Abbiati v. Buttura & Sons

ABBIATTI_V_BUTTURA_AND_SONS.92-612; 161 Vt. 314; 639 A.2d 988

[Filed 31-Jan-1994]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-612


Georgianne Abbiati                            Supreme Court

                                              On Appeal from
      v.                                      Washington Superior Court

Buttura & Sons, Inc. & American
Bankers Life Assurance Company of Florida     October Term, 1993


Stephen B. Martin, J.



George E. Rice and Joseph G. McHale of Goodrich & Rice, Montpelier, for 
  plaintiff-appellant

Richard E. Davis of Richard E. Davis Associates, Barre, and Jonathan P. Cawley
   of Williams & Green, Morrisville, for defendant-appellee Buttura & Sons

John Davis Buckley and Jeffry W. White of Theriault & Joslin, P.C., Montpelier,
   for defendant-appellee American Bankers Life Assurance Co.

PRESENT:  Allen, C.J., Dooley, Morse and Johnson, JJ.

     DOOLEY, J.   Plaintiff sued defendants, Buttura & Sons, Inc.,
and its life insurance carrier, American Bankers Life Assurance
Company of Florida, to recover additional compensation on a life
insurance policy provided to her deceased husband, Stuart Abbiati, by
Buttura & Sons, as part of his employee benefits package.  The trial
court awarded plaintiff $11,000 additional compensation and held
defendants jointly and severally liable for this amount. The court
also awarded plaintiff postjudgment interest on the $11,000, but
tolled the accrual of interest at the twelve percent rate



prescribed by 9 V.S.A. { 41a(a) as of the date of entry of
judgment.  The court then ordered that the judgment amount be placed
in an interest-bearing account to earn interest at the market rate
until distribution.  Plaintiff appeals the amount of additional
compensation awarded and the tolling of statutory interest; American
Bankers cross-appeals on the issue of joint and several liability for
the additional compensation and the denial of costs on its offer of
judgment.  We affirm the award of additional compensation and the
imposition of liability upon American Bankers.  We reverse the
court's denial of costs to American Bankers and remand for a
determination of such costs. Finally, the Court has divided on
plaintiff's challenge to the order denying her postjudgment interest
at the statutory rate as long as American Bankers pays the judgment
amount into an interest-bearing account for distribution after the
appeal.  This issue remains unresolved and must be reargued.

     Stuart Abbiati worked for defendant Buttura & Sons as an
estimator and granite salesman for a number of years.  He was paid a
salary for his work as an estimator, but he received commissions for
his work as a salesman. Buttura & Sons purchased group life insurance
coverage for its employees, including Stuart Abbiati, from American
Bankers.  The coverage was provided to the employees as a benefit on
a non-contributory basis.  The policy required Buttura & Sons to pay
$0.42 per month per $1,000 of coverage for each employee for life
insurance coverage of "2 1/2 times basic annual earnings rounded to
the next higher $1,000 to a maximum of $100,000." Buttura & Sons
implemented this provision by basing benefits, and its premium
payments, upon the basic salary of all non-union employees, including
those workers who also received commission income.  Stuart Abbiati



was informed of the scope of the benefit in 1985, when the
policy was first purchased, and signed an enrollment card listing
only his basic salary.

     American Bankers provided Buttura & Sons a "Policyholder's
Administration Manual" to explain its duties in administering the
group policy.  As the trial court found, Buttura & Sons was required
to perform various administrative tasks including "billing,
conversion of coverage, termination of coverage, submission of claims
and updated employee census data, including changes in employee
annual salaries."  It was the policy of American Bankers to request
from the employer an annual update of the names and wages of
employees.  This was done in 1986, and Buttura & Sons responded with
current information.  The trial court was unable to determine whether
it was done in 1987 and 1988.  In any event, Buttura & Sons did not
update information in those years so that when Stuart Abbiati died in
October 1988, the amount of his annual earnings, as shown in the
records of American Bankers, was $20,280 when in fact his annual
salary was $24,700.
    
