Glassford v. Dufresne & Associates, P.C.
199 Vt. 422
Vt.2015Background
- Plaintiffs James and Heidi Glassford bought a newly built home with an on‑site mound wastewater system; D&L Homes hired Dufresne & Associates, P.C. (Dufresne) to certify the system under 10 V.S.A. § 1973(e).
- Dufresne submitted the required certification to the Vermont Agency of Natural Resources in October 2005; the Agency later notified Dufresne that permit conditions were satisfied.
- Plaintiffs executed a purchase‑and‑sale agreement in December 2005 and closed in January 2006; their closing attorney obtained and saw the § 1973 certificate before closing, but plaintiffs did not personally view it until after the system failed in 2006.
- Plaintiffs sued Dufresne for negligent misrepresentation and for violation of the Vermont Consumer Protection Act (CPA), alleging economic losses from the system’s failure and misstatements in the certification.
- The superior court granted summary judgment to Dufresne, holding plaintiffs lacked (direct) reliance required for negligent misrepresentation and that Dufresne was not an "other violator" under the CPA. Plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Restatement § 552 negligent‑misrepresentation claim applies and plaintiffs fall within protected class | Glassford: Dufresne’s statutory duty to certify makes plaintiffs part of the protected class under § 552(3) | Dufresne: Certificate was for the Agency, not intended to influence homebuyers | Court: § 552 applies and plaintiffs are within the protected class under subsection (3) but claim fails for lack of required actual/direct reliance |
| Whether plaintiffs justifiably relied on Dufresne’s certification (direct/actual reliance) | Glassford: Reliance can be indirect because their attorney (agent) saw and relied on the certificate; agent’s knowledge/reliance imputable to plaintiffs | Dufresne: Plaintiffs neither saw nor relied on the certificate; reliance on the Agency or counsel is insufficient under § 552 | Court: Actual/direct reliance by plaintiffs is required; attorney’s limited reliance on marketable title does not satisfy § 552, so negligent‑misrepresentation claim fails |
| Whether the public‑duty exception (§ 552(3)) eliminates need to show direct reliance | Glassford: Public‑duty makes the class presumed to have relied; reliance need not be shown | Dufresne: Public‑duty expands the class but does not eliminate requirement of actual reliance | Court: § 552(3) enlarges the class but does not dispense with actual reliance requirement |
| Whether Dufresne is liable under the Vermont CPA as an "other violator" | Glassford: Dufresne’s false certification induced the sale and thus is an "other violator" (no privity required) | Dufresne: Not a seller/solicitor; certification was not part of the sale or marketing to buyers | Court: Liability under CPA requires direct involvement in the consumer transaction; Dufresne did not participate in or aid the sale, so not an "other violator" and CPA claim fails |
Key Cases Cited
- Limoge v. People's Trust Co., 168 Vt. 265, 719 A.2d 888 (Vt. 1998) (Vermont adopted Restatement § 552 for negligent misrepresentation)
- Bilt‑Rite Contractors, Inc. v. Architectural Studio, 866 A.2d 270 (Pa. 2005) (no privity required where bidders directly relied on plans; emphasis on direct reliance)
- Brinkman v. Barrett Kays & Assocs., 575 S.E.2d 40 (N.C. Ct. App. 2003) (permit‑applicant’s misstatements to agency do not substitute for plaintiffs’ actual reliance under § 552)
- Knutsen v. Dion, 195 Vt. 512, 90 A.3d 866 (Vt. 2013) (CPA: ‘‘other violator’’ requires direct involvement in the transaction giving rise to consumer claim)
- Elkins v. Microsoft Corp., 174 Vt. 328, 817 A.2d 9 (Vt. 2002) (CPA remedies are not limited by privity; focus is on nature of alleged violator’s activities)