Mountainside v. Jamieson Risk

Termont Superior Court
Filed 11/18/25
Washington

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

Mountainside Condominium vs. amieson Risk Service

ENTRY REGARDING MOTION
Title: Motion for Summary Judgment (Motion: 16)
Filer: Gara M. Seagraves
Filed Date: June 27, 2025

Decision on Jamieson's Motion for Summary Judgment

The motion is GRANTED IN PART and DENIED IN PART.

This is a case arising from a fire. The Mountainside Condominium Association (MCA) owns
three condominium buildings in Warren, Vermont. In 2014, one of these buildings (Building 3)

caught fire and burned to the ground, becoming a total loss. At the time, the buildings were insured
by Vermont Mutual Insurance Company under a policy renewed by insurance agency Jamieson Risk
Service, Inc. (formerly, Jamieson Insurance Agency, Inc.). In 2016, several owners of the destroyed
condominiums (known as the Barsomian plaintiffs) sued MCA (No. 174-3-16 Wncv) claiming that
MCA was taking too long to rebuild Building 3 (the Barsomian suit).! The Court found that the
Board was delaying its duties, and it appointed a receiver, Thomas Lauzon, to undertake the Board's
duties. As of now, Building 3 has been reconstructed and the receiver has been discharged."

While MCA was pursuing coverage with Vermont Mutual, MCA filed this case in 2020

against Jamieson, claiming that it breached a duty to MCA to procure or advise, which left MCA
with insufficient replacement-value insurance coverage in the event of fire. MCA and Jamieson then

stipulated to stay this case pending the outcome of MCA's coverage dispute with Vermont Mutual,
which was eventually resolved through arbitration, the awards of which were confirmed in the case

' While not relevant to this
case, the next lawsuit filed (No. 108-2-17 Wncv) was a subrogation action by Vermont
Mutual against various third parties, that addressed the cause of the fire.

?
Whether MCA was acting through its board, or its court-appointed receiver, makes no difference to this decision. For
ease of reference, in this decision, the court refers to both simply as MCA.
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docketed at No. 22-CV-4513; the awards did not make MCA whole. MCA and the Barsomian
plaintiffs then settled the Barsomian suit in 2022. Part of the settlement included an assignment to
the Barsomian plaintiffs of MCA’s right to pursue this case against Jamieson. The Barsomian
plaintiffs were promptly substituted for MCA in this case (and they have amended the complaint
twice since). MCA thus is no longer a party to this case, which is between the Barsomian plaintiffs
exclusively as MCA’s Assignees and Jamieson only. In this case, the Barsomnian plaintiffs “stand in
the shoes” of MCA vis-à-vis Jamieson.

The thrust of the operative complaint is that, in 2012, MCA reached out to several insurance
agents as part of an effort by MCA to review its Vermont Mutual policy limits, coverages, and costs.
MCA had been renewing the existing policy for many years through an agency unrelated to
Jamieson. Mr. Jonathan Jamieson (Jamieson’s principal at the time) responded to the solicitation by
making certain representations as to his relevant expertise and willingness to diligently investigate
replacement costs to ensure that MCA had adequate coverage. These responses were qualitatively
different than the responses MCA received from other insurance agents. Based on Jamieson’s
representations, MCA notified Vermont Mutual that Jamieson should be designated its broker for
policy purposes, replacing the previous agency.

In Assignees’ view, Jamieson then made 3 mistakes that cost MCA dearly: (a) it failed to
advise MCA that its Code and Ordinance coverage (code coverage) was woefully insufficient; (b) it
advised MCA to obtain Director’s and Officer’s (D&O) Liability coverage (with an insurer other
than Vermont Mutual) that proved useless when the Barsomian suit was filed; and (c) it guided
MCA to keep its policy “all-in,” which conflicted with its governing documents. In simple terms,
code coverage applies to upgrades needed during reconstruction to comply with codes and other
legal requirements that normally would not be covered after a loss requiring replacement to a
standard comparable to the original. MCA evidently had $100,000 or $105,000 of code coverage for
many years and retained that amount after Jamieson’s involvement. Assignees claim that Mr.
Jamieson should have recognized that a condominium complex such as Mountainside, which was
built in the 1970s, would have needed dramatically more such coverage in the event of a catastrophic
loss, as happened with the 2014 fire, and should have so advised them.

The complaint is entirely conclusory as to the issue with D&O coverage. As far as the court
can tell, the thrust of the claim is that the D&O insurer (not Vermont Mutual) denied any claim for
coverage related to MCA’s defense and settlement of the Barsomian suit, which saddled MCA with
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direct responsibility for liability and defense costs that presumably otherwise might have been
covered. The complaint says little more about the matter.3

“All in” coverage extends to internal improvements and fixtures made by individual unit
owners that, under MCA’s governing documents, would have been the responsibility of the
individual unit owners rather than MCA. In this case, Assignees allege that the all-in coverage
unnecessarily complicated and delayed reconstruction efforts and pitted MCA’s interests against
those of affected unit owners.4

Assignees assert the following claims in the second amended complaint (filed July 8, 2024):
Count 1, breach of contract for having not advised MCA as to the need for sufficient code coverage
and D&O coverage, and for advising it to keep the policy all-in; Count 2 is the same in substance as
Count 1, but reframed as breach of fiduciary duty or negligent procurement of insurance; Count 3 is
the same in substance as Count 1 but reframed as negligent misrepresentation; Count 4 is the same
as Count 1 but reframed as breach of the implied duty of good faith and fair dealing; and Count 5,
violation of Vermont’s Consumer Protection Act (CPA), 9 V.S.A. §§ 2451–2494z, due to Jamieson’s
“false or fraudulent representations or practices.” In support of the CPA count, the complaint cites
to the entirety of the allegations that precede it without more specifically describing the false or
fraudulent representations or practices asserted to amount to a CPA violation.

