Archives for December 2013

Kevin A. Lumpkin joins Sheehey’s litigation group

Sheehey Furlong & Behm PC is pleased to announce that Kevin A. Lumpkin has joined the firm as an associate attorney in the litigation department.

Prior to joining Sheehey Furlong & Behm, Kevin attended Vanderbilt University Law School and clerked for Vermont Superior Courts in Bennington, Burlington, and Middlebury.  Kevin is admitted in Vermont and New York.

Jeffrey Behm And Debra Bouffard Defend Summary Judgment Order In An Appellee Brief Submitted To The United States Court Of Appeals For The Second Circuit In Blue Cross And Blue Shield Of Vermont v. Milnes (Dkt. No. 13-1748)

Jeffrey Behm and Debra Bouffard recently filed a brief in the Second Circuit Court of Appeals defending a summary judgment order obtained on behalf of their client, BlueCross and BlueShield of Vermont (“BCBSVT”), in which the trial court dismissed a breach of contract claim brought by BCBSVTs’ former Chief Executive Officer.  Oral argument has not yet been scheduled.

The case arose from an agreement entered a few weeks before the Plaintiff’s retirement in which BCBSVT agreed to pay the Plaintiff $580,000 of unvested incentive compensation in the few years following his retirement.  After the Plaintiff’s retirement, but before the first payment was made to him, Vermont’s Department of Banking Insurance and Health Care Regulation (“BISHCA”) began investigating whether the compensation paid to Plaintiff in the years preceding his retirement had been excessive and in violation of BCBSVT’s statutory duties.  Formal proceedings were then initiated that resulted in a BISHCA order, finding that Plaintiff had been paid a significant amount in excessive compensation.  BCBSVT refused to pay the additional incentive compensation to Plaintiff because it believed doing so would constitute additional excessive compensation.

The United States District Court for Vermont held in its Summary Judgment Order (U.S. Dist. Ct. Dkt. No. 1:11-cv-00049) that BCBSVT’s performance under its agreement with the Plaintiff had been discharged by the doctrine of supervening legal impracticability.  It therefore dismissed the Plaintiff’s claim for breach of contract and it also dismissed, on other grounds, Plaintiff’s claim for breach of the covenant of good faith and fair dealing.  No appeal was taken from the dismissal of Plaintiff’s breach of covenant claim.

Jeffrey Behm will argue the case before the Second Circuit Court of Appeals.


Jeffrey Behm And Eric Miller Urge The Vermont Supreme Court To Abolish The Business Invitee/Licensee Distinction In Vermont’s Premises Liability Law

In Demag v. Better Power Equipment, Inc. (App. Docket No. 2013-120) Jeffrey Behm and Eric Miller urged the Supreme Court to abolish the business invitee/licensee distinction in Vermont’s law governing a business’s liability for the condition of its premises.  Eric Miller argued the case before the Court on December 3, 2013.

Rodney Demag was seriously injured when he fell into an open manhole located in the Defendant’s parking lot.  The manhole cover had been dislodged during snowplowing.  The appeal challenged the trial court’s summary judgment rulings that Demag was a licensee and not an invitee of the Defendant business, and thus the Defendant did not owe Demag a duty of care with respect to the condition of its premises. In addition to challenging the trial court’s rulings that Plaintiff was not an invitee and the Defendant was not actively negligent in plowing its parking lot, the appeal urged the Court to change its centuries-old premises liability law and require business owners to accord the same duty of reasonable care to both invitees and licensees with respect to the condition of the business premises.