February 13, 2008
MEMORANDUM OF DECISION
The matter presently before the court arises out of a January 24, 2005 motor vehicle accident in New Haven, Connecticut. The complaint, brought against defendants Cheap Auto Rental, LLC, (Cheap Auto), the City of New Haven (the City) and Hanover Insurance Company (Hanover), is comprised of three counts. The plaintiff, John Mesner, alleges that he sustained injuries and damage when the pickup truck he was operating, which was owned and self-insured by the City, was struck by a motor vehicle owned by Cheap Auto and operated by non-party Jose Hernandez.
The claim against the City was withdrawn on July 13, 2007.
The first count of the complaint is directed against Cheap Auto, and is based on Connecticut's "Rental Car" statute, C.G.S. § 14-154a. The second count is directed against the City, and claims uninsured/underinsured motorist benefits pursuant to C.G.S. § 38a-336. Count three claims underinsured motorist benefits pursuant to C.G.S. § 38a-336 against Hanover.
On February 20, 2007, Cheap Auto moved to strike the first count of the complaint, on the basis that 49 U.S.C. § 30106 prohibits the imposition of vicarious liability on motor vehicle lessors as a matter of law. On March 15, 2007, the plaintiff filed an objection to the motion to strike, as well as a request for leave to amend the complaint to add a claim of negligent entrustment against Cheap Auto. On March 19, 2007, the court, Jones, J., granted the motion to strike. Cheap Auto filed its objection to the request to amend on March 30, 2007, and on August 27, 2007, the court, Lopez, J., granted the plaintiff's request to amend his complaint.
Judge Lopez, in granting the motion, ordered that it was "[w]ithout prejudice to the defendant, Cheap Auto Rental's right to request that the plaintiff revise the complaint to state specific acts of negligent entrustment and/or to file a motion to strike the amended complaint based upon 1) the violation of the statute of limitation due to the allegation of a new and distinct cause of action; or 2) the plaintiff's failure to allege facts concerning proximate cause (cause-in-fact)."
On October 31, 2007, the plaintiff filed an "Amended and Revised Complaint." The first count claims negligence against Cheap Auto. It alleges that Hernandez operated the vehicle owned by Cheap Auto as its "agent, servant and/or employee . . . with [its] knowledge and consent . . . and within the scope of . . . Hernandez' authority to drive the vehicle." It further alleges that Hernandez operated the vehicle with Cheap Auto's "knowledge, permission and consent." The plaintiff claims that Cheap Auto is liable to the plaintiff under C.G.S. § 14-154a, and as a negligent entrustor of the vehicle to Hernandez.
Paragraph 16 of the October 31, 2007 complaint provides as follows: . . .
16 (a.) It failed to look into or check lessee's driving record, was a poor operator and placed the public at risk for injuries; (b.) It failed to instruct lessee in manner of operating vehicle; (c.) It failed to test the operator's driving ability; (d) It knew or should have known lessee driver lacked experience in operating the type of motor vehicle leased; (e.) It failed to confirm lessee driver's insurance coverage; (f.) It failed to test the mechanical operation of vehicle leased to make sure that vehicle was in good working order; (g.) It failed to provide now (sic) tires or winter tires to operate on the highways during winter weather with snow and ice on the roads; (i. sic) It failed to provide or maintain a program to screen drivers to whom it leased its vehicles by screening his motor vehicle driving history.
Before the court is Cheap Auto's motion for summary judgment filed on November 28, 2007. The sole remaining basis for the motion is the claim that the negligent entrustment claim is barred by the applicable statute of limitations, C.G.S. § 52-584. The plaintiff filed a "Reply Memo" on January 7, 2008. The matter was argued at the short calendar on February 4, 2008.
C.G.S. § 52-584 provides in relevant part: General Statutes § 52-584 provides in pertinent part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained . . ."
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issued to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). See, e.g., Collum v. Chapin, 40 Conn.App. 449, 451, 671 A.2d 1329 (1996) (concerning General Statutes § 52-577, the only facts material to a court's decision on a summary judgment motion are the date of the alleged wrongful conduct and the date the action was filed). "A summary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." (Internal quotation marks omitted.) Collum v. Chapin, supra, 40 Conn.App. 453. A party does not have to plead a time limitation as a special defense prior to moving for summary judgment." If we were to hold that a motion for summary judgment cannot be made prior to pleading a statute of limitations as a special defense, we would negate that portion of § [17-44] that provides that a motion for summary judgment can be made `at any time,' without the necessity of closing the pleadings." Girard v. Weiss, 43 Conn.App. 397, 416, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996). The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).