Jamieson has filed a motion for summary judgment addressing all counts but primarily
focusing on them as they relate to the code coverage question. It argues as to all counts that there
can be no liability on Jamieson’s part because: (1) the policy in fact provided more than sufficient
code coverage; (2) MCA’s stipulation as to the value of the Vermont Mutual claim acts as a binding
waiver in relation to any perceived insufficiency of coverage amounts; (3) even if coverage limits
were insufficient, MCA had a “duty to read” the policy rendering it exclusively at fault for any
perceived insufficiencies; (4) Jamieson never owed MCA any duty of any kind because it always was

3 Nor is the summary judgment record developed to explicate any issues related to D&O coverage.

4 They assert in briefing: “From Plaintiffs’ perspective, any additional uncovered costs incurred by MCA beyond the

[code coverage] shortfall are attributable to [Jamieson’s] misguided decision to recommend renewal of ‘all-in’ coverage
contrary to MCA’s governing documents.” The court simply notes that the record is unclear as to whether there was
any shortfall in coverage apart from the code coverage issue. And, if there was, it remains unclear whether any such
shortfall was due to the all-in nature of the policy or other matters. There is, for example, evidence that MCA (before
the receiver was appointed) spent policy proceeds on non-construction related expenses, and doing so not only
diminished policy funds available for construction but contributed substantially to the worsening relationship with
Vermont Mutual.
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acting as the disclosed agent of his principal, Vermont Mutual, exclusively; (5) even if he had a duty,
it was minimal and satisfied because there was no “special relationship” that enlarged it in a manner
that could possibly result in liability in the circumstances of this case; and (6) expert testimony is per
se irrelevant to the question of a special relationship and whether any resulting duty may have been
breached. Jamieson also argues that there are other specific defects based on the elements of each
asserted non-CPA claim, the CPA cannot apply to dealings with insurances agents, and the CPA has
no merit in any event.

I. Procedural standard

Summary judgment procedure is “an integral part of the . . . Rules as a whole, which are
designed ‘to secure the just, speedy and inexpensive determination of every action.”’ Morrisseau v.
Fayette, 164 Vt. 358, 363 (1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). Summary
judgment is appropriate if the evidence in the record, referred to in the statements required by Vt. R.
Civ. P. 56(c), shows that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law. V.R.C.P. 56(a). Summary judgment will be granted if, after
adequate time for discovery, a party fails to make a showing sufficient to establish an essential
element of the case on which the party will bear the burden of proof at trial. Gallipo v. City of
Rutland, 163 Vt. 83, 86 (1994). The court derives the undisputed facts from the parties’ statements
of fact and the supporting documents. Boulton v. CLD Consulting Engineers, Inc., 2003 VT 72, ¶ 29. A
party opposing summary judgment may not simply rely on allegations in the pleadings to establish a
genuine issue of material fact. Instead, it must come forward with deposition excerpts, affidavits, or
other evidence to establish such a dispute. Murray v. White, 155 Vt. 621, 628 (1991). Speculation is
insufficient. Palmer v. Furlan, 2019 VT 42, ¶ 10.

II. Code coverage in the Policy

Jamieson first argues that, to the extent the issue is a deficiency in code coverage, there never
was one: the Policy provides plenty of it. Assignees have maintained that the Policy only provided
$105,000 in code coverage and beyond that all code-required improvements were excluded from
coverage. Jamieson instead interprets the policy to provide code coverage up to the total property
coverage limit, or up to that limit plus $105,000, either of which presumably exceeded actual
reconstruction costs. What coverage the policy provided is a question of insurance policy
interpretation.

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As a general matter, the basic principles of insurance policy interpretation are as follows:

When interpreting an insurance policy, this Court follows well-established
principles . . . .” “An insurance policy is construed according to ‘its terms and the
evident intent of the parties as expressed in the policy language.’” An insurance
policy “is to be strictly construed against the insurer.” “The insurer bears the burden
of showing that an insured’s claim is excluded by the policy.”

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.” “Words
or phrases in an insurance policy are ambiguous if they are fairly susceptible to more
than one reasonable interpretation.” Further, “[w]hen a provision is ambiguous or
may reasonably be interpreted in more than one way, then we will construe it
according to the reasonable expectations of the insured, based on the policy
language.” However, “the fact that a dispute has arisen as to proper interpretation
does not automatically render the language ambiguous.” And, “we will not deprive
the insurer of unambiguous terms placed in the contract for its benefit.”

Rainforest Chocolate, LLC v. Sentinel Insurance Company, Ltd., 2018 VT 140, ¶¶ 6–7, 209 Vt. 232
(citations omitted).

The Policy provides a total property coverage limit of $11,742,952. See Policy Declarations
(building valuations), Ex. D at 1.001–1.003; Banket Insurance Endorsement at 1.064; Certificate of
Property Insurance at 1.087. In Jamieson’s view, there is no applicable limitation on code coverage.
It reasons as follows. Policy § E.6.a(4) at 1.024 provides:

In the event of loss or damage covered by this policy:

a. At our option, we will either:
. . .
(4) Repair, rebuild or replace the property with other property of like kind
and quality, subject to (d)(1)(e) below.

Policy § E.6(d)(1)(e) (emphasis added) further provides:

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d. Except as provided in (2) through (8) below, we will determine the value of
Covered Property as follows:
(1) At replacement cost without deduction for depreciation, subject to the
following:
. . .
(e) The cost to repair, rebuild or replace does not include the increased cost
attributable to enforcement of any ordinance or law regulating the
construction, use or repair of any property.

These provisions reflect a lack of code coverage generally in the Policy. However, Policy § E.6(d)(1)
is deleted in its entirety and replaced by the Advantage Endorsement § I.A (Ex. D at 1.058), which
refers to replacement cost but says nothing on its face about any limitation related to code-required
improvements. Therefore, in Jamieson’s view, what § E.6(d)(1)(e) took away, the Advantage
Endorsement gave back, and the policy has no limitation on code coverage but for an ample total
property coverage limit.

Jamieson’s interpretation of the policy as granting an implied allowance for code upgrades is
untenable with other, express provisions found in the body of the policy. Without belaboring the
details, Policy excludes code coverage as follows:

B. Exclusions
1. We will not pay for loss or damage caused directly or indirectly by any of the
following. Such loss or damage is excluded regardless of any other cause or
event that contributes concurrently or in any sequence to the loss.
a. Ordinance Or Law
The enforcement or any ordinance or law . . . .

Policy § B.1.a at 1.018. Nothing in § E.6(d)(1) or the Advantage Endorsement alters the applicability
of this exclusion. This exclusion was the basis, in part for the dispute with Vermont Mutual, and
Jamieson’s arguments do not adequately explain why this express exclusion is overcome by the
implied provisions of the rider.