     The salary discrepancy underlies some of the issues in this
litigation. American Bankers paid plaintiff's death claim based on
the 1986 information and refused to pay the additional amount to
reflect Stuart Abbiati's 1988 salary.  More significant in monetary
terms is plaintiff's argument that the death benefit payment also
should have reflected Abbiati's annual commission income, which was
around $20,000 at the date of his death.

     Plaintiff filed suit for the maximum payment allowed under the
policy, $100,000, minus the amount paid of $51,000, for a claim of
$49,000.  On March 9, 1992, American Bankers served plaintiff with an
offer of judgment pursuant to V.R.C.P. 68, in which it proposed to
pay $11,000 plus



prejudgment interest.  The offer was not accepted within ten
days and thus was deemed withdrawn.  See V.R.C.P. 68.

     After a bench trial, the court found that Buttura & Sons
incorrectly reported Mr. Abbiati's final salary to American Bankers. 
As a result, the court awarded plaintiff an additional $11,000, which
represented the difference between a death benefit of $62,000 due
based on Abbiati's $24,700 salary and the $51,000 previously tendered
by American Bankers.  The court rejected plaintiff's contention that
commission income was to be included in calculation of an employee's
salary.

     The court held defendants jointly and severally liable for the
additional $11,000 on the ground that Buttura & Sons was American
Bankers' agent for administrative work, such as reporting premiums. 
The court also awarded plaintiff interest at the statutory rate of
twelve percent on the $11,000 from Stuart Abbiati's date of death. 
The interest award was subsequently modified to market rate interest
on motion of American Bankers.

                             I.

     Plaintiff first argues that she was entitled to the policy
maximum of $100,000 based on two-and-one-half times her husband's
total annual earnings, including commissions, in excess of $40,000. 
Her contention is based on the wording of the benefit provision of
the life insurance policy issued by American Bankers to Buttura &
Sons: "2 1/2 x basic annual earnings rounded to the next higher
$1,000 to a maximum of $100,000."  She argues that the policy bases
benefits on "earnings" not "salary," and therefore, her benefits
should reflect her husband's commission income.

     The trial court rejected plaintiff's argument because it found
the argument inconsistent with the contractual relationships of the
parties.  It



concluded that under the policy between American Bankers and
Buttura & Sons, it was up to Buttura & Sons to define earnings and to
pay premiums and obtain coverage accordingly.  As to the employees,
including Stuart Abbiati, the court concluded that Buttura & Sons
agreed to provide coverage based on salary and not commissions.

     The trial court's findings of fact will be upheld unless clearly
erroneous. V.R.C.P. 52(a)(2).  Similarly, conclusions will be upheld
if supported by the findings.  See In re M.M., ___ Vt. ___, ___, 621 A.2d 1276, 1279 (1993).  We find the trial court's conclusions amply
supported by its findings which are, in turn, supported by the
evidence.

     At the outset, we agree with the trial court's characterization
of the contractual relationships.  A group insurance contract is a
primarily contract between the employer and the insurer.  See, e.g.,
Blue Cross-Blue Shield of Ala. v. Fowler, 195 So. 2d 910, 918 (Ala.
Ct. App. 1966); Blaylock v. Prudential Ins. Co., 67 S.E.2d 173, 175
(Ga. Ct. App. 1951); Credeur v. Continental Assurance Co., 502 So. 2d 214, 219 (La. Ct. App. 1987); Guardian Life Ins. Co., 479 A.2d 949,
952 (Pa. 1984); Paul v. Insurance Co. of N. Am., 675 S.W.2d 481, 483
(Tenn. Ct. App. 1984).  Moving beyond the primary contract, some
courts have held that there is a contractual relationship between the
insured employees and the insurer, often created when the employee
contributes to premium payment.  See, e.g., Morris v. Travelers Ins.
Co., 546 S.W.2d 477, 484-85 (Mo. Ct. App. 1976) (rejecting theory of
insureds as third party beneficiaries of employer-insurer contract
and finding contract between insurer and employee); Paul, 675 S.W.2d 
at 483 ("When employees contribute part of the premium and are issued
a certificate by the insurer, there is also a contractual
relationship between the