Cheap Auto posits in its motion for summary judgment that the claim of negligent entrustment is barred by the two-year statute of limitations set forth in C.G.S. § 52-584, as the amendments to the complaint adding and amplifying the claim was filed well over two years after the accident of January 24, 2005. The plaintiff, on the other hand, argues that the negligent entrustment claim relates back to the original complaint, as it is not a new cause of action. The plaintiff also takes the position that Judge Lopez, in allowing the plaintiff to amend the complaint to add the claim of negligent entrustment, "did not accept that negligent entrustment was barred by the statute of limitations," and that this ruling is the law of the case.
The court rejects the plaintiff's argument that Judge Lopez, in allowing the amendment, addressed the issue of whether the claim was barred by the statute of limitations. To the contrary, Judge Lopez specifically indicated in her order that the ruling was "without prejudice" to Cheap Auto, to address the statute of limitations issue. If anything, by indicating that her order was without prejudice to Cheap Auto, Judge Lopez recognized the potential argument that the negligent entrustment was a "new and distinct cause of action."
The issue remains as to whether the claim for negligent entrustment "relates back" to the original complaint. This, of course, requires an analysis of both the original cause of action against Cheap Auto under C.G.S. § 14-154a, and the new negligent entrustment cause of action.
The elements of a claim for negligent entrustment are well established. "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 (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 resulted from that incompetence." (Citations omitted; internal quotation marks omitted.) Griffin v. Larson, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 02 0079364 (August 18, 2004), (Lager, J.), citing Greeley v. Cunningham, 116 Conn. 515, 520, 165 A. 678 (1933).
"When the evidence proves that the owner of an automobile knows or ought reasonably to know that one to whom he intrusts it is so incompetent to operate it upon the highways that the former ought reasonably to anticipate the likelihood of injury to others by reason of that incompetence, and such incompetence does result in such injury, a basis of recovery by the person injured is established." Greeley v. Cunningham, 116 Conn. 515, 520, 165 A. 678 (1933). "An automobile, while capable of doing great injury when not properly operated upon the highways, is not an intrinsically dangerous instrumentality . . . and liability cannot be imposed upon an owner merely because he entrusts it to another to drive upon the highways." (Citations omitted.) Id. at 518. Nevertheless, "the owner may be liable for injury resulting from the operation of an automobile he loans to another, when he knows or ought reasonably to know that the one to whom he entrusts it is so incompetent to operate it, by reason of inexperience or other cause, that the owner ought reasonably to anticipate the likelihood that in its operation injury will be done to others." (Emphasis added.) Id.
The Greely court, and its progeny, recognized that a principle feature of a cause of action for negligent entrustment is the knowledge of the entrustor with respect to the dangerous propensities and incompetency of the entrustee. Id. at 520. See, Donati v. Sullivan, Superior Court, judicial district of Hartford, Docket No. 030828572 (August 7, 2007) (Stengel, J.) (granting defendant's motion for summary judgment, where the allegations of the complaint did not allege facts bearing on the issue of the incompetency of the person to whom the car was loaned, and where the defendant's affidavit denied any knowledge of any dangerous propensities of the driver, and denied ever giving the driver permission to use the vehicle); Dervil v. Perez, Superior Court, judicial district of Stamford-Norwalk, Docket No. 044001545 (September 12, 2005) (Lewis, J.T.R.) (granting motion to strike, where complaint alleged that the defendant knew or should have known that the driver was an incompetent reckless driver and that the driver would get involved in an accident, for the reason that the complaint did not allege "any facts suggesting that the defendant owner had actual or constructive knowledge of the defendant driver's dangerous propensities.") Griffin v. Larson, Superior Court, judicial district of Ansonia-Milford, supra, (granting defendant's motion for summary judgment, where defendant had borrowed the car from the vehicle owner and allowed driver to use it that morning to pick up coffee for a softball game, and where there was no evidence that defendant knew or should have known that driver was incompetent to operate the vehicle); Chung v. Place Motors, Inc., Superior Court, judicial district of New London, Docket No. 560074 (February 11, 2003) (Hurley, J.T.R.) (granting motion to strike brought against lessor of vehicle, where complaint "failed to adequately plead facts sufficient to find knowledge of the entrustee's incompetence"); Plimpton v. Amerada Hess Corp., Superior Court, judicial district of Stamford-Norwalk, Docket No. 990169861 (September 27, 1999) (Karazin, J.) (granting motion to strike, where complaint failed to allege that the driver had any dangerous propensities, or that the defendant had actual or constructive knowledge of any dangerous propensities of the driver); Williams v. Thomas, Superior Court, judicial district of New Haven (November 2, 1995) (Zoarski, J.) (denying defendant's motion to strike where complaint alleged that the defendant leased the vehicle in question to a non-party lessee who in turn allowed the co-defendant to operate it; the court noted that the plaintiff failed to allege that the defendant lessor entrusted the vehicle to one who was incompetent to operate it); Galloway v. Thomas, Superior Court, judicial district of New Haven, Docket No. 950371814 (September 26, 1995) (Corradino, J.) (granting motion to strike, where complaint alleged that the defendant lessor negligently entrusted a vehicle to the co-defendant lessee because it failed to explain to the lessee that no one else could drive the vehicle, and the co-defendant lessee "was incompetent in allowing another to gain control of and negligently operate the (rental) automobile;" the court held that the complaint failed to allege that the defendant lessor knew or should have known of the co-defendant lessee's "incompetence" in permitting another to drive); Whitely v. Sebas, Superior Court, judicial district of Ansonia-Milford, Docket No. 90 031783 (August 10, 1990) (Hartmere, J.) [2 Conn. L. Rptr. 296] (denying motion to strike negligent entrustment claim, where complaint alleged that the defendant knew his son was not fit to drive due to his past history of negligent driving).
