Mountainside v. Jamieson Risk Service

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 88-2-20 Wncv
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org

Mountainside Condominium vs. Jamieson Risk Service

Opinion and Order on Plaintiffs’ Second Motion to Amend

After the original plaintiff, the Mountainside Condominium Association (“MCA”),

assigned its claims in this case to a certain group of unit-owners, they amended the

complaint to clarify the claims asserted against Defendant Jamieson Risk Service

(“Jamieson”) due to asserted insufficient insurance related to the 2014 fire loss of one of

MCA’s buildings.1 So clarified, the claims in the first amended complaint are: (1) breach

of contract; (2) breach of fiduciary duty/negligent procurement of insurance; (3) negligent

misrepresentation; and (4) breach of the implied covenant of good faith and fair dealing.

Plaintiffs now propose a second amendment to: (a) remove a plaintiff who has died; (b)

further clarify the factual allegations; and (c) add a claim under the Vermont Consumer

Protection Act (CPA), 9 V.S.A. §§ 2451–2466c. In substance, the CPA claim seeks a new

remedy based on the allegations supporting the other claims.

Jamieson opposes the amendment only insofar as the new CPA claim goes. It

argues that the amendment is “untimely,” the claim is futile because the CPA does not

apply to the insurance marketplace, and the claim is futile because it is premised on a

1 A description of the related cases leading up to the assignment is available in the

Court’s February 11, 2024, decision on Plaintiffs’ motion to strike.
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specific statement that is mere puffery or a generalized statement that could not have

been reasonably relied upon.

I. Procedural Standard

Vt. R. Civ. P. 15(a) provides that leave to amend a complaint shall be freely given

by the court “when justice so requires.” In Vermont, this provision has been liberally

construed in favor of allowing parties to amend their pleadings. Lillicrap v. Martin, 156

Vt. 165, 170 (1991). “The principal reasons underlying the liberal amendment policy are

(1) to provide maximum opportunity for each claim to be decided on its merits rather

than on a procedural technicality, (2) to give notice of the nature of the claim or defense,

and (3) to enable a party to assert matters that were overlooked or unknown to him at an

earlier stage in the proceedings.” Colby v. Umbrella, Inc., 2008 VT 20, ¶ 4, 184 Vt. 1, 5

(quoting Bevins v. King, 143 Vt. 252, 255 (1983)).

Leave to amend is not always granted, however. It may be denied when the just

and expeditious disposition of the dispute between the parties will not be advanced via

the amendment. In making that determination, the Court analyzes whether the

proposed amendment: (1) would result in undue delay; (2) is brought in bad faith; (3)

would result in unfair prejudice to the opposing party; or (4) would be “futile” in that it

would fail to state a claim upon which relief can be granted. Perkins v. Windsor Hosp.

Corp., 142 Vt. 305, 313 (1982).

The standard to deny amendment based on futility is the same as that for

dismissal under Vt. R. Civ. P. 12(b)(6). See IBEW Local Union No. 58 Pension Trust

Fund and Annuity Fund v. Royal Bank of Scotland Group, PLC, 783 F.3d 383, 389 (2d

Cir. 2015). “Dismissal under Rule 12(b)(6) is proper only when it is beyond doubt that

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there exist no facts or circumstances consistent with the complaint that would entitle

Plaintiff to relief.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575 (mem.) (quoting Union

Mut. Fire Ins. Co. v. Joerg, 2003 VT 27, ¶ 4, 175 Vt. 196)). In considering a motion to

dismiss, the Court “assume[s] that all factual allegations pleaded in the complaint are

true, accept[s] as true all reasonable inferences that may be derived from plaintiff’s

pleadings, and assume[s] that all contravening assertions in defendant’s pleadings are

false.” Mahoney v. Tara, LLC, 2011 VT 3, ¶ 7, 189 Vt. 557 (mem.) (internal quotation,

brackets, and ellipses omitted).

II. Analysis

As noted, the Court’s analysis of the motion must proceed through both Rules 15

and 12.

A. Undue Delay

As to timeliness, there can be no doubt that adding a new claim over four years

into the litigation comes late, and Plaintiffs’ offer no reason whatsoever for the delay.

The CPA claim is based on the same core factual allegations that support the claims in

both the original and first amended complaints. There is no reason Plaintiffs could not

have asserted the CPA claim in the original complaint or anytime thereafter. In any

event, the palpable question is less about how much time has gone by and more about the

delay, if any, that raising the claim now might cause. Indeed, amendments to pleadings

are allowed even during trial. Vt. R. Civ. P. 15(b). In this regard, Jamieson has not

suggested that adding the CPA claim now will cause any inefficiencies with regard to

discovery, experts, or any other pretrial matters. Plaintiffs argue that because adding

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the new claim amounts to little other than seeking additional remedies based on the

same facts, no such inefficiencies will occur.

