Mitchell v. Jtvt

VERMONT SUPERIOR COURT CIVIL DIVISION
Lamoille Unit Case No. 22-CV-03530
154 Main Street
Hyde Park VT 05655
802-888-3887
www.vermontjudiciary.org

Mariah Mitchell v. JTVT, LLC

ORDER ON SUMMARY JUDGMENT AND
BIFURCATION OF THIRD-PARTY CLAIM

This case involves a 2019 accident in Stowe. Plaintiff Mariah Mitchell, a teacher at
Mountain Village School was struck by a falling tree and seriously injured while working
outside the School. Plaintiff filed a personal injury suit against defendant JTVT, LLC, the
owner of the property where the accident occurred and on which the School operates. JTVT
then filed a third-party complaint for breach of contract against the School, alleging that
the School breached its lease with JTVT by failing to obtain an insurance policy that
provides sufficient coverage to JTVT. The School has now moved for summary judgment on,
and to and bifurcate, the third-party claim, and JTVT has cross-moved for summary
judgment on the third-party claim. Because there are genuine factual disputes about
whether the School’s insurance policy provides the coverage required by its lease with
JTVT, the competing motions for summary judgment are denied. Additionally and for the
reasons set forth below, the motion to bifurcate and stay the third-party claim is granted.
Background
Unless otherwise noted, the following facts are undisputed. JTVT owns real property
located at 192 Thomas Lane in Stowe, which it acquired in 2013. The School was a
preexisting tenant on the property.
In April 2019, JTVT and the School executed a Commercial Lease Agreement to
govern the School’s tenancy going forward. The lease defines the “Leased Property” as
“exclusive use of the space shown on the plans appended hereto as Attachment A and non-
exclusive use of certain [other] areas and facilities.” Mt. Village School’s Statement of
Undisputed Material Facts (SUMF) ¶ 3. 1

1 The School submitted over 400 pages of exhibits as a single document attached to its statement of

undisputed material facts, without an exhibit list. Despite including multiple copies of the lease (and
other exhibits) in this filing, the School has not included the “Attachment A” referenced in Section 1
of the lease, even though the court previously declined to dismiss the case, in part, because this
document had not been provided and it was accordingly “not clear” what areas of the 192 Thomas

Entry Regarding Motions Page 1 of 7
22-CV-03530 Mariah Mitchell v. JTVT, LLC
The lease further provides that the School’s use of the “Leased Property” shall be
restricted to the use and occupancy of “a childrens’ school and the conduct of all business
activities incident thereto.” SUMF, Exh. 3 §§ 6, 6.1. Additionally, the School’s “[u]se and
enjoyment of the areas that are appurtenant to the Leased Property shall be subject to the
following conditions and restrictions:”
(a) The entryway, stairway, and hallway must be kept in a clean and orderly
condition free of clutter, storage items, trash, rubbish and other materials.
(b) There shall be no smoking allowed anywhere within the building.
(c) The access driveway and parking area shall be kept free of impediments or
obstructions by vehicles of Lessee or Lessee’s employees, clients, suppliers,
couriers, and other authorized users.
Id., § 6.2. The lease does not otherwise define what are the “appurtenant areas.”
The lease additionally requires the School to obtain insurance coverage and to name
JTVT as an additional insured:
Insurance. Lessee covenants and agrees that it will procure and maintain at
all times at Lessee’s sole cost insurance in such amounts and with such
coverage as are necessary or advisable to protect against loss arising from
damages, hazards, and liabilities pertaining to or resulting from Lessee’s use
and occupancy of the Leased Property. Such insurance coverage shall include,
but not be limited to, fire and casualty coverage for all Leasehold
Improvements; comprehensive general public liability insurance to cover any
and all liabilities for bodily injury or death to any person or persons, and
damage or destruction of property; so-called Dram Shop liability insurance, if
applicable, and such other liability and damage insurance in such amounts as
are necessary or advisable to the full reasonable satisfaction of Lessor, for
incidents, events, or omissions occurring in the Leased Property or in
connection with use of the related facilities and areas appurtenant thereto.
Lessee shall name Lessor as an additional insured under all policies required
herein, and shall provide Lessor with copies of all insurance policies upon
request and at least annually, and more frequently in the event of any
changes in coverage or conditions.
SUMF ¶ 7. The lease does not include a separate indemnification provision.
The School engaged insurance agent Hiscock & Boardman to obtain insurance, and
told Hiscock & Boardman that JTVT needed to be listed as an additional insured. It is
unclear whether the School provided Hiscock & Boardman with the insurance provision,
quoted above, from the lease with JTVT.