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The existence of $105,000 of code coverage notwithstanding the general exclusion also has a
reasonably obvious basis on the face of the Policy. The Policy provides up to $5,000/building of
code coverage as “additional coverage.” See Policy § A.5.l at 1.015–1.016 (the relevant additional
coverage); Blanket Insurance Endorsement at 1.064 (the $5,000/building limit). It provides an
additional $100,000 of code coverage in the Businessowners Coverage Enhancement Endorsement.
See the Endorsement at 1.069 (the limit) and 1.073–1.074 (the coverage).5

But for those two provisions making $105,000 of code coverage available, the Policy
excludes code coverage. Jamieson’s argument that the Policy has no particular limit on code
coverage is meritless.

III. Waiver

Jamieson argues that, regardless of any perceived deficiency in code coverage, MCA
stipulated to the value of its claim on the policy with Vermont Mutual (at or before arbitration) and
this somehow operates as a waiver of Assignees’ claims against Jamieson based on any perceived
insufficiency of coverage. Jamieson’s reasoning on this issue is somewhat difficult to follow. In any
event, this argument has no merit when evaluated in the context of the facts of record.

“A waiver is a voluntary relinquishment of a known right and can be express or implied.”

Anderson v. Coop. Ins. Companies, 2006 VT 1, ¶ 10, 179 Vt. 288 (2006) (citations omitted).

The record contains little evidence of the negotiations leading up to the arbitration and
virtually nothing about what happened at arbitration. Mr. Lauzon, in his deposition, however,
makes the following clear, at least from his perspective. In summary, he testified that Vermont
Mutual made negotiations over MCA’s claim unnecessarily and extremely difficult, unfairly
attempting to minimize its liability at every turn. A major bone of contention was the value of code-
required improvements because the more expenses that got put into the code-required bucket, the
more that would be excluded from coverage on MCA’s policy altogether (above $105,000). Mr.
Lauzon explained that he kept meticulous records of which expenses legitimately belonged in the
code-required bucket (slightly over $1,000,000) while Vermont Mutual doggedly insisted on a

5 Assignees’ expert, Robert Titus, calculates $105,000 in code coverage by looking solely to the Businessowners

Coverage Enhancement Endorsement multiplied by the policy’s automatic annual Building Limit increase without any
consideration of Policy § A.5.l. The 2012–2013 policy is not in the record. It may not be fully clear what the total
applicable code limit was with precision at this time. It is clear, though, that it was $105,000 or something very close to
that.
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number substantially exceeding $2,000,000. However, just before arbitration, Vermont Mutual
relented. It agreed to go with Mr. Lauzon’s figure, and then, as he explains, did not contest that
amount during arbitration.

It is reasonably clear that the general matter put to the arbitration panel was how much
liability Vermont Mutual still had outstanding by that time considering the agreed upon value of
code-required improvements and previous payments on the policy. What more specifically
happened at arbitration is left to the imagination. The arbitration awards are all that the court knows
about the matter. The original award states in total:

Vermont Mutual Insurance Company shall pay Mountainside Condominium
Association $2,031,366.
As there was not clear and unmistakable evidence that it was the intent of the
parties to give the Panel the authority to arbitrate arbitrability, the Panel lacks the
authority to rule on Mountainside Condominium Association’s claim for interest.
The Panel makes no ruling on interest.

Following remand from the superior court, a second award states in total:

1. Mountainside Condominium Association did not waive its claim for interest.
2. Vermont Mutual Insurance Company owes Mountainside Condominium
Association interest in the amount of $510,905.

The court’s best understanding of Jamieson’s waiver argument is that MCA waived any
argument here that any code-required improvements were excluded from coverage because the
policy actually provided that coverage, and Jamieson cannot be liable here for MCA’s tactical
mistake in misinterpreting the extent of available coverage. But such an argument is completely
foreclosed by the terms of the policy, which plainly provided $105,000 in code coverage only. 6

6 The Court would further note that the record indicates that Plaintiffs sought the maximum amount of coverage

through the Receiver but Vermont Mutual interpretated and sought to enforce the policy to exclude any code updates
outside of the $105,000, which forced the parties to litigation and eventually arbitration. Therefore, if Jamieson becomes
liable in this case but believes that Vermont Mutual wrongly interpreted its policy and wrongly denied Plaintiffs sums
sought, thereby exposing Jamieson to liability, then its true remedy is against Vermont Mutual. See Windsor School Dist. v.
State, 2008 VT 27, ¶ 10 (noting where wrongful acts of one involve another in litigation, then damages and attorney’s
fees are recoverable).
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Otherwise, the court perceives no dispute—certainly none is developed and explained—as
to whether this or that expense was properly classified as code-required or not. The record simply
does not reveal any right that was known to MCA that nevertheless was voluntarily relinquished.
The Court finds no merit to this argument.

IV. Duty to read

Jamieson argues that MCA, as an insured, had a duty to read its own policy, and if it was
dissatisfied with coverage or limits, it was incumbent on MCA to act accordingly, but it never did—
until after the loss, when any insured would desire to have had more complete insurance in place.7
In Jamieson’s view, MCA’s failure to examine the terms of the policy and react accordingly
interrupts any causation that otherwise could possibly have rendered Jamieson liable; any coverage
deficiency necessarily was MCA’s fault. Jamiesen cites two cases in its principal brief in support of
this argument: Booska v. Hubbard Ins. Agency, Inc., 160 Vt. 305 (1993); and Bertelson v. Sunbeam Products,
Inc., No. S0312-04CnC, 2005 WL 5895225 (Vt. Super. Ct. July 7, 2005).

Neither Booska nor Bertelson supports summary judgment for Jamieson on this matter. In
both cases, the insurance agent was subject solely to the most basic duty “to use reasonable care and
diligence to procure insurance that will meet the needs and wishes of the prospective insured, as
stated by the insured.” Booska, 160 Vt. at 309–10 (quoting Rocque v. Co–Operative Fire Ins. Ass’n, 140 Vt.
321, 326 (1981) (emphasis added)). As Booska further explains, “Once a policy is procured as
requested and is consistent with the applicable standard of care, no further duty is owed to the insured by
the agent with respect to this insurance.” Booska, 160 Vt. at 301 (emphasis added). That is all of
relevance that was going on in those cases. There were no circumstances giving the agent any higher
duty. Thus, it was incumbent on the insureds to review their policies and determine whether
coverage and limits were satisfactory from their perspectives.