Connecticut law is clear that liability can only be imposed if the defendant entrusts the vehicle to the driver. See, Bryda v. McLeod, Superior Court, judicial district of New Haven, Docket No. 030285188 (July 12, 2004), (Tanzer, J.) [37 Conn. L. Rptr. 492] (granting defendant's motion to strike on basis that facts alleged did not support conclusion that the defendant, directly or indirectly, provided the car to her minor son for his use, or that he would be likely to use it in a manner involving an unreasonable risk of physical harm; the complaint alleged that the defendant had in the past allowed her son to play in the driver's seat of the vehicle, and that at the time of the accident, he had been left unsupervised by another defendant); Pellegrino v. Nauge, Superior Court, judicial district of Hartford-New Britain, Docket No. 388361, (July 30, 1991) (Wagner, J.), (denying defendant's motion to strike, rejecting the defendant's argument that the complaint must allege that the negligent entrustment was the proximate cause of the accident); Czulewicz v. Raymond, Superior Court, judicial district of Stamford-Norwalk, Docket No. 89 01 00248 (November 20, 1990) (Cioffi, J.), (granting defendant's motion to strike, where complaint alleged that the driver took the car keys from the dining room table and that the defendant was negligent for failing to notify the police and for not trying to stop the unlicensed driver once she realized he had taken the car; the court reasoned that the plaintiff had not alleged that the defendant owned or had control of the car or that she entrusted the car to the driver by giving him permission, whether express or implied, to drive the car).
Connecticut's rental car statute, C.G.S. § 14-154a, on the other hand, is a vicarious liability statute applicable to vehicle lessors. The state provides in relevant part as follows:
Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner.
The statute permits vicarious liability claims against car rental companies solely by virtue of ownership.
The plaintiff's original claim against Cheap Auto was predicated on C.G.S. § 14-154a, which established vicarious liability by providing that an owner/lessor of a motor vehicle is liable to the same extent as a lessee for any personal injury or property damage caused by the lessee's operation of the vehicle. Essentially, in order to prove liability, the plaintiff would need to establish that Hernandez was negligent and that he was in lawful possession of the vehicle pursuant to the terms of the rental contract. Moncrease v. Chase Manhattan and Finance Corp., 98 Conn.App. 665, 668-69 (2006). The Moncrease court explained:
