Trudeau v. Vitali, No. 80-2-14 Bncv (Wesley, J., Aug. 29, 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.]

                                                     STATE OF VERMONT
SUPERIOR COURT                                                                                                  CIVIL DIVISION
Bennington Unit                                                                                         Docket No. 80-2-14 Bncv

                                                Trudeau et al vs. Vitali et al

                                             ENTRY REGARDING MOTION

Count 1, Negligence (80-2-14 Bncv)
Count 2, Negligence (80-2-14 Bncv)
Count 3, Negligence (80-2-14 Bncv)
Count 4, Negligence (80-2-14 Bncv)
Count 5, Negligence (80-2-14 Bncv)
Count 6, Negligence (80-2-14 Bncv)
Count 7, Negligence (80-2-14 Bncv)
Count 8, Negligence (80-2-14 Bncv)

Title:                Motion for Summary Judgment (Motion 2)
Filer:                Eric Vitali
Attorney:             Mark J. Patane
Filed Date:           May 12, 2014

Response filed on 07/18/2014 by Attorney Oreste V. Valsangiacomo for Plaintiff Kristen
Trudeau
Response filed on 08/08/2014 by Attorney Mark J. Patane for Defendant State of Vermont

Defendant’s Motion for Summary Judgment is GRANTED IN PART; Plaintiff’s Motion for
Further Discovery is GRANTED IN PART; Defendant’s Motion for Enlargement of Time is
GRANTED
                                   Opinion and Order

        Plaintiff Jeffrey Trudeau was a sergeant in the Vermont State Police when he
participated in a training session to learn how to use a Taser stun gun. Trudeau volunteered to
receive a shock from a Taser stun gun. The shock injured Trudeau’s back and shoulders, for
which he received workers’ compensation benefits. Trudeau and his wife, Kristin Trudeau, now
sue the State of Vermont, and the two troopers who supervised the training, for negligence,
intentional infliction of emotional distress, and outrage. The Court grants summary judgment to
Defendants because the workers’ compensation statute provides an exclusive remedy against
an employer for job-related injuries. Similarly, Plaintiff may only sue the State of Vermont for
work-based injuries caused by co-employees, and recovery against the State is barred by the
exclusivity of workers’ compensation for claims of negligence. Nevertheless, the Court defers
ruling on the motion by Plaintiff’s co-workers’ for summary judgment to allow further discovery
that conceivably would support an amended complaint for gross negligence, a claim not barred
by statutory exclusivity.
Factual Background

        On March 29, 2011, the Vermont Department of Public Safety employed Jeffrey Trudeau
as a sergeant in the Vermont State Police. Trudeau attended training on how to use Taser
Electronic Control Devices. Trooper Eric Vitali and Trooper Jeremy Peters ran the training.
Toward the end of the training, Vitali and Peters sought volunteers to experience a shock from
the Taser. Trudeau volunteered and signed a form release that purported to release Taser and
the training officers from liability. The form release also sought disclosure from Trudeau about
any preexisting medical conditions that might be aggravated by a shock. Trudeau disclosed a
knee injury but not a shoulder injury. Thereafter, Trudeau received a shock from his exposure
to the Taser, which dislocated both of his shoulders. Trudeau missed approximately one year
from work and required surgery. He received $196,080.15 in workers’ compensation benefits
as a result of the work-related injuries.

Procedural History

        On May 12, 2014, Defendants moved for summary judgment. Defendants argue
Plaintiffs may not maintain this suit because workers’ compensation was Plaintiff’s exclusive
remedy, because the release bars this suit, and because sovereign immunity protects State of
Vermont. On July 18, 2014, Plaintiffs opposed the motion for summary judgment. Plaintiffs
observe they had not conducted discovery and sought time to determine additional
information.1 Plaintiffs also argued there are exceptions to the exclusive remedy of worker’s
compensation. On the same day, Plaintiffs filed a motion to permit discovery under V.R.C.P.
56(d). On August 8, 2014, Defendants filed a response that opposed the motion to allow
discovery and argued the Vermont Legislature superseded the exceptions by statute.

Standard of Review

       The Court grants summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
V.R.C.P. 56(a). The Court makes all reasonable inferences and resolves all doubts in favor of the
non-moving party. Lamay v. State, 2012 VT 49, ¶ 6, 191 Vt. 635.