While there is no explanation as to what took so long to add the CPA claim, the

Court does not see that adding it now will cause any prejudicial delay or inefficiencies in

pretrial proceedings.2 Undue delay in seeking the remedy, standing alone, is not a

persuasive reason to deny amendment.

B. Futility—Whether the CPA Applies to Insurance

Jamieson also argues that the CPA claim is futile because the CPA, as a matter of

law, does not apply to insurance transactions. In Greene v. Stevens Gas Serv., 2004 VT

67, ¶ 10, 177 Vt. 90, 95, the Vermont Supreme Court acknowledged the argument that

the 1985 amendments to the CPA abrogated its holding in Wilder v. Aetna Life & Cas.

Ins. Co., 140 Vt. 16, 18–19 (1981), to the effect that the CPA does not apply to insurance.

The Greene Court, however, resolved that case on an alternative basis without reaching

this question; and the Vermont Supreme Court never since has ruled on the matter.

The undersigned has addressed this issue in a different case, concluding that the

CPA generally extends to the insurance marketplace. See Blake v. Progressive Northern

Ins., No. 164-9-15 Oecv, 2016 WL 1167746, at *2 (Vt. Super. Ct. Feb. 04, 2016) (“The

1985 amendments to the [CPA] fully undermine the basis for the Supreme Court’s ruling

in Wilder. Given the Legislature’s significant expansion of the definition of matters

covered by the [CPA]—from “delivery, installation, servicing, repair or improvement” of

“tangible personal chattel” to “intangibles” and “property and services of any kind”—this

2
The opposite was so when Jamieson recently sought to implead a third party. See the
Court’s February 11, 2024, decision on Plaintiffs’ motion to strike. Doing so largely
would have started the case over.
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Court believes that the [CPA] now covers transactions involving the sale of insurance.”).

Other courts have been of like mine. Vermont Mut. Ins. v. Bradley, No. 314-9-20 Wncv,

2021 WL 4303970, at *4 (Vt. Super. Ct. Jan. 11, 2021) (Bent, J.); Johnson v. Smith Bros.

Ins., No. 1062-12-18 Cncv, 2020 WL 5875652, at *2 (Vt. Super. Ct. Feb. 18, 2020) (Toor,

J.); Stinson v. Union Mut. Fire Ins. Co., No. 103-7-18 Oecv, 2019 WL 13061475, at *4 (Vt.

Super. Ct. Apr. 01, 2019) (Harris, J.); Bertelson v. Union Mut. Fire Ins. Co., No. 834-04

Cncv, 2004 WL 7325433, at *2 (Vt. Super. Ct. Nov. 22, 2004) (Norton, J.).

Jamieson’s argument to the contrary brings nothing new to the table and does not

persuade the Court that the cited decisions got it wrong. At a minimum, regardless of

the ultimate merit of Plaintiffs’ claim, the CPA extends to the insurance marketplace.

The proposed amendment cannot fail to state a claim on that basis.

C. Futility—Unactionable Puffery and Generalized Statements

Lastly, Jamieson argues that Plaintiffs’ CPA claim is premised on a single

statement Jamieson made after being hired. It quotes that statement in its opposition

filing. See Jamieson’s Opposition to Plaintiffs’ Motion to Amend at 9 (filed May 23,

2024). It then argues that the statement cannot amount to a violation of the CPA

because it is mere puffery or an unactionable generalized statement.

The Court’s rejects this argument as a basis for denying amendment. The

statement quoted in Jamieson’s opposition does not appear in the proposed amendment.

More importantly, the allegations within the four corners of the proposed amendment do

not point to any one statement as the basis for the CPA claim. Rather, Plaintiffs allege

that the MCA, having no insurance expertise, sought to hire an expert to manage its

insurance needs. The MCA hired Jamieson, it is alleged, due to representations as to its

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expertise and that reviews and determinations would be made to ensure that the MCA

was adequately insured. Plaintiffs allege that MCA relied on Jamieson’s

representations, hired it, and the result was disastrous and costly.

The Court must evaluate such a claim through the focused lens of Rule 12(b)(6).

Regardless of whether the actual evidence is later determined to demonstrate a violation

of the CPA, there is no basis to dismiss the allegations at this time as mere puffery or

unactionable generalizations. The allegations are sufficient to state a claim under the

liberal standards of Rule 12.

Conclusion

For the foregoing reasons, Plaintiffs’ motion to amend is granted. The second

amended complaint is to be served per Vt. R. Civ. P. 5.

Electronically signed on Monday, June 24, 2024, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

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