49 USC 30106(a) preemptively eliminated the vicarious liability imposed by C.G.S. § 14-154a.
[T]he purpose of [the statute] was not primarily to give the injured person a right of recovery against the tortious operator of the car, but to protect the safety of traffic upon highways by providing an incentive to him who rented motor vehicles to rent them to competent and careful operators by making him liable for damage resulting from the tortious operation of the rented vehicles. (Internal quotation marks omitted.) Fojtik v. Hunter, supra, Page 672, 265 Conn. 391-92; see also Levy v. Daniels' U-Drive Auto Renting Co., 108 Conn. 333, 337, 143 A. 163 (1928) ("rental of motor vehicles to any but competent and careful operators, or to persons of unknown responsibility, would be liable to result in injury to the public . . . and this imminent danger justified, as a reasonable exercise of the police power, this statute"). It would therefore defeat the legislative intent underlying the statute if we were to hold that § 14-154a made lessors liable for damages caused by the very drivers it reasonably refused to guarantee. We also note our Supreme Court's caution against expanding the scope of liability under the statute. In interpreting the predecessor to § 14-154a, the court stated, "[w]hile the statute is very likely capable of a broader construction, we have indicated . . . what we deem to be the true intent of the legislature, to impose upon the person who lets an automobile for hire a liability for the tortious acts of him who hires it or of anyone who comes into possession of it under the contract of hiring with the express or implied authority of the owner. We cannot impute to the legislature an intent, so unreasonable and of such doubtful constitutionality, to include a liability of the owner for the tortious acts of one who wrongfully acquires possession of the car from him into whose hands it came by the voluntary act of or under authority from the owner." (Emphasis added.) Connelly v. Deconinck, 113 Conn. 237, 240, 155 A. 231 (1931). Therefore, although § 14-154a does create a statutory suretyship, it is only for damages caused by leased vehicles that are driven by authorized drivers. See Smith v. Mitsubishi Motors Credit of America, Inc., 247 Conn. 342, 346, 721 A.2d 1187 (1998).
The new claim of negligent entrustment is a direct claim of negligence against Cheap Auto and would basically require proof that Hernandez was negligent, that Cheap Auto knew or should have known that Hernandez was incompetent to operate the vehicle, and that Cheap Auto entrusted the vehicle to Hernandez — the significant difference between the original and new cause of action being the requirement that with the negligent entrustment claim, the plaintiff must establish that Cheap Auto knew or should have known of Hernandez' incompetence.
"A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . The facts which establish the existence of that right and that delict constitute a cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but whe[n] an entirely new and different factual situation is presented, a new and different cause of action is stated." (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 129-30, 778 A.2d 83 (2002). The "relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . ." (Internal quotation marks omitted.) Alswanger v. Smego, 257 Conn. 58, 65, 776 A.2d 444 (2001).
"The fact that the same defendant is accused of negligence in each complaint and the same injury resulted . . . does not make any and all bases of liability relate back to the original claim of negligence." Sharp v. Mitchell, 209 Conn. 59, 73 (1988) (rev'd on other grounds sub. nom.) Sharp v. Wyatt, 31 Conn.App. 824; cert granted 228 Conn. 904 (1993), aff'd 230 Conn. 12 (1994). In Sharp, the administrators of the estates of three men who were asphyxiated in a work-related accident at an underground fuel storage facility filed a wrongful death action. The Supreme Court, in upholding the trial court's granting of summary judgment in favor of the defendant, noted: "The actionable occurrence in the original complaint is an allegedly negligent act in supervising employees while the actionable occurrence in the . . . later counts of the later complaints is allegedly negligent design and construction of the underground storage area. These complaints involve two different sets of circumstances and depend on different facts to prove or disprove the allegations of a different basis of liability." Id.
"The test for determining whether or not a cause of action has been alleged is somewhat nebulous." Jonap v. Silver, supra, 1 Conn.App. 550, 556 (1984). A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated." (Citations omitted; internal quotation marks omitted.) Gurliacci v. Mayer, supra, 218 Conn. 531, 547 (1991).
In Vaughan v. Mural Transport, Inc., Superior Court, judicial district of Litchfield, Docket No. 94 0064472 (November 20, 1995) (Pickett, J.), the court held that the amendment to the complaint adding a claim for liability against the lessor pursuant to C.G.S. § 14-154a related back to the original complaint, where the plaintiff originally sued, inter alia, the lessor and operator of the vehicle based upon the operator's alleged negligence. Judge Pickett, in his decision, provided a useful discussion of the law on relation back:
