Vermont Bar Journal, Vol. 40, No. 2 Spring 2016, Volume 42, No. 1 | Page 16

Ruminations

ipate and avoid misunderstandings about
the consistency of decisions.
The Court ruled it would not disturb a
maintenance award in a divorce unless the
appealing party demonstrated a reasonable basis to support it in Theise v. Theise
(1996), overruling Quesnel v. Quesnel
(1988). It explained that a trial court could
not order an insured spouse to maintain an
existing life insurance policy for the benefit of the other spouse, should the obligor spouse die.79 Cooperative Fire Insurance Ass’n v. White Caps, Inc. (1997) overruled Houran v. Preferred Accident Ins.
Co. (1937), holding that an insurer is not
released from coverage when the insured
fails to promptly provide notice of a claim
when there is no prejudice to the insurer.
The Court explained that the traditional rule “has been largely supplanted, and
a majority of other jurisdictions now apply
the rule that an insurer must prove it was
prejudiced from the delay before it may be
relieved of its duties.”80
Lane v. Town of Grafton (1997) overruled
a host of cases that relied on an 1872 state
requiring a complete description of an injury to avoid dismissal of a complaint. “The
law has changed since 1872,” wrote Justice Ernest Gibson III, and with the opportunity for discovery the specifics of a claim
are not required in the notice of an injury.81 State v. Bacon (1997) extended the ruling in State v. LaBounty (1997), recognizing that a presentence investigation should
not be disclosed to a third party, but that
the trial judge should review the report in
camera and disclose pertinent information
relating to the sentence to the defense.82
The ruling followed a decision of the U.S.
Supreme Court, adopting that method of
analysis. The next nine years there are no
cases overruling others.
2006 to the Present

The 2006 decision in Pouech v. Pouech
overruled Boisclair v. Boisclair (2004) to the
extent that a divorcing party, having stipulated to maintenance or the division of
property before the final hearing on divorce, could challenge it and the court
may reject it even if the challenging party fails to demonstrate grounds sufficient
to overturn a contract.83 In 2008, the Supreme Court held that a verified complaint
may be used to oppose a motion for summary judgment if used in the moving party’s statement of material facts, in Johnson
v. Harwood, overruling the opposite rule in
Spargo v. Governor’s Commission on the
Administration of Justice (1977) and two
other earlier cases.84
A dispute over the partitioning of jointlyowned land led to a decision in Whippie v.
O’Connor (2011) that overruled Massey v.
Hrostek (2009) as to whether a co-tenant
16

THE VERMONT BAR JOURNAL • SPRING 2016

is entitled to credit for costs incurred during a period of ouster. The Court in Whippie held that costs should be awarded to
the co-tenant.85 State v. Myers (2011) found
there should be no per se reversible error
when the jury instruction included a mandatory inference about intention, such as
that a person is presumed to intend natural and probable consequences of his acts,
and that each challenge on such grounds
needed to be considered independently
based on the facts, and overruled State v.
Martell (1983).86
The year 2014 saw five cases overruling
early decisions, making it the year with the
most reversals. In State v. Aubuchon (2014),
the Court acknowledged the change in the
law relating to larceny but reversed its prior
ruling in State v. Kenvin (2011), holding that
amendments are to be applied prospectively only to criminal charges.87 The Court
is steadfast in believing that the legislature
will not overrule precedent until it does so
explicitly, presuming that the legislature is
familiar with the court’s interpretation of
statutes.88 The majority opinion in State v.
Congress (2014) maintained that it was not
changing the law on diminished capacity,
by declining to allow a jury instruction that
evidence of the defendant’s psychological
condition could be used to allow a conviction of involuntary manslaughter. Justice
Beth Robinson acknowledged