Holmberg v. Brent

Annotate this Case
HOLMBERG_V_BRENT.92-300; 161 Vt. 153; 636 A.2d 333

[Filed 19-Nov-1993]

 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. 92-300


 Holger A. Holmberg                           Supreme Court

                                              On Appeal from
      v.                                      Windham Superior Court

 Douglas Brent                                September Term, 1993



 Stephen B. Martin, J.,

 Thomas W. Costello, Clare A. Buckley and Joel T. Faxon, Law Clerk
   (On the Brief), of Thomas W. Costello, P.C., Brattleboro, for
   plaintiff-appellant

 Stephen S. Ankuda of Parker & Ankuda, P.C., Springfield, for defendant-
   appellee

 Jeffrey L. Amestoy, Attorney General, and Geoffrey A. Yudien, Assistant
   Attorney General, Montpelier, for intervenor State


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


      ALLEN, C.J.   Plaintiff Holger Holmberg appeals the grant of summary
 judgment in favor of defendant Douglas Brent, holding that under 24 V.S.A.
 { 901(a) defendant cannot be sued for negligence in his individual capacity
 as fire chief of the Village of Bellows Falls.  We reverse.
      In March 1987, plaintiff was injured while employed as a firefighter by
 the Village of Bellows Falls Fire Department, when, in response to an
 emergency call, he slid down a fire pole and landed on the cement floor
 below.  Sometime before the incident, defendant, as fire chief, had ordered
 the removal of a pad surrounding the base of the pole.  Plaintiff brought a

 

 negligence action, alleging that removing the pad had created an unreason-
 ably dangerous condition and caused his injury.  Plaintiff received
 workers' compensation benefits, but sought damages from defendant under 21
 V.S.A. { 624, (FN1) which permits suits against third parties responsible for
 injury.(FN2)
      Defendant moved for summary judgment, alleging that he qualifies as a
 municipal officer under 24 V.S.A. { 901(a), which would require plaintiff to
 bring his action against the Village of Bellows Falls instead of defendant.
 Defendant argued in the alternative that qualified official immunity shields
 him from any liability, because removal of the pad was a discretionary
 function of the office of fire chief.  In deciding the motion, the trial
 court looked to 24 V.S.A. { 1951, which empowers municipalities to establish
 fire departments and appoint officers of the department, and 24 V.S.A.
 { 1953, which mandates the fire chief as an officer of the department.  The
 court concluded from a reading of these statutes that defendant is an
 "appointed or elected municipal officer" for purposes of { 901(a), and so
 any action against defendant in his capacity as fire chief must be brought
 against the village.  The trial court entered judgment for defendant

 

 without ruling on the qualified immunity issue.  As a result, plaintiff's
 only recourse would be to sue the village, his employer, directly for the
 fire chief's alleged negligence, but such an action is barred under the
 exclusive remedy provision of the workers' compensation statutes.  See 21
 V.S.A. { 622.  In effect, the judgment would deprive plaintiff of a remedy
 under the workers' compensation exclusivity exception.
      Plaintiff contends that the trial court erred in ruling that no
 material fact was disputed and that defendant should prevail under a proper
 interpretation of { 901(a).  Summary judgment may be granted if no genuine
 issue of material fact exists and the moving party is entitled to judgment
 as a matter of law.  V.R.C.P. 56(c); State v. Delaney, 157 Vt. 247, 252, 598 A.2d 138, 141 (1991).  Since the standard for summary judgment requires that
 both criteria be satisfied, however, we need not address the claim that
 material facts are contested if we determine that defendant is not entitled
 to summary judgment as a matter of law.
      In construing statutes, our goal is to effect the legislative intent.
 State v. Wilcox, __ Vt. __, __, 628 A.2d 924, 926 (1993).  We look first to
 see if the intended meaning is plain from the statutory language itself; if
 that is unclear or ambiguous, legislative history may offer clues as to the
 legislative intent.  In re Judy Ann's, Inc., 143 Vt. 228, 231, 464 A.2d 752,
 754 (1983).  We look also to other relevant or related statutes for
 guidance, because a proper interpretation must further the entire statutory
 scheme.  See id. ("totality of legislative action on a subject" relevant to
 discerning legislative intent).  To that end, laws relating to a particular
 subject "should be construed together and in harmony if possible."  Downtown

  

