State v. Williams
627 A.2d 1254
Vt.
1993
Check Treatment

*1 period temporary disability, third however, really seeking What Kuzins is alleged inability LC & case is a determination that if it pay provide payments. payments complainant, and refused to it is LC & thereafter entitled to reimbursement asserted before should C pay. & L Commissioner that li- become able to The deter- Kuzins was payments, payments, mination of allocation able for future as well as any, must be past payments reimbursement of all resolved between the general subcontractor and made. contractor Kuzins carried Morrisseau, superior in a court. compensation workers’ insurance at Vt. at 181 A.2d at 59. injury, the time of claimant’s argues Kuzins further that due to company with which it was insured pending superior C & Us insolvent, action became it and claims court, Fund, Guaranty as a fund being are now administered resort, respon- of last should not be Property Casualty In- payment sible for because it is (Guar- incon- Guaranty surance anty Association Fund). pay. clusive that C & L is unable to Kuzins has since filed for requirement We find no that the in- bankruptcy. jured pursue worker must his own The Commissioner determined superior action in court to determine statutory employer Kuzins was a whether LC & was indeed insured. within meaning of 21 V.S.A. 3619(a) Section “be of Title 8 should not 601(3) and that both Kuzins and C construed so as to & L payment were liable for of bene- claimant in position different fits to claimant. The Commissioner than it would have been had the insol- denied C & Us claim for reimburse- vency occurred,” nor should an ment but ordered that Kuzins make insolvency insurer’s cause excessive payments injured future party delay injured and financial loss to the because of apparent C & Us inability party. International Collection Serv. payment. to continue Prop. v. Vermont & Cas. Ins. Guar- argues Kuzins now that the Com- Ass’n, anty 555A.2d directing missioner erred in pay it to (1988) (intent is to “elimi- injured benefits to party and in nate loss caused the insol- absolving responsibility C & L of insurer”). vency payments If pay. Nowhere in the Commissioner’s eventually be allocated differ- decision, however, is C & L relieved ently, that issue must likewise be de- responsibility. The Commissioner termined in court. held, conceded, and Kuzins has parties Moreover, both are liable. Affirmed. covery from the contractor is available where the immediate em- ployer. protection,” provide adequate “fail[s] to general’s or if the tract with the subcontractor is a STATE of Vermont v. Robert liability “scheme to evade WILLIAMS Ryan Act.” Cordage New Bedford Co., (D. Supp. F. A.2d 1254] 1976).This is consistent pol- with the providing remedy icies of in- jured party and a determinate limit employer’s liability. Quinn on an Pate, April appeals 1993. Defendant driving a conviction of with (DLS) suspension in ef the reason for the suspended license in violation granted. fect ón argues 674. He that he of 23 V.SlA. tried, stated to the court Defense counsel charged, convicted un- the1 had record 'wrong reverse statute. We der agreed stipulate that defendant ease and remand the the conviction suspension on was under *2 imposition judgment on the for 1991, more than four and that he had included for resen- lesser offense and convictions, prior all of DLS tencing. stipulation were valid. 1991, in Prior to its amendment pre identify the reason for § forth' maximum fines and 674 set suspensions. vious No evidence was imprisonment, on the based terms trial at the rea offenses, prior operat- for number son license was under defendant’s suspended ing a motor vehicle with a 1, 1991, suspension on underly- The reason for the license. jury charge made the court’s no men Ef- ing suspension was not relevant. underlying tion of for the the reason 1991, 1, July Legislature fective suspension. Apparently, both § former amended the 674 creat- proceeded as if and the court defend sections, §§ ing separate 674 and two being charged ant were Among changes, other 676. jury § found former 674. The defend subject § made amended 674 DLS guilty, ant and the sentenced penalties only the un- when days him to of 30 to 60 im a term suspension derlying resulted prisonment, stayed pend was of certain enumerated stat- violation ing appeal. utory underlying If the sus- sections. may argue for Defendant pension “for other was reason” time on that the information than a violation of the listed sections defective. State fatally 674(a), § operator in amended 494, Bradley, 145 Vt. 492, 494 A.2d a civil traffic under' commits violation 129, (1985). In determining 131 subject only pen- § 676 and is civil sufficiency of the information under Thus, alties. under the amended stat- Chapter I, 10 of the Article ute, underlying reason for Constitution and Sixth Amend determines whether ment of the United States Constitu will be to criminal or offender tion, we consider whether penalties. civil charging sufficiently document in alleged violation took formed the defendant basis one after the month charge so as nature of to en § 674 took The infor amended effect. prepare able him his defense. oper mation stated defendant Toume, 607, 631, State v. 158 Vt. 615 motor vehicle license ated a while his 484, (1992); A.2d 497 674, § in suspended violation 17, 28-29, 884, 151 A.2d Vt. it did not state for the the reason Hurley, (1989); State Vt. underlying suspension. The informa (1988) (defend 171, 552 A.2d tion also noted six DLS convic preparation ant how must show or penalty tions and a maximum presentation of defense was ham penalty per the maximum mirrored pered significant in some