In this case, Assignees claim that MCA stood in a special relationship with Jamieson, which
gave it an elevated duty. That matter is reasonably disputed and is addressed in a separate section
below. In any event, generally, the law is more complex than Jamieson suggests. As some courts
have held, when there is a higher duty, the duty to read extends, at most, to defects or errors that are
“readily apparent” on the face of the policy. Annotation, Insured’s Duty to Read Insurance Policy as

7 To an extent, this argument hints that Jamieson may believe that certain MCA witnesses’ current testimony as to the

relationship between MCA and Jamieson prior to the fire may present credibility questions. Any such credibility
questions will be for the jury to determine.
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Affirmative Defense in Claims Against Insurance Agents and Brokers, 8 A.L.R.6th 549, § 16. Some courts
have held that in those circumstances the failure to read is no bar to liability at all. Id. § 18.
According to a learned treatise:

The insured’s failure to read the policy has traditionally been held not to be a
defense to an action against the agent for failure to procure insurance, on the
reasoning that the principal is entitled to assume that the agent performed his or her
duty although some courts have allowed the defense, especially if the insured was
knowledgeable.
In practical terms and as has been recognized by several courts, the issue is
one for the trier of fact. In some instances, the question has been recharacterized by
the courts, which have stated that the issue is not whether the insured read the
policy, but rather is whether the insured was reasonable in his or her reliance on the
agent’s representation that the policy as worded actually covered the risk for which
the insurance had been requested.

3 Couch on Ins. (3d) § 46:69 (emphasis added); see also Babiarz v. Stearns, 57 N.E.3d 639, 654 (Ill. Ct.
App. 2016) (“An insured’s duty to know the contents of his policy is ‘tested in light of the
relationship between the insured and his agent.’” (citation omitted)).

In this case, the existence of a special relationship, and the scope of an elevated duty if so, is
disputed. Also, although a commercial policy is at issue, Jamieson appears to have been dealing
primarily with laypersons who had no particular insight into how to analyze the language of an
insurance policy. Nor is the question of code-coverage in the Policy a simple one. Jamieson’s
Exhibit D—the policy—is 110 pages long. As far as the briefing goes, Jamieson itself offered an
interpretation of its code-requirement provisions that the Court has found lacks support from other
sections of the policy and misapplies one section against the plain language of another. A layperson
could hardly have been expected to do better. The matter of the reasonableness of MCA’s reliance
on any representations made by Jamieson will be better sorted out by the finder of fact in the
context of all the evidence. Jamieson is not entitled to summary judgment on this issue.

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V. Jamieson as exclusive agent of Vermont Mutual

Jamieson argues that it was the fully disclosed agent of Vermont Mutual alone and, as such,
it never owed MCA any duty whatsoever.8 As previously explained, at a minimum, Jamieson had
the basic duty “to use reasonable care and diligence to procure insurance that will meet the needs
and wishes of the prospective insured, as stated by the insured.” Booska, 160 Vt. at 309–10 (quoting
Rocque v. Co–Operative Fire Ins. Ass’n, 140 Vt. 321, 326 (1981)). Additionally, as also previously
explained, Assignees claim that MCA stood in a special relationship with Jamieson, which gave it an
elevated duty, a matter that is reasonably disputed and addressed in a separate section below.

Otherwise, Jamieson’s argument appears to be based on a false dichotomy: that an insurance
agent can only be an agent of the insured or the insurer and never the twain shall meet. Not so.
Insurance agents frequently act in a dual capacity:

A duty to advise is not incompatible with the agent being the insurer’s agent. Dual
agency is permissible even in the context of a duty to advise. “An agent may assume
additional duties by an agreement or by holding himself or herself out as having
specific expertise . . . . These duties do not disappear because the agent is also the
agent for an insurer. Dual agencies are not uncommon, and do not negate the
agent’s duty to the client.”

Law of Commercial Agents and Brokers § 2:2; see also Cambridge Mut. Fire Ins. Co. v. Peerless Ins. Co.,
880 A.2d 415, 418 (N.H. 2005) (“[T]he same person may represent both the insurer and the insured,
thereby creating a dual agency, so long as the agent is not required to assume incompatible duties as
part of the dual agency relationship.”); 3 Couch on Ins. § 46:34 (“There is in every case an initial
question of fact as to whether the agent has in fact acted in a dual capacity or has merely acted as
agent for one of the parties throughout the transactions.”).

The record is clear enough that Jamieson, in procuring/renewing MCA’s policy with
Vermont Mutual, was acting as agent for Vermont Mutual in some respects. It also appears that
Jamieson represented other insurers at the same time. As one treatise explains: “When an agent
represents several insurers, the agent may act in different capacities, representing different parties at

8 The parties’ focus on the labels—broker v. agent—is not helpful. “Although [an] insurance agent generally works on
behalf of an insurer, whereas an insurance broker works for an insured, courts use the terms ‘agents’ and ‘brokers’
interchangeably, and therefore, the terms must be analyzed in light of the facts and circumstances of the particular case.”
3 Couch on Ins. § 45:01.
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different times. Therefore, when an insurance agent is procuring insurance or completing the
application process, courts will find that the agent represents the insured, and when an agent is
delivering the policy, collecting premiums, or resolving claims, courts will find that the agent
represents the insurer.” 3 Couch on Ins. § 45:26 (footnotes omitted); see also id. (“Independent
insurance agents or brokers are generally considered the agent of the insured, not the insurer.”).

Jamieson’s argument that it could only be acting exclusively in one capacity or the other, it
was acting as Vermont Mutual’s agent, and therefore it could not have been acting as MCA’s agent
or somehow is automatically insulated from liability is out of step with the law. Jamieson is not
entitled to summary judgment on this issue.

VI. Whether there was a special relationship

Jamieson accepts that an insurance agent can have an expanded duty to procure or advise in
certain circumstances (a special relationship). It argues that the record of this case clearly shows that
there was no special relationship and, thus, there can be no expanded duty here. As explained
above, an insurance agent generally has a minimal duty to exercise reasonable care in procuring
insurance that the insured clearly requested.