 Rutland Special Tax Challengers v. City of Rutland, __ Vt. __, __, 617 A.2d 129, 131 (1992).
      In relevant part, 24 V.S.A. { 901(a), entitled "Actions by or against
 town officers," requires that "[w]here an action is given to any appointed
 or elected municipal officer . . . , the action shall be brought in the name
 of the town in which the officer serves . . . .  If the action is given
 against such officers, it shall be brought against such town . . . ."  Id.
 Despite the apparently limiting reference to towns, the legislature has
 declared that "the laws applicable to the inhabitants and officers of towns
 shall be applicable to the inhabitants and similar officers of all municipal
 corporations."  1 V.S.A. { 139.  The Village of Bellows Falls, an
 incorporated village, see 1 V.S.A. { 140; 1985 Charter of Bellows Falls
 Village Corporation { 1 [hereinafter Bellows Falls Charter], qualifies as a
 municipal corporation because the term "municipality" includes incorporated
 villages, 1 V.S.A. { 126.  Therefore, assuming the fire chief is a
 "municipal officer," 24 V.S.A. { 901 would apply to the village and require
 that the action be brought against the village, unless { 901 conflicts with
 a law specifically applicable to the village.  See 1 V.S.A. { 139
 (applicability to villages of laws addressed to "towns" limited to
 situations where these laws do not conflict with statutes specifically
 directed to villages).
      One such specific law is 24 V.S.A. { 1313, which provides that:
         An incorporated village, by vote, may indemnify a duly
      appointed public or peace officer of the village against legal
      proceedings for injuries committed by him while in the lawful
      discharge of his official duties.  If an action is commenced
      against such officer, upon vote of such village, the trustees may
      defend such action at its expense.

  

 The distinguishing characteristic of a "public officer" is that the officer
 carries out a sovereign function.  Black's Law Dictionary 1230 (6th ed.
 1990).  For purposes of this argument we adopt defendant's assertion that
 the fire chief's duties "involve the continuous exercise of sovereign power
 in the public interest," which fits the definition of a "public officer."
 Therefore, as an appointed official, Bellows Falls Charter { 18, the fire
 chief is a "duly appointed public officer" covered by the provisions of 24
 V.S.A. { 1313.
      If an individual is both a "municipal officer" under { 901(a) and a
 "duly appointed public officer" of a village under { 1313, then only { 1313
 may apply.  Under { 1313, whenever a public officer of an incorporated
 village is sued, the village may elect to indemnify the officer for legal
 liability or undertake to defend a suit brought against the officer.
 Section 1313 does not compel a village to run the risk of liability by
 requiring plaintiffs to sue the village instead of the officer.  In
 contrast, { 901(a) mandates that any action brought against municipal
 officers be brought against the municipality, which amounts to an assumption
 of the officer's liability.  Section 901(b) requires that municipalities
 "assume all reasonable legal fees incurred by an officer when the officer
 was acting in the performance of his duties."  24 V.S.A. { 901(b).  Applied
 to this case, { 901(a) would eviscerate { 1313, because it deprives the
 village of the option of defending the suit or risking liability.  Because
 the laws conflict, the provisions of { 1313, specific to villages such as
 Bellows Falls, must control over the general mandate of { 901.  1 V.S.A
 { 139.  Since defendant is a "public officer" subject to { 1313, he may be

 

 sued in his individual capacity as fire chief.  Defendant is not entitled to
 summary judgment under 24 V.S.A. { 901(a).
      We express no opinion on defendant's claim that he is entitled to
 qualified official immunity, as the trial court did not consider the issue
 in its ruling on the summary judgment motion.
      Reversed and remanded.

                                    FOR THE COURT:



                                    _____________________________
                                    Chief Justice



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                                 Footnotes

FN1.    21 V.S.A. { 624(a) reads, in pertinent part:
          Where the injury for which compensation is payable under the
     provisions of this chapter was caused under circumstances creating
     a legal liability in some person other than the employer to pay
     damages in respect thereof, the acceptance of compensation
     benefits . . . shall not act as an election of remedies, but the
     injured employee . . . may also proceed to enforce the liability
     of such third party for damages . . . .


FN2. This Court has held that a fellow worker is a "third person" within
   the meaning of 21 V.S.A. { 624.  Libercent v. Aldrich, 149 Vt. 76, 80, 539 A.2d 981, 983 (1987); Herbert v. Layman, 125 Vt. 481, 486, 218 A.2d 706, 710
   (1966).

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