Opinion
3:98 CV 333(JGM).
August 3, 2000.
David N. Rosen, Rosen Dolan, P.C., New Haven, CT, Stephen Mark Pincus, Southern New England Telephone Co, New Haven, CT, for plaintiff.
Stephen P. Del Sole, Del Sole Del Sole, Wallingford, CT, for defendant, Joseph T. Tye.
Karlene J. Rogers, Kelley Drye Warren, Stamford, CT, Frank G. Ussegho, Craig Lyle Perra, Laura Flynn Baldini, Updike, Kelly Spellacy, P.C., Hartford, CT, Stephen P. Del Sole, for defendant, Wester Star Transport.
RULING ON DEFENDANT WESTERN STAR'S MOTION FOR SUMMARY JUDGMENT
On July 7, 1999, plaintiff Cynthia Frawley filed a second amended four-count complaint, alleging inter alia that she sustained serious injuries on December 24, 1997, "when a tractor-trailer truck ran over her on I-95 and pushed her vehicle down the highway until it spun out and hit the jersey barrier." (Dkt. #66 at ¶¶ 1 6). Named as defendants are Joseph T. Tye, [hereinafter "Tye"], operator of the truck, and Western Star Transport [hereinafter "Western Star"], Tye's employer and owner of the truck. (Id. at ¶¶ 4-5 7-8). In the third count, plaintiff alleges that defendants are liable for double or treble damages under CONN. GEN. STAT. § 14-295 because Tye "deliberately or with reckless disregard" violated CONN. GEN. STATS. §§ 14-218a, 14-219, 14-222, and 14-240a. (Id. at ¶ 14). Plaintiff seeks both compensatory and punitive damages. (Id. at 3).
On July 29, 1999, Western Star filed an answer to plaintiffs second amended complaint and a special defense that Tye was acting beyond the scope of his employment when he allegedly injured plaintiff. (Dkt. #58 at 4).
On December 1, 1999, the parties consented to trial before this Magistrate Judge. (Dkt. #72). On May 15, 2000, Western Star filed the pending Motion for Summary Judgment, brief in support, Local Rule 9(c)1 Statement of Material Facts Not in Dispute ["Western Star's Statement"], and Appendix. (Dkts. ##86-89). On July 14, 2000, plaintiff filed a brief in opposition, with Local Rule 9(c)(2) Statement of Material Facts Not in Dispute ["Plaintiff's Statement"] and appendix of case law. (Dkt. #104).
Attached to Western Star's Appendix (Dkt. #89) were thirty-three exhibits: copy of second amended complaint (Exh. 1); copies of CONN. GEN. STAT. §§ 14-154a, 14-295, 52-182, 52-183, 14-218a, 14-219, 14-222, 14-240a 52-572h (Exh. 2); copies of case law (Exhs. 3-18, 20-32); and copy of Conn. Gen. Assembly House Proceedings, Vol. 31, Part 11 (Exh. 33). Exh. 19 was missing.
Attached to plaintiff's brief (Dkt. #104) were eleven exhibits: copy of excerpts of deposition of Cynthia Frawley, taken on July 28, 1998 (Exh. 1); copy of excerpts of deposition of Kerry Desmond, taken on Dec. 8, 1998 (Exh. 2); copy of excerpts of deposition of Joseph Tye, taken on May 26, 1999 (Exh. 3); correspondence between counsel, dated Oct. 4, 1999 (Exh. 4); copy of excerpts of deposition of Warren Cadwallader, taken on July 20, 1999 (Exh. 5); copy of Western Star's Drivers' Manual, dated Jan. 1999 (Exh. 6); copy of excerpts of deposition of David Dorrity, taken on Sept. 16, 1999 (Exh. 7); copy of David Dorrity's Preliminary Report, dated Aug. 3, 1999 (Exh. 8); copy of compliance Report, dated July 21, 1997 (Exh. 9); copy of Tye's employment application, dated Oct. 17, 1997 (Exh. .10); and copy of Tye's California Motor Vehicle License Record (Exh. 11).
I. FACTUAL SUMMARY
The following summary is based upon the parties' Local Rule 9(c) Statements of Material Facts Not in Dispute and documents cited therein and as such, do not represent factual findings of the Court. On December 24, 1997, a truck driven by Tye struck plaintiff's car in the rear. (Western Star's Statement and Plaintiff's Statement at ¶ 1). Western Star is the owner of the truck driven by Tye. (Id. at ¶ 2). At the time of the accident, Tye was an employee of Western Star. (Id. at ¶ 3).