As explained in Booska, absent a special relationship between the insured (or prospective
insured) and the insurance agent suggesting an elevated duty,

The agent’s task is to be generally fair and truthful in explaining the nature of a
policy, not to warn the insured about the impact of necessarily complex contract
language on every eventuality. As long as the agent does the job without negligence, as
between the agent and the purchaser, the task of reading and understanding the
policy text is that of the purchasers. As we said in Hill v. Grandey:
An agent may point out to [an insured] the advantages of additional coverage
and may ferret out additional facts from the insured applicable to such coverage,
but he is under no obligation to do so; nor is the insured under an obligation to
respond.

Booska v. Hubbard Ins. Agency, Inc., 160 Vt. 305, 310 (1993) (quoting Hill v. Grandey, 132 Vt. 460, 468–
79 (1974) (emphasis added)). There is virtually no binding case law in Vermont as to what those
special circumstances may be and how they may affect the agent’s duty.

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In this regard, Jamieson’s framing of this as more of a duty-to-advise rather than a duty-to-
procure case appears accurate, at least regarding code coverage. The summary judgment record
reveals no clear request to procure a certain type or amount of coverage that Jamieson failed to
procure. See Law of Commercial Agents and Brokers § 2:1 (“An insurance broker is only obligated
to follow the insured’s instructions when they are ‘clear, explicit, absolute, and unqualified.’”). The
claim is that Jamieson undertook a duty to advise MCA as to what its insurance needs were, and that
advice fell short, largely due to insufficient code coverage.

As one treatise explains: “The agent controls the scope of his or her duties by controlling the
scope of the undertaking. Before the agent incurs a legal duty to advise, the agent must undertake a
‘special relationship’ with the customer. ‘Special relationship’ is a generic legal term that describes
any relationship that creates legal rights and duties between the parties. The nature of the special
relationship defines the nature of the rights between the parties.” Law of Commercial Agents and
Brokers § 2:2. “[W]here an agent holds himself out as a consultant and counselor, he does have a
duty to advise the insured as to his insurance needs, particularly where such needs have been
brought to the agent’s attention. And in so doing, he may be held to a higher standard of care than
that required of the ordinary agent since he is acting as a specialist. Accordingly, the agent may be
liable to an insured for the damage suffered by his failing to inform him as to a potential source of
loss and by his failing to recommend insurance therefor.” 16A Appleman, Insurance Law &
Practice § 8836 at 64–66 (1981), quoted in Law of Commercial Agents and Brokers § 2:2. “The
insured has the burden of proving, with specific evidence, that the agent agreed to expanded duties.”
Law of Commercial Agents and Brokers § 2:2.

One court has explained the special circumstances that may reveal a higher duty as follows:

Case examples supporting a finding of a “special relationship” include (1)
where the agent misrepresented the nature of the coverage being offered or
provided, and the insured justifiably relied on that representation in selecting the
policy; (2) where the agent voluntarily assumed the responsibility for selecting the
appropriate insurance policy for the insured (by express agreement or promise to the
insured); (3) where the agent held itself out as having expertise in a given field of
insurance being sought by insured, and the insured relied on that expertise; (4) where
the agent or broker exercised broad discretion to service the insured’s needs, and
received compensation above the customary premium paid for the expert advice
provided; and (5) where the agent was intimately involved in the insured’s business
affairs, or regularly gave the insured advice or assistance in maintaining proper
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coverage. These and other cases suggest that a trier of fact may engage in a multiple
factor analysis to determine whether a broker shared a “special relationship” with its
client. Considerations may include (1) representations by the broker about its
expertise; (2) representations by the broker about the breadth of the coverage
obtained; (3) the length and depth of the relationship; (4) the extent of the broker’s
involvement in the client’s decision making about its insurance needs; (5)
information volunteered by the broker about the client’s insurance needs; and (6)
payment of additional compensation for advisory services.

Tiara Condominium Ass’n, Inc. v. Marsh, USA, Inc., 991 F.Supp.2d 1271, 1281 (S.D. Fla. 2014) (citations
omitted), accord Turskey v. State Farm Fire and Casualty Insurance Company, 586 F.Supp.3d 695, 700
(E.D. Mich. 2022); Ma Amba Minnesota, Inc. v. Cafourek & Associates, Inc., 387 F.Supp.3d 947, 953 (D.
Minn. 2019); see generally Annotation, Liability of insurer or agent of insurer for failure to advise insured as to
coverage needs, 88 A.L.R.4th 249. “Where the record contains disputed facts, the resolution of which
could provide competent substantial evidence to support a finding of a ‘special relationship’ between
a broker and its client, summary judgment is improper; the matter must be resolved by a jury.” Tiara
Condominium, 991 F.Supp.2d at 1282.

As far as contemporaneous written communications go, the record plainly shows the
following. On April 24, 2012, Ms. Rita Nederman wrote to Mr. Jamieson:

I am on the Board of Directors for Mountainside Condominiums in Warren, VT.
On their behalf I have been asked to research agencies with whom we might renew
our Master Policy.
We are presently looking for Master Policy quotes on our 3 building/90 unit, 3
commercial building, 9 officer D & O Master Insurance Policy. Our present policy
expires in June 2012 and we would like to solicit quotes from your agency.

On April 30, Mr. Jamieson responded that “We would very much like to offer you a proposal.” He
asked for some basic information to ensure that he could provide an “apples to apples” quote. Ms.
Nederman promptly responded with the declaration pages of the current policy, noting that it
renews on July 1, 2012. She also offered that MCA could make its new property manager available
to show Mr. Jamieson the buildings and answer any questions. Mr. Jamieson responded that he
would do his best to beat Vermont Mutual on price. He said, “Thanks for the opportunity. I will e-
mail you further questions.” Prior to May 24, further communications between Ms. Nederman and
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Mr. Jamieson are focused on price. These communications may imply both that MCA was generally
content with its coverage but was looking for a better price.

