Opinion
HHDCV176074136S
01-12-2018
Joelliz RODRIGUEZ, et al. v. Gary MAPP, et al.
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, J.
Before the court is the motion for summary judgment of the defendant, Barberino Car Country, LLC (Barberino), in this action involving a motor vehicle accident in which the plaintiff asserts the negligence of the co-defendant, Gary Mapp (Mapp), and vicarious liability as to Barberino. Mapp was operating a vehicle on August 8, 2015 owned by Barberino- loaned to Mapp while Barberino painted his personal vehicle- which struck the two plaintiffs causing them injuries. Barberino asserts that no liability may be imposed on it because at the time it loaned the vehicle to Mapp he had liability insurance which covered any damage to person caused by the operation of the loaned motor vehicle and Mapp was not its agent or a member of its family. The court grants summary judgment because Barberino has sufficiently established that Mapp was not its agent at the time of the accident.
The minor plaintiffs, Joelliz Rodriguez, ppa Francheska Muniz and Joel Rodriguez, PPA Francheska Muniz, will for convenience be referred to as the plaintiffs.
I. Facts and Procedural History
The plaintiff’s complaint asserts that while the plaintiffs were playing in a driveway Mapp struck them with an automobile owned by Barberino which he was operating as its agent servant and/or employee or as a member of its family within the scope of his authority. The complaint refers specifically to General Statutes § § 52-182 and 52-183, which create, respectively, rebuttable presumptions invoking the family car doctrine or principal/agency liability.
General Statutes § 52-182 provides that " [p]roof that the operator of a motor vehicle ... was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle ... was being operated as a family car ... within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption."
General Statutes § 52-183 provides that " [i]n 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."
Barberino attached to its motion for summary judgment the affidavit of Rachel Ruggiero, its Controller, which authenticates what is called a " Rental Agreement" which documents the loan of the vehicle, and Mapp’s sworn discovery responses which refer to his recorded statement. Ruggiero avers in her affidavit that on August 5, 2015 Mapp brought his personal vehicle to Barberino for repairs. Barberino issued a loaner vehicle to Mapp for his use during the time of repair. Mapp, states Ruggiero, was not an employee of Barberino, the vehicle was provided to him for his personal use and he was not acting as an agent or on behalf of Barberino at any time during his use of the vehicle. The vehicle loaned to Mapp was the one which struck the plaintiffs. Mapp’s recorded statement confirms that at the time of the accident he was visiting his brother. Barberino argues in its motion that these facts are sufficient to rebut any presumption that Mapp was its agent or servant or was operating the vehicle in the course of his employment. Barberino notes that as a corporation it cannot be said to have a familial relationship with Mapp. Finally, Barberino argues that because Mapp had insurance, as evidenced by the " Rental Agreement" covering the loan of the vehicle which indicates that Mapp had insurance, and Mapp’s sworn discovery responses confirming his insured status, General Statutes 14-60 operates to immunize it from any liability.
General Statutes § 14-60 provides in pertinent part: " (a) No dealer or repairer may loan a motor vehicle or number plate or both to any person except for ... (2) when a motor vehicle owned by or lawfully in the custody of such person is undergoing repairs by such dealer ... provided such person shall furnish proof to the dealer or repairer that he has liability ... insurance which will cover any damage to any person ... caused by the operation of the loaned motor vehicle ... If the person to whom the dealer or repairer loaned the motor vehicle ... did not, at the time of such loan, have in force any such liability ... insurance, such person and such dealer or repairer shall be jointly liable for any damage to any person or property caused by the operation of the loaned motor vehicle ."
The plaintiffs, in their objection to summary judgment, make no claim that the presumption imposed by § 52-182 is applicable. Neither do the plaintiffs offer any evidentiary basis to dispute the facts asserted by Ruggiero. Instead, they argue that the movant’s papers are insufficient to discharge its burden of proof as to the application of § 14-60 or the existence of a principal agency relationship between Barberino and Mapp. Further facts will be developed as necessary.
