Clark v. Amica Mut Ins Co

Opinion

SUPERIOR COURT CIVIL DIVISION Washington Unit Case No. 22-CV-00882 65 State Street Montpelier VT 05602 802-828-2091 www.vermontjudiciary.org

Benjamin Clark v. Amica Mutual Insurance Company

Opinion and Order on Plaintiff’s Motion for Costs and Prejudgment Interest

The matter before the Court is Plaintiff’s motion for costs and prejudgment

interest, pursuant to Vt. R. Civ. P. 54. The parties have briefed the legal issues

raised by this motion. After considering the record and the arguments made in the

parties’ memoranda, the Court makes the following determinations.

Factual Background

This case stems from a traffic collision involving Plaintiff and a third party.

Plaintiff recovered $25,000 from the third party and then brought this action

against his insurer seeking underinsured motorist coverage for what he believed

were additional damages he was owed due to the harm caused by the collision.

Plaintiff’s complaint sought various damages, including lost income; pain and

suffering; and past, present and future medical bills.

The parties tried the matter before a jury in January 2025. Each side

presented expert medical testimony in support of their views. The Plaintiff

suggested at trial that a damage award of $300,000, might be appropriate. The jury

returned a verdict of $75,000.

1 In his post-judgment motion, Plaintiff sought recovery of litigation costs in

the amount of $1,515.88. Defendant did not object to such an award.

In the same motion, Plaintiff requested an award of prejudgment interest.

Defendant opposed that relief.

Analysis

Vt. R. Civ. P. 54 states: “Costs other than attorneys’ fees shall be allowed as

of course to the prevailing party, as provided by statute and by these rules, unless

the court otherwise specifically directs.” See Peterson v. Chichester, 157 Vt. 548, 553

(1991) (“The trial court has discretion in awarding costs.”).

Here, Plaintiff’s request for $1,515.88 is unopposed, and the Court awards

Plaintiff those costs.

Rue 54 also permits an award of prejudgment interest. Pursuant to Rule 54,

prejudgment interest may be “awarded as damages for detention of money due for

breach or default.” Vt. R. Civ. P. 54 Reporter's Notes, 1981 Amendment. The

“general rule is that “[p]rejudgment interest is awarded as of right when damages

are liquidated or reasonably certain.” EBWS, LLC v. Britly Corp., 2007 VT 37, ¶ 36,

181 Vt. 513, 928 A.2d 497. Even when the amount of damages is uncertain, a court

may award prejudgment interest in its discretion. Id.” Birchwood Land Co. v.

Ormond Bushey & Sons, Inc., 2013 VT 60, ¶ 23, 194 Vt. 478, 490; see Estate of

Fleming v. Nicholson, 168 Vt. 495, 503–03 (1998) (noting same).

In d'Arc Turcotte v. Est. of LaRose, 153 Vt. 196, 199 (1989), the Court first

announced the rule that interest was mandatory in cases where damages are

2 liquidated or readily ascertainable. The decision also noted, however, that the rule

it established did “not encompass certain damage elements of personal injury

actions (for example, pain and suffering and permanent impairment), where

damages are inchoate and rarely ascertainable at the time of injury.” Id. at 200 n.2.

Any prejudgment interest awarded in such cases is solely a matter of discretion. Id.

at 199–200; see Restatement (Second) of Torts § 913(1); see also Est. of Fleming, 168

Vt. at 502 (noting that Vermont has adopted Section 913).

Certainly, the damages awarded by the jury in this case were not liquidated

or readily ascertainable until it issued its verdict. The claims submitted to the jury

focused only on requests for inchoate damages relating to pain and suffering,

physical impairment, mental anguish, loss of ability to engage in recreational

activities, and loss of enjoyment of life. No ledger could account for such losses.

While the liquidated/non-liquidated issue is not controlling, it does reflect the

important concept that prejudgment interest is warranted, at least in part, because

a defendant could have avoided damages and interest by paying the damages that

were due upfront and upon Plaintiff’s demand. See Ring v. Carriage House Condo.

Owners’ Ass’n, 2014 VT 127, ¶ 34, 198 Vt. 109, 125; see also Newport Sand & Gravel

Co. v. Miller Concrete Constr., Inc., 159 Vt. 66, 71 (1992) (“[p]rejudgment interest

may be awarded as damages for detention of money due”). Where the damages are

not capable of being ascertained with specificity by either side, however, that is

simply not possible. Winey v. William E. Dailey, Inc., 161 Vt. 129, 141–42 (1993).

3 Indeed, the Plaintiff’s claims for relief in this action morphed from those

originally presented in the complaint and issues as to the scope of damages that

were caused by the collision were hotly contested by the defense. At trial, Plaintiff

argued for a significantly higher damages sum than was awarded. His complaint

had made claims for future medical expenses, which were abandoned just prior to

trial. His claims for past medical expenses were dismissed at trial. Similarly,

Plaintiff did not press his claim for lost income at trial. The experts from each side

presented vastly different views as to whether Plaintiff’s symptoms could be

connected to the collision or were the result of other conditions. In short: the types,

amounts, and scope of damages were not finally determined until trial.

Further complicating the claim for prejudgment interest in this case is its

calculation. While Plaintiff appears to posit that the Court may use the date of the

filing of the complaint as a benchmark and apply an investment rate of return, such

a suggestion is not consistent with the evidence at trial. The evidence at trial and

Plaintiff’s arguments both addressed damages from the date of the collision all the

way through the date of trial. The Court sees no basis or mechanism for allocating

the jury’s award between what may have been due when the complaint was filed

and the date of the jury’s verdict. Our High Court has noted that prejudgment

interest is intended “to fully and accurately compensate the plaintiff where the

plaintiff has been deprived of a definite sum of money for a definite period of time.”

Est. of Fleming, 168 Vt. at 501 n.2 (emphasis added). The Court can locate no

concrete amount or concrete period of time with which it could calculate

4 prejudgment interest in this matter. See Stratton Corp. v. Engelberth Const., Inc.,

No. 2720605, 2013 WL 3722306, at *5 (Vt. Super. Ct. June 13, 2013) (relying, in

part, on such difficulties in denying claim for interest).

Plaintiff’s contention that this action sounds in contract, as opposed to tort,

does not advance his argument. Where, as here, the damages are not liquidated,

the discretionary nature of prejudgment interest applies even in contract cases.

Winey, 161 Vt. at 141–42 (prejudgment interest rule is “applicable in either tort or

contract actions”).

The Court concludes that the above factors and the uncertainties they inject

into the damages issue weigh decidedly in favor of denying the motion for

prejudgment interest in this case. See EBWS, LLC., 2007 VT 37, ¶ 37, 181 Vt. at

527 (affirming denial of prejudgment interest where damages were uncertain and

contested by expert testimony at trial); Winey, 161 Vt. at 141–42 (similar); Stratton

Corp., 2013 WL 3722306, at *4 (similar).

WHEREFORE, the Motion for Costs and Prejudgment Interest is granted as

to costs and denied as to interest. A Final Judgment shall issue.

Electronically signed on March 11, 2025, per V.R.E.F. 9(d).

_______________________ Timothy B. Tomasi Superior Court Judge