Opinion
No. CV 10 6015944S
May 12, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE #104
FACTS
On November 16, 2010, the plaintiffs, Peter Romprey and Dolly Romprey, filed a three-count complaint against the defendants, PV Holding Corporation (the defendant) and Zhu Baoqin (Baoqin). On December 27, 2010, the defendants filed a request to revise the complaint. On January 4, 2011, the plaintiff filed a revised four-count complaint against the defendants. In count one, Peter Romprey brought a negligence claim against Baoqin. In count two, Peter Romprey brought a negligent entrustment claim against the defendant. In counts three and four, Dolly Romprey brought a loss of consortium claim against Baoqin and the defendant, respectively. In the revised complaint, the plaintiffs alleged the following relevant facts. On or about November 8, 2009, Peter Romprey (Romprey) and Baoqin were in separate vehicles and traveling southbound on I-95. Baoqin was driving a vehicle entrusted to him by the defendant. Romprey brought his vehicle to a complete stop to avoid a collision with vehicles in the roadway. Baoqin failed to stop behind Romprey's vehicle and struck the rear of Romprey's vehicle, pushing it into a third vehicle. At the time of the accident, the vehicle driven by Baoqin was owned by the defendant and Baoqin was an unlicensed driver. The defendant had a duty to ensure that its vehicle was entrusted to a reasonable, responsible and licensed driver. The defendant breached that duty in that it: failed to determine whether Baoqin was licensed to operate a motor vehicle; allowed its vehicle to be operated by an unlicensed driver; failed to determine whether Baoqin was capable of reasonably and safely operating a motor vehicle, and engaged in other negligent and careless behavior. The negligent conduct by the defendant impacted the marriage between the plaintiffs in that Dolly Romprey suffered a loss of consortium with and from Romprey.
On January 20, 2011, the defendant filed a motion to strike counts two and four and a supporting memorandum of law. On March 28, 2011, the plaintiff filed an objection to the motion and a supporting memorandum of law. On April 14, 2011, the defendant filed a reply memorandum. This court heard this matter at oral argument on April 18, 2011.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Cop., 240 Conn. 576, 580, 693 A.2d 293 (1997). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
In the motion to strike, the defendant argues that the court should strike count two for negligent entrustment on the ground that the plaintiffs fail to allege facts sufficient to demonstrate that Baoqin was incompetent to operate a motor vehicle. The defendant also argues that the court should strike count four for loss of consortium because it is a derivative claim of count two. The plaintiffs counter that the defendant had a duty to determine Baoqin's competency and experience in operating a motor vehicle prior to entrusting a motor vehicle to him because he never possessed a driver's license. The plaintiffs also counter that count four is legally sufficient because count two is legally sufficient. The defendant responds by arguing that the failure to ascertain Baoqin's driving qualifications is insufficient as a matter of law to state a negligent entrustment claim. The defendant further responds by arguing that the plaintiffs' assertion that Baoqin never possessed a license cannot be considered by the court because it is not alleged in the pleadings.
I NEGLIGENT ENTRUSTMENT
"The essential elements of the tort of negligent entrustment of an automobile [are] that the entrustor knows or ought reasonably to know that one to whom he entrusts it is so incompetent to operate it upon the highways that the former ought to reasonably anticipate the likelihood of injury to others by reason of that incompetence, and such incompetence does result in injury . . . Liability cannot be imposed on a defendant under a theory of negligent entrustment simply because the defendant permitted another person to operate the motor vehicle . . . Liability can only be imposed if (1) there is actual or constructive knowledge that the person to whom the automobile is loaned is incompetent to operate the motor vehicle; and (2) the injury results from that incompetence." (Internal quotation marks omitted.) Kaminsky v. Scoopo, Superior Court, judicial district of New Haven, Docket No. CV 08 6002084 (July 30, 2008, Bellis, J.) ( 46 Conn. L. Rptr. 82, 82-83); see also Greeley v. Cunningham, 116 Conn. 515, 518-20, 165 A.2d 678 (1933).
In the present case, the plaintiffs allege in their revised complaint that "Baoqin was an unlicensed driver at the time of the accident" and that the defendant "failed to determine whether Baoqin was capable of reasonably and safely operating a motor vehicle." These are the only allegations in the revised complaint that address Baoqin's competency or incompetency to operate a motor vehicle. These allegations, however, do not set forth facts sufficient to demonstrate that Baoqin was incompetent to operate a motor vehicle. These allegations merely demonstrate that Baoqin was unlicensed at the time of the accident. Being an unlicensed driver is alone insufficient to establish incompetency, as provided in Shea v. Brown, 146 Conn. 631, 633, 153 A.2d 419 (1959). Here, the plaintiffs fail to set forth facts sufficient to demonstrate that Baoqin was incompetent to operate a motor vehicle at the time of the accident. Thus, the plaintiffs have failed to allege facts sufficient to set forth a negligent entrustment claim against the defendant. Therefore, the court grants the defendant's motion to strike count two from the plaintiffs' revised complaint.
Furthermore, the plaintiffs assert that they allege that Baoqin never possessed a driver's license. That particular assertion does not appear in the pleadings, rather it initially appears in the plaintiffs' objection to the motion to strike. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 580. Therefore, this assertion is not considered by the court.
II LOSS OF CONSORTIUM
"Loss of consortium is a derivative cause of action, meaning that it is dependent on the legal existence of the predicate action . . . That is to say, if an adverse judgment bars the injured spouse's cause of action, any claim for loss of consortium necessarily fails as well." (Citation omitted; internal quotation marks omitted.) United Services Automobile Assn. v. Kaschel, 84 Conn.App. 139, 147 n. 9, 851 A.2d 1257, cert. denied, 271 Conn. 917, 859 A.2d 575 (2004).
In the present case, Dolly Romprey's loss of consortium claim against the defendant in count four is a derivative claim arising out of Romprey's negligent entrustment claim against the defendant. As the above analysis indicates, Romprey's negligent entrustment claim is legally insufficient and must be stricken. The nature of derivative claims requires that when the underlying claim fails the derivative claim must also fail. Accordingly, Dolly Romprey's derivative claim for loss of consortium must fail because Romprey's negligent entrustment claim is legally insufficient. Therefore, the court grants the defendant's motion to strike count four from the plaintiffs' revised complaint.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion to strike counts two and four.