Lane property were conveyed by the lease. See Entry Re: Motion to Dismiss Third-Party Complaint 2
(Apr. 5, 2024).

Entry Regarding Motions Page 2 of 7
22-CV-03530 Mariah Mitchell v. JTVT, LLC
Through Hiscock & Boardman, the School obtained a Commercial General Liability
Insurance Policy with Markel Insurance Company, with an effective coverage period of
December 6, 2018, to December 16, 2019, with a general aggregate limit of $2,000,000 and
an occurrence limit of $1,000,000.
JTVT is not listed as a “Named Insured” under the Markel Policy. The only named
insured is “Mountain Village School LLC.” SUMF, Exh. 6 (Commercial General Liability
Policy Declarations). Section II of the Markel Policy is titled “WHO IS AN INSURED” and
provides that the School’s “employees” are insured “for acts within the scope of their
employment by [the School] or while performing duties related to the conduct of [the
School’s] business.” Id. The Section does not identify JTVT specifically or a landlord or
owner of leased property generally as “an insured.” Id. (Commercial General Liability
Coverage Form, § 2). Rather, this section states that “[n]o person or organization is an
insured with respect to the conduct of any current or past partnership, joint venture, or
limited liability company that is not shown as a Named Insured in the Declarations.” Id.
The Markel policy, however, is modified by a “Child Care General Liability
Enhancement Endorsement,” which includes an “Automatic Additional Insureds” provision
that expressly modifies Section II to add as an additional insured:
Managers Or Lessors Of Premises
Any person or organization who leases to [the School] or manages property
[the School] rent[s] or lease[s], but only with respect to liability for “bodily
injury”, “property damage” or “personal and advertising injury” caused, in
whole or in part, by [the School’s] acts or omissions or the acts or omissions of
those acting on [the School’s] behalf in connection with that part of the
premises leased or rented to [the School] and shown on the Declarations.
Id. (Child Care Commercial General Liability Enhancement 14-15). The 192 Thomas Lane
address is identified on a declaration in the Markel policy. Id. (Commercial General
Liability Extension of Declarations).2
It is not clear from the summary judgment record whether the School provided or
discussed the Markel policy with JTVT before this litigation.
Plaintiff Mariah Mitchell was an assistant teacher at the School. On November 1,
2019, Mariah was at work when she went outside to help build a maze for the School’s
students. While outside, on property owned by JTVT, a large tree fell on Mariah, leaving
her seriously injured. Mariah’s injury occurred on a common area of the Thomas Lane

2 The court’s alterations substitute “the School” and “the School’s” for the words “you” and “yours.”

The Markel policy provides that “the words ‘you’ and ‘your’ refer to the Named Insured shown in the
Declarations [i.e., the School] and any other person or organization qualifying as a Named Insured
under the policy.” SUMF, Exh. 6 (Commercial General Liability Coverage Form 1).

