Robert K. Monette et al., Appellants,v.Christina L. Trummer, et al., Defendants, Jim Ball Pontiac-Buick-GMC, Inc., Respondent.BriefN.Y.October 8, 2013To be Argued by: KEVIN M. HABBERFIELD, ESQ. (Time Requested: 5 Minutes) Appellate Division Docket No. CA 12-01274 Cattaraugus County Clerk’s Index No. 75875 New York Supreme Court Appellate Division—Fourth Department ROBERT K. MONETTE and SHARON M. MONETTE, Plaintiffs-Respondents, – against – CHRISTINA L. TRUMMER, DAVID LEEDERMAN, JESSE L. BALL, Defendants, JIM BALL PONTIAC-BUICK-GMC, INC. and JIM BALL HOLDINGS, Defendants-Appellants. BRIEF FOR PLAINTIFFS-RESPONDENTS DWYER, BLACK & LYLE, LLP Attorneys for Plaintiffs-Respondents 1616 West State Street P.O. Box 648 Olean, New York 14760 (716) 373-1920 Of Counsel: Kevin M. Habberfield, Esq. TABLE OF CONTENTS Page TABLE OF CONTENTS i TABLE OF AUTHORITIES ii I. ISSUE PRESENTED 1 II. STATEMENT OF FACTS 2 III. DISCUSSION 4 POINT I Ownership of the Striking Vehicle Must be Determined by the Trier of Fact 5 POINT II The Graves Amendment is not Applicable to This Case 9 IV. CONCLUSION 10 TABLE OF AUTHORITIES CASES: Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [Ct App 1986] Bulat v O'Brien, 13 AD2d 904; 217 NYS2d 575 [4th Dept 1961] Cunningham v Ford, 20 AD3d 897; 798 NYS2d 281 [4th Dept 2005] Edwards v Arlington Mall Assocs., 6 AD3d 1136; 775 NYS2d 673 [4th Dept 2004] Dobson v Gioia, 39 AD3d 995; 834 NYS2d 356 [3rd Dept 2007] Doughty v Johnson, 155 AD2d 513; 547 NYS2d 373 [2nd Dept 1989] Evans v Mendola, 32 AD3d 1231, 821 NYS2d 323 [4th Dept 2006] Fairbairn v State of New York, 701 AD2d 864; 484 NYS2d 682, 683 [3rd Dept 1985] Fulater v Palmer's Granite Garage, Inc., 90 AD2d 685; 456 NYS2d 289 [4th Dept 1982] Hassan v Montuori, 99 NY2d 348; 756 NYS2d 126 [et App 2003] Loveless v Am. Ref-Fuel Co. of Niagara, LP, 299 AD2d 819, 750 NYS2d 705 [4th Dept 2002] Mikelinich v Calieandro, 87 AD3d 99; 927 NYS2d 128 [2nd Dept 2011] Mills v Gabriel, 284 NY 755; 31 NE2d 512 [Ct App 1940]) 11 Page 4 8 7 4 6 8 4 8,9 6,8 5 4 5 8 Payne v Payne, 28 NY2d 399; 322 NYS2d 238 [Ct App 1971] Pomietlasz v Smith, 31 AD3d 1173, 818 NYS2d 709 [4th Dept 2006] Siekierski v Derleth, 13 AD2d 715; 213 NYS2d 941 [4th Dept 1961] Sillman v Twentieth Century Fox, 3 NY2d 395, 165 NYS2d 498 [Ct App 1957] Sosnowski v Kolovas, 127 AD2d 756; 512 NYS2d 148 [2nd Dept 1987] Young v Seckler, 74 AD2d 155; 426 NYS2d 311 [2nd Dept 1980] STATUTES: New York Vehicle and Traffic Law § 128 New York Vehicle and Traffic Law § 388 49 USC § 30106(a) 111 7,8 4 8 4 8 6 6 4,5,6,9 9 ISSUES PRESENTED 1. Did the Trial Judge twice commit error by determining that a question of fact exists regarding ownership of the striking vehicle, requiring submission to a jury for a determination? Suggested Answer: No. The lower court came to the correct determination in both instances as ownership, or co-ownership, of the striking vehicle is a question of fact for a jury to address. 2. Does the Graves Amendment apply to this case? Suggested Answer: No. There was no rental of any vehicles in this case rendering the Graves Amendment inapplicable. 1 STATEMENT OF FACTS This action arises out of a motor vehicle collision which occurred on February 5, 2009, which caused serious and permanent personal injuries to the Plaintiff-Appellee, Robert Monette, when the vehicle he was parked in was violently struck from behind by a vehicle operated by Defendant Christina Trummer. R., P. 47. Defendant Leederman purchased a vehicle from Jim Ball Pontiac-Buick-GMC, Inc. ("Jim Ball, Inc.") which developed a series of problems requiring repair shortly thereafter. R., P. 263. Unhappy with his purchase, he returned to the dealership for repairs. R., P. 263-264. Jim Ball, Inc. advised him they would take care of the problems and provide him with a vehicle free of charge. R., P. 264. Unfortunately, Jim Ball, Inc. did not have any loaner vehicles available at that time so it sent him to Enterprise Rent-A- Car. R., P. 213 - 215. However, when Defendant Leederman arrived at Enterprise