employee and the insurer.").  We do not have to decide whether
we would accept this view because we adopt the holding of Watson v.
Pilot Life Ins. Co., 741 S.W.2d 342, 343-44 (Tenn. Ct. App. 1987): 
"[W]here a group insurance policy is non-participatory, in that the
employee contributes nothing to the payment of the premiums, no
contractual relationship arises between the employee and the
insurer."  Buttura & Son's group life plan is noncontributory, and
there was no direct contractual relationship between American Bankers
and Stuart Abbiati.

     In construing the insurance contract between Buttura & Sons and
American Bankers, we seek to effectuate the intention of the parties.
See Cooperative Fire Ins. Ass'n of Vt. v. Gray, 157 Vt. 380, 383, 599 A.2d 360, 362 (1991) (insurance contracts interpreted according to
evident intent of parties). Intent of the parties is often discerned
directly from the contract language. Id.  Here, however, the trial
court found that the term "earnings" was ambiguous, and was intended
to give Buttura & Sons flexibility in determining the amount of
coverage.  In light of this ambiguity, the court was well within its
power to refer to evidence outside the four corners of the document
to help interpret the language of the contract.  See Isbrandtsen v.
North Branch Corp., 150 Vt. 575, 579, 556 A.2d 81, 84-85 (1988) (if
ambiguity found in contract, "court may then rely on subordinate
rules of construction in order to interpret the meaning of the
disputed term[]").  The court could and did consider the
circumstances under which the American Bankers policy arose, and the
history of the coverage it provided employees.  See id. at 580, 556 A.2d  at 85.  It could also consider the way the policy was
administered from its inception.  Based on all the evidence, the
court concluded that the only requirement of the policy was



that earnings be defined consistently for determining premiums
and coverage so that American Bankers would be paid for the coverage
it assumed.  We see no reason to disturb the court's conclusion that
the policy did not require payment of claims based on commission
income.

     Although there is no insured-insurer contract in this case, the
trial court also considered whether Stuart Abbiati and Buttura & Sons
formed a separate contract under which commissions would be included
in the death benefit calculation.   See Martin v. Prier Brass Mfg.
Co., 710 S.W.2d 466, 470 (Mo. Ct. App. 1986) (holding that coverage
offered by self-insured employer constituted bilateral contract, not
group insurance contract, in which insurance was quid pro quo for
employment performance); Bushman v. Pure Plant Food Int'l, Ltd., 330 N.W.2d 762, 766-67 (S.D. 1983) (benefit plan for all employees is
part of employment contract between employer and employee). Again,
the court's conclusion that there was no such contract is amply
supported by the evidence. Stuart Abbiati's own actions make it clear
that there was no separate contract.  When he enrolled in the
American Bankers' life insurance program, he listed his annual salary
as $14,560 and did not include his commissions, which in 1984 totaled
over $20,000, on his enrollment form.  This action followed an
explanation by an American Bankers' insurance agent, Michael Calevro,
that the life insurance benefit was based on basic annual salary not
including commissions.

     Plaintiff has three subsidiary complaints about the evidence the
trial court relied upon to reach its conclusion.  She asserts that
the court was in error in considering Buttura & Sons' prior life
insurance contract with Phoenix Mutual Life to aid its interpretation
of the American Bankers contract at issue.  As of January 1, 1985,
Buttura & Sons replaced the



Phoenix Mutual policy with the American Bankers contract with
the understanding that American Bankers would provide the same
benefits as the former arrangement.  Under the Phoenix Mutual
contract, the life insurance benefit was calculated on the basis of
basic salary, and commissions were not included.  This evidence was
relevant in determining the intention of the parties in entering into
the American Bankers contract.

