Opinion
No. CV 02 0513581 S
December 10, 2003
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
FACTS
In their amended complaint seeking declaratory relief, the plaintiffs allege that the plaintiffs Arthur P. Vine and Donna J. Vine are residents of the Town of North Stonington, Connecticut.
The plaintiff First National Insurance Company (hereinafter "First National") is a corporation organized and existing under the laws of the State of Washington with a place of business in New Britain, Connecticut.
The plaintiff, Safeco Insurance Company of America (hereinafter "Safeco"), is a corporation organized and existing under the laws of the State of Washington with a place of business in New Britain Connecticut.
The defendant Doreen Watson is the Administratrix of the Estate of Kevin W. Vos, formerly a resident of the Town of New London, Connecticut.
The defendant Alfred J. Caswell (hereinafter "Caswell") is a resident of the Town of Groton, Connecticut.
The plaintiff First National issued a policy of automobile insurance to Arthur Vine and Donna J. Vine for a policy period of April 14, 2001-October 14, 2001.
The plaintiff Safeco issued a personal umbrella insurance policy to Arthur Vine and Donna J. Vine for a policy period of October 14, 2000-October 14, 2001.
On August 26, 2001 Donna J. Vine was the owner of a 1995 Plymouth Neon automobile (hereinafter the "insured's vehicle"). On said date Kevin J. Vos (hereinafter "Vos") was operating said automobile when it collided with a vehicle being driven by the defendant Caswell. Caswell placed the plaintiffs on notice that he intends to bring an action for personal injuries sustained in the collision and in fact subsequently commenced said action.
The plaintiffs allege that Vos was not acting as an agent, servant or employee of Arthur P. Vine or Donna J. Vine at the time of the collision. They also allege that Vos was not a resident of the household of Arthur P. Vine or Donna J. Vine at the time of the collision.
The plaintiffs assert that Vos did not have the permission of the Vines to operate the insured's vehicle and on or about August 25, 2001 was actually informed by the Vines that he was not permitted to drive it.
At the time of the collision Vos did not have a valid motor vehicle operator's license.
The plaintiffs assert that neither the First National nor Safeco insurance policies covered Vos at the time of the collision.
The plaintiffs further assert that the Vines are not vicariously liable for the defendant Caswell's injuries.
On August 29, 2003, the plaintiffs filed a motion for summary judgment asserting that:
1. The Estate of Kevin Vos is not covered under the First National and Safeco policies.
2. There is no liability coverage under the First National policy because Mr. Vos did not have a reasonable belief that he was entitled to operate the Neon and he was not a "family member" of the named insured.
3. There is no coverage under the Safeco policy because Mr. Vos was not a member of the Vine household and he was not using the vehicle with the permission of the named insured.
4. Durenda Moss-Vine is not covered under the First National policy because she does not meet the definition of an "insured."
5. Durenda Moss-Vine is not covered under the Safeco policy because she does not meet the definition of an "insured."
6. Mr. and Mrs. Vine are not vicariously liable for the negligence of Mr. Vos because Mr. Vos was not an agent of Mrs. Vine.
DISCUSSION
Section 17-45 of the Connecticut Practice Book concerns the proceedings for motions for summary judgment. It provides that:
A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party [prior to the day the case is set down for short calendar] shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.
Before addressing the merits of the plaintiffs' motion, a brief review of the standards for the granting of a Motion for Summary Judgment is necessary:
"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.) Orkney v. Hanover Ins. Co., 248 Conn. 195, 201, 727 A.2d 700 (1999).
QSP, Inc. v. The Aetna Casualty Surety Co., 256 Conn. 343, 351 (2001).
In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.
Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
The plaintiffs in the instant action assert that they have moved for summary judgment on the grounds that there are no genuine issues of material fact in dispute and they are entitled to judgment as a matter of law because at the time of the accident neither Vos nor Moss-Vine were covered by the First National and Safeco insurance policies, and therefore, the defendant is barred from recovering against them.
The plaintiffs argue that Vos did not have permission from the named insureds to operate the Neon, which was required under both insurance policies. The plaintiffs also argue that Moss-Vine did not meet either policy's definition of an "insured" because she was not using the Neon at the time of the accident.
The First National policy states that an "insured" is "[a]ny person using [the named insured's] covered auto . . ." The policy excludes from coverage any insured "using a vehicle without a reasonable belief that that [i]nsured has permission to do so . . ." (See Plaintiffs' Exhibit H.)
The Safeco policy states that an "insured" is "[a]ny person while using a motor vehicle or watereraft owned by . . . [the named insured] on the [named insured's] behalf with [the named insured's] permission." (See Plaintiffs' Exhibit I.)
The defendant argues in opposition that Vos had implied permission from the Vines to drive the Neon because the Vines gave Moss-Vine unfettered control of the Neon, which made it reasonably foreseeable that Moss-Vine would allow other people to drive the automobile. The defendant further argues that due to Moss-Vine's unfettered control of the Neon, Vos' belief that he had permission was reasonable.
The defendant asserts that Moss-Vine was using the insured's vehicle at the time of the accident because Vos was driving the insured's vehicle with her permission and for her benefit. It is submitted that before the court determines whether Vos comported with the requirements under the First National and Safeco policies, the court must first determine whether Vos had permission from the named insureds to operate the insured's vehicle. It is well-settled law in this State that the word "permission" has a broad scope:
[I]t is not necessarily limited to that granted by arrangement between the parties or otherwise in definite, express terms. It may arise, and be implied, from a course of conduct, pursued, with knowledge of the facts, for such time and in such manner as to signify, and be compatible only with, an understanding consent amounting to a grant of the privilege involved.
Tomasetti v. Maryland Casualty Co., 117 Conn. 505, 508 (1933).
The plaintiffs rely on the Vines' affidavits and deposition testimony alleging that they informed both Vos and Moss-Vine that no driver other than Moss-Vine was permitted to drive the insured's vehicle. However, they admit that Moss-Vine was the primary driver and was never prevented from driving the insured's vehicle.
In light of the broad use that was granted to Moss-Vine, an issue is presented as to whether the Vines' permission to Moss-Vine to acquire such unregulated control of the insured's vehicle was broad enough to include an implied grant of authority to give permission to Vos to use said vehicle.
Whereas a genuine issue of material fact exists as to whether Vos had implied permission to operate the insured's vehicle the plaintiffs are not entitled to summary judgment as a matter of law.
For the foregoing reasons the motion for summary judgment is denied.
RICHARD ALLAN ROBINSON, JUDGE.