Rent-A-Car, it had no vehicles available for him or wanted him to pay for the rental. R., P. 264 - 265; 215. Accordingly, he returned to the dealership and Jim Ball, Inc. loaned him a car to drive while his was repaired. R., P. 265. Importantly, when Jim Ball, Inc. loaned Defendant Leederman the vehicle, it did not ever claim at that time that it did not "own" the vehicle it was loaning him or advise that insurance coverage would not accompany same. R., P. 267,275. Subsequently, Defendant Leederman left the dealership with the Jim Ball, Inc. loaner vehicle which he in turn loaned to Defendant Trummer, as he was expressly permitted to do, on the date of this crash. R., P. 269, 271. At the time of the crash, the plaintiff Robert Monette was parked in a designated parking zone on the side of the road. R., P. 60. For an unknown reason, the vehicle co-owned and provided by Jim Ball, Inc. and operated by Christina Trummer left the roadway and crashed into the rear of Mr. Monette's vehicle, causing him to suffer serious personal injuries. These injuries consisted of a significant neck injury requiring a "C3-C4 2 discectomy, C4-C5 discectomy, C4-C5 arthrodesis use of biomechanical device X2, use of intraoperative flouroscopy with post operative diagnosis C3-C4 disc herniation, C4-C5 disc herniation spinal stenosis." R., P. 62-64. The Jim Ball, Inc. vehicle is registered to its employee, Defendant Jesse Ball, however, Jim Ball, Inc. pays for this vehicle and provides it to this employee as part of the employees' compensation. R., P. 243 - 244. The loaner was provided by Jim Ball, Inc. "same as [it] would any other loaner car [it] had." R., P. 215 In 22 - 23. When Mr. Leederman needed a vehicle, Jim Ball, Inc.'s Chief Financial Officer, advised Defendant-employee Jesse Ball that it would be taking the vehicle and loaning it to Defendant Leederman and that she would need to find another car to drive. R., P. 217, 246. James Ball, the President of Jim Ball, Inc., testified that the "rental" agreement for the loaner vehicle has two parts to it, one to prove the vehicle is not stolen and the other to provide the customer with insurance information. R., P. 218. Jim Ball, Inc. now seeks to retroactively eliminate part two of the agreement, the insurance coverage, causing substantial hardship to the remaining defendant and Plaintiff-Appellee. By Order dated September 20, 2010, summary judgment was granted against Defendants Christina Trummer and Jesse Ball. R., P. 15 - 16. On December 17,2010, defendant Jim Ball Holdings, LLC was dismissed from the case on stipulation of plaintiffs as that entity was not involved in the transaction but simply owned the real estate where the dealership was located. R., P. 17 - 18. On October 25,2010, Jim Ball, Inc. made its first motion for summary judgment which was denied by Judge Nenno. R., P. 17 - 18. On August 2,2011, the lower court again denied Jim Ball, Inc.'s motion for summary judgment after it unsuccessfully moved to renew, forming the basis of this appeal. R., P. 6 - 7. In both instances, the trial court found that questions of fact existed as to whether Jim Ball, Inc. could be considered a co-owner of the 3 striking vehicle, subjecting it to liability under Vehicle and Traffic Law § 388, and requiring submission to a jury. DISCUSSION Summary. judgment on the issue of vicarious liability is not appropriate here because there is an issue regarding ownership of the striking vehicle. As set forth more fully herein, Jim Ball, Inc. was a co-owner of the striking vehicle or ajury should determine ifit was. As this Court has repeatedly held, summary judgment is a drastic remedy and there is a "considerable reluctance to grant it in negligence actions" (Pomietlasz v Smith, 31 AD3d 1173, 1174,818 NYS2d 709 [4th Dept 2006]). It is well-settled that to grant summary judgment, it must clearly appear on the burden of the moving party that no triable issue of fact is presented (Sillman v Twentieth Century Fox, 3 NY2d 395, 165 NYS2d 498 [Ct App 1957]). Moreover, a defendant