Glassford v. Dufresne & Associates, P.C.
124 A.3d 822
Vt.2015Background
- Plaintiffs Heidi and James Glassford bought a new home from builder D&L; D&L had engaged defendant Dufresne & Associates, P.C. to certify, under 10 V.S.A. § 1973(e), that the on-site mound wastewater system was installed per the permit.
- Defendant delivered the §1973(e) certification to the Vermont Agency of Natural Resources; the Agency then confirmed the permit conditions were satisfied. Plaintiffs did not see the certification before closing.
- Plaintiffs closed on the home in January 2006; the wastewater system failed in February 2006. Plaintiffs later sued defendant for negligent misrepresentation and for violation of the Vermont Consumer Protection Act (CPA).
- At summary judgment, the superior court denied plaintiffs’ motion and entered judgment for defendant. Plaintiffs appealed, arguing (1) they fall within the Restatement §552 public-duty exception and relied (through their attorney) on the certification, and (2) defendant is liable under the CPA as an "other violator."
- The Supreme Court of Vermont reviewed de novo and affirmed summary judgment for defendant, holding plaintiffs lacked the required direct/actual reliance for negligent misrepresentation and that defendant was not sufficiently involved in the consumer transaction to qualify as an "other violator" under the CPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether negligent misrepresentation claim under Restatement §552 applies when certification was made to agency, not buyer | Glassford: §1973(e) imposes a public duty; plaintiffs are in the protected class and thus may recover under §552(3) even if they never saw the certificate | Dufresne: Certificate was intended for the Agency; plaintiffs were not intended recipients and did not directly rely on defendant’s statements | Court: Plaintiffs are in the protected class but §552 requires actual/direct reliance; plaintiffs did not directly rely on defendant’s statements, so claim fails |
| Whether plaintiffs may rely on their attorney’s knowledge/reliance (agency) to satisfy §552 reliance element | Glassford: Attorney acted as agent, viewed the certificate, relied on it in title work; his reliance/imputed knowledge should count as plaintiffs’ reliance | Dufresne: No direct reliance by plaintiffs; attorney’s narrow role was title-marketability, not evaluation of system quality | Court: Even if agent’s knowledge imputed, facts show attorney’s role was limited and plaintiffs had contracted before hiring him; attorney’s reliance related to title, not to the system’s quality, so it does not establish the §552 reliance needed |
| Whether CPA private remedy (§2461(b)) applies to defendant as an “other violator” | Glassford: No privity required; defendant’s misleading certification induced the sale; CPA covers indirect sellers/other violators | Dufresne: Not a seller/solicitor; no direct involvement in marketing or sale to plaintiffs; certificate was for permitting only | Court: CPA liability requires that the alleged violator be directly involved in the consumer transaction; defendant’s role was regulatory/permitting, not participation in the sale, so not an “other violator” |
| Whether public-duty exception to §552 eliminates need to show direct reliance | Glassford: Public-duty exception enlarges class and presumptively covers buyers who rely on permit process; reliance may be presumed | Dufresne: Public-duty exception does not eliminate the reliance element; plaintiffs must still show actual reliance | Court: Public-duty exception expands the class but does not dispense with actual reliance; plaintiffs failed to show it |
Key Cases Cited
- Bilt-Rite Contractors, Inc. v. Architectural Studio, 866 A.2d 270 (Pa. 2005) (§552 does not categorically require privity; key is whether plaintiff directly relied on the information)
- Brinkman v. Barrett Kays & Assocs., 575 S.E.2d 40 (N.C. Ct. App. 2003) (public‑duty exception still requires actual reliance; permit‑applicant’s statements to agency did not support purchasers’ §552 claim absent direct reliance)
- In re Sofamor Danek Grp., Inc., 123 F.3d 394 (6th Cir. 1997) (majority of courts require actual reliance for §552 negligent‑misrepresentation claims)
- Knights of Columbus Council 3152 v. KFS BD, Inc., 791 N.W.2d 317 (Neb. 2010) (declining to extend public‑duty liability where plaintiffs did not directly rely on the misrepresentation)
- Knutsen v. Dion, 195 Vt. 512 (Vt. 2013) (CPA “other violator” liability generally requires direct involvement in the transaction that produced the consumer harm)
- Elkins v. Microsoft Corp., 174 Vt. 328 (Vt. 2002) (CPA remedies are not limited by privity; analysis focuses on the nature of the alleged violator’s activities)