs could
have sustained loss of consortium damages between the accident and Brian Blair’s death.
The plaintiffs’ claim for loss of consortium is valid, and the State’s motion is denied.
Should the plaintiffs ultimately fail to provide evidence of loss of consortium during the
window between the accident and Brian Blair’s death, the State can address this issue in
either a summary judgment motion or in a V.R.C.P. 50(a) motion at trial.
       Turning to the State’s second motion, 12 V.S.A. § 5601(b) provides: “the
maximum liability of the state under [the Vermont Tort Claims Act] shall be $250,000.00
to any one person and the maximum aggregate liability shall be $1,000,000.00 to all
persons arising out of each occurrence.” The question that the State presents in its motion
in limine is whether the “one person” in a wrongful death action includes only the
administrator who brings the action or the people on whose behalf the administrator
brings the action. If the former interpretation is correct, then the plaintiffs may recover
only $250,000 in damages from the survival and wrongful death actions, as Hope Blair,
the administrator, is the only “person” involved in this part of the suit and damages must
be limited accordingly.1 If the latter is correct, then the plaintiffs may recover up to
$750,000, as there are three persons on whose behalf the administrator is bringing
survival and wrongful death claims: the decedent, Brian Blair; the decedent’s spouse,
Hope Blair; and the decedent’s daughter, Bryana Blair.
        In resolving this question, the court notes that the Vermont Tort Claims Act
operates as a waiver to the State’s common law sovereign immunity. Lafond v. Vt. Dep’t
of Soc. & Rehabilitation Servs., 167 Vt. 407, 409–10 (1998). Because the statute is in
derogation of the common law, the court is obligated to strictly construe its terms. See
Record v. Vt. State Highway Bd., 121 Vt. 230, 236–37 (1959) (“In construing this statute
we are not to presume that the legislature intended to work any change in the common
law beyond what the statute itself declares in either express terms, or by unmistakable
implication.”). Thus, the court construes the $250,000 cap strictly in favor of the State,
rather than expansively in favor of the plaintiffs. See also Indian Towing Co. v. United
States, 350 U.S. 61, 69 (1955) (“[W]hen dealing with a statute subjecting the
Government to liability for potentially great sums of money, this Court must not promote


             1
             The court notes that the $250,000 limit does not apply to the third count for loss of
   consortium, as there is an additional person claiming damages on that count: Niki Blair, in her
                                                           capacity as guardian for Bryana Blair.


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profligacy by careless construction.”); Jacobs v. State Teachers’ Retirement Sys., 174 Vt.
404, 408 (2002) (“Because sovereign immunity is procedural, a state may choose to
waive it in specified circumstances. Such waiver must be accomplished expressly by
statute.” (citation omitted)).
       Accordingly, the court holds that “person” in the context of a wrongful death
action is the administrator of the estate, not the people on whose behalf the administrator
sues.2 Thus, the State is entitled to a $250,000 cap in damages with regard to the survival
and wrongful death claims in this matter.
                                            ORDER
        For the foregoing reasons, the State’s motion for judgment on the pleadings is
DENIED and the State’s motion in limine is GRANTED. The plaintiffs’ recovery from
the State shall be limited to $500,000: $250,000 for Hope Blair under counts I (survival),
II (wrongful death), and III (loss of consortium); and $250,000 for Niki Blair under count
III (loss of consortium).


       Dated at Burlington, Vermont, July 6, 2005.



                                                               __________/s/______________
                                                                                     Judge



       2
          Although there exists contrary authority, at least one court in another jurisdiction has
reached a similar result when interpreting nearly identical tort claims act language. See, e.g.,
Austin v. Cooksey, 570 S.W.2d 386, 388 (Tex. 1978) (holding that “per person” liability cap
applied to decedent, not to decedent’s survivors). The court notes that the Texas Supreme
Court’s reasoning was slightly different than this court’s. The Texas Supreme Court held that the
“one person” was the decedent, rather than the administrator. This difference may be the result of
Texas’s wrongful death act, which allows surviving spouses, children, and parents to bring suit,
in addition to estate representatives. Compare Tex. Civ. Prac. & Rem. Code Ann. § 71.004(b),
(c) (West 2005) with 14 V.S.A. § 1492(a). In any event, this is a distinction without a difference.
In either case, there is only one “person” bringing a wrongful death claim. But see Florida Dep’t
of Corrections v. Parker, 553 So. 2d 289, 289 (Fla. Dist. Ct. App. 1989) (holding that wife of
decedent individually was separate “person” from wife as representative of decedent’s estate,
and therefore liability cap did not apply).


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