II. DISCUSSION
The standard for summary judgement is well established. The moving party is entitled to summary judgment if it demonstrates that there is no genuine issues of material fact and that it is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). "[T]h[e] standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing., sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact, "since a complete failure of proof concern an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a mailer of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Western Star urges the Court to grant summary judgment on the third claim of plaintiff's second amended complaint because there is no legal basis for recovery of double or treble damages against Western Star, the non-operator owner, under CONN. GEN. STAT. § 14-295. (Dkt. #87 at 4). Western Star first argues that § 14-295 does not impose vicarious liability on an owner because it expressly provides "[i]n any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of sections 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property." (Id. at 5).
While recognizing that there is no controlling appellate authority in Connecticut as well as a split of authority among the Connecticut Superior Court judges who have addressed the issue, Western Star maintains that the statute should be narrowly construed because it is punitive in nature. (Dkt. #87 at 6-7). Western Star cites Gionfriddo v. Avis Rent A Car System. Inc., 192 Conn. 280, 472 A.2d 306 (1984) andMaisenbacker v. Society Concordia, 71 Conn. 369, 379, 42 A. 67 (1899) for the proposition that the principal is not vicariously liable for punitive damages resulting from the acts of his agent. (Id. at 7-8). However, Western Star acknowledges that some Connecticut Superior Court judges have created an exception to this rule based on CONN. GEN. STAT. § 52-183 which provides: "[i]n any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of a 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 vehicles and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption." (Id. at 8-9). Western Star posits that these latter cases have been wrongfully decided because the statute does not expressly abrogate the common law. (Id. at 11-16).
Next, Western Star draws an analogy with the Family Car Doctrine, CONN. GEN. STAT. § 52-182, under which the courts have not imposed vicarious liability. (Dkt. #87 at 16). Section 52-182 provides: "[p]roof that the operator of a motor vehicle or a motorboat, as defined in section 15-127, 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." Western Star argues that the Connecticut Superior Court has consistently held that this is a "presumption of agency" statute and that punitive damages under "section 14-295 are not applicable in the family car context pursuant to section 52-182." (Id. at 17-20). Likewise, Western Star contends that this court should not impute § 14-295 damages to a non-operator owner of a commercial vehicle pursuant to § 52-183 since both § 52-182 and § 52-183 have co-existed with a version of § 14-295 and neither abrogates the common law. (Id. at 20-21).
Western Star then points, out that although the courts have imposed § 14-295 damages to a non-operator lessor under § 4-154a, the express terms of the statute assign such liability. (Dkt. #87 at 21-23). Section 14-154a provides that "[a]ny person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner." Western Star characterizes § 4-154a as an "alter ego" statute and § 52-183 as a presumption of agency" statute, which does not express any legislative intent to impose liability upon the owner. (Id. at 24-25). Western Star also claims that the legislative history does not express any intent to abrogate the common law rule against vicarious liability for punitive damages. (Id. at 30-31).
In opposition, plaintiff puts forth numerous arguments in support of her claim for punitive damages against Western Star. First, plaintiff counters that imposition of liability on Western Star under § 14-295 is consistent with common law because of the business' own misconduct. (Dkt. #104 at 6-7). Second, plaintiff argues that the statutory language provides no exemption for owners or employers. (Id. at 8). Third, plaintiff relies on CONN. GEN. STAT. § 52-183, which raises a presumption that the owner of the vehicle is liable for the reckless operation of the vehicle, citing Zarcu v. Keith, Civ. No. 970057132S, 1997 WL 381217 (Conn.Super. June 26, 1997) for the proposition that this statute evinces the legislative intent to permit an employer to be sued for the negligent and reckless operation of a motor vehicle by its employee. (Id. at 9-10). Fourth, plaintiff rejects Western Star's analysis that CONN. GEN. STAT. § 52-182 is analogous to § 52-183 because § 52-182 does not provide a presumption of agency for reckless operation of a motor vehicle, whereas § 52-183 does. (Id. at 11-13). Finally, plaintiff argues that Western Star's "construction would defeat the public policy underlying Sec. 14-295, "which is to hold employers liable because they benefit from speeding drivers and have the ability to influence driver compliance with motor vehicle laws. (Id. at 13-14).
As both parties have pointed out, the Connecticut appellate courts have not yet determined whether the owner of a vehicle may be held vicariously liable for muitiple damages when the operator has recklessly violated one of the statutes enumerated in CONN. GEN. STAT. § 14-295. While the judges of the Superior Court are split on this issue, many have determined that § 14-295 when read in conjunction with § 52-183 manifests the legislative intent to permit an owner to be sued for the negligent and reckless operation of a motor vehicle by the non operator owner. See McCarthy v. Yantorno, CV 990078474S, 1999 WL 682056, at *3-5 (Conn.Super. Aug. 18, 1999); Takeyama v. Turner Painting Service, Inc., CV 980162949, 1998 WL 831363, at *5 (Conn.Super. Nov. 23, 1998); Rosado v. Choiniere, No. CV 970259352S, 1998 WL 83648 (Conn.Super. Feb. 19, 1998); Zarcu v. Keith, Civ. No. 970057132S, 1997 WL 381217 (Conn.Super. June 26, 1997); But see Metzger v. Correia, No. 5534792000 WL 966737 (Conn.Super. June 28, 2000); Carta v. Cohn, CV 980262531S, 1999 WL 30951 (Conn.Super. Jan. 12, 1999); Bissonette v. Pomroy, CV 970054782, 1997 WL 381383 (Conn.Super. July 1, 1997).
