kelley v franklin cty rehab

Termont 	Superior 	Court
Filed 	08/10/26
Chittenden 	UUnit
VERMONT 	SUPERIOR 	COURT
Chittenden 	Unit
175 	Main 	Street
Burlington 	VT 	05401
802-863-3467
CIVIL 	DIVISION
Case 	No. 	21-CV-00323
www.vermontjudiciary.org
Nancy 	Kelley, 	et 	al v. 	Franklin 	County 	Rehab 	Center, 	LLC 	d/b/a 	Franklin 	County
Rehabilitation 	Center 	and 	d/b/a 	Franklin 	County 	Rehabilitation 	& 	Adult 	Care
Center, 	et 	al
ENTRY 	REGARDING 	MOTION
Title: 	Motion 	to 	Dismiss 	the 	Crossclaim 	- 	Renewed 	(Motion: 	32)
Filer: 	Curtis 	L. 	S. 	Carpenter
Filed 	Date: 	May 	14, 	2026
The 	motion 	is 	DENIED.
Defendant 	Dr. 	Teig 	Marco 	has 	filed 	a 	motion 	to 	renew 	his 	prior 	motion 	seeking 	dismissal
of Franklin 	County 	Rehabilitative 	Center 	(FCRC) 	from 	the 	present 	litigation. 	Defendant 	makes
two 	arguments. 	First, 	he 	contends 	there 	is 	a 	lack 	of 	expert 	testimony 	tying 	him 	to 	the 	alleged
negligence 	claims 	that 	have 	been 	filed 	against 	FCRC 	that 	would 	support 	FCRC's
indemnification 	cross-claims 	against 	him. 	Second, 	he 	contends 	that 	with 	his 	dismissal 	all
liability 	claims 	against 	him 	regarding 	either 	indemnification 	or 	duty 	to 	defend 	claims 	necessarily
fails. 	See 	Monadnock 	Constr. 	Inc. 	v. 	DiFama 	Concrete, 	Inc., 	70 	A.D.3d 	906, 	907-908, 	896
N.Y.S.2d 	107 	(N.Y. 	2nd 	Dept. 	2010) 	(holding 	that 	when 	the 	claims 	against 	the 	named 	insured
are 	dismisses 	their 	duty 	to 	defend 	additional 	insureds 	are 	relieved).
Defendant 	FCRC 	opposes 	the 	motion 	to 	dismiss 	on 	multiple 	grounds. 	The 	Court 	agrees
with 	Defendant 	FCRC 	and 	Denies 	the 	motion 	to 	dismiss 	for 	the 	following 	reasons.
Dr. 	Marco 	frames 	his 	motion 	as 	a 	reconsideration 	of the 	Court's 	denial 	of his 	February
motion 	to 	dismiss 	Defendant 	FCRC's 	counterclaims. 	These 	motions 	appear 	to 	have 	been 	framed
as 	motions 	to 	dismiss 	primarily 	because 	the 	window 	for 	summary 	judgment 	motions 	closed
nearly 	18 	months 	ago. 	Yet, 	a 	motion 	to 	dismiss 	carries 	a 	substantially 	higher 	burden 	than 	a
motion 	to 	dismiss. 	Alger 	v. 	Dep't 	ofLabor 	& 	Indus., 	2006 	VT 	115, 	§ 	23. 	The 	moving 	party
must 	effectively 	show 	that 	that 	no 	legally 	cognizable 	claim 	for 	relief exists. 	Id.; 	see 	also 	5B 	A.
Benjamin 	Spencer, 	et 	al., 	Fed. 	Prac. 	& 	Proc. 	Civ. 	§ 	1357 	(4th 	ed.). 	"The 	purpose 	of a 	motion 	to
dismiss 	for 	failure 	to 	state 	a 	claim 	is 	to test 	the 	law 	of a 	claim, 	not 	the 	facts 	which 	support 	it."
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Levinsky v. Diamond, 140 Vt. 595, 600 (1982) (quotations omitted), overruled on other grounds
in Muzzy v. State, 155 Vt. 279, (1990).
In this case, Defendant FCRC seeks indemnification from Dr. Marco for both the duty to
defend and the duty to indemnify. In the Court’s prior decision, it withheld a grant of judgment
either for or against Dr. Marco on these issues based on a theory of judicial efficiency. FCRC
claims that Dr. Marco, based on a 2017 agreement, had an obligation to purchase an Errors &
Omissions Insurance policy prior to the events concerning Mr. Kelley’s care and to name FCRC
as a co-insured. Dr. Marco did not purchase this policy.
When Mr. and Ms. Kelley filed the present suit, they named both Dr. Marco and FCRC
as defendants and asserted that both Defendants were liable for Mr. Kelley’s injuries. At that
point, any applicable insurance policy, such as the proposed E&O policy, would have triggered
its duty to defend both Dr. Marco and FCRC as an additional insured. See Kassis v. Ohio Cas.
Ins. Co., 913 N.E.2d 933, 934 (N.Y. 2009) (noting that “additional insured” are “well-
understood” to “enjoy the same protection as the named insured.”) (internal citations omitted).
Even if Dr. Marco was later dismissed on the issue of malpractice, he would still have the
potential liability under the duty to defend portion of FCRC’s counterclaim for defense expenses
that should have been covered by the missing E& O policy. City of Burlington v. National
Union Fire Ins. Co., 163 Vt. 124, 127 (1994) (noting that the duty to defend is broader than duty
to indemnify and that it is determined by comparing the allegations in the complaint with the
terms of coverage); see also Co-operative Ins. Co. v. Woodward, 2012 VT 22, ¶ 10 (noting that
the duty to defend is triggered when the claim “might be of the type covered by the policy.”)
(internal citation omitted); Emerald Bay Cmty. Assn. v. Golden Eagle Ins. Corp., 130 Cal. App.
4th 1078, 1088-89, 31 Cal. Rptr. 3d 43, 52 (2005) (discussing the measure of damages for a
breach of the duty to indemnify).
Given that the defense costs in this case are on-going, and given that Dr. Marco has not
been fully dismissed, it is premature to address this claim at this time. Instead, the Court in its

