Opinion
No. 04-2019.
May 26, 2006.
MEMORANDUM OF DECISION AND ORDER ON BOCH TOYOTA, INC., AND MICHAEL HUMPHREY'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
This action arises from the death of Luis Nunez-Polcano in a motor vehicle accident that occurred in Connecticut. The decedent was a passenger in a car that had been rented from Boch Toyota, Inc., and was being driven by a person not authorized by Boch. The decedent's estate seeks to hold Boch and its manager liable on a theory of negligent entrustment. Before the Court is the motion of these defendants for summary judgment on all counts of the complaint against them. For the reasons that will be explained, the motion will be allowed.
BACKGROUND
The record before the Court establishes the following facts as undisputed. Boch Rent-A-Car is a division of Boch Toyota, Inc. Boch Rent-A-Car rents cars to service customers of Boch Toyota and to others. As of February, 2001, Boch Rent-A-Car had four or five employees, and about 100 cars available for rent. Its general manager was Michael Humphrey, who had worked in the rental car business since 1976.
The moving parties have filed a statement of undisputed material facts, with record references, in accord with Superior Court Rule 9A(b)(5). The plaintiff's response does not dispute any of the facts stated in the manner provided by that rule. Accordingly, the facts set forth in the defendants' statement are deemed admitted. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 46 n. 18 (2005); Dziamba v. Warner Stackpole, LLP, 56 Mass. App. Ct. 397, 399-401 (2002). The plaintiff has submitted his own statement of undisputed facts, with references to the defendants' memorandum of law and to certain affidavits and deposition testimony; the Court considers those facts insofar as they are supported by the affidavits and deposition testimony cited. For purposes of this motion, the Court considers the facts in the light most favorable to the plaintiff.
In February 2001, Carl Housen brought a vehicle to Boch for repair, and rented a vehicle from Boch Rent-A-Car. Before that date no one at Boch had ever had any interaction with Mr. Housen. After that date, Housen rented cars from Boch repeatedly. On each occasion, he was asked for and provided a valid driver's license. On one occasion, Housen brought a person he identified as an employee. That person presented a valid driver's license, and was added to the rental agreement as a listed additional driver.
Between February 7, 2001, and January 2, 2002, Housen rented vehicles from Boch on sixteen separate occasions, sometimes for two or three months at a time, sometimes more than one car at a time, spending a total of some twenty thousand dollars. That frequency was not abnormal for Boch; Boch frequently had customers, including business customers, who rented cars every month, sometimes more than one car at a time, and spent thousands of dollars on rental vehicles. Humphrey had had similar experience in other car rental businesses where he had worked. On occasion, Housen brought a rental vehicle back to Boch and exchanged it for a different rental vehicle. That procedure was not out of the ordinary for Boch, or, in Humphrey's experience, for car rental companies in general. Housen always declined insurance coverage.
The facts regarding common experience at Boch and in the car rental industry are drawn from the affidavit and deposition testimony of defendant Humphrey. The plaintiff purports to dispute these facts, but has offered no contrary evidence. Accordingly, these facts are established as undisputed for purposes of this motion.
Housen rented the vehicles in his own name, without reference to a company. He gave different addresses and telephone numbers on different occasions. He represented himself as a businessman, but did not indicate that he was in the automobile business, and Boch had no knowledge and did not inquire on the subject. Housen typically dressed in a suit, and appeared to be approximately fifty years old. At no time did before the accident did Boch have any knowledge that Housen intended to or did re-rent any Boch vehicle. Boch never did business at any time with Luis Nunez-Polcano, Persio Rodriguez, or Victor Gomez.
Boch's standard form rental agreement, which Housen signed on each occasion, contained the following terms pertinent here:
1. The vehicle shall be used, operated, or driven by customer or qualified licensed drivers at least 21 years of age who have Customer's advance permission to use the vehicle, and who are the spouse, employer or co-worker if engaged in a business activity with the Customer, any person who operates the vehicle in an emergency, or while parking at a commercial establishment, and any person who is expressly listed on page 2 hereof.
2. Prohibited Use. The vehicle shall NOT be used:
* * *
7) by a person not specified in Paragraph 1 above.
IN NO EVENT SHALL CUSTOMER SUBRENT OR RELEASE THE VEHICLE TO ANOTHER PERSON OR CORPORATION.
On December 5, 2001, Housen rented from Boch a blue Toyota Camry, registration number 7998VR. He wrote "none" on the standard form rental agreement in the question regarding additional drivers, and initialed that part of the agreement. Later in the same month, Housen brought the blue Toyota Camry in and exchanged it for a gray Toyota Camry, registration number 4218YX, Boch vehicle number 1187. The rental agreement was modified to indicate that Housen now had vehicle number 1187, but was not altered in any other respect.
Sometime thereafter Housen, operating under the name of CarChoice International, and without the knowledge of Boch, re-rented the car to Persio Rodriguez. The rental agreement between CarChoice and Rodriguez listed Victor Gomez as an additional driver. On December 29, 2001, Gomez drove the vehicle in Connecticut, with Luis Nunez-Polcano as a passenger. A collision occurred, resulting in the death of Mr. Nunez-Polcano.
The complaint alleges that CarChoice is a Massachusetts corporation, but the summary judgment record does not provide evidence on the point.