On May 24, Mr. Jamieson sent a message to Ms. Nederman as follows:

Considering the amount of rental that goes on at Mountainside, Vermont Mutual is
still you best bet price wise. That being said I recommend a CNA Directors and
Officers policy to all my Condo Association clients. I usually add the [CNA] policy
to the package and drop the Vermont Mutual Directors and Officers coverage as it’s
very limited in scope.
We would be very happy to take over the Vermont Mutual policy for you. This
would benefit the association by:
1) Having an agent that would diligently review the amount of coverage on a
reconstruction cost per sq ft basis annually.
2) Provide your association with superior Directors and Officers coverage.
3) We are a Mad River Valley based business. We assist our condo association
clients best
because we work closely with local property managers during claims situations and
meet
with boards personally if needed. We also support the local community making it a
better
place to own a second home. Your current agent lives in Stowe!
We are proud to insure:
Sterling Ridge
Castlerock
Clairiere
North Lynx
Summit
And The Maples
References available

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The message goes on with details about the recommended CNA D&O policy. On June 15, 2012,
MCA notified Vermont Mutual that “as of July 1, 2012, we have appointed Jamieson Insurance
Agency, Inc., Waitsfield, VT, as our exclusive agent of record with respect to our insurance
program.” On July 6, 2012, Mr. Jamieson wrote to the chair of MCA’s board, Ms. Barbara Brady,
among others, as follows:

There is one more matter to wrap up the renewal of the Mountainside policy. Below
is an email I sent in June. In it I outline my only recommended change to the
coverage. The Directors & Officers coverage with Vermont Mutual is very basic.
We have seen situations where it has fallen short. We recommend a more robust
policy from CNA. See a
comparison of coverage’s [sic] attached. The cost difference is approximately
$1000/yr.
I spent quite a bit of time on a reconstruction cost appraisal of the buildings. I’m
satisfied that they are insured for the correct limits. At next renewal we will shop the
coverage again and we will probably offer an alternative liability limit structure that
could save the association some money without reducing coverage. In summary the
associations [sic] property looks great, is insured well, and I’m pleased to be able to
serve you.

The minutes from MCA’s October 7, 2012, board meeting include this:

*Rita Nederman has looked at insurance. The association’s policy was put out to bid
and the decision was made to stay with Vermont Mutual, but switch to John
Jamieson. The premium was reduced, but comprehensive went up, and the
association is now better covered. Flood insurance was researched after tropical
storm Irene. It was decided that the cost of the premium would not be worth the
benefit. For what it would cost, insurance is not necessary, as Mountainside is not in
a flood plain.

There is little other contemporaneous, written evidence as to the communications between
MCA and Jamieson in the record.9

The contemporaneous, written evidence is sufficient to reveal a dispute as to whether
Jamieson entered into a special relationship with MCA. Jamieson clearly went beyond simply
9 It is apparent from the parties’ exhibits that more such evidence exists, but it has not been put before the Court on the

record for the purposes of this motion.
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fulfilling a specific request for certain coverage. It is not clear that MCA reached out to him initially
seeking the services it eventually received, but Mr. Jamieson plainly did not simply give a competitive
apples-to-apples quote to see if MCA could save money on its premium. He investigated
reconstruction cost and asserted to MCA that coverage limits were appropriate in light of that
investigation. He also clearly represented that he had expertise in the condominium insurance niche.
It is by no means clear how a finder of fact ultimately will decide the issue of special relationship on
the totality of evidence presented at trial, but it is clear that the matter is disputed and must be
resolved at trial.

VI. Expert testimony

Assignees’ expert report is in the record. In it, Mr. Robert Titus opines that, in its dealings
with MCA, Jamieson entered a special relationship with MCA, expanding the duty it owed to MCA,
and then breached that duty with the advice provided. Jamieson argues that, as a matter of law,
expert testimony on such matters is per se irrelevant. Jamieson asserts: “Since an insurance broker is
NOT a professional (and thus has no special relationship in the absence of certain extraordinary
facts UNIQUE to what they agreed to or undertook, determined on a case-by-case/fact-by-fact
basis), there is no objective, existing and ascertainable standard for an EXPERT to use to opine that
there is a Special Relationship here or not.”

The court declines to bar, as a matter of law, all expert testimony addressing the matter of a
special relationship, the extent or nature of any expanded duty, and whether it was breached. Expert
testimony is commonly appropriate or desirable in these circumstances. “While no court has
suggested that expert testimony is necessary where the agent’s breach is so obvious that it is within
the ordinary knowledge and experience of lay persons, several courts have taken the position that
expert testimony as to the standard of care is required where the breach involves the agent’s
professional skills and expertise.” Annotation, Necessity of expert testimony to show standard of care in
negligence action against insurance agent or broker, 52 A.L.R.4th 1232 § 2[a]; see also Law of Commercial
Agents and Brokers § 2:2[e] (“In addition to showing special circumstances, the insured must show
that the affirmative duty was required by industry custom and practice. Invariably this requires
expert testimony.”); 3 Couch on Ins. § 46:32 (“Expert testimony is not always required to prove a
lack of reasonable care and diligence; an insured may not be required to present expert testimony to
establish the standard by which a broker’s conduct should be judged when the evidence indicates

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that the broker’s conduct falls sufficiently below established minimum standards that a jury could
find the conduct negligent without expert testimony.”).

VII. All claims other than the Consumer Protection claim

Assignees have styled their non-CPA claims as breach of contract, breach of fiduciary duty,
negligent procurement of insurance, negligent misrepresentation, and breach of the implied duty of
good faith and fair dealing. These various characterizations amount, as Plaintiffs admitted at oral
argument, to one claim in substance: that Jamieson, based on the relationship it cultivated with
MCA, undertook a broader duty toward MCA than imposed by the common law and breached it by
giving MCA bad advice.

As the claim arises in this case, it sounds in negligence rather than contract (including the
good faith and fair dealing claim). Judge Hoar so concluded in a similar case recently, and his
reasoning is highly persuasive as applied to this case. In short, while the economic loss rule generally
prohibits recovery in tort for purely economic losses, a limited exception applies when the parties
have a sufficient special relationship (typically a professional relationship) apart from any contract.
The Restatement (Third) of Torts: Liab. for Econ. Harm § 4 recognizes insurance agents as this type
of professional, as do many courts. As a broader principle of agency law, agents have a duty
sounding in negligence to execute their principals’ instructions. The few Vermont cases that have
addressed an insurance agent’s duty to the insured, although not monolithic, generally have used the
language of negligence. See Frey v. American Nat. Ins. Co, No. 59-11-19 Gicv, 2022 WL 14652545,
**3–4 (Oct. 17, 2022). Based on these observations, it is apparent that Assignees’ claim, as in Frey, is
most sensibly understood through the lens of negligence rather than contract law.

