A personal injury action shall be commenced within three years after the cause of action accrues. 12 V.S.A. §512(A). Note: while participating in the sport of skiing - one year. 12 V.S.A. §513.

        B.        Wrongful Death

       An action for wrongful death shall be commenced in the name of the personal representative within two years from the person's death. 14 V.S.A. §1492(a).

        C.        Property Damage

       Actions for damage to personal property shall be commenced within three years after the cause of action accrues. 12 V.S.A. §512(5).

        D.        Products Liability

        Generally three years. Where recovery sought is for injury to the person, sustained through acts or defaults of a manufacturer or suppler in selling a product in a defective and unreasonably dangerous condition, the statute of limitations relating to personal injury applies. Kinney v. Goodyear Tire & Rubber Co., 134 Vt. 571, 367 A.2d 677 (1976).

        E.        Tolling of a Statute of Limitations

        A person who is a minor, insane or imprisoned at the time the cause of action accrues may bring such action after the disability is removed. 12 V.S.A. §551.

        II.        Choice of Law

        A.        Torts

        Vermont uses the "substantial relationship" test; "choice of law in a tort action that implicates states or countries beyond Vermont will be determined by which state or country has the most significant relationship to the occurrence and the parties." Amiot v. Ames, 166 Vt. 288, 693 A.2d 675 (1997). Generally, torts in Vermont are considered ambulatory; the law of the situs forum will generally govern the tortuous conduct itself but the law of the state with the most significant relationship to the occurrence and parties will govern damages.

        B.        Contract

        Vermont courts apply the "center of gravity" analysis, which involves a number of factors, including the place of contracting, the place of negotiation, the place of performance, the location of the subject matter, and the location of the parties. Pioneer Credit Corp. v. Cander, 127 Vt. 229, 245 A.2d 891 (1968).

        III.        Contribution

        There is no right to contribution among joint tortfeasors under the law of Vermont. Hiltz v. John Deere Indus. Equipment Co., 146 Vt. 12, 497 A.2d 748 (1985). Exception: where there is an implied contract for indemnity - see below.

        IV.         Joint and Several Liability

        Defendants in Vermont can be severally liable but not jointly; "their liability is only in the proportion that their negligence bears to the causal negligence of the sued defendants held liable". Howard v. Spafford, 132 Vt. 434, 321 A.2d 74 (1974).

        V.         Indemnity

        The right to indemnity is primarily contractual, but may be implied at law. "Indemnity is a right accruing to a party who, without active fault, has been compelled by some legal obligation, such as a finding of vicarious liability, to pay damages occasioned by the negligence of another." Morris v. American Motors Corp., 142 Vt. 566, 459 A.2d 968 (1982). "This right exists where one party has expressly agreed or undertaken to indemnify another, or where the circumstances are such that the law implies such an undertaking." Chapman v. Spartan, 167 Vt. 157, 702 A.2d 132 (1997) citing Bardwell Motor Inn, Inc. v. Accavallo, 135 Vt. 571, 381 A.2d 1061 (1977).

        VI.        Tort Reform

        There is no tort reform act, as such, in Vermont.

        VII.        Immunities

        The state has waived sovereign immunity with respect to suits against it that are akin to suits against a private person. 12 V.S.A. §5601; Sabia v. State, 164 Vt. 293, 669 A.2d 1187 (1995). When the state, a county, or town purchases liability insurance it waives sovereign immunity and consents to be sued to the extent of the coverage. 29 V.S.A. §1403; see also, 24 V.S.A. §901. State employees are shielded from liability for acts committed in the course of employment, and such actions lie only against the state itself. 12 V.S.A. §5602(a). Exception: where the employee's actions were grossly negligent or willful misconduct. 12 V.S.A. §5602(b).

        VIII.        Defenses

        A.        Comparative Negligence

        A plaintiff can recover where his or her own negligence contributed to no more than half of the cause of the accident, and then, only in proportion to the amount of negligence attributed to the defendant. 12 V.S.A. §1036; Favreau v. Miller, 156 Vt. 222, 591 A.2d 68 (1991).

        B.         In Products Liability Actions

        Generally, all standard negligence defenses are available in products liability actions. In particular, the comparative negligence of the plaintiff is a defense available to defendants in products liability cases. Webb v. Navistar Intern. Transp. Corp., 166 Vt. 119, 692 A.2d 343 (1996).

