Comstock v. Wright & Morrissey

7ermont Superior Court
Filed 03/11/26
Chittenden UUnit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case No. 24-CV-01070
175 Main Street
Burlington VT 05401
802-863-3467
www.vermontjudiciary.org
Jamie Comstock v. Wright & Morrissey Inc., et al

ENTRY REGARDING MOTION
Title: Motion for Summary Judgment; Motion to Allow Sur Reply (Motions: 5; 7)
Filer: Pietro J. Lynn; Kristin C. Wright
Filed Date: January 08, 2026; February 17, 2026

Plaintiff Jamie Comstock fell and injured herself while working at a bank undergoing
construction. Defendant Wright & Morrissey, Inc. ("W&M") served as general contractor for the
project. Third-party Defendant New England Floor Covering, Inc. ("NEFC") served as flooring
subcontractor. W&M has moved for summary judgment against NEFC, seeking judgment that
NEFC (1) must indemnify W&M for all of Comstock's claims in this case; (2) must reimburse
W&M for all costs incurred in defending this case; and (3) breached its subcontract agreement
with W&M. Mot. at 7-8. Counsel represent both parties. For the reasons that follow, the court
DENIES W&M's motion for summary judgment (Mot. 5) and GRANTS NEFC's motion to file
sur-reply (Mot. 7).

I. Background

The court focuses on the facts most relevant to the pending motion, resolving all
reasonable doubts and inferences in NEFC's favor, as required under Rule 56 as noted below.

The parties agree on the following undisputed facts. Comstock worked at a bank
undergoing construction where she injured herself. W&M served as general contractor for the
project. NEFC served as W&M's flooring subcontractor. NEFC's subcontract with W&M
contained an indemnity provision for "claims, damages, losses, and expenses, including but not
limited to attorney's fees, directly or indirectly, arising out of or resulting from performance of
the Subcontractor's Work under this Subcontract." Stmts. q 16. See also Stmts. JJ 1-3, 5-7, 9-19
(establishing undisputed facts).

Comstock fell after turning her ankle as she walked from a tiled to an untiled floor. The
flooring differences lay underneath mats installed by a separate subcontractor, Unifirst, or rugs.
Stmts. Ff 6, 8; Opp. at 3. W&M asserts and NEFC does not dispute that NEFC had
responsibility for all safety measures related to its subcontracted work. Mot. at 4; Stmts. { 17.
W&M has not included in its statement of undisputed facts whether those measures included
mats or rugs. NEFC asserts that no evidence shows that NEFC had any involvement with the rug
where Comstock fell. Opp. at 2-3; Sur-Rep. at 2-3.
II. Discussion

“Summary judgment is appropriate only where, accepting the allegations of the
nonmoving party as true, there exist no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law.” Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 9,
197 Vt. 176 (quotation omitted); see Vt. R. Civ. P. 56(a). “The nonmoving party may survive the
motion if it responds with specific facts raising a triable issue, and it is able to demonstrate
sufficient evidence to support a prima facie case.” Kelly v. Univ. of Vt. Med. Ctr., 2022 VT 26,
¶ 15, 216 Vt. 445 (quotation omitted). Courts “resolve all reasonable doubts and inferences . . .
in favor of the nonmoving party,” id. (citation omitted), and will deny the motion where the
nonmoving party offers “specific facts that would justify submitting [its] claims to a factfinder.”
Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356 (citation omitted).

A. Indemnification and Reimbursement

W&M’s entitlement to indemnification and reimbursement depends on whether
Comstock’s claims in this case “aris[e] out of or result[] from performance of the Subcontractor's
Work under this Subcontract.” Stmt. ¶ 16. NEFC asserts that they do not, citing no evidence
pointing to its responsibility for the rug that allegedly led to Comstock’s injury or the mats which
Comstock says Unifirst installed (as W&M acknowledges). Opp. at 2-3; Sur-Rep. at 2-3; NEFC
Stmt. ¶¶ 4, 8; W&M Stmt. ¶¶ 6, 8. W&M asserts that NEFC had responsibility for all safety
measures related to the work under its flooring subcontract. Mot. at 4, ¶ 17. In other words, the
parties genuinely dispute a material fact relating to NEFC’s indemnification obligation to W&M
– whether the mat or rug involved in Comstock’s injury “ar[o]s[e] our of or result[ed] from
performance of [NEFC’s] Work under this Subcontract.” Stmts. ¶ 16. V.R.C.P. 56 makes clear
W&M has not earned summary judgment for this claim.

B. Breach of Contract

“To state a breach of contract claim under Vermont law, Plaintiff must plead (1) the
existence of a contract, (2) breach of the contract, and (3) damages.” Mooers v. Middlebury
Coll., No. 2:20-CV-00144, 2021 WL 4225659, at *5 (D. Vt. Sept. 16, 2021) (Reiss, J.) (citing
Lapoint v. Dumont Constr. Co., 128 Vt. 8, 10 (1969)). W&M alleged in its amended complaint
that NEFC breached its subcontract, causing financial harm to W&M. Am. Compl. ¶¶ 25-26.
W&M provides no comparable evidence to support its motion.

W&M did not argue in its motion that NEFC breached any obligations. See generally
Mot. at 6-7 (omitting argument). It included only one sentence in its reply without evidence.
Rep. at 6 (“NEFC is in breach of contract for failing to comply with these obligations.”). It
offered no argument or evidence regarding damages resulting from any arguable breach. W&M
has not met its burden to support summary judgment on this claim.

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III. Order

For the reasons set forth above, the court DENIES W&M’s motion for summary
judgement (Mot. 5).

The court has considered NEFC’s sur-reply in reaching today’s decision. It GRANTS
NEFC’s unopposed motion to file sur-reply (Mot. 7).

Electronically signed pursuant to V.R.E.F. 9(d) on March 9, 2026.

Colin Owyang
Superior Court Judge

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