Moreover, the only relevant “contract” in this case would be one that was implied in the
back-and-forth communications between the parties, which is the precise basis for the alleged
special relationship that expands the common law duty. There was no written contract between
MCA and Jamieson and, as far as the record goes, nor was there any clear contract-like negotiations
or payment for service.

Additionally, it is far from clear what the utility of characterizing the claim under contract
law would be in this case. The summary judgment record includes no evidence that clearly shows
any agreement as far as how and to what extent Jamieson might review anticipated reconstruction
costs, what any subsequent determination of the sufficiency of coverage would mean, or, more
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broadly, what the scope of the advice he was expected to provide was. The essential terms of a
contract must be “reasonably certain.” Restatement (Second) of Contracts § 33(2). “If the essential
terms are so uncertain that there is no basis for deciding whether the agreement has been kept or
broken, there is no contract.” Id. § 33 cmt. a. If the principal alleged harm in this case is the lack of
code coverage, then the contract had to be sufficiently clear that Jamieson was expected to advise on
code coverage. The summary judgment record is seriously opaque as to what “agreement” the
parties had and what performance may have been required by Jamieson under it.

Again, the evidence that is in the record raises a question as to whether Jamieson, in dealing
with MCA, undertook a broader duty of care than imposed by the common law—regardless
whether there was any contract. If so, the question will turn to one of standard of care and breach.
A negligence framework makes more sense in this case than contract law.

Nor does framing the issue as one of fiduciary duty add anything. Typically, to the extent
that there may be a limited fiduciary relationship between the insurance agent and insured, that is the
basis for the common law imposition of a basic duty of care and for the enhanced duty in the case
of a special relationship. See Law of Commercial Agents and Brokers § 2:2 (“There are times when
insurance agents step into a fiduciary relationship, undertaking to advise the customers about their
uninsured risks and the policies that are available to fill those coverage gaps. The advisor-client
relationship is a special relationship that imposes an affirmative duty on the agent to assist and
protect the insured.”); id § 2:1 (“However, in most cases, this fiduciary duty focuses on faithfully and
skillfully following the insured’s coverage instructions.”). Accordingly, there is no meaningful
distinction between a negligence claim in this context or a breach of fiduciary duty claim.

As to the negligence claims, the court construes the “negligent procurement” claim to
encompass negligence as to either the procurement of insurance or advice as insurance needs. The
negligent misrepresentation claim is not discernibly based on different facts and would not support
any different measure of liability. It appears to be entirely duplicative.

For these reasons, the court clarifies that it discerns among the non-CPA claims one
negligence claim which, as pleaded, has three predicates: the insufficiency of code coverage, the
ineffectiveness of D&O coverage, and the existence of all-in coverage.

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As to Assignees’ negligence claim, Jamieson argues that there can be no negligent
procurement claim insofar as there is no evidence of any clear instruction to procure anything that
was not obtained. As framed, the court agrees.

However, the nature of the claim is centered on the advice that Jamieson provided (the
expanded duty being predicated on a special relationship). About that, Jamieson argues:

Plaintiffs can never satisfy the prima facie element of “justifiable reliance”. There is
no way for the Plaintiffs to argue that the Board….the very entity legally responsible
for maintenance, repair, upkeep and care of this Condo Complex….for 50
years….and who hired a real estate manager, was not in the best position to know
what, if any building code changes were made that would affect the building of the
complex should a casualty loss ever occur. It was their responsibility. In fact, the
by-laws explicitly stated they were the only ones with the ability to hire contractors,
engineers, architects to investigate the local codes and ordinances, the flood law
changes, EPA law changes. Exh __, Pg. __/It is not the other way around.
Here the Board clearly knew the C&O limits…since they were the same ones
for years. They cannot now claim that they justifiably relied on anything Jamieson to
determine if they had sufficient C&O coverage.

The court agrees that Assignees will have to prove, and the jury—based on all the evidence
presented—will have to determine whether MCA justifiably relied on any bad advice provided by
Jamieson in breach of any expanded duty of care arising out of the parties’ special relationship, if
there was one. However, Jamieson’s argument on this issue on summary judgment is implicitly
predicated on the lack of any special relationship, which, if found, will inform the applicable
standard of care and whether there was any breach. The court already has determined that the
matter of a special relationship must be put to the jury.

Assignees’ negligence claim survives summary judgment.

VII The CPA claim

Jamieson reiterates its argument that the CPA cannot apply to the insurance marketplace or
to insurance agents vis-à-vis insureds or prospective insureds. The Court squarely rejected this
argument in its June 28, 2024, decision, and it will not revisit the matter now. Mountainside
Condominium v. Jamieson Risk Service, No. 88-2-20 Wncv, 2024 WL 4172976 (Vt. Super. Ct. June 28,

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2024). Separately, Jamieson argues that the CPA claim simply has no merit in the context of this
case.

“The three elements of a [CPA] claim are as follows: ‘(1) there must be a representation,
practice, or omission likely to mislead the consumer; (2) the consumer must be interpreting the
message reasonably under the circumstances; and (3) the misleading effects must be ‘material,’ that
is, likely to affect the consumer's conduct or decision with regard to a product.’” Gregory v. Poulin
Auto Sales, Inc., 2012 VT 28, ¶ 12, 191 Vt. 611 (citation omitted).

Assignees described their CPA claim as follows:

In many respects, Plaintiffs’ claim is akin to a classic case of bait-and-switch. “The
language of the statute addresses the classic bait-and-switch technique by which a
seller induces consumer interest with an attractive offer and switches to other
merchandise or terms, considerably less advantageous to the consumer.” Winey v.
William E. Dailey, Inc., 161 Vt. 129, 136 (1993). [Jamieson] wished to . . . replace its
competitor, T.S. Peck, as MCA’s insurance broker. To achieve success, Mr.
Jamieson made a number of promises regarding expertise, reviews of construction
costs, and annual assessments regarding the adequacy of MCA’s insurance coverage.
Once MCA was reasonably induced to retain JRS on the basis of those promises,
however, JRS failed to perform consistent with those promises. JRS’s failure to
perform was ultimately catastrophic, leading to (1) woefully inadequate O&L
coverage (leading to an insurance shortfall exceeding $1 million) when Building 3
was destroyed by fire, and (2) unnecessary complexities created by the renewal of all-
in property and casualty coverage that was incompatible with MCA’s governing
documents.

