Reed v. Glynn

Reed v. Glynn  (97-468); 168 Vt. 504; 724 A.2d 464

[Filed 18-Dec-1998]



       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. 97-468


Robert Reed                                      Supreme Court

                                                 On Appeal from
     v.                                          Windsor Superior Court

John Glynn                                       September Term, 1998


  Alan W. Cheever, J.

  Claude T. Buttrey of Schuster, Buttrey & Wing, P.A., Lebanon, New
  Hampshire, for Plaintiff-Appellant.

       Potter Stewart, Jr., Brattleboro, and William C. Saturley and Gordon
  J. MacDonald of Nelson, Kinder, Mosseau & Gordon, P.C., Manchester, New
  Hampshire, for Defendant-Appellee


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       DOOLEY, J.   Plaintiff Robert Reed appeals from an adverse judgement
  entered in the superior court on his claim of malpractice against
  defendant, John Glynn, the attorney who represented him at state expense in
  a probation revocation proceeding.  Plaintiff argues that the trial court
  erred in determining that his exclusive right of action is against the
  state.  We agree with the plaintiff and, accordingly, reverse.

       The material facts are not in dispute.  The defender general is
  responsible for providing legal services to indigent defendants either
  personally or through public defenders or other attorneys. See 13 V.S.A. §
  5253.   Defendant, a private attorney, contracted with the defender general
  to provide representation to indigent defendants in Windsor County in cases
  in which the public defender is disqualified by a conflict of interest or
  is otherwise not available.

       Defendant's contract with the defender general included the  following
  provisions:

  7. Supervision of Contractor.  The Defender General may not
     supervise or control in any way the representation of
     persons receiving legal services as defined in paragraph
     1 of this agreement.

 


   10.  Insurance.  Before commencin g work on this contract the
        Contractor must provide the following minimum
        insurance coverages. (a) Professional liability insurance
        for any and all services performed under this contract,
        with minimum coverage of $300,000.00 per occurrence. . .
        . .  No warranty is made that the coverages and limits
        listed herein are adequate to cover and protect the
        interests of the Contractor for the Contractor's 
        operations.

   11.  Independence.  The Contractor, and any agents and
        employees of the Contractor, shall act in an independent
        capacity and not as officers or employees of the State.

  Defendant was assigned to represent plaintiff in a probation revocation
  proceeding.  After a contested hearing, the court found plaintiff had
  violated the conditions of his probation and sentenced him to serve
  three-to-five years in jail.  Plaintiff was dissatisfied with defendant s
  representation in part because he did not explore a favorable plea
  agreement with the probation officer and the state's  attorney.  Plaintiff
  acquired new counsel who secured an agreement with the state's attorney
  that plaintiff would enter a substance abuse  program and avoid
  incarceration. After spending thirty-seven days in prison, plaintiff was
  released.

       After being released, plaintiff sued defendant in Windsor County
  Superior Court for attorney malpractice.  Defendant moved for summary
  judgement arguing that he was a state employee, and, as a result, plaintiff
  s exclusive remedy was to sue the State of Vermont. Relying on this Court s
  decision in  Bradshaw v. Joseph, 164 Vt. 154, 666 A.2d 1175 (1995), in
  which we concluded that a client could not sue a public defender, the trial
  court granted the motion.  We review a  summary judgement decision using
  the same standard applied by the trial court; summary judgement is
  appropriate only when the materials before the court clearly show that
  there is no genuine issue of material fact and the party is entitled to a
  judgement as a matter of law.  Miller v. Town of West Windsor,  167 Vt.
  ___, ___, 704 A.2d 1170, 1171 (1997).

       On appeal, plaintiff argues that a private attorney, who represents
  indigent defendants at the state's expense pursuant to  contract with the
  defender general, is not a state employee and is therefore amenable to
  civil malpractice liability.   We agree.

       The issue in this case is one of statutory interpretation.  12 V.S.A.
  § 5602  protects state

 

  employees from civil liability:

         When the act or omission of an employee of the state
         acting within the scope of employment is believed to
         have caused damage to property, injury to persons, or
         death, the exclusive right of action shall lie against
         the state of Vermont; and no such action may be
         maintained against the employee or the estate of the
         employee.

  12 V.S.A. § 5602(a).  For purpose of this section, the definition of
  "employee" contained in 3 V.S.A. § 1101 applies.  Id. § 5602(c).

