westcott v. cooper

VERMONT SUPERIOR COURT CIVIL DIVISION
Franklin Unit Case No. 24-CV-00266
17 Church Street
St. Albans VT 05478
802-524-7993
www.vermontjudiciary.org

Matthew G. Westcott v. Kurt Cooper; et al

ENTRY REGARDING MOTION
Title: Motion to Dismiss (Motion: 2)
Filer: Mark F. Werle
Filed Date: March 14, 2024

Plaintiff Matthew Westcott sues three individuals who he asserts were responsible for the
murder of his uncle, Richard Westcot. He asserts three claims: one under Vermont’s wrongful
death statute, another for loss of consortium, and a third for intentional infliction of emotional
distress. Two of the three defendants have moved to dismiss all counts. The court grants the
motion.
With respect to the first claim, Mr. Wescott lacks standing. Per statute, a wrongful death
claim must “be brought in the name of the personal representative of the deceased person.” 14
V.S.A. §1492(a). Moreover, Mr. Wescott is not even a putative beneficiary of any wrongful
death recovery; he is clearly neither the decedent’s spouse or next of kin, as required by 14
V.S.A. § 1492(c). Thus, any injury he has suffered is not one “that can be redressed in a court of
law.” Parker v. Town of Milton, 169 Vt. 74, 77 (1998). Count 1 therefore fails.
Equally, Vermont law has never recognized a right of action for loss of consortium in
anyone other than a spouse or a child. See 12 V.S.A. § 5431 (“An action for loss of consortium
may be brought by either spouse.”); Whitney v. Fisher, 138 Vt. 468, 471 (1980) (“the action for
loss of consortium is for the remedy of injuries sustained by one who has been deprived of the
affection, aid and cooperation in conjugal relations, conjugal society and support of another
whom the law recognizes as a marital partner”); Hay v. Medical Center Hosp. of Vermont, 145
Vt. 533, 537-45 (1985) (recognizing child’s right of action for loss of parental consortium).
While the court has allowed loss of companionship—akin to consortium—to siblings, that was in
the context of a wrongful death action, in which the siblings were entitled to recover as “next of
Entry Regarding Motion Page 1 of 2
24-CV-00266 Matthew G. Westcott v. Kurt Cooper; et al
Vermont Court
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kin.” Dubanawicz v. Houman, 2006 VT 99, 1H] 6—1 5,180 Vt. 367. Here, Mr. Wescott is not his
uncle’s spouse, child, or “next of kin”; he therefore has no right of recovery for loss of
consortium, either at common law or under the wrongful death act. Count 2 also fails.

Finally, where a claimant is not the direct target of allegedly tortious conduct, Vermont
law allows recovery for intentional infliction of emotional distress only if the claimant is present
at the time of the conduct. Leo v. Hillman, 164 Vt. 94, 102—03 (1995). Here, the complaint

makes clear that Mr. Wescott was not present at the time of his uncle’s murder. Thus, he has no
claim for intentional infliction of emotional distress. Count 3 fails.
ORDER
The court grants the motion. All claims against Defendants Macca and Gillespie are
dismissed with prejudice.

Electronically signed pursuant to V.R.E.F. 9(d): 4/23/2024 6:38 PM

muel ar
3115 Court Judge

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24—CV—00266 Matthew G. Westcott v. Kurt Cooper; et a1