In Gurliacci v. Mayer, supra, a Stamford police officer sued the deputy chief of police of Stamford and the City of Stamford for injuries she suffered when an automobile driven by the deputy chief collided with the plaintiff's automobile. The original complaint alleged that the defendant deputy chief was acting negligently in operating his automobile while intoxicated. After the statute of limitations period passed, the court allowed the plaintiff to amend her complaint to add the allegation that the deputy chief was acting either wilfully, wantonly and maliciously, or outside the scope of his employment. In concluding that the amendment related back to the original complaint, the Connecticut Supreme Court held that"[t]he new allegations did not inject `two different sets of circumstances and depend on different facts'; Sharp v. Mitchell, supra, 73, but rather amplified and expanded upon the previous allegations by setting forth alternate theories of liability." Gurliacci v. Mayer, supra, 218 Conn. 549. The court stated: "[the defendant] had adequate notice that a claim was being asserted against him arising out of the alleged motor vehicle accident." Id. In contrast, in the case of Sharp v. Mitchell, 209 Conn. 59, 546 A.2d 846 (1988), the court found that an amendment did not relate back where the amendment and the original complaint involved two different sets of circumstances and depended on different bases of liability. The Sharp court found that the defendants did not have fair notice of the amended claim of negligent construction and design of an underground storage area where the original complaint merely alleged negligent supervision. In distinguishing Sharp v. Mitchell, supra, the Gurliacci opinion stated: "In Sharp, the change in the nature of the negligence action from one of negligent supervision to one of negligent construction was dramatic because the defendant would have been required to gather different facts, evidence and witnesses to defend the amended claim. In this case, however, the plaintiff's amendment reiterated the negligence claim based on [the defendants] operation of a motor vehicle, but added that [the defendant] was acting either wilfully, wantonly, and maliciously or outside the scope of his employment. The new allegations did not inject two different sets of circumstances and depend on different facts; but rather amplified and expanded upon the previous allegations by setting forth alternate theories of liability." (Citations omitted.) Gurliacci v. Mayer, supra, 218 Conn. 548-49. Under Gurliacci, therefore, if the change is dramatic and requires the defendants to gather different facts, evidence and witnesses to defend the claim, then a new cause of action has been raised and the amendment will not relate back. If, however, the change is not dramatic and depends on the same set of circumstances and facts, the amendment will relate back to the original complaint . . .
In Felsted v. Kimberly Auto Services, Inc., 25 Conn.App. 665, 668, 596 A.2d 14 (1991), relied on by the defendants, the plaintiff sued a tow truck operator and the owner of a taxi cab that was being towed by the tow truck, for injuries sustained when the taxi, while being towed, collided with the plaintiff's vehicle. The plaintiff's original complaint alleged that the taxi cab owner was liable as a principal or employer of the tow truck operator. In an amended complaint, the plaintiff alleged that the taxi cab owner was also liable under General Statutes § 14-154a, because the taxi cab owner leased the taxi to its driver, who was in control of the taxi prior to its being towed. The appellate court upheld the trial court's determination that the amendment asserted a new cause of action and was therefore barred by the statute of limitations. The appellate court ruled that the allegations based on General Statutes § 14-154a relied on a new relationship between the taxi cab owner and its driver that was not alleged in the original complaint. Therefore, the cause of action based on General Statutes § 14-154a did not relate back to the original complaint. Id.
See also Pettway v. Johnson, Superior Court, judicial district of Fairfield, Docket No. 92 0296135 (April 27, 1993) (Fuller, J.) (granting lessee's motion for summary judgment on basis of statute of limitations, holding that the amendment did not relate back, where the original complaint essentially alleged that the lessee of the rental vehicle was liable as a matter of law for the negligence of the operator of the rental vehicle, and the amendments alleged negligence and negligent entrustment against the lessee).
In the present case, the allegations of negligence in the original complaint in the count directed to Cheap Auto focus solely on the negligence of Hernandez. The original complaint makes no allegations of negligence as to Cheap Auto. Rather, the basis for the claim of liability against Cheap Auto in the original complaint was vicarious liability applicable to lessors pursuant to § 14-154a. The original complaint does not even hint at a claim of direct negligence against Cheap Auto. See Barile v. Goodrich, Superior Court, judicial district of New Haven, Docket No. 92-0336778 (March 2, 1995) (Hodgson, J.) (granting plaintiff's motion to amend the complaint against boatowner to add negligent entrustment claim, where the original complaint alleged that the boat operator was operating the boat as a "family vehicle" and that the boatowner, his grandfather, knew or should have known that the boat operator "often operated boats without the control required to avoid accidents such as the one causing injuries to [plaintiff];" the court noted that the plaintiff's initial reliance on the theory of vicarious liability by the boat owner contained allegations of negligent entrustment, and the boatowner had therefore long been on notice of that claim.)
The original claim brought by the plaintiff against Cheap Auto is a statutory, vicarious liability, where the focus centers on the conduct of another party. The new claim of negligent entrustment shifts the focus to the actions of Cheap Auto, i.e., whether Cheap Auto entrusted the vehicle to the ultimate driver, and whether Cheap Auto knew or had reason to know of the driver's incompetency, without any fair notice to Cheap Auto that they would have to investigate and defend a claim of that nature. These new allegations involve different sets of circumstances and depend on entirely different facts. As such, the new claim of negligent entrustment does not relate back to the complaint, and is barred by the statute of limitations.
Accordingly, the defendant's Motion for Summary Judgment is granted.