       Both parties agree that § 5602(a) applies in this case. Indeed,
  plaintiff's injury in this case, the loss of liberty caused by
  incarceration, is the same as that in Bradshaw, where we held that the
  section applied and prevented a suit against a public defender. Therefore,
  the narrow question before us is whether defendant is an "state employee"
  as defined in 3 V.S.A. § 1101.

       3 V.S.A. § 1101(b) defines a state employee to include "any  elective
  or appointive officer or employee within the legislative, executive or
  judicial branches of state government or any former such employee or
  officer."  In construing a statute, our goal is to give  effect to the
  intent of the Legislature.  See Shea v. Metcalf, 168 Vt. ___, ___, 712 A.2d 887, 889 (1998).  When the language of a statute is clear and unambiguous,
  we must apply the plain meaning of the language used.  See id.  We construe
  the statute "according to  the ordinary meaning of the words the
  Legislature has chosen."  In re  Villeneuve, 168 Vt. ___, ___, 709 A.2d 1067, 1072 (1998).

       The plain meaning of the statutory language supports plaintiff s
  position.  Defendant was not an "elective or appointed officer or  employee
  within [a branch] of state government."  Defendant's  contract specifically
  made him neither an "officer" nor "employee" of state government.  The
  common law defines an employee as follows:

         If under the contract the party for whom the work is
         being done may prescribe not only what the result
         shall be, but also may direct the means and methods
         by which the other shall do the work, the former is
         an employer, and the latter an employee. But if the
         former may specify the result only, and the latter
         may adopt such means and methods as he chooses to
         accomplish that result, then the latter is not an
         employee, but an independent contractor.

 

         So the master test is the right to control the work.
         And it is this right which properly differentiates
         service from independent employment. It is to be
         observed that actual interference with the work is
         unnecessary--it is the right to interfere that
         determines.

  Kelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50, 53, 113 A. 818, 820
  (1921). Defendant's obligation was to provide representation of eligible
  defendants.  By express provisions of the contract, the defender general
  had no power to control the means and methods by which such representation
  was provided.  See also Breslauer v. Fayston School Dist., 163 Vt. 416,
  424, 659 A.2d 1129, 1134 (1995) (" essential element in the relationship of
  master and servant is the right of control").  Further, although it is not
  necessarily  determinative, we note that the contract provided that the
  contract defender was not an officer or employee of the state and dealt
  with the consequences of that determination by requiring the contract
  defender to have malpractice insurance in force.   See Restatement (Second)
  of Agency § 220(2)(i) (1958) (a factor in determining whether a master and
  servant relationship is created is whether the parties believe they are
  creating that relationship).

       Despite the statutory language, defendant argues, and the trial court
  accepted, that Bradshaw controls this case and requires that we rule that
  defendant is a state employee.  The defendant in Bradshaw was an employee
  of the defender general who received a salary from the state. 
  Nevertheless, the malpractice plaintiff argued that the public defender
  should not be considered a state employee for purposes of § 1101 because
  the defender "is responsible only to his client" and is not "under the
  control of a supervising official of the state."  Bradshaw, 164 Vt. at 157,
  666 A.2d  at 1177.  We held  that these considerations could not control in
  the face of the wording of the statute.  See id. at 158, 666 A.2d  at 1178. 
  We went on to discuss the policy considerations behind the statute,
  concluding that immunity  may actually promote a vigorous and independent
  defense.   Id. at 157, 666 A.2d  at 1178.

       As defendant emphasizes, we stated in Bradshaw that we looked at the
  "origin, function and source of funding of a public defender  position"  to
  hold that a public defender is a state 

 

  employee.  Id. at 155, 666 A.2d  at 1176.  Defendant argues that if we look
  at the origin, function and source of funding of conflict counsel, we must
  reach the same conclusion.  We disagree.

       In Bradshaw, plaintiff was arguing that a lawyer who was an employee
  of the state for all other purposes was somehow not a state employee for
  purposes of 3 V.S.A. § 1101.  In this case, defendant is arguing that a
  lawyer who is not a state employee for any other purpose is somehow a state
  employee for purposes of § 1101.  Both arguments fail for the same reason. 
  The statutory language controls and defines state employee in accord with
  its ordinary meaning.

       As did the plaintiff in Bradshaw, defendant in this case relies on a
  public policy argument, albeit the reverse of the Bradshaw argument.  In
  this area of conflicting considerations, the choices are fundamentally for
  the Legislature.  We conclude that the Legislature has spoken and has not
  extended immunity to defendant.

       Reversed.

                       FOR THE COURT:



                       _______________________________________
                       Associate Justice