Discussion

    1. Defendants’ Motion for Summary Judgment

       The first issue in this case is whether the workers’ compensation statute bars a suit
against the State of Vermont. In most cases, receipt of workers’ compensation benefits by an

1
  Defendants filed their motion for summary judgment on the day the answer was due. Defendants did not file an
answer. Filing a motion for summary judgment does not relieve a party of the responsibility to answer under
V.R.C.P. 12(a). Although a party may file a motion to dismiss instead of an answer, and the court may treat a motion
to dismiss as a motion for summary judgment under V.R.C.P. 12(c), the rule does not contemplate filing a motion
for summary judgment as an answer. Nevertheless, Plaintiffs did not object to the lack of an answer, thus the Court
addresses the merits of the motion for summary judgment.
employee for personal injury “shall exclude all other rights and remedies of the employee, the
employee's personal representatives, dependents or next of kin, at common law or otherwise
on account of such injury.” 21 V.S.A. § 622. The only exceptions are if the employer
intentionally injured the employee or if the employer does not have workers’ compensation
insurance. See id. §§ 618, 622, 687 (describing the insurance requirements); Garger v.
Desroches, 2009 VT 37, ¶ 8, 185 Vt. 634 (excepting intentional injury).

        The workers’ compensation act bars recovery against the State of Vermont in this case.
Jeffrey Trudeau was an employee of the State of Vermont and received nearly $200,000 in
workers’ compensation benefits. Plaintiffs did not allege the State of Vermont intentionally
caused Jeffrey Trudeau injuries. Absent an intentional injury, an employee who receives
workers’ compensation cannot sue his employer for civil damages based on the same events.
See 21 V.S.A. § 622; Garger, 2009 VT 37, ¶ 8.

         Kristin Trudeau also cannot sue the State of Vermont for Jeffrey Trudeau’s injuries. “The
vast majority of courts have found that the application of exclusivity provisions to bar derivative
claims by a spouse or dependents of the employee is constitutional. The obvious rationale is
that it is reasonable to extend the tort immunity of the employer to dependents who normally
will benefit from the workers' compensation received by the employee.” Lorrain v. Ryan, 160
Vt. 202, 215 (1993). Section also 622 suggests that it also bars derivative lawsuits from relatives
based on the injuries to an employee. Therefore, if Jeffrey Trudeau cannot maintain a suit
against the State of Vermont, then Kristin Trudeau cannot validly pursue a derivative action
arising from the same injuries. See id.

        The next question is whether Plaintiffs can maintain a suit against Vitali and Peters.
Under 21 V.S.A. § 624, an injured employee may sue a joint tortfeasor to recover for work-
related injuries. However, “[w]hen the act or omission of an employee of the state acting within
the scope of employment is believed to have caused… injury to persons… the exclusive right of
action shall lie against the state of Vermont; and no such action may be maintained against the
employee…” 12 V.S.A. § 5602(a). However, an exception exists permitting suit against state
employee co-workers for “gross negligence or willful misconduct.” Id. § 5602(b).

        As currently framed by their complaint, Plaintiffs cannot sue Vitali and Peters because
their exclusive right of action lies against the State of Vermont. Both Vitali and Peters were co-
workers of Jeffrey Trudeau who worked for the Vermont State Police. They acted within the
scope of their employment when they shocked Jeffrey Trudeau because they were conducting a
training exercise. Although Plaintiffs plead claims for negligence and intentional infliction of
emotion distress, the complaint does not allege the injury occurred from gross negligence or
willful misconduct.

         Plaintiffs’ reliance on Libercent v. Aldrich is misplaced because an amendment to 12
V.S.A. § 5602 supersedes its holding. See 149 Vt. 76, 78–79 (1987). In Libercent, a state
employee who worked as a truck driver was injured when his vehicle’s steering mechanism
malfunctioned. Id. at 78. The truck driver had complained to maintenance workers of
difficulties with the steering mechanism and submitted requests for repair but the employees
did not repair the truck. Id. The Court held workers’ compensation was not an exclusive remedy
for claims against co-workers. Id. at 83. The Court reasoned: “In the absence of an explicit
statutory bar, this Court will not presume that the legislature intended to exclude state
employees from potential liability under 21 V.S.A. § 624(a).” Id.
       Two years after Libercent, the Vermont Legislature amended 12 V.S.A. § 5602. See 1989,
No. 114, § 2. In 1987, as the Court decided Libercent, 12 V.S.A. § 5602(a), excluded:

         Any claim based upon any act or omission of an employee of the state exercising
         due care, in the execution of a statute of regulation, whether or not such statute
         or regulation be valid, or based on the exercise or performance or failure to
         exercise or perform a discretionary function or duty on the part of a state agency
         or an employee of the state, whether or not the discretion involved be abused.

See 1989, No. 114, § 2. 12 V.S.A. § 5602 now allows suit only against the State of Vermont for
the acts of state employees, unless the employees engaged in gross recklessness or willful
misconduct. The change means that a plaintiff must make a showing beyond that the employee
failed to exercise due care; rather, individual liability against a co-worker state employee can
only be established by proof that the employee was grossly negligent or engaged in willful
misconduct.