II. Standard
" 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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ... A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " If a moving party’s papers are insufficient to discharge his burden of showing that no material fact is genuinely in issue, the opposing party does not have to produce contravening material." Walker v. Lombardo, 2 Conn.App. 266, 269, 477 A.2d 168 (1984).
III. Analysis
A. Section 14-60
Barberino asserts that it is immune from liability by operation of § 14-60 because Mapp had insurance at the time of the loan. Barberino, however, misapprehends the nature of § 14-60 which operates not to exempt a repairer from vicarious liability when a vehicle is loaned to a customer, but to create liability under certain enumerated circumstances. In general, no liability is conferred on the owner of a motor vehicle for the tortious conduct of the operator of the vehicle merely by virtue of the owner granting permission to the operator to drive the vehicle. " In the absence of a relationship between the owner and the operator of a motor vehicle such that the liability of the operator is imputed to the owner, either by statute or at common law, a plaintiff has no recourse against the owner." Matthiessen v. Vanech, 266 Conn. 822, 839-40, 836 A.2d 394 (2003). Consent on the part of an owner for the use of an automobile " would not in itself determine the question of [the owner’s] liability for [the operator’s] negligence, for that would depend upon the fact that in using [the automobile] he was doing something in the execution of [the owner’s] business." Koops v. Gregg, 130 Conn. 185, 191, 32 A.2d 653 (1943). " [L]iability cannot be imposed upon an owner merely because he entrusts [a motor vehicle] to another to drive upon the highways ..." Greeley v. Cunningham, 116 Conn. 515, 165 A. 678 (1933). " The fact, alone, that an operator of a motor vehicle is driving it with the owner’s permission does not impose liability on the owner." Knapp v. Chamberlain, Superior Court, Docket No. 52278, 5 Conn.Supp. 97, 97, (May 10, 1937, Cornell, J.). " The owner of a vehicle, at least in the absence of an agency relationship in which the operator is on the owner’s mission, is not vicariously liable nor is he a tortfeasor. He is simply liable as a matter of a public policy embodied in a statute." Seaton v. Phillips, Superior Court, judicial district of Stamford, Docket No. 920123221, (1995 WL 9502, at *2) (January 5, 1995, Lewis, J.) quoting Ciarelli v. Commercial Union Insurance Co., Superior Court, judicial district of New Haven, Docket No. 930354970, (1994 WL 34244, *3) (11 Conn.Rptr. 34, 36) (February 1, 1994, Booth, J.), affirmed, 234 Conn. 807, 683 A.2d 377 (1995).
" Vicarious liability is based on a relationship under which it has been determined as a matter of public or social policy that one person should be liable for the act of another." LaBonte v. Fed. Mut. Ins. Co., 159 Conn. 252, 258, 268 A.2d 663 (1970).
In this context, § 14-60 must be understood as imposing a liability that did not exist at common law rather than affording a repairer of automobiles a shield to deflect liability for the misconduct of the operator of a loaner vehicle. The language of the statue expressly creates the liability. " If the person to whom such ... repairer loaned the motor vehicle ... did not, at the time of such loan, have in force any such liability ... insurance, such person and such ... repairer shall be jointly liable for any damage to any person ... caused by the operation of such loaned motor vehicle." (Emphasis applied.) § 14-60(a). Accordingly, § 14-60 does not serve to exculpate Barberino from the liability asserted by the plaintiffs. Rather, it contemplates the imposition of liability where the person who was loaned the vehicle did not have liability insurance to cover his or her use of the loaner. See Cook v. Collins Chevrolet, Inc., 199 Conn. 245, 249-52, 506 A.2d 1035 (1986).
B. Agency
In the view of the plaintiffs, the facts presented are insufficient to meet Barberino’s burden to establish the lack of any genuine issues of material fact as to the relationship between Mapp and Barberino. They acknowledge that the affidavit sets forth facts which reveal that the vehicle owned by Barberino was loaned to Mapp while his vehicle was being painted. Indeed, the plaintiffs concede this factual scenario. " Evidently, Mr. Mapp was getting his personal vehicle painted and the Defendant provided him with a loaner while the work was being performed." Plaintiffs’ Objection to Defendant’s Motion for Summary Judgment, June 19, 2017, Entry # 120. As previously noted, the plaintiffs did not rebut these factual allegations but rather assert that a genuine issue of material fact remains as to whether, under these facts, a " constructive agency" existed between Barberino and Mapp " thereby imposing vicarious liability pursuant to § 52-183."