     We also reject plaintiff argument's that the trial court was in
error in considering a 1988 policy endorsement from the Buttura &
Sons-American Bankers insurance contract that was never entered into
evidence. Apparently, the endorsement clearly specified that coverage
was based on salary, and Stuart Abbiati received a copy of it.  The
endorsement was presented to the court in support of American
Bankers' motion for summary judgment, and is in the court file, but
American Bankers failed to offer it at trial.

     Plaintiff is correct that a court may not consider evidence
outside of that introduced at trial.  See Marble Bank v. Heaton, ___
Vt. ___. ___, 624 A.2d 365, 368 (1993).  A nonessential erroneous
finding is not, however, grounds for reversal.  Brown v. Brown, 154
Vt. 625, 633, 580 A.2d 975, 980 (1990). The finding about the
endorsement is not mentioned in the conclusions, and is not necessary
to them.  Any error is harmless.  See V.R.C.P. 61; Bloomer v. Weber,
149 Vt. 187, 190, 542 A.2d 258, 260 (1988) (reversal necessary only
when error complained of results in undue prejudice, not when
harmless).

     Plaintiff also challenges testimony given by Michael Calevro, an
insurance agent for American Bankers, and Michael Brent Buttura, an
owner of Buttura & Sons, claiming that certain parts of their
respective testimony



should have been excluded under the dead man's statute, 12
V.S.A. { 1602.(FN1) At trial, plaintiff objected to two parts of
Calevro testimony concerning conversations Calevro had with Stuart
Abbiati as part of Calevro's explanation of the changeover from the
Phoenix Mutual policy to the American Bankers policy:  (1) Calevro's
reporting of Abbiati's statement that his salary reported for the
purpose of calculating his pension benefits was generous; and (2)
Calevro's testimony that he explained that the pension benefit was
based on salary alone, not salary plus commissions.  These statements
were elicited by defendant Buttura & Sons' counsel in an attempt to
show a common pattern of excluding commission from pension and life
insurance benefits.  Plaintiff also objected to testimony by Michael
Brent Buttura concerning:  (1) whether Abbiati ever complained about
the fact that his salary was reported to the Internal Revenue Service
on a W-2 statement, while his commissions were reported on a Form
1099; and (2) Buttura's statement to Abbiati that life insurance
coverage "was a fringe, that the company was paying it 100 percent
and we always did it and kept the same with everybody on their
wages."

     The issue was also raised by plaintiff in a pretrial motion in
limine to exclude "any testimony offered by either defendant in
regard to the alleged understandings of plaintiff's deceased husband
regarding his coverage." Apparently, the motion was never ruled on
although we do not know whether there were any discussions of it with
the court because we have no transcript of pretrial hearings.  In any
event, plaintiff does not claim error from the failure to rule on the
motion.



     We need not reach the merits of the plaintiff's { 1602 claim
because we conclude that she waived it.  We discussed waiver of dead
man's statute claims in detail in In re Estate of Farr, in which we
stated:

     [W]e have recognized a broad waiver rule.  Thus, where the
beneficiary of the disqualification . . . acts inconsistently with
the statutory disqualification, the disqualification is waived. . . .
Waiver can occur because the disqualified party is allowed to testify
in his own favor to the contract or cause of action in issue without
objection by the adverse party. . . . Similarly, it can occur because
the adverse party calls the disqualified party and inquires about the
contract or cause in issue or, in certain circumstances, where the
adverse party cross-examines the disqualified party. . . .  We have
insisted that the adverse party act consistently with the
disqualification at all stages of the proceeding to avoid a finding
of waiver.