        The amendment to 12 V.S.A. § 5602 supersedes the ruling of Libercent. Libercent
allowed the suit against the state employee maintenance workers because there was not “an
explicit statutory bar.” See 149 Vt. at 83. Two years after that ruling, the Vermont Legislature
amended 12 V.S.A. § 5602 to create that bar. See 1989, No. 114, § 2. Thus, Libercent is no
longer good law for the point argued by Plaintiffs and Plaintiffs cannot maintain the suit against
Vitali and Peters, as currently plead.2 See 1989, No. 114, § 2; 149 Vt. at 83. However, as
discussed below, because Plaintiffs have not yet had the opportunity to engage in discovery,
and because discovery conceivably may yield evidence to support a motion to amend the
complaint charging gross negligence, the Court withholds summary judgment pending
appropriate opportunity for discovery regarding the claims against Defendants Vitali and
Peters.

    2. Plaintiffs’ Motion to Allow Discovery under V.R.C.P. 56(d)

    Plaintiffs also requests the Court stay the motion for summary judgment to allow Plaintiffs
time for discovery. “A party may file a motion for summary judgment at any time until 30 days
after the close of all discovery…” V.R.C.P. 56(b). The Court may defer ruling on a motion for
summary judgment if a nonmovant shows the nonmovant lacks sufficient facts to defend
against a motion for summary judgment. V.R.C.P. 56(d). The Court normally decides motions for
summary judgment after adequate time for discovery. See Poplaski v. Lamphere, 152 Vt. 251,
254–55 (1989). In Doe v. Doe, the Vermont Supreme Court held a one month gap between filing
a complaint and a motion for summary judgment did not give sufficient time for discovery. 172
Vt. 533, 534 (2001) (mem.). The Court concluded, “[a]lthough plaintiff's denied opportunity
might be justified in a case where there is no factual dispute, particularly where the State is
asserting immunity from suit, we cannot determine that this is such a case.” Id.

       The Court denies Plaintiffs’ request as to the motion by Defendant State of Vermont
because discovery is not warranted with respect to the claim against the State, which is
unsustainable as a matter of law based on the current state of undisputed facts. As noted by

2
  Libercent is still good law for other points of law. Several cases cite Libercent for its discussion of immunity. See,
e.g., O’Connor v. Donovan, 2012 VT 27, ¶ 6, 191 Vt. 412.
Doe and Poplaski, Plaintiffs are ordinarily entitled to time for discovery before a Defendant files
a motion for summary judgment. See Doe, 172 Vt. at 534; Poplaski, 152 Vt. at 254–55. Unusual
circumstances, such as when the State asserts immunity, may negate the need for discovery.
See Doe, 172 Vt. at 534. Here, the Defendants assert statutory bar on the suit. As described
above, the statutory bar defeats Plaintiffs’ claims. Therefore, the Court will not defer ruling on
the motion for summary judgment or allow time for discovery under V.R.C.P. 56(d).

       As further stated above, however, the holdings in Poplaski and Doe compel a different
conclusion with regard to Plaintiff’s claims against the other troopers. While Plaintiff has not
plead gross negligence, he could maintain a separate suit against his co-workers individually if
discovery disclosed evidence of gross negligence. Thus, as to the co-workers’ motion for
summary judgment, the Court defers ruling pending a reasonable period for discovery.

    3. Motion for Enlargement of Time

    Finally, the Court grants Defendants’ stipulated motion for an enlargement of time.
Plaintiffs agreed to the motion, Defendants seek only a one week extension, and the case does
not have any urgent deadlines.

                                              Order

       WHEREFORE it is hereby ORDERED: The Court GRANTS Defendant State of Vermont’s
Motion for Summary Judgment. The Court DEFERS RULING on the Motion for Summary
Judgment by Defendants Vitali and Peters. The Court GRANTS IN PART Plaintiffs’ Motion to
Permit Discovery Pursuant to V.R.C.P. 56(d), and the parties shall confer and submit a proposed
Scheduling Order no later than September 22, 2014. The Court GRANTS Defendant’s Motion for
Enlargement of Time.


Electronically signed on August 29, 2014 at 02:17 PM pursuant to V.R.E.F. 7(d).


______________________________________
John P. Wesley
Superior Court Judge

Notifications:
Oreste V. Valsangiacomo (ERN 3914), Attorney for Plaintiff Jeffrey E. Trudeau
Oreste V. Valsangiacomo (ERN 3914), Attorney for Plaintiff Kristen Trudeau
Mark J. Patane (ERN 2620), Attorney for Defendant Eric Vitali
Mark J. Patane (ERN 2620), Attorney for Defendant Jeremy Peters
Mark J. Patane (ERN 2620), Attorney for Defendant State of Vermont

wesley