must affirmatively demonstrate the merits of its defense and cannot meet this burden by noting gaps in the plaintiffs proof (Edwards v Arlington Mall Assocs., 6 AD3d 1136, 1137, 775 NYS2d 673 [4th Dept 2004]). Only if the moving party meets this burden, must the non-moving party show the existence of triable issues of material fact (Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [Ct App 1986]). Until the movant establishes its entitlement to judgment as a matter of law, the burden does not shift to the opposing party to raise an issue of fact (Loveless v Am. Ref Fuel Co. o/Niagara, LP, 299 AD2d 819, 750 NYS2d 705 [4th Dept 2002]). In addition, when considering such a motion, courts are required to view the evidence in the light most favorable to the plaintiff (Evans v Mendola, 32 AD3d 1231, 821 NYS2d 323 [4th Dept 2006]). In the instant matter, Jim Ball, Inc. has failed to satisfy its burden as the movant and the issue of ownership is a factual question for a jury to determine. In addition, public policy 4 dictates that Jim Ball, Inc.'s conduct should not permitted as it could entice other automotive dealerships, loaning thousands of vehicles throughout this state every day, to use an employee vehicle as a "straw man" to insulate themselves from liability and perform an "end-around" of Vehicle and Traffic Law § 388. Lastly, granting summary judgment to Jim Ball, Inc. does a disservice to the remaining defendants, subjecting them to the potential of an excess verdict and leaves the Plaintiff-Appellee with inadequate insurance coverage for his injuries (see gen. Hassan v Montuori, 99 NY2d 348; 756 NYS2d 126 [Ct App 2003](statutory owners can bring an action under § 388 against other statutory owners)). POINT I Ownership of the Striking Vehicle Must be Determined by the Trier of Fact The statutory purpose of Vehicle and Traffic Law § 388 and the public policy it serves is designed to broaden liability, not curtail it (Mikelinich v Calieandro, 87 AD3d 99, 105; 927 NYS2d 128, 132 [2nd Dept 2011]). Thus, a jury should be permitted the opportunity to determine whether Jim Ball, Inc. is a co-owner of the striking vehicle and afford the Plaintiff- Appellee the opportunity to have a financially responsible party to compensate him for his lllJunes. In the instant matter, Defendant Jesse Ball testified that she was told by her superior, the Chief Financial Officer of Jim Ball, Inc., that it was loaning a vehicle to Defendant Leederman. R., P. 217, 246. This transaction is precisely the type that § 388 is designed to address. Further, Defendant Jesse Ball is an employee of Jim Ball, Inc. and was acting under its specific direction and control in furtherance of Jim Ball, Inc.' s business pursuits. R., P. 215 - 216; 241, 245 - 246. In fact, Jim Ball, Inc.'s president, James Ball, stated that "we gave him a car" and testified that it provided Defendant Leederman with a vehicle from its place of business. 5 R., P. 213 In 5 - 6; 214 In 2 - 4. What is more, loaning a vehicle to someone is consistent with a property interest, ownership, dominion and control. In fact, it is axiomatic that an entity must own a vehicle or have some property right in it to be able to loan it to another, otherwise it is theft. To be curt, if you do not own - you cannot loan. Vehicle and Traffic Law § 388 states, in relevant part: "1. [e]very owner of a vehicle used or operated in this state shall be liable and responsible for [J irljuries to person [J resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied [J . .. 