As an initial matter, it must be appreciated that § 52-183 does not impose liability, but it creates a rebuttable presumption of agency. " By its plain terms, the sole purpose of § 52-183 is to shift the burden of adducing evidence regarding an agency relationship between the owner and the operator of a vehicle from the plaintiff to the defendant." Matthiessen v. Vanech, supra, 266 Conn. 839. Koops v. Gregg, supra, 130 Conn. 188 (observing that a predecessor statute with identical language does not establish agency but only creates a presumption capable of rebuttal).
The issue is thus whether the facts presented are sufficient to rebut the presumption of agency created by § 52-183. Our appellate courts have not favored the granting of summary judgment when the statutory presumption is applicable. This is so because " the statute 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. The presumption ceases to be operative when the trier finds proven facts which fairly put in issue the question, and the burden of proving that the car was operated by an agent of the owner then rests upon the plaintiff; if no evidence relevant to the issue is produced, or, if countervailing evidence is produced but the trier does not believe it, the presumption applies, and the plaintiff is entitled to have the issue found in his favor." (Citations omitted, internal quotation marks omitted.) Engram v. Kraft, 83 Conn.App. 782, 786-87, 851 A.2d 363 (2004) (holding summary judgment improperly granted because defendant/owner’s mere assertion that no consent to drive was provided to operator required court to draw its own conclusion as to credibility of owner). Our Supreme Court has instructed that the presumption generally precludes the direction of a verdict because it may only be rendered inoperative if the owner presents " rebuttal evidence of such a nature that it could not rationally be disbelieved." Bogart v. Tucker, 164 Conn. 277, 282, 320 A.2d 803 (1973). This, of course, is the standard applied for directed verdicts. " A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion." Pellet v. Keller Williams Realty Corp., 177 Conn.App. 42, 48, 172 A.3d 283 (2017). This high burden is observed because of the " well established standards compelling great deference to the historical function of the jury [which] find their roots in the constitutional right to a trial by jury." Id. For this reason the same standards, including viewing the evidence in the light most favorable to the nonmoving party, inform the test for summary judgment as well as directed verdicts. Heisinger v. Cleary, 323 Conn. 765, 776, 150 A.3d 1136 (2016).
The high burden for summary judgments and directed verdicts properly should not be considered to eliminate entirely the granting of summary judgment or a directed verdict in circumstances in which the presumption of agency imposed by § 52-183 is present. In Koops v. Gregg, one of the first cases to enunciate the full breadth of the agency presumption created by the statute, the Supreme Court held that the trial court should have set aside a verdict in favor of the plaintiff in a case in which the owner, her son and the operator of a vehicle testified that the operator, who had been given permission by the son to operate the car for the operator’s own purposes, was not at the time of the accident acting in furtherance of the owner’s business, and thus not the owner’s agent. Koops v. Gregg, supra, 130 Conn. 192.
The standards for directing a verdict and setting aside a verdict are the same. See e.g., Sutcliffe v. FleetBoston Financial Corp., 108 Conn.App. 799, 811, 950 A.2d 544 (2008).
Mindful of the principles discussed above the court concludes that Barberino has met its burden. Barberino has provided more than a mere denial of consent. One of the essential elements of agency is that the agent is doing something at the behest and for the benefit of the principal. Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 133, 464 A.2d 6 (1983). In the present case, the evidence, to which no objection has been interposed, establishes that Barberino loaned Mapp a vehicle while his vehicle was being painted, required the execution of a " Rental Agreement" during the loan and the accident occurred while Mapp was visiting his brother. This evidence is such that no jury could rationally, reasonably or legally reach the conclusion that Mapp was, at the time of the injury complained of, acting on behalf and at the behest of Barberino. The motion for summary judgment is therefore granted.