Stevenson v. Cap. Fire Mutual Aid Sys.

STEVENSON_V_CAP_FIRE_MUTUAL_AID_SYS.94-368; 163 Vt 623; 661 A.2d 86

[Filed 24-Mar-1995]

                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 94-368

                            FEBRUARY TERM, 1995


Hazel and Lee Stevenson              }         APPEALED FROM:
                                     }
                                     }
     v.                              }         Washington Superior Court
                                     }
Capital Fire Mutual Aid System,      }
Inc., Worcester Volunteer Fire       }
Department and East Montpelier       }         DOCKET NO. S0649-93WnC
Volunteer Fire Department, Inc.      }


                     In the above entitled cause the Clerk will enter:

         Plaintiffs appeal from the trial court's order granting dismissal
for three defendants: Capital Fire Mutual Aid System, Worcester Volunteer
Fire Department, and East Montpelier Volunteer Fire Department.  The court
found that 20 V.S.A.  2990 afforded immunity to defendants for negligence
in failing to respond reasonably for the purpose of extinguishing a fire at
the Stevenson house in Calais, and that the immunity was not waived by the
defendants' purchase of liability insurance.  29 V.S.A.  1403.  On appeal,
plaintiffs assert two claims: (1) the trial court improperly granted immunity
by misconstruing 20 V.S.A.  2990 and 29 V.S.A.  1403; and (2) the trial
court failed to address plaintiffs' claims that extended beyond the limited
immunity provided in 20 V.S.A.  2990.  We affirm. 

         A trial court will dismiss a complaint that fails to state a claim
upon which relief can be granted.  V.R.C.P. 12(b)(6).  In reviewing a trial
court's dismissal, we must assume all factual allegations are true. 
Association of Haystack Property Owners v. Sprague, 145 Vt. 443, 444, 494 A.2d 122, 123 (1985). 

         The limitation of liability for fire mutual aid systems provides: 

   There shall be no liability imposed by law on the system or on any
   municipality, on the personnel of its fire department, nor on any private
   fire department or its personnel, belonging to such a system, for failure
   to respond or to respond reasonably for the purpose of extinguishing a
   fire or assisting in the case of other accidental or natural emergency.
   This immunity is not intended to be exclusive of other immunities
   existing by statute or at common law.

 

20 V.S.A.  2990.  It is undisputed that this statute applies to all three
defendants.  Plaintiffs contend, however, that the immunity granted by 
2990 is waived pursuant to 29 V.S.A.  1403 to the extent of liability
insurance coverage purchased.  The waiver statute provides in pertinent part:

    Notwithstanding the provisions of section 5602 of Title 12 or any other
    statute, when a municipal corporation purchases a policy of liability
    insurance under section 1092 of Title 24, and when a county purchases
    a policy of liability insurance under the provisions of section 131 of
    Title 24, it waives its sovereign immunity from liability to the extent of
    the coverage of the policy and consents to be sued.

29 V.S.A.  1403.  In this case, all three defendants concede that they
purchased liability insurance.  The waiver provision, however, applies only
to municipal corporations and counties. The East Montpelier and Worcester
volunteer fire departments are neither.  Therefore, the waiver provision does
not apply to them, and they are protected under the immunity provision of 
2990.  In contrast to the volunteer fire departments, Capital Fire Mutual Aid
System is a municipal corporation.  20 V.S.A.  2981.  We hold that while
the  1403 waiver provision does apply to municipal corporations, it does
not control in this case. 

         Plaintiffs construe the initial phrase of  1403, "Notwithstanding
. . . any other statute," to mean that, regardless of  2990 immunity,
Capital Fire waived it to the extent the fire protection district purchased
liability insurance coverage.  Capital Fire argues that under the doctrine of
ejusdem generis the "notwithstanding" clause refers to the state's sovereign
immunity because "any other statute" follows specific reference to exemptions
from the state tort claims act set forth in 12 V.S.A.  5602.  Kalakowski v.
John A. Russell Corp., 137 Vt. 219, 224, 401 A.2d 906, 909 (1979) (where
general words follow class of particulars, general words should be treated as
applying to specific class).  In support of this interpretation, Capital Fire
explains that the phrase was added in 1981 to overrule a case concerning
state liability, Lomberg v. Crowley, 138 Vt. 420, 423-24, 415 A.2d 1324,
1326-27 (1980) (despite acquisition of insurance, state not liable for
alleged libel and slander).  When the Legislature amended  1403 in 1989, it
removed the state from the main provision but retained the "notwithstanding"
clause, including reference to  5602.  1989, No. 114,  7.  The
Legislature also amended 12 V.S.A.  5602 in 1989 so that, rather than
listing exemptions to the state tort claims act, it now provides an exclusive
right of action against the state for acts or omissions of state employees. 
1989, No. 114,  2.  The result of these amendments is that the introductory
phrase no longer relates definitively to the rest of the statute.  The
Legislature's failure to delete  5602 from the "notwithstanding" clause
renders the meaning of "or any other statute" at least ambiguous. 

         When the plain meaning of a statute is not apparent, the Court must
construe it according to its purpose and the intent of the Legislature. 
Burlington Elec. Dep't v. Vermont Dep't of Taxes 154 Vt. 332, 335, 576 A.2d 450, 452 (1990).  The statutes at issue here both concern the subject of
municipal liability; however, the interplay between them is unclear.  To give
effect to the legislative purpose of both statutes, we look to principles of
statutory construction.  In construing conflicting statutes that deal with
the same subject matter, the more specific provision controls over the more
general one.  State v. Jarvis, 146 Vt. 636, 638, 509 A.2d 1005, 1006 

 

(1986). 
In broad terms, 29 V.S.A.  1403 provides for waiver of sovereign immunity
upon purchase of insurance, whereas 20 V.S.A.  2990 speaks to the specific
situation of immunity for fire departments and personnel rendering emergency
assistance.  From the specificity of  2990, we conclude that the more
reasonable interpretation is that the Legislature intended to grant
firefighting departments immunity from liability when responding to emergency
situations regardless of insurance.  While we find that  1403 does not
operate to waive  2990 immunity, the  1403 waiver would apply to mutual
aid fire protection districts when engaged in activities not within the scope
of  2990. 

         Finally, plaintiffs contend that in granting defendants' motion to
dismiss, the trial court failed to consider their claims concerning negligent
training of personnel and equipping of fire trucks, negligence for barring
plaintiffs from entering the burning house to recover personal property, and
negligence in responding too slowly.  Plaintiffs maintain that  2990
provides limited immunity, which does not include these claims.  To determine
the nature of the claim we look to the substance of the complaint rather than
its precise terminology.  Kinney v. Goodyear Tire & Rubber Co., 134 Vt. 571,
576, 367 A.2d 677, 680 (1976).  Since the claims are all variations on the
theme of inadequate emergency response, we find the  2990 immunity for
failure to respond or to reasonably respond to a fire emergency encompasses
the additional complaints cited by plaintiffs. 

         Affirmed. 




                                   BY THE COURT:


                                   ________________________________________
                                   Frederic W. Allen, Chief Justice


                                   ________________________________________
                                   Ernest W. Gibson III, Associate Justice


                                   ________________________________________
                                   John A. Dooley, Associate Justice


                                   ________________________________________
                                   James L. Morse, Associate Justice


                                   ________________________________________
                                   Denise R. Johnson, Associate Justice
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