3. As used in this section, "owner" shall be as defined in section one hundred twenty- eight of this chapter [J" (emphasis added). New York Vehicle and Traffic Law § 128 defines an "owner" ofa vehicle as, in pertinent part: itA person . .. having the property in or title to a vehicle ... The term includes a person entitled to the use and possession of a vehicle [J subject to a security interest in another person and also includes any lessee or bailee of a motor vehicle or vessel having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days." (emphasis added). Thus, an owner under New York law is someone who has 1) property in or 2) title to a vehicle and can also include, but does not have to, a person who has the use and possession of a vehicle subject to the interest of another or, a lessee or bailee that has the exclusive use thereof for thirty (30) days. As such, there are several ways to determine ownership and co- ownership is clearly envisioned in the statute. Also, title is not the only consideration as a possessory interest, financial interest, dominion and control are also relevant (Dobson v Gioia, 39 AD3d 995, 999; 834 NYS2d 356, 359 [3 rd Dept 2007](appellate court determines there is a triable issue of fact on ownership); Young v Seckler, 74 AD2d 155; 426 NYS2d 311 [2nd Dept 1980] (presumption of ownership rebutted requiring a jury determination); see gen. Fulater v Palmer's Granite Garage, Inc., 90 AD2d 685; 456 NYS2d 289 [4th Dept 1982]; see also 6 Cunningham v Ford, 20 AD3d 897; 798 NYS2d 281 [4th Dept 2005]). However, Jim Ball, Inc. appears to claim that because Jesse Ball has been deemed one of the owners of the vehicle by the lower court, that it somehow forecloses the possibility of any other owners of the vehicle, which is clearly incorrect. Clearly, Jim Ball, Inc. fits squarely within the definition of ownership in this matter as it had a property interest, by controlling the vehicles use and possession as well as purchasing the striking vehicle. Indeed, Jim Ball, Inc. exclusively used and possessed the vehicle prior to loaning it to Defendant Leederman. The statutory language itself states that ownership can be found for those who have property in or title to a vehicle. In this case, Jim Ball, Inc. had a property interest in the vehicle and Jesse Ball title, establishing co-ownership. Jim Ball, Inc.'s argument that there is a thirty (30) day exclusive use requirement for ownership to exist, while informative, is just one way to establish ownership, albeit one that is not applicable to this case. To be clear, this is not a lease or bailment, only a loaner arrangement. Furthermore, a jury could determine that since Jim Ball, Inc. paid for the vehicle and had the power to direct its use and operation whenever it saw fit, as it did in this case, that Jim Ball, Inc. was a co-owner of the vehicle from the moment it purchased and it had simply chosen to give it to Jesse Ball until Jim Ball, Inc. needed it. In Payne v Payne, 28 NY2d 399; 322 NYS2d 238 [Ct App 1971], the plaintiff sued two brothers as co-owners of a vehicle that injured her while being driven by one of the brothers. The trial court granted the co-owner's motion for summary judgment and the appellate court affirmed. The Court of Appeals reversed and remitted for a full trial on all issues, finding there was a question of fact. The court held that the plaintiff introduced evidence of co- ownership and use and the lower court held that although the presumption arising therefrom was 7 not conclusive, it did create a question of fact for the jury to consider. The instant case is similar to Payne in that both co-owners, Jim Ball, Inc. and Jesse Ball, consented to the use of the vehicle by Defendant Leederman and a jury should be able to determine if both have an ownership interest in the vehicle as permission and consent is not an issue in this case. In Bulat v 0 'Brien, 13 AD2d 904; 217 NYS2d 575 [4th Dept 1961], this Court held that an absentee owner can be liable if such use and operation of the vehicle was in furtherance of its business pursuits (see gen. Siekierski v Derleth, 13 AD2d 715; 213 NYS2d 941 [4th Dept 1961]; see also Mills v Gabriel, 284 NY 755; 31 NE2d 512 [Ct App 1940]). That is clearly the case here as Jim Ball, Inc., is an out of possession co-owner that loaned Defendant Leederman a vehicle to advance its business pursuits, thereby subjecting it to liability. Further, the vehicle was being operated under Jim Ball, Inc.'s direction and control. This evidence, in its totality and