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February 20th decision elected to move forward on the Kelleys’ pending claims before sorting
through the duty to defend claims and costs.1
Similarly, the duty to indemnify has not been fully resolved in this case. In the Court’s
August 17, 2025 Summary Judgment decision, the Court granted judgment in favor of the
Defendant on the limited issue of whether FCRC, through its staff was liable for Mr. Kelley’s
injuries due to the alleged negligent care following Mr. Kelley’s hoyer chair incident. The Court
determined that while there was a disputed issues of fact concerning the scope of FCRC and Dr.
Marco’s duty of care toward Mr. Kelley and the alleged breach in this care during this time
frame, Plaintiffs had not established “but for” causation to show that this negligence contributed
to Mr. Kelley’s injuries, which was a critical element given that the breach in care is not alleged
to have caused the injury, but worsened it by delaying the time between the alleged cause and the
ultimate treatment.2
As FCRC notes, the August 18th summary judgment decision does not fully address any
potential breach of the duty of care that Dr. Marco may have committed in failing to examine
Mr. Kelley upon arrival at the FCRC facility. While such a breach may or may not support but
for causation, it would support the claim that if Dr. Marco had examined Mr. Kelley and
discovered his injuries, then it would have led to Mr. Kelley’s removal from the facility before
the hoyer chair incident. This puts Dr. Marco in a Catch-22 situation. Either he is contractually
liable to FCRC for failing to perform his duty to FCRC and removing Mr. Kelley before FCRC
was potentially exposed to liability, or he is potentially liable to Plaintiff for failing to
1 In this respect, resolution of the present cross-claims functions much like an insurance coverage declaratory
judgment action. In such cases courts will often stay either the substantive claims or the coverage action to avoid
inconsistent judgments or double trials. See, e.g., Wilton v. Seven Falls Co., 515 U.S. 277, 289–90 (1995)
(affirming the district court’s decision to stay a declaratory judgment action concerning coverage while the
substantive negligence claims were litigated); Northern Sec. Ins. Co. v.Perron, 172 Vt. 204, 207 n.2 (2001) (noting
that the original substantive action was stayed to allow the declaratory judgment coverage issue to be litigated).
Here, the Court has elected to go forward on the underlying substantive claims before addressing the
indemnification cross-claims.
2 Given the subsequent delay encountered at UVMMC and the complicated chain of causation, the Court found that
Plaintiff’s lacked the necessary expert opinion to link the delay at FCRC with the paralysis outcome. Specifically,
Plaintiffs could not show that but for FCRC’s and Dr. Marco’s negligence that Mr. Kelley would have avoided the
paralysis or that the delay at FCRC worsened the outcome. Plaintiffs’ experts could only offer the general opinion
that time was of the essence, but they could not tie the alleged breach to the specific outcome. Kelley v. Franklin
County Rehab Center, LLC, Dckt. No. 21-CV-323, at 4 (Aug. 18, 2025).

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immediately examine Mr. Kelley upon admission and returning him to the hospital based on the
symptoms that he was exhibiting at admission.
These questions, in turn, hinges, at least in part, on whether a jury finds Plaintiff’s hoyer
chair theory of causation to be credible. If a jury finds that the hoyer chair caused or
significantly contributed to Mr. Kelley’s injuries, then the question as to Dr. Marco’s indemnity
obligation shifts again as the admission issues may no longer be as important. As the Court
indicated in its February 20th Order, resolving the Kelleys’ underlying negligence and
malpractice claims offers the Court and the parties the best opportunity to reduce the potential
confusion here and resolve the outstanding duty questions in a reasonable and orderly manner.
Finally, Dr. Marco suggests that because FCRC has not retained or offered its own expert
opinion, it cannot establish the elements of its claim. This argument ignores the testimony and
opinion of Dr. Christopher Davey who has opined at length regarding Dr. Marco’s duties and his
theory of breach. While he is not FCRC’s expert, his opinion has been timely disclosed, and
counsel has had the opportunity to depose and explore Dr. Davey’s opinion. The use of such
expert testimony is within the trial court’s discretion, and the Court finds no prejudice would
attach in allowing FCRC to use and rely on this testimony. Hutchins v. Fletcher Allen Health
Care, Inc., 172 Vt. 580, 581 (2001) (mem.).
ORDER
For these reasons, the Court finds no basis to alter its earlier determination, and Dr.
Marco’s motion to reconsider is Denied.
Electronically signed on 8/5/2026 7:32 PM pursuant to V.R.E.F. 9(d)
__________________________________
Daniel Richardson
Superior Court Judge