Entry Regarding Motions Page 3 of 7
22-CV-03530 Mariah Mitchell v. JTVT, LLC
property that the School was able to access and use, although the School did not have the
exclusive right to use the area, was not responsible for maintaining the area, and did not
have the right to remove trees from the area.
The parties dispute whether the School previously requested that JTVT remove the
tree that fell on and injured Mariah in November 2019.
Plaintiff filed this case in October 2022 against JTVT alleging claims for negligence
and wanton and willful misconduct and seeking damages for her injuries.
JTVT thereafter sued Markel in federal court for a declaration that it is entitled to
coverage under the Markel policy for any liability arising from Mariah’s claims in this
action. See JTVT, LLC v. Markel Ins. Co., No. 23-CV-42. That case is currently stayed
pending the outcome of this litigation.
JTVT’s third-party complaint against the School, which was filed in December 2023,
pleads a single breach-of-contract claim and alleges that the School failed to obtain the
insurance coverage required under the lease.
Analysis
1. Summary judgment
The School moves for summary judgment on JTVT’s third-party breach of contract
claim on three grounds: (i) the School obtained the insurance coverage required by Section
11 of the lease agreement; (ii) Mariah’s accident did not occur on the “Leased Property,” as
defined by the lease agreement; and (iii) JTVT cannot establish damages given that JTVT
may obtain coverage if it prevails in its coverage action against Markel.
JTVT cross-moves for summary judgment and argues that the undisputed facts
show that the School failed to obtain sufficient coverage under the lease.
“Summary judgment is appropriate ‘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.’”
Hier v. Slate Valley Unified Sch. Dist., 2025 VT 2, ¶ 8 (quoting V.R.C.P. 56(a)). “In
determining the existence of genuine issues of material fact, courts must accept as true the
allegations made in opposition to the motion for summary judgment, so long as they are
supported by affidavits or other evidentiary material.” Gates v. Mack Molding Co., 2022 VT
24, ¶ 13, 216 Vt. 379 (quotation omitted).
Under the lease, the School was required to insure against, among other things,
“loss arising from damages, hazards, and liabilities pertaining to or resulting from [the
School’s] use and occupancy of the Leased Property” including but not limited to . . .
comprehensive general public liability insurance to cover any and all liabilities for bodily
injury or death to any person or persons . . . and such other liability and damage insurance
in such amounts as are necessary or advisable to the full reasonable satisfaction of [JTVT],

Entry Regarding Motions Page 4 of 7
22-CV-03530 Mariah Mitchell v. JTVT, LLC
for incidents, events, or omissions occurring in the Leased Property or in connection with
use of the related facilities and areas appurtenant thereto,” and to name JTVT “as an
additional insured under all policies required herein.” SUMF ¶ 7.
Pursuant to this provision, the School obtained insurance under the Markel policy
that covered JTVT as an additional insured, “but only with respect to liability for ‘bodily
injury’, ‘property damage” or “personal and advertising injury” caused, in whole or in part,
by [the School’s] acts or omissions or the acts or omissions of those acting on [the School’s]
behalf in connection with that part of the premises leased or rented to [the School] and
shown on the Declarations.” SUMF, Exh. 6 (Child Care Commercial General Liability
Enhancement 14-15).
There are genuine factual disputes concerning whether acquisition of the Markel
policy satisfied the insurance provision in the parties’ lease.
The scope of coverage under the Markel policy is disputed and will conclusively be
determined in the federal coverage action. But there is language in the lease’s insurance
provision—in particular, the terms “pertaining to,” “any and all liabilities,” “incidents,”
“events,” and “in connection with use of the related facilities”—that can reasonably be read
to require broader coverage than the comparatively narrow language in the Markel policy
providing coverage “only with respect to liability . . . . caused, in whole or in part, by [the
School’s] acts or omissions or the acts or omissions of those acting on [the School’s] behalf in
connection with that part of the premises leased or rented to [the School] and shown on the
Declarations.” See, e.g., Four Oaks Conservation Tr. v. Bianco, 2006 VT 6, ¶ 7, 179 Vt. 597
(courts interpret lease agreements, like other contracts, according to the parties’ intent “as
manifested in the plain language”).
The lease, however, also includes terms requiring the School to provide copies of the
insurance it obtained to JTVT and permitting JTVT the right to demand copies, and that
the insurance the School obtained must be to JTVT’s “full reasonable satisfaction.” SUMF ¶
7. This “full reasonable satisfaction” term is ambiguous insofar as it is unclear how the
parties intended JTVT to indicate the necessary satisfaction, and in any event, there is no
evidence in the summary judgment record from which the court can conclude that JTVT
was provided a copy of the Markel policy and implicitly or explicitly expressed to the School
that it was satisfied with the coverage provided therein.
Finally, as noted by the federal court in the coverage action, there remain
unresolved questions as to whether any negligence of the School’s employees (either
Mariah’s or someone else’s) may have contributed to the accident in way that could give rise
to coverage under the Markel policy language extending coverage for injuries “caused, in
whole or in part, by . . . the acts or omissions of those acting on [the School’s] behalf.” See
SUMF, Exh. 6 (Child Care Commercial General Liability Enhancement 14-15 (emphasis
added)); Order on Mot. for Partial Reconsideration (Doc. 83), JTVT, LLC, No. 23-cv-42