information). § mitted under former Thus, omission in subsequent De key offense. inquiry it is whether is fair to re limine, motion in quire fendant’s to defend the defendant sought to exclude all con basis of the as stated in the cerning prior particular DLS convictions and information. subsequent We conclude that the conviction or violation of “section 1201,” suspend cannot could not stand. State recent adopted for life defendant’s license based eases have a “common sense ' statute). approach” convictions under determining in the suffi information, the information evi- Because ciency of an State v. De dence were sufficient make out LaBruere, § civil traffic violation under we an information that imposition remand matter omits an essential element the of judgment § under 676 and for resen- generally fense cannot serve as the tencing. Bradley, See State v. Kreth, basis of a conviction. State v. 132; at 494A.2d at State v. Man- 436, 441-42, ning, 136 Vt. (1988). Here, the amended statute (1978) (where 409, 412 underlying reason for the charge aggravating failed to stance, circum- suspension an essential element of a Court on entered 674 violation. See lesser«¿ncluded judgment on of- (essential at at 132 fense). degree affecting punishment The conviction reversed information). alleged While de imposition matter is remanded sought fendant exclude judgment under 676 and mony concerning of sentencing. reason suspension that was in effect on Au Morse, J., concurring. gust concur the information did not solely the result apprise because V.R.Cr.P. defendant of the fact that the *3 interpreted, requires as a rever- reason for the was an ele allowing sal. rule The review of the Therefore, ment of the crime. de sufficiency of an information for the opportunity fendant had no to n appeal, time present potential any defense con 145 Vt. (1985), cerning suspension, the basis of the predicated on V.R.Cr.P. and regarding underly facts the 12(b)(2),which states: ing suspension part are not of the- appeal. record on Any objection Given these may cir ... . .. be cumstances, hardly by we can conclude raised before trial motion. that prejudiced defendant was not Unless otherwise ordered ..., following preparing cause the be his defense. Cf. must (absence raised to trial Vt. at implied A.2d at then of party:... [Objec- known to the intent element in information tions based on defects in ... prejudice the defendant in (other than that it preparing his defense because his offense, to . . . fails an own showed he acted with objection[] which shall no- intent). be requisite ticed the court at time uphold Nor can we the sentence during pendency pro- 674(b), provides based on that ceeding) .... persons who have violated “sec tion 676” on two or more occa The wisdom this rule is dubious. sions penalties are set rarely grant We un- relief review 674(a). forth in See McGovern v. prejudices less error defendant. Department Vehicles, case, prejudice Motor 139 In likely is most (1980) absent, given the and circumstances (where permitted statute appeal revocation defendant’s failure on to re- upon driver’s license for life veal whether existed. 12(b)(2)’s weight of par- the land believe V.R.Cr.P. erroneous, clearly allowing and and enthetical caveat defects in evidence any- “at We dis- the information to be raised therefore must be reversed. from dropped agree. time” should be unnecessarily practice prescrip as a establishment plain right er- technical. The standards of use is shown tive easement ror, showing notorious, including the by “open, need and con hostile prejudice, are sufficient. property at possession.of tinuous years.” period of issue for a fifteen Store, Community Feed Inc. v. Corp., 151 Vt. Northeastern Culvert (1989). open and rule is that no Edward E. and Barbara C. BUT presumed be to be torious use will Margaret Paul S. TOLPH v. and W. right, under a claim of adverse and ERIKKSON exception unless there is found presumption, 824] which rebuts that such permission of as right-of- owner of land to use Blanchard, way. v. See Gore 234, 241, 118 Here, A. findings the court made May 3,1993. any specific there was “never discus a decision of the court find- plaintiffs’ predeces sion” between ing that a defendants had established regard sors-in-title defendants prescriptive right driveway to a use ing permission driveway, passed plain- over a corner predecessor and that tiffs’ Plaintiffs also land. fied he that [defend “assumed roadway ruling that court’s way go right a across ant] had disputed driveway led was there.” The court further found that public way, contend acqui themselves also findings and conclusion of law esced defendants’ use of road public way should be way years. for almost ten stricken matter was not because Findings of the trial court pleadings raised in the not they fairly affirmed if are and rea parties. affirm. briefed We sonably supported by it was credible evi Plaintiffs first claim that dence, Properties Laird versible error the trial Mad Corp., find that defendants had established River prescriptive are easement drive- A.2d Spe- Pare, plaintiffs’ property. “clearly across erroneous.” Russell *4 cifically, plaintiffs challenge Findings 132 Vt. (1974); pres Nos. which state de- see V.R.C.P. 52. In the ease, permission ample fendants did have ent there land, support cross rather that find predecessors ings, and their we are not left with “the acquiesced title firm that a defendants’ definite and conviction tinuous, adverse, open and notorious mistake has been committed.” An right-of-way City, since 1961. derson v. Bessemer U.S. finding argue that Nor find de- do we permission applied legal lacked the court an incorrect fendants cross