Vermont Supreme Court sides with contractors in Rutland Town rail lawsuit

The state Supreme Court has ruled against the town of Rutland in a lawsuit the town filed against a railway contractor for allegedly burying one of its manhole covers during the construction of a rail spur.

According to a decision issued by a three-justice panel of the Vermont Supreme Court, in October 2018 the town sued RA Filskov & Sons Inc., a contractor specializing in railroad projects, for allegedly burying one of its sewer manhole covers with stone aggregate during a 2016 construction project. The town alleged that it suffered harm because it could no longer access the sewer system for repairs and that the added vibrations from rail traffic put the water and sewer infrastructure at greater risk.

The town would later add Filskov Brothers Inc. to the lawsuit, accusing one or both companies of negligently burying the manhole cover. The town amended the suit a second time in December 2018, adding FAS Trucking to the list of defendants. Later that month, it filed a motion to remove RA Filskov & Sons from the lawsuit without prejudice.

According to the decision, in July 2019 FAS Trucking asked the court to dismiss the complaint because the town hadn’t also included Vermont Railway, the company the spur was built for, in the lawsuit. The town opposed the motion but was denied by the court. FAS Trucking then filed a complaint against Vermont Railway seeking indemnification. That prompted Vermont Railway to file a complaint against the town looking for indemnification in the event it had to seek indemnification from FAS Trucking.

The town asked the court to dismiss FAS Trucking’s complaint against the railway, stating that it deliberately did not bring the rail company into the matter because it would complicate the case. The lower court denied this motion, leaving Vermont Railway as a third-party defendant.

As the discovery process progressed, in April 2020 the town was able to get RA Filskov back as a defendant. RA Filskov then filed a cross claim against Vermont Railway, seeking indemnification.

In June 2020, FAS Trucking asked the court for a judgment on the matter, arguing that the town didn’t have the evidence needed to show it played any role in burying the manhole cover, or that it had caused the town any damage. The town filed for an extension on its time limit to respond, which was granted, however on Jan. 5, 2021, the court ruled in favor of FAS Trucking.

“It agreed with FAS Trucking regarding causation and did not reach the issue of damages,” the decision states.

Around that same time, the town moved to add Vermont Railway as a defendant, seeking an injunction against the company to move the rail spur and uncover the manhole opening.

“In its motion, the Town reasoned that if the court found it had not been harmed yet but would be harmed in the future, there would be no adequate remedy at law, so the Town should be entitled to equitable relief in the alternative,” reads the decision.

Later in January 2021, RA Filskov asked the court for summary judgment making the same argument FAS Trucking had made.

“The court concluded there was a triable issue of fact as to whether RA Filskov covered the manhole, but it granted summary judgment because the Town had failed to adduce sufficient evidence to withstand summary judgment as to actual damages,” reads the decision.

After all of these summary judgments were made, the court asked the parties to clarify the status of claims made against Filskov Brothers.

“The parties responded that all claims against all parties were ready for final judgment, and the court dismissed all the remaining claims against all parties with prejudice,” reads the decision. “No party has appealed those dismissals, and we do not address them.”

According to the decision, the court then denied the town’s motion to add Vermont Railway to the lawsuit.

“The court reasoned that the summary judgment decisions rendered this motion moot and that the motion was untimely,” the decision reads.

This is what prompted the town’s appeal to the Vermont Supreme Court where it alleges the trial court made a mistake in granting summary judgments to FAS Trucking and RA Filskov.

According to the state Supreme Court, the town’s argument in the case was that vibrations from the railway would cause harm to the sewer lines at some future point.

“The trial court concluded there was insufficient evidence for a jury to determine that future damage would likely occur as a result of rail traffic,” reads the decision. “The Town’s evidence of damages consisted principally of the testimony of its expert witness, an engineer.”

According to the Supreme Court, a jury would have to speculate in order to favor the town on any damages.

“Even if the jury were to credit all of the Town’s expert’s opinions and discredit any countervailing evidence, it could not conclude without speculation that the covered manhole would probably result in damage to the septic system,” reads the decision. “The jury could at best conclude that covering the manhole more likely than not increased the potential for system failure by some unknown degree. The trial court correctly concluded there was no triable issue of fact as to damages.”

keith.whitcomb

@rutlandherald.com