Connecticut State Police Trooper Robert Padula investigated the accident. Padula's conclusion, based on his investigation of the collision, was that Gomez had lost control of the vehicle when he tried to change lanes at high speed. Padula found no evidence of intoxication, and no indication that Gomez had a poor driving record. His investigation included a brief conversation with Humphrey on December 30, 2001, during which Padula took no notes. Some five months later, on May 7, 2002, Padula wrote a report of his investigation. His report included a number of statements that he now identifies as inaccurate, in an affidavit submitted by defendants in support of their motion. Most pertinent here is the statement, included in the report, that Humphrey told Padula that Boch had rented the vehicle to Rodriguez on December 29, 2001, with Gomez listed as an additional driver, and with a return date of December 30, 2001. Padula and Humphrey now agree that Humphrey did not so state.
The administrator of Nunez-Polcano's estate filed suit initially on December 2, 2003, in the Superior Court of Connecticut, naming the same defendants named in this action. Boch and Humphrey removed that case to federal court, which dismissed it for lack of personal jurisdiction over Boch and Humphrey, finding that these defendants do not do business in Connecticut and had not committed any tortious conduct there.
Thereafter, on November 24, 2005, the plaintiff filed this action. The complaint, running some sixty-four pages, sets forth claims against these defendants labeled "negligence" (count one), "negligent entrustment" (count two), "permissive use negligence" (count three), "joint venture B negligent entrustment" (count nine), "unfair trade practices" (count ten), recklessness (count eleven), negligent entrustment (count twelve), "permissive use recklessness" (count thirteen); and "joint venture recklessness" (count nineteen). A number of these counts include allegations of violations of various Connecticut statutes. Count ten invokes G.L. c. 93A, but does not allege compliance with the pre-suit demand requirement of § 9 of that statute. The crux of all counts against these defendants, as counsel acknowledged at argument on the present motion, is that these defendants were negligent in renting the car to Housen and/or entrusting it to Rodriguez or Gomez.
DISCUSSION
This Court grants summary judgment where there are no genuine issues of material fact and where the record entitles the moving party to judgment as a matter of law. See Mass. R. Civ. P. 56 (c); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community National Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of establishing that there is no dispute of material fact on every relevant issue. See Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). A party moving for summary judgment who does not bear the burden of proof at trial may demonstrate the absence of a genuine dispute of material fact for trial either by submitting affirmative evidence negating an essential element of the non-moving party's case, or by showing that the non-moving party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
Once the moving party establishes the absence of a triable issue by either of these methods, the party opposing the motion must respond with evidence of specific facts establishing the existence of a genuine dispute. Pederson v. Time, 404 Mass. 14, 17 (1989). The opposing party may not rest on the allegations of the pleadings, or rely on "bare assertions and conclusions." Key Capital Corp. v. MS Liquidating Corp., 27 Mass. App. Ct. 721, 728 (1989). Mere contradictions of factual allegations, without evidentiary support, are insufficient to raise questions of material fact sufficient to defeat a summary judgment motion. Madsen v. Erwin, 395 Mass. 715, 721 (1985), quoting Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3rd Cir. 1972) (noting that conclusory statements, denials, and allegations are insufficient to raise material issues of fact). The opposing party's obligation, rather, is to demonstrate the existence of admissible evidence sufficient to meet the burden of proof on the issues raised by the motion.
In deciding motions for summary judgment, the Court may consider pleadings, depositions, answers to interrogatories, admissions on file and affidavits. The Court reviews the evidence in the light most favorable to the nonmoving party, but does not weigh evidence, assess credibility or find facts. See Dawes, 369 Mass. at 553; Mass. R. Civ. P. 56(c); Colley v. Benson, Young Downs Insurance Agency, Inc., 42 Mass. App. Ct. 527, 528 (1997); see also Kelley v. Rossi, 395 Mass. 659, 663 (1985). In cases "where notice, intent, or state of mind questions are at issue" summary judgment is often, but not always, inappropriate. See Brunner v. Stone Webster Engineering Corp., 413 Mass. 698, 705 (1992) (further citations omitted).
1. Choice of Law.
At the outset, it is necessary to determine which state's law applies. The plaintiff contends that Connecticut law should apply, because the collision occurred in Connecticut. The defendants point out that their conduct B renting the car to Housen B occurred in Massachusetts, and that nothing before the Court indicates that they have ever taken any action in Connecticut. On that basis, the Court agrees with the defendants that Massachusetts law applies.
Traditionally, in matters of tort, the courts of this Commonwealth applied the substantive laws of the jurisdiction wherein the tort occurred. Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 333 (1983). More recently, our courts have adopted a functional approach, based on analysis of which state has the most significant relationship to the occurrence and the parties. See Cosme v. Whitin Machine Works, Inc., 417 Mass. 643, 646 n. 3 (1994), citing Restatement (Second) of Conflict of Laws § 145 (1971). Factors to be considered are: 1) the place where the injury occurred; 2) the place where the conduct causing the injury occurred; 3) the domicile, residence, nationality, place of incorporation and place of business of the parties; and 4) the place where the relationship, if any, between the parties is centered. Id. "These contacts are to be evaluated according to their relative importance with respect to the particular issue." Id.
Here, the transaction giving rise to any liability of these defendants is the car rental between Housen and Boch. If negligent entrustment occurred, it happened when Boch rented the car to Housen in Massachusetts, not when the accident occurred in Connecticut. Boch is a Massachusetts corporation, and as the federal court has already found in an action between these parties, does not transact business in Connecticut and committed no tortious conduct in Connecticut. Humphrey, its employee, is a resident of Massachusetts, and nothing indicates that he has ever engaged in any conduct in Connecticut. According to the complaint, Nunez-Polcano was a resident of New York; Rodriguez and Gomez are residents of Rhode Island, and CