Opinion
No. CV 04 0071982
January 3, 2006
MEMORANDUM OF DECISION
The plaintiff, Phyllis Byrd, filed a complaint on January 21, 2004, for personal injuries she sustained as a result of a motor vehicle accident which took place on May 22, 2002. On that date, the plaintiff was a pedestrian on Keating Street in Willimantic, Connecticut when she was hit by a motor vehicle operated by the defendant, Raymond Pacheco, and owned by the codefendant Carmen Cardona (defendant).
The plaintiff filed a motion to cite in Carmen Cardona as an additional defendant on March 22, 2004, which was granted by the court, Foley J., on April 6, 2004.
The plaintiff has filed a two-count amended complaint against Pacheco and the defendant, respectively, to recover for the injuries she suffered as a result of the accident. The plaintiff's complaint alleges that the vehicle owned by the defendant and maintained as a family car was operated by Pacheco with the defendant's full knowledge, consent and permission, and that the defendant is liable to the plaintiff pursuant to General Statutes § 52-182, the "family car doctrine."
General Statutes § 52-182 provides: "Proof that the operator of a motor vehicle or a motorboat . . . was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle or motorboat was being operated as a family car or boat within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption."
On April 1, 2005, the defendant filed a motion for summary judgment. The motion was accompanied by a memorandum of law and an uncertified copy of an endorsement to her insurance policy. On May 2, 2005, the defendant filed a supplement to her motion for summary judgment, attached to which is a certified copy of her insurance policy. The plaintiff filed a memorandum in opposition on August 22, 2005, accompanied by an uncertified copy of the police report and an uncertified copy of portions of the plaintiff's deposition testimony.
DISCUSSION
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46, 881 A.2d 194 (2005).
The defendant moves for summary judgment on the ground that there is no genuine issue of material fact as to whether she is liable for Pacheco's negligence under the family car doctrine because Pacheco is an excluded driver under the terms of her insurance policy and he was not using the vehicle for the use and convenience of the family. The plaintiff argues in her memorandum in opposition that there is a genuine issue of material fact as to whether the defendant had given Pacheco permission to operate her vehicle.
"It has long been settled in Connecticut that when a car is maintained by its owner for the `general use and convenience of his or her family,' the owner is jointly and severally liable for the negligence of a family member, who, having general authority to drive the car, uses it negligently while embarked on a family purpose, that is, for the pleasure or convenience of the family as a unit, or of an individual member of it. Thus, the right of the plaintiffs to recover rests on their ability to establish facts which render the family car doctrine applicable; and consequently, the defendant presumptively liable as the owner of such a family car." (Emphasis in original.) Cook v. Nye, 9 Conn.App. 221, 225, 518 A.2d 77 (1986). "This rule is grounded in the belief that one who chooses to conduct his or her activities through others is nonetheless required to conduct them so that third parties are not injured by a breach of any legal duty on the part of those acting for the principal while they are acting on behalf of and within the scope of authority granted by the principal. When a member of a family maintains a car for the pleasure, use and convenience of the family, and its purposes, he or she makes such pleasure and use a personal concern, thereby making those family members who use or enjoy the car his or her agents, as if they were pursuing the affairs of the owner." Id., 225-26.
"Applicability of the family car doctrine is dependent upon the connection that the member of the household has with the car. He or she must own, maintain, or furnish the car, and have or exercise some degree of control over its use . . . Usually, liability under the doctrine is sought to be imposed on a member of a household who owns the car. It is not necessary to fit both of these roles, however. Generally, control over the use of the car rather than legal title is dispositive . . . although ownership is significant." (Citations omitted; emphasis in original.) Id., 226.
In the present case, the plaintiff asserts in her memorandum in opposition that the defendant does not dispute that the driver of the car, Pacheco, and the owner of the vehicle, the defendant, were relatives residing in the same home. Thus, § 52-182 becomes operative and the defendant is presumed to have given Pacheco general authority to drive the vehicle. To rebut this presumption, the defendant has produced a certified copy of her insurance policy demonstrating that Pacheco was an excluded driver under the terms of her policy at the time the accident occurred. Therefore, the defendant argues that Pacheco could not have been operating the car for the use and convenience of the family, thereby rebutting the presumption that he had general authority to drive the vehicle. In response, the plaintiff asserts that she has seen Pacheco operating the same vehicle three or four dozen times in the neighborhood prior to the accident and, therefore, the logical conclusion is that he had permission to do so.
Our Supreme Court has held that § 52-182 "goes further than merely establishing a presumption, in that it expressly places upon the defendant the burden of introducing evidence to rebut the presumption created by the statute. Moreover, that presumption is not ousted simply by the introduction of any evidence to the contrary . . . A presumption of law is operative until the trier of fact finds such facts as fairly put the question in issue. If no relevant evidence is introduced, or if countervailing evidence is produced but not believed, the presumption holds and the plaintiff is entitled to prevail on the issue." (Citation omitted; internal quotation marks omitted.) Cook v. Nye, supra, 9 Conn.App. 226-27.
In Engram v. Kraft, 83 Conn.App. 782, 851 A.2d 363 (2004), the Appellate Court addressed whether the statutory presumption of agency created by a similar statute, § 52-183, was rebutted on a motion for summary judgment. In Engram, the plaintiff sought to recover damages for personal injuries he sustained as a result of a motor vehicle accident involving a vehicle owned by the defendant and being operated by the codefendant. The defendant filed a motion for summary judgment claiming that the statutory presumption of agency created by § 52-183 was rebutted by the evidence he presented. The trial court granted the defendant's motion for summary judgment. Reversing the trial court's decision, the Appellate Court concluded that summary judgment was inappropriate where the lower court had improperly drawn its own conclusion as to the defendant's credibility rather than submitting the issue to the jury. "It is the function and exclusive province of the jury to pass on the credibility of witnesses." (Internal quotation marks omitted.) Id., 788. The Appellate Court found that "the cumulative force of the evidence resulted in a mere assertion that [the defendant] never gave consent to [the codefendant] to use his vehicle." Id., 788. "Since the existence and scope of permission is a matter peculiarly within the knowledge of the defendant, the strict rule that any testimony contra ousts the presumption would seem to operate unfairly, since it may enable the defendant to overcome the effect of the presumption by a simple assertion that no consent was ever given . . . Thus, the presumption does not necessarily vanish on the introduction of any evidence to the contrary." (Internal quotation marks omitted.) Id., 788-89, quoting Bogart v. Tucker, 164 Conn. 277, 281-82, 320 A.2d 803 (1973).
General Statutes § 52-183 provides: "In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption."
In Engram, the defendant produced the following evidence to rebut the statutory presumption of agency: his statement to his insurance company; his affidavit; his deposition testimony; the police accident report; and the incident report that he filed with the Meriden police alleging that the codefendant had taken his vehicle without his permission. Engram v. Kraft, supra, 83 Conn.App. 787.
In the present case, the defendant produced her insurance policy to rebut the statutory presumption that her vehicle was being operated as a family car. By itself, the insurance policy excluding Pacheco as a driver is not uncontradicted proof that the vehicle was being driven without the defendant's consent. Following the court's reasoning in Engram and Cook, the force of the defendant's evidence results in a mere assertion that the defendant never gave permission to Pacheco to use her vehicle. If disbelieved by a jury, such an assertion would not overcome the presumption created by § 52-182 and the plaintiff would be entitled to prevail on the issue.