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Supreme Court Affirms In-Concert Liability Judgment

In Concord General Mutual Insurance Company and Kevin Flanagan and Linda Flanagan v. Nathan Gritman, Austin Lawson, Nicholas T. Sweet, Elizabeth Plude, Kevin Spear and Dylan Stinson 2016 VT 45 (April 22, 2016), the Vermont Supreme Court affirmed a judgment against Dylan Stinson, finding him liable to the Flanagans for damage to their vacation home after a fire started on their deck by a group of teenagers there without the permission of the homeowners.

Issue: Stinson argued that there was insufficient evidence to find him liable under a concerted-action theory, that it was improper for the trial court to use evidence of the actual cash value of the lost personal property, and that the pre- and post-judgment interest rate was unconstitutional under both the U.S. and the Vermont Constitutions.

Holding: The Court affirmed the judgment against Stinson, finding none of his arguments persuasive. With regard to Stinson’s first argument, the Court found that there was ample evidence that Stinson knew that a negligent act had been committed. The Court also found that the trial court did not abuse its discretion when it allowed the insurance adjuster to testify to the value of the lost items by referring to their replacement cost minus depreciation. Stinson had the opportunity to provide countervailing evidence or to argue that the valuation method used by the insurance adjuster was excessive, but did not do so. Finally, the Court found that the award of statutory interest was constitutional after engaging in rational basis review, holding that the 12% fixed rate is reasonably related to the statute, which is meant to encourage defendants to settle claims and make prompt payments after judgment, and to ensure that a plaintiff is made whole.

Dissent: Skoglund, J. dissented, arguing that there was no evidence to suggest that Stinson substantially assisted or encouraged any tortious conduct. The jury imposed in-concert liability on Stinson for failing to properly put out the fire, simply because he was there when the outdoor fireplace was used and because he did not tell his friends to put out the fire properly before he left. For Justice Skoglund, Stinson’s conduct was “too attenuated” to impose in-concert liability.

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