Michael D. Messier v. Kay H. Bushman and The Standard Fire Insurance Company d/b/a Travelers
197 A.3d 882
Vt.2018Background
- On January 16, 2014, Messier and Bushman were involved in an auto accident; Messier sued Bushman and her insurer Travelers on January 13, 2017 (just before the statute of limitations expired).
- Messier sued Bushman for negligence and Travelers under the Vermont Consumer Protection Act (CPA) alleging unfair claims settlement practices.
- Sheriff attempted personal service at Bushman’s home (returns show unsuccessful attempts); no copy left with household member. Bushman was allegedly abroad at the time.
- Messier made substituted service on the Commissioner of Motor Vehicles under 12 V.S.A. § 892(a). He mailed a packet to Bushman that contained the summons, complaint, and the unsuccessful home-service return; it is disputed whether the Commissioner’s return and the affidavit of compliance were mailed to Bushman as § 892(a) requires.
- Bushman answered asserting insufficient service and moved (styled as a Rule 12(c) motion) which the trial court treated as seeking judgment on the pleadings and entered judgment for Bushman for lack of service. The trial court denied relief from judgment. The court dismissed Messier’s CPA claim against Travelers under Rule 12(b)(6).
- On appeal, the Vermont Supreme Court affirmed dismissal of Travelers but reversed as to Bushman and remanded for further proceedings on the service issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of substituted service under 12 V.S.A. § 892(a) | Messier: he complied with § 892 by serving the Commissioner, filing an affidavit, and mailing the required materials to Bushman | Bushman: she did not receive the Commissioner’s return or affidavit; substituted service therefore incomplete | Remanded: factual dispute whether the Commissioner’s return was mailed; trial court should have held an evidentiary hearing and, if dismissal warranted, enter dismissal (not judgment on the merits) |
| Proper relief for inadequate service (judgment on pleadings vs. dismissal) | Messier: court should have dismissed claims for lack of service, not enter judgment for defendant | Bushman: sought judgment on pleadings based on insufficiency of service | Held: the motion was effectively a Rule 12(b)(5) challenge; dismissal (not merits judgment) is the appropriate relief; trial court erred in entering judgment on the pleadings without resolving factual disputes |
| Waiver of insufficient-service defense by late answer | Messier: Bushman had actual notice (mail received Feb 25) and delayed filing answer until Mar 29, so defense waived | Bushman: any delay was de minimis; raised defense in her first filing | Held: no waiver here—Rule 12(h) requires raising jurisdictional defenses in the initial motion or responsive pleading, but a short delay (or late filing by a few days) does not automatically waive the defense; facts require no waiver finding |
| CPA claim against insurer (standing/consumer status) | Messier: Travelers’ settlement conduct amounted to unfair claims practices actionable under CPA | Travelers: Messier is not a consumer under the CPA and ITPA does not create a private right | Held: affirmed dismissal—Messier is not a CPA “consumer” with respect to Travelers’ insurance policy and the ITPA provides administrative (not private) remedies |
Key Cases Cited
- Law's Adm'r v. Culver, 121 Vt. 285, 155 A.2d 855 (1959) (substituted service requires mailing the Commissioner’s return to defendant to satisfy due process)
- Myers v. Brown, 143 Vt. 159, 465 A.2d 254 (1983) (party with actual notice must raise Rule 12(h) defenses in initial motion or responsive pleading or risk waiver)
- Roman Catholic Diocese of Burlington, Inc. v. Paton Insulators, 146 Vt. 294, 501 A.2d 1187 (1985) (when factual disputes underlay jurisdictional questions, an evidentiary hearing is preferable)
- Wilder v. Aetna Life & Casualty Ins., 140 Vt. 16, 433 A.2d 309 (1981) (Insurance Trade Practices Act does not create a private cause of action)
- Brammel v. LaRose, 105 Vt. 345, 165 A. 916 (1933) (statutes governing substituted service are to be strictly construed)
- Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122 (1990) (standard for judgment on the pleadings: movant must be entitled to judgment as a matter of law)