        C.        Collateral Source Rule

        The collateral source rule applies in Vermont but is "usually limited to compensation provided an injured party through insurance, unemployment benefits or similar compensation yielded because the plaintiff actually or constructively paid for it, or in cases where the collateral source would be recompensed from the total recovery through subrogation, refund or some other arrangement." My Sisters' Place v. City of Burlington, 139 Vt. 602, 613, 433 A.2d 275, 281 (1981).

        X.        Damages

        A.        Recoverable Losses

        1.        Personal Injuries

        In tort actions compensation is provided so as to restore the injured person, as nearly as possible, to the position he or she would have occupied had no wrong been committed. Kramer v. Chabot, 152 Vt. 53, 564 A.2d 292 (1989). Generally, in order for an adult to show a loss of earning capacity he or she must show proof of what he or she earned before the injury and what he or she has earned since. Trombetta v. Champlain Valley Fruit, 117 Vt. 491, 94 A.2d 787 (1953).

        The tort of intentional infliction of emotional distress requires a showing of outrageous conduct that is done intentionally or with reckless disregard for the probability of causing emotional distress and that results in the suffering of extreme emotional distress. Sheltra v. Smith, 136 Vt. 472, 392 A.2d 431 (1978).

        In order for a plaintiff to recover for the negligent infliction of emotional distress, he or she must show, as a threshold matter, that he or she or someone close to him or her faced physical peril. Bruecker v. Norwich University, 168 Vt. 118, 730 A.2d 1086 (1999). The other prerequisites of such a claim differ according to whether or not the plaintiff suffered a physical impact from a physical force. Id.

        Damages recoverable for the death of a person are limited to pecuniary loss or injury suffered by the deceased's next of kin by reason of the deceased's death. 14 V.S.A. §1492; Allen v. Moore, 109 Vt. 405, 199 A. 257 (1938).

        "Loss of companionship" includes losses suffered by parents of a minor child and a jury can, when determining damages, consider the physical, emotional and psychological relationship between the parents and the child. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

        3.        Survival Actions

        Under Vermont law, a decedent's estate can recover for injuries sustained by the decedent prior to his or her death, and death need not result from the injury as is the case with a wrongful death action. 14 V.S.A. §§1452-53; Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

        4.         Property Damage

        The measure of damages to personal property is the difference between the market value of the property before the injury and the market value of the property after the injury. Turgeon v. Schneider, 150 Vt. 268, 553 A.2d 548 (1988).

        B.         Punitive Damages

        Punitive damages are normally imposed as punishment and as a deterrent. State Agency of Nat. Resources v. Reindeau, 157 Vt. 615, 603 A.2d 360 (1991). Punitive damages require a showing of actual malice on the part of the defendant, which can be shown by conduct that manifests personal ill will or is carried out under circumstances evincing insult or oppression, or even by conduct that demonstrates a reckless or wanton disregard of the plaintiff's rights. Shortle v. Central Vermont Public Service Corp., 137 Vt. 32, 399 A.2d 517 (1979).

        Punitive damages are only appropriate in contract actions under extraordinary circumstances such as when the breach has the character of a willful or wanton or fraudulent tort. Ainsworth v. Franklin County Cheese Corp., 156 Vt. 325, 592 A.2d 871 (1991).

        The Vermont Department of Banking and Insurance has recently issued an opinion letter that indicates that an insurance carrier can exclude punitive damages from coverage.

        C.        Interest and Costs

        1.         Pre-Judgment Interest

        Pre-judgment interest may be awarded as a matter or right where damages are liquidated or reasonably ascertainable as of the date of the tort. Turcotte v. LaRose, 152 Vt. 196, 569 A.2d 1086 (1989) (But not on punitive damages).

        2.        Post-Judgment Interest

        Allowed at twelve percent per annum. 9 V.S.A. §41(a).

        3.        Attorney's Fees

        Generally only granted when provided for by contract or statute. Examples include: workers' compensation actions, 21 V.S.A. §678(a); divorce actions, 15 V.S.A. §§606 & 607; and consumer fraud actions, 9 V.S.A. §§2491, 4261(b).

Prepared by:     Matthew D. Anderson, Esq. of
                        Reis, Urso, Ewald & Anderson, PLLC
                        Advising insurance companies and individuals since 1969.