     150 Vt. 196, 199, 552 A.2d 387, 390 (1988) (citations omitted). 
In Farr, we found a waiver based on a number of actions including the
action of the party seeking to invoke the statute in allowing the
witness in question to testify to the existence of the contractual
claim.  Id. at 201, 552 A.2d  at 391-92. We quoted from Comstock's
Adm'r v. Jacobs, 89 Vt. 133, 138, 94 A. 497, 499 (1915) that "[the
party invoking the statute] could keep the door shut, if he chose to
do so; but he could not open it, so far or so long as suited his own
purposes, and then close it."  Farr, 150 Vt. at 201, 552 A.2d  at 391.

     Plaintiff's actions here are similar to those of the party
invoking the statute in Farr or Comstock.  Plaintiff called both
Michael Brent Buttura and Michael Calevro in her main case and
explored the alleged contract between Buttura & Sons and Stuart
Abbiati and other employees of the company.  For example, in response
to questions from plaintiff's counsel, Michael Calevro described how
he discussed individually with each employee in 1984 the benefits
available under the American Bankers insurance policy.

 

     Having opened the door, plaintiff was in no position
to shut it when examination of these witnesses by other parties went
into details harmful to plaintiff's case.  By that time, plaintiff
had waived any objection under the dead man's statute to testimony by
Calevro and Buttura.

                                     II.

     On cross-appeal, defendant American Bankers contends that the
trial court erred in finding that it was jointly and severally liable
with defendant Buttura & Sons for the $11,000 additional benefit
amount.(FN2) The trial court found American Bankers liable for this
amount because it concluded "that Buttura was an agent acting for
American Bankers because it was required to file reports, remit
premiums, prepare census forms, and perform other necessary
administrative work pursuant to American Bankers' policy and its
Administrative Manual."  The trial court relied on this Court's
decision in Rule v. New Hampshire-Vermont Health Service, 144 Vt.
323, 477 A.2d 622 (1984), in support of its conclusion.  American
Bankers argues that Rule is inapposite because the holding was based
on a negligence theory, and not a contract claim as the plaintiff has
brought here, and because of differences in the role of the "agent". 
We find American Banker's distinctions to be without merit.

     In Rule, plaintiffs joined a trade association of gasoline
service stations, in part to participate in a group health insurance
program offered by defendant New Hampshire-Vermont Health Service. 
Id. at 325, 477 A.2d  at



623.  The association bore the responsibility for collecting
plaintiffs' quarterly premiums and remitting them to defendant.  Id.
at 325-26, 477 A.2d  at 623.  The association failed to pay premiums
to defendant, and defendant cancelled the insurance plan.  Id. at
326, 477 A.2d  at 623.  Plaintiffs then sued defendant for a premium
refund, and we upheld the imposition of liability upon defendant. 
Id. at 327, 477 A.2d  at 624.

     We held that an agency relationship can be "demonstrated from
the circumstances of the particular situation, or the conduct of the
parties," and must be determined on the facts of each case.  Id. at
326, 477 A.2d  at 624; see also Kirkpatrick v. Boston Mut. Life Ins.
Co, 473 N.E.2d 173, 177 (Mass. 1985) (whether employer is insurer's
agent is factual question to be decided on case-by-case basis).  In
the context of an insurer-policyholder relationship, an agency
relationship can be founded upon the policyholder's performance of
administrative tasks on behalf of the insurer.  Rule, 144 Vt. at
326-27, 477 A.2d  at 624; see also Clements v. Continental Casualty
Ins. Co., 730 F. Supp. 1120, 1123 (N.D. Ga. 1989) ("Georgia courts
have held consistently that 'the employer who obtains a group
insurance policy covering its employees is the agent of the insurance
company for every purpose necessary to make effective the group
policy, and thus the insurance company has imputed knowledge of facts
which the employer knows.'") (quoting Dawes Mining Co. v. Callahan,
272 S.E.2d 267, 269 (Ga. 1980)); Elfstrom v. New York Life Ins. Co.,
67 Cal. 2d 503, 512, 432 P.2d 731, 737 (1967) (employer is agent of
insurer in matters of policy administration); Paulson v. Western Life
Ins. Co., 636 P.2d 935, 942-43 (Or. 1981) (if employer charged with
administrative functions commonly performed by insurer, employer is
insurer's agent for those purposes).