This line of cases also relies on Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 472 A.2d 306 (1984), in which the court determined that owner-lessors of motor vehicles may be liable for punitive damages pursuant to § 14-154a. In a detailed opinion, the Connecticut Supreme Court, in analyzing the legislative roots of § 14-154a, ruled:
The legislature has determined that the owner or the lessor of a motor vehicle shall be liable to the same extent as the operator would have been liable if he had also been the owner. One hundred years ago, in Levick v. Norton, 51 Conn. 461 (1884), we had before us a similar statute, requiring any driver who violated designated rules of the road to pay to the person injured treble damages and costs; and the owner of such vehicle shall, if the driver is unable to do so, pay the damages, to be recovered by writ of scire facias. In Levick v. Norton, we allowed an injured person to recover treble damages from the owner because we regarded the statute as making the owner equally with the driver "the author of the injury," and imposing upon the owner equal responsibility, a statutory suretyship for all resulting damage. The statute, we held, intentionally put the owner in the position which he would have occupied if he had expressly agreed to take the place of the driver as debtor for the injury, and the liability of the latter should be the measure of his own. The present § 14-154a, a lineal descendent of the statute in Levick v. Norton, expressly makes owners and lessors liable to the same extent as the operator[s]. This legislative expression of public policy grounded in continued concern for safety of traffic upon the public highways necessarily displaces and overrides common law presumptions about the relationship between insurer and insured, master and servant, employer and employee.Gionfriddo, 192 Conn. at 287-88 (citations and internal quotation marks omitted).
In a footnote the Supreme Court opined that both § 14-154a and § 14-295 have legislative roots in a statute entitled "An Act to Regulate Stage and Other Carriage Drivers," enacted in 1797. Id. at 287 n. 3. Thus the public policy extending the limitations of liability beyond the general principles of respondeat superior under § 14-154a also applies to § 14-295.
This Court finds the former line of cases to be more persuasive here, in light of deposition testimony and documentary evidence submitted to the Court. First, at his deposition, Tye testified that he had received four tickets, at least one of which was for speeding. (Dkt. #104, Exh. 3 at 64). Second, Tye testified that he disclosed to a dispatcher at Western Star that his California tractor trailer's license had expired and he would need to return to California to renew it. (Id. at 150-51). He also testified that the dispatcher tried to arrange for Tye to pick up a load so that he would not be driving to California empty. (Id.at 217-18). Third, Warren Cadwallader, an employee with Western Star, also testified that the company would probably not hire a driver who had falsified information about motor vehicle violations on an employment application. (Dkt. #104, Exh. 5 at 63-64). Fourth, Cadwallader stated that drivers were required to submit logs in compliance with DOT regulations, but that Tye failed to submit required logs when he was driving solo. (Id. at 88-86). Fifth, on Tye's application, he indicated that he had received one ticket for speeding and that his California tractor trailer expired in 1997. (Dkt. #104, Exh. 10 at 3 4). Under these circumstances, this case is most analogous to Zarcu, supra, in which the court observed:
If one infers that the owner of a commercial vehicle, rather that its driver, determined where and when the cargo it carried would be picked up and also set the delivery destination and time of its arrival, then [the] owner rather than [the] driver may have had more to do with the vehicle's allegedly excessive speed. Punitive damages could deter such future conduct on the part of an owner of such a vehicle who, by setting too tight a schedule, intends that the speed limit be exceeded by its driver knowing that a collision, which it does not intend, is a strongly probable consequence.
1997 WL 381217, at *2.
If this evidence is admitted at trial, the trier of fact reasonably could find that Western Star, the owner of the truck and employer of the driver, was aware of Tye's history of violations and expiration of his California tractor trailer license, neglected to enforce DOT regulations, and wanted to ensure that Tye was not driving "empty." Thus if Tye's duties required reckless operation, then his employer, Western Star, may be liable for punitive damages. Accordingly, Western Star's motion for summary judgment is denied.
III. CONCLUSION
In conclusion, for the reasons stated above, the Court denies defendant Western Star's Motion for Summary Judgment on plaintiff's Third Claim of her Second Amended Complaint (Dkt. #86).
This conclusion, of course, is without prejudice to defendant Western Star raising this legal issue at trial in a Rule 50 motion, if the evidence so warrants.
The Magistrate Judge commends counsel for their comprehensive and well-written briefs on this unresolved issue.