Entry Regarding Motions Page 5 of 7
22-CV-03530 Mariah Mitchell v. JTVT, LLC
(Aug. 13, 2024); JTVT’s Answer (Oct. 31, 2022) (pleading as an affirmative defense in this
case that Mariah’s “claims are barred in whole or in part by her comparative fault”);
Rainforest Chocolate, LLC v. Sentinel Ins. Co., Ltd., 2018 VT 140, ¶ 7, 209 Vt. 232
(“Vermont law requires that policy language be accorded its plain, ordinary meaning
consistent with the reasonable expectation of the insured, and that terms that are
ambiguous or unclear be construed broadly in favor of coverage.” (quotation omitted)).
Given these unresolved questions, neither party is entitled to summary judgment on
JTVT’s third-party breach of contract claim against the School. 3
2. Bifurcation
The School also moves to stay and bifurcate the third-party contract claim from the
personal injury claim.
Rule 42(b) provides the court with “broad discretion” to order separate trials “in
furtherance of convenience or to avoid prejudice, or when separate trials will be conducive
to expedition and economy.” V.R.C.P. 42(b); Gardner v. Hokenson, Nos. 2019-410 & 2020-
167, 2021 WL 2545407, at *4 (Vt. Feb. 5, 2021) (unpub. three-justice entry order). In
considering whether to order separate trials, courts may consider a multitude of factors,
“but the principal consideration must be which procedure is more likely to result in a just
and expeditious final disposition of the litigation.” Gardner, 2021 WL 2545407, at *4
(quoting 9A Wright & Miller, Fed. Prac. & Proc. § 2388 (alterations omitted)).
Bifurcation of the third-party claim is appropriate under the circumstances. The
federal coverage action has been stayed pending resolution of Mariah’s personal injury
claim. The third-party claim cannot conclusively be resolved until the coverage question is
settled because, at the very least, JTVT’s damages will be unknown. If JTVT obtains
coverage under the Markel policy, the School’s defense to liability may also be
strengthened. Moreover, bifurcation will avoid the risk of prejudice and confusion inherent
in interjecting insurance issues into the trial on Mariah’s personal injury claim against
JTVT. See Duval v. Diamondstone, 132 Vt. 176, 179 (1974) (noting the longstanding
Vermont rule that, generally, “the matter of insurance coverage confuses the issues and
creates undue prejudice”). Unlike the liability and damages issues in the personal injury
claim, which the court previously declined to bifurcate into separate trials, the personal
injury and contract issues are sufficiently distinct that separate trials are unlikely to
require significant duplicative testimony. And while bifurcation of the third-party claim
may delay the ultimate resolution of the dispute—which was the court’s chief concern in
denying bifurcation of the liability and damages portions of the personal injury claim—such

3 The School is likewise not entitled to summary judgment on the basis that JTVT cannot establish

injury. JTVT faces substantial exposure in this action, has incurred defense costs, and may
ultimately not prevail in the federal coverage action.

Entry Regarding Motions Page 6 of 7
22-CV-03530 Mariah Mitchell v. JTVT, LLC
delay is already baked into the third-party claim given its relationship to the pending
federal coverage action.
Accordingly, the court will bifurcate and stay the third-party claim until the
personal injury claim and the federal coverage action are resolved. Thus, absent further
orders from this court or the federal court in the coverage action, the personal injury claim
will be scheduled first for trial in this court, and then once that claim and the federal
coverage action are resolved, a separate trial will be scheduled in this court on the third-
party breach of contract claim.
Order
The motions for summary judgment on the third-party claim are DENIED and the
motion to bifurcate and stay the third-party claim is GRANTED.
The clerk shall set the case for a pretrial conference on the personal injury claim.

Electronically signed on: 11/19/2025 pursuant to V.R.E.F. 9(d)

_______________________________________
Benjamin D. Battles
Superior Court Judge

Entry Regarding Motions Page 7 of 7
22-CV-03530 Mariah Mitchell v. JTVT, LLC