In other words, Jamieson cultivated a special relationship with MCA that broadened its common law
duty to one of providing certain expert advice, and then it breached that expanded duty by
negligently advising MCA. It is thus clear that Assignees’ purported CPA claim is simply a
negligence claim under a different label.10

Assignees do not clearly identify any “promise” about Jamieson’s expertise. A promise is “a
person’s assurance that the person will or will not do something.” Black’s Law Dictionary 1228–29
(7th ed. 1999). A representation that Jamieson had specific expertise with the type of insureds and

10 This is equal true in terms of Plaintiff’s “bait and switch “theory, which is essentially a recasting of the reliance that

Plaintiffs claim to have derived from Jamieson’s representations of expertise, which they claim kept them from seeking
or knowing that they needed to seek expertise from another.
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insurance at issue in this case is an important component to Assignees’ claim of a special
relationship for negligence purposes, but it is not on its own a promise to do anything. Nor is it
clear what “promise” Jamieson may have made about evaluating construction costs. Either way, it is
undisputed that Jamieson in fact did undertake to determine reconstruction costs, and he reported
his conclusion as to that matter as well as his opinion on what that calculation meant as far as the
sufficiency of MCA’s coverage. It is similarly unclear what deficiency Assignees intend to point out
with any disappointment in some failure to conduct annual reviews. The allegedly bad advice that
MCA received, it received proximate to its initial policy renewal with Jamieson, which remained the
agency though which the policy was again renewed for the period during which the fire happened.

Assignees’ claim in substance appears to be that Jamieson led MCA to believe that it would
perform with competence (without negligence), and it did not—it was negligent. In Winey v. William
E. Dailey, Inc., 161 Vt. 129, 133 (1993), the Court explained that “Our cases have often drawn a
distinction between a statement of fact and a statement of opinion, holding that misrepresentation
of the former can be fraud, but misrepresentation of the latter cannot.” “This generalization is not,
however, without exceptions. Misrepresentation of opinion can be the basis of a fraud claim if it is
part of a scheme to defraud.” Id. Regardless of whether Jamieson’s performance was “competent,”
there is no allegation or evidence of any scheme to defraud in this case. The Winey Court went on to
say, “With respect to promises to perform, we have held that misrepresentations about future
actions can be fraudulent if defendant, at the time of the statement, intends to act differently from
the promise.” Id. Again, there is no nonconclusory allegation or evidence that Jamieson ever made
any promise to perform while secretly intending to act differently than as promised.

In Kessler v. Loftus, 994 F.Supp. 240 (D.Vt. 1997), a case involving allegedly bad legal advice
from an attorney, the district court distinguished between “the commercial, entrepreneurial aspects
of law,” which may provide a basis for a CPA claim, and the “legal, advisory, analytical aspects of
law,” which may give rise to a negligence claim but generally will not give rise to a CPA claim
(absent a scheme to defraud). Id. at 242. In Webb v. Leclair, 2007 VT 65, ¶ 23, 182 Vt. 559 (citation
omitted), the Court adopted the rationale of Kessler and extended it to “other professionals”: “We
now expressly adopt the Kessler court’s interpretation . . . that although certain representations may
give rise to a malpractice claim, they are generally not actionable under the [CPA] if they are the
product of the defendant’s ‘professional judgment based upon his legal knowledge and skill.’ A
plaintiff cannot simply recast a malpractice claim as a consumer fraud claim. Moreover, for
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purposes of this rule, we see no meaningful distinction between lawyers and other professionals
hired to give a ‘specialized or expert interpretation’ of a matter.” See also Otis-Wisher v. Fletcher Allen
Health Care, Inc., 951 F.Supp.2d 592, 603 (D.Vt. 2013) (“As the Vermont Supreme Court has noted,
the [CPA] was not meant to provide a second method to plead a malpractice or negligence claim.”).
As Assignees frame matters, every negligence claim against an insurance agent would amount to a
CPA claim. See, in slightly different circumstances, Greene v. Stevens Gas Service, 2004 VT 67, ¶ 15,
177 Vt. 90 (“His argument is that by denying coverage [insurer] deceived plaintiff into believing his
only recourse was against [alleged tortfeasor]. Under that logic, any denial of coverage becomes
consumer fraud.”).

This case is not about Jamieson tricking MCA into thinking that it would do something that
it never intended to do. It is about whether Jamieson’s performance was deficient measured against
the standard of care arising out of the alleged special relationship between Jamieson and MCA, or
whether Jamieson was subject only to the minimal duty imposed by the common law. As to the
former, that performance relates to complex matters of insurance policy interpretation, in relation to
Jamieson’s duty and applicable professional standards, if there was any expanded duty, to determine
MCA’s insurance needs and so advise it.

MCA’s negligence claim survives the summary judgment stage. Its CPA claim is no more
than its negligence claim impermissibly recast as a negligence claim and does not.

Summary

In sum, Jamieson has failed to demonstrate that: (a) the policy provided code coverage in
excess of any related loss suffered by MCA; (b) MCA waived any claim related to a deficiency in
code coverage; (c) the duty to read automatically insulates it from liability in this case; (d) Jamieson
could not have been MCA’s agent to any extent; (e) as a matter of law Jamieson had no special
relationship with MCA; and (f) expert testimony related to a special relationship or breach of any
related duty is per se irrelevant. In substance, Assignees’ claims boil down to one claim of
negligence and one CPA claim. The negligence claim survives summary judgment; the CPA claim
does not.

Order

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For the foregoing reasons, Jamieson’s motion for summary judgment is Granted in part
and denied in part. Plaintiffs’ contract-based claims and Consumer Protection Act Claims are
Dismissed the remainder of Plaintiffs’ claims may proceed, and the Court will set this for a pre-trial
conference.

Electronically signed on 11/18/2025 3:43 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

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