Opinion
No. HHB CV04-0526969-S
May 19, 2006
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT ( #107)
The defendant Glenn M. Michaud's motion for summary judgment appeared on the short calendar on April 24, 2006. At the hearing of the calendar, the defendant stated that the motion should be considered on the papers submitted. The plaintiff filed no opposing presentation and did not appear for argument. For the reasons stated below, the motion is denied.
For ease of reference, Michaud will be referred to as the defendant.
In this personal injury action, the plaintiff, Janice L. Wentland, alleges that she was injured on November 27, 2003 when a truck operated by co-defendant Steven J. Charette struck the rear of the plaintiff's vehicle. The plaintiff alleges that, at the time of the motor vehicle accident, the co-defendant was the defendant's employee and was operating a vehicle owned by the defendant. She also alleges that, pursuant to principles of agency law and General Statutes § 52-183, the defendant is responsible for damages caused by the co-defendant. See complaint, third and fourth counts.
For ease of reference, Charette will be referred to as the co-defendant.
The defendant argues that he is entitled to judgment as a matter of law since the co-defendant took the defendant's vehicle without the express or implied permission of the defendant and was not acting as the defendant's agent, servant, or employee at the time of the accident. In support of the motion, the defendant submitted copies of a request for admissions which was directed to the co-defendant (see #106); the defendant's affidavit of non-permissive use, dated January 12, 2004; and the defendant's recorded statement, dated December 4, 2003.
Practice Book § 17-49 provides that summary judgment shall be granted "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." (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).
"[T]he 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. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . ." (Citations omitted; footnote omitted; internal quotation marks omitted.) Allstate Insurance Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).
General Statutes § 52-183 states 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."
"Section 52-183 . . . provides that the defendant, that is, the owner of the vehicle, bears the burden of rebutting the presumption. With respect to the latter provision, [t]his court has repeatedly held that our 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." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 837, 836 A.2d 394 (2003).
"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." (Internal quotation marks omitted.) Engram v. Kraft, 83 Conn.App. 782, 786-87, 851 A.2d 363 (2004) (reversing trial court's granting of summary judgment, where, to rebut the statutory presumption of agency, the defendant produced his statement to his insurance company, his affidavit, his deposition testimony, the police accident report and an incident report that he filed with the police). The court "determine[d] that the cumulative force of the evidence resulted in a mere assertion that [the defendant/owner] never gave consent to [his former friend] to use his vehicle. The fact that the plaintiff did not produce any evidence to prove an agency relationship is of no consequence." Id., 788. "[I]t is only after the trier of fact has found that the defendant's evidence is credible that the presumption ceases to operate and the plaintiff is burdened with producing evidence to establish the agency relationship." Id., 789.
Here, as noted, in addition to providing evidence similar to that which was submitted in Engram v. Kraft, supra, the defendant also presents his request for admissions, which was directed to the co-defendant, and to which no response was made. Citing Practice Book §§ 13-23 and 13-24, the defendant asserts that the facts as to which admission was sought are conclusively established for the purpose of this action. He notes that the co-defendant has admitted that he took the defendant's vehicle without his permission, and for the co-defendant's personal use, and that he was not acting as the agent, servant, or employee of the defendant or for the defendant's benefit. The defendant argues that the conclusive force of the evidence overcomes the statutory presumption of agency.
Practice Book § 13-23(a) provides, in pertinent part, "[e]ach matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Section 13-22(b), or within such shorter or longer time as the judicial authority may allow, the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney."
Practice Book § 13-24 provides, in pertinent part, "(a) Any matter admitted under this section is conclusively established unless the judicial authority on motion permits withdrawal or amendment of the admission . . . Any admission made by a party under this section is for the purpose of the pending action only and is not an admission by him or her for any other purpose nor may it be used against him or her in any other proceeding. (b) The admission of any matter under this section shall not be deemed to waive any objections to its competency or relevancy."
The admissions by the co-defendant are not admissible against the plaintiff. "Pursuant to Practice Book § 238 [now § 13-22], a party may serve on any other party a request for admission of the truth of any matter relevant to the disposition of the pending action. Generally, any matter admitted by the party to whom the request is made is conclusively established. Practice Book § 240 [now § 13-24]. Admissions obtained may be offered into evidence, but their admissibility is subject to evidentiary principles, including the hearsay rule." (Internal quotation marks omitted.) Baughman v. Collins, 56 Conn.App. 34, 39, 740 A.2d 491 (1999), cert. denied, 252 Conn. 923, 747 A.2d 517 (2000).
"The words and acts of a party-opponent are generally admissible against him [or her] under the admission exception . . . Under the admissions of a party opponent exception to the hearsay rule, evidence must be offered against the party that made the admission." (Citations omitted; internal quotation marks omitted.) State v. Markeveys, 56 Conn.App. 716, 719, 745 A.2d 212, cert. denied, 252 Conn. 952, 749 A.2d 1203 (2000).
The conclusive effect of a co-defendant's failure to respond to a request for admissions is inadmissible as against the plaintiff under the admission of a party opponent exception to the hearsay rule because the plaintiff did not make the admission. "The plaintiff is not bound by admissions made by an adversarial party." Slater v. Town of Manchester, Superior Court, judicial district of Waterbury, Docket No. CV94-0123127 (December 15, 1995, Vertefeuille, J.). See also Palombizio v. Murphy, 146 Conn. 352, 356, 150 A.2d 825 (1959); Fleming v. City of Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV97 0344541 (March 14, 2000, Melville, J.); Metro North Commuter Railroad v. Tanz, judicial district of Stamford/Norwalk at Stamford, Docket No. CV94 0135960 (March 7, 1997, D'Andrea, J.).
Since the co-defendant's admissions may not be considered as against the plaintiff, the defendant's evidentiary submission must be viewed in the same manner as in Engram v. Kraft, supra, 83 Conn.App. 782. Thus, the defendant's presentation amounts to a series of assertions which must be presented to the trier of fact for assessment of their credibility. Under these circumstances, the defendant has not met his burden of proof on the motion.
CONCLUSION
Accordingly, the motion for summary judgment is denied. It is so ordered.