     We found in Rule that the trial court's findings supported its
conclusion that the association was the agent of defendant with
respect to handling premiums. 144 Vt. at 326, 477 A.2d  at 624.  We
noted that without the association's assistance, defendant would have
had to handle the premiums itself. Id. at 327, 477 A.2d  at 624.  We
reasoned that imposition of liability on the insurer for employer or
group trustee error in administration places liability on the party
with the greater ability to control the function involved.  Id.; see
also Elfstrom, 67 Cal. 2d  at 511, 432 P.2d  at 737 (discussing
reasoning of cases imposing liability on insurer for employer error
given that insurer receives substantial benefit from employer
administration, while employees have no knowledge or control over
administrative acts).

     This case is similar to Rule because determining correct salary
amounts was one of a number of administrative functions specifically
delegated to Buttura & Sons by American Bankers.  See also
Kirkpatrick, 473 N.E.2d  at 177 (among key criteria determining
whether employer is insurer's agent is "whether the task is expressly
delegated to the employer by the insurer"). American Bankers thus
saved itself the time and expense of dealing directly with the
employees for premium information and other policy administration.
The fact that Rule is about premium administration and this case is
about determining information upon which premiums and claims are
based is a distinction without a determinative difference.

     Because of the agency relationship with respect to salary
information, American Bankers must bear the responsibility for
Buttura & Sons' failure to perform its delegated duties.  See Larr v.
Minnesota Mutual Life Ins. Co., 924 F.2d 65, 66 (5th Cir. 1991)
(insurer bound by waiver of termination



made by credit union as credit union was insurer's agent for
purposes of accepting insurance application and collecting premiums);
Bass v. John Hancock Mutual Life Ins. Co., 10 Cal. 3d 792, 797, 518 P.2d 1147, 1150 (1974) ("[W]e have held that the employer is the
agent of the insurer in performing duties of administering group
insurance policies . . . and that accordingly the insurer shares
responsibility for the employer's mistakes.").  American Bankers'
liability as a principal does not depend upon whether plaintiff's
theory of recovery is based on contract or tort.

                                    III.

     On cross-appeal, defendant American Bankers also claims that the
trial court erred in denying its motion for costs under V.R.C.P. 68,
based on the offer of judgment it filed, because the judgment
obtained by plaintiff was not more favorable than the offer.   Trial
in this case was originally scheduled to begin on March 11, 1991. 
American Bankers served its offer of judgment on March 5, 1991, and
contemporaneously moved the court to permit the offer of judgment out
of time because the offer was made within ten days of the scheduled
trial date.  The trial was delayed by flooding in Montpelier and
rescheduled to April 15.  The court never ruled on the motion to
allow the filing of the offer out of time and denied American
Bankers' motion for costs because the offer was not filed more than
10 days before the scheduled trial date.

     Civil Rule 68 provides that if an offer of judgment is made
"[a]t any time more than 10 days before the trial begins," an offeree
will be liable for costs incurred after the offer "[i]f the judgment
finally obtained by the offeree is not more favorable than the offer"
of judgment.  For two reasons, we believe the court's ruling was
error.  First, the plain language



of the rule makes timely an offer of judgment served more than
ten days before the trial "begins," irrespective of when the trial
"would have begun" but for the continuance.  We interpret it in line
with its plain meaning. See Loy v. Leone, 546 So. 2d 1187, 1188-89
(Fla. Ct. App. 1989) (interpreting virtually identical Florida rule);
Gilbert v. City of Caldwell, 732 P.2d 355, 367-68 (Idaho Ct. App.
1987) (interpreting virtually identical Idaho rule). The trial here
began over ten days after the offer was served.

