2015 Vt. 69
Vt.2015Background
- Developer (Stratton Corp. & Intrawest) hired Engelberth as general contractor under a standard construction agreement that allowed Developer to implement a Consolidated Insurance Program (CIP) and required Owner to procure builder’s risk insurance.
- The contract’s Article 11A addressed CIP coverage and contained an indemnity clause requiring Contractor to indemnify Owner for losses caused by Contractor or its subcontractors, except for losses covered by Owner’s required insurance.
- Engelberth subcontracted roofing work to Evergreen Roofing; that subcontract required Evergreen to indemnify Owner and Engelberth for claims arising from Evergreen’s work to the extent caused by Evergreen.
- After completion, Developer settled a dispute with the condominium association and then sued Engelberth (breach of contract and warranty claims). Engelberth filed a third-party indemnity claim against Evergreen.
- Engelberth moved for summary judgment arguing Article 11A barred recovery unless Developer’s CIP/builder’s-risk insurance did not cover the loss; Evergreen orally supported the motion. The trial court denied the motion.
- At trial Developer dropped negligence claims, Engelberth agreed not to oppose exclusion of CIP evidence, the jury found Engelberth liable to Developer and found Evergreen obligated to indemnify Engelberth. Evergreen appealed, arguing the court should have resolved the Article 11A/CIP issue pretrial or excluded Developer’s recovery pending resolution of insurance coverage.
Issues
| Issue | Developer's Argument | Evergreen's/Engelberth's Argument | Held |
|---|---|---|---|
| Whether the pretrial denial of Engelberth’s summary-judgment motion (arguing Article 11A/CIP barred Developer’s claims absent proof of lack of insurance coverage) is reviewable on appeal after a full trial. | Trial supersedes pretrial rulings; judgment on verdict controls. | Summary-judgment denial was erroneous and should be reviewable because Article 11A required insurance-noncoverage showing before recovery. | Denial not reviewable on appeal after full trial; summary-judgment motions become moot once trial occurs. |
| Whether the Article 11A/CIP issue was preserved for appeal (i.e., whether the court erred by not interpreting Article 11A or admitting/excluding evidence re: CIP). | Article 11A’s indemnity condition should have barred Developer’s case or required a determination of CIP coverage before judgment. | Trial record shows Engelberth did not pursue CIP evidence at trial and did not object to exclusion or instruction; Evergreen did not press or preserve the issue at trial. | Issue unpreserved: parties failed to raise/maintain objections at trial; appellate review precluded. |
Key Cases Cited
- Daigle v. Liberty Life Ins. Co., 70 F.3d 394 (5th Cir. 1995) (summary-judgment rulings generally become moot once trial begins)
- Jacques v. DiMarzio, Inc., 386 F.3d 192 (2d Cir. 2004) (judgment after full trial supersedes earlier summary-judgment proceedings)
- Follo v. Florindo, 970 A.2d 1230 (Vt. 2009) (issues not raised at trial are unpreserved and are not reviewed on appeal)