viewed in a light most favorable to the Plaintiff- Appellee, is certainly enough to establish that Jim Ball, Inc. is a co-owner of the subject vehicle under the statutory definition, or at a minimum, calls into question the true ownership of the vehicle requiring a jury to determine same (see Doughty v Johnson, 155 AD2d 513; 547 NYS2d 373 [2nd Dept 1989](title is not the only requirement for ownership and other considerations require jury determination); Fulater, 90 AD2d 685; 456 NYS2d 289,290 [4th Dept 1982](neither possession of a truck for a weekend, nor affixing of dealer plates is sufficient to resolve ownership as a matter of law); Sosnowski v Kolovas, 127 AD2d 756, 758; 512 NYS2d 148, 150 [2nd Dept 1987]( appellants were entitled to a jury determination of ownership)). In addition, a joint enterprise is an endeavor in which two or more persons unite to achieve a common purpose where each has express or implied authority to act for all; in such an enterprise, the negligence of one member may be imputed to the others. Fairbairn v State of 8 New York, 701 AD2d 864; 484 NYS2d 682,683 [3 rd Dept 1985]. Thus, a jury could determine, and should be permitted the opportunity to do so, that Jim Ball, Inc. and Jesse Ball were engaged in such a joint endeavor and thus negligence can be imputed to each of them as they acted in concert. As such, it is clear that Jim Ball, Inc. was, at a minimum, a co-owner of the subject vehicle or was involved in a joint venture with Defendant Jesse Ball, rendering this defendant liable under Vehicle and Traffic Law § 388. Alternatively, ownership of the vehicle is a question of fact for the jury to consider rendering summary judgment inappropriate, as twice determined by the trial court. POINT II The Graves Amendment is not Applicable to This Case. Jim Ball, Inc. attempts to argue that because it and Defendant Leederman executed a document titled a "Truck Rental Agreement" that this establishes that Jim Ball, Inc. "rented" Defendant Leederman a vehicle and, as such, it cannot be liable under federal law. Indeed, 49 USC § 30106(a), states in relevant part: In General. - An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession ofthe vehicle during the period of the rental or lease, if- (1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner). However, this was clearly not a rental as no money changed hands and James testified that Jim Ball, Inc., not Jesse Ball, "loaned" the vehicle to Defendant Leederman while they performed repairs on Defendant Leederman's vehicle. R., P. 212 - 213. A fatal point conceded by Jim Ball, Inc. R., P. 27 - ~~ 8, 10. Further, in paragraph 2 of the Jim Ball, Inc.'s 9 Answer, it is admitted that Jim Ball, Inc., not Defendant Jesse Ball, "loaned" Defendant David Leederman the vehicle at issue. R., P. 51 - ,-r 2. Indeed, as such Jim Ball, Inc. cannot now claim that the vehicle was "rented" to Defendant Leederman, rendering any discussion relative to the so-called Graves Amendment moot. CONCLUSION The issue of ownership of the striking vehicle is a factual determination which is within the purview of the jury. In addition, the Graves Amendment clearly has no application here because no vehicle was leased or rented. As such, with the lower court having twice determined this to be a jury question and the factual issues detailed above which must be analyzed, coupled with the controlling case law discussed herein, summary judgment on this issue is not appropriate. There can be no dispute that Jim Ball, Inc. paid for the striking vehicle, directed and controlled its use by the command of an officer of the corporation and clearly has a property interest in same. Accordingly, it is respectfully submitted that this Court affirm the lower court's decision so that the matter can proceed to trial. Dated: August 6,2012 Respectfully submitted, DWYER, BLACK & LYLE, LLP BY: ____ ~./~/~--~--~~ .. ~~----- K~~~erfi~,"i:sq. 10 Attorneys for Plaintiff-Appellant 1616 West State Street P.O. Box 648 Olean, New York 14760 Telephone: (716) 373-1920