     Second, the rule is remedial and should be construed consistent
with its purpose of facilitating settlements.  As one court reasoned:

     Since a late settlement that avoids some of the trial costs
would seem to be better than no settlement at all, the policy of the
Rule would appear best served by selecting the last possible point in
time for cutting off Rule 68 offers.

     Greenwood v. Stevenson, 88 F.R.D. 225, 228 (D.R.I. 1980)
(deciding under Fed. R. Civ. P. 68, substantially similar to V.R.C.P.
68, that offer of judgment made fifty days after jury impanelled, but
more than ten days prior to commencement of trial proceedings timely
made under Rule 68).  It is consistent with this policy to give
effect to the offer of judgment in this case.  See Gilbert, 732 P.2d 
at 367-68.  For whatever reason, plaintiff had far longer than the
ten days the rule allows to respond to the offer of judgment.  As
long as she had this opportunity, we should not undercut the rule by
allowing her to ignore the offer.

     The exact issue before us arose in Gilbert v. City of Caldwell,
based on an Idaho rule with relevant language identical to ours. 
Relying on the plain meaning of the rule, and the policy behind it,
the Idaho Court of Appeals held that the timeliness of the offer is
determined by the actual



date of trial and not the date trial was originally scheduled. 
Id.  We find the decision well reasoned and follow it.

     Because the judgment was not more favorable to plaintiff than
the offer, plaintiff "must pay the costs incurred after the making of
the offer." V.R.C.P. 68.  We remand to the superior court to
determine those costs.

                                IV.

     Finally, because of the disqualification of one member of the
Court, only four Justices sat on this case.  The Court has divided on
plaintiff's challenge to the order denying her postjudgment interest
at the statutory rate as long as American Bankers pays the judgment
amount into an interest- bearing account for distribution after the
appeal.  Accordingly, this issue is not resolved by the current
mandate and must be reargued before a full court, including a
substitute for the disqualified Justice.

     During the course of research for this opinion, the Court has
determined that the trial court's action with respect to the
placement of the judgment in an interest bearing account may be
authorized by V.R.C.P. 67.  The applicability of the rule was not
raised by any party in the briefs before the court.  To facilitate
decision-making, the Court is requesting the parties to submit
supplemental briefs on the applicability of V.R.C.P. 67 to the
postjudgment interest issue and the trial court order to place the
judgment amount in an interest-bearing account.  The unresolved issue
will be reheard at the February Term of the Court.  The parties are
directed to appear before the Court's staff attorney, at a time
determined by him, for purposes of establishing a supplemental
briefing schedule.



     The judgment award of $11,000 against both defendants is
affirmed.  The denial of costs to defendant American Bankers
associated with its offer of judgment is reversed and remanded for a
determination of such costs. Plaintiff's challenge to the superior
court order tolling postjudgment interest as of the date of entry of
judgment remains unresolved and will be reargued at the February Term
of the Court.  The parties are directed to appear before the Supreme
Court staff attorney to establish a supplemental briefing schedule as
set forth in the opinion.  Judgment shall not be entered pursuant to
V.R.A.P. 36 until the postjudgment interest issue is resolved.

--------------------------------------------------------------------------
                                  Footnotes

FN1.    Section 1602 provides in relevant part:  "A party
shall not be allowed to testify in his own favor where the other
party to the contract or cause of action in issue and on trial is
dead . . . ."

FN2.    In its reply brief to the brief of American Bankers,
Buttura and Sons argued that the court erred in finding it jointly
and severally liable with American Bankers for the $11,000
underpayment.  Buttura did not file a timely cross-appeal and,
therefore, may not challenge the judgment against it.  See Baird v.
Baird, 142 Vt. 115, 117, 454 A.2d 1229, 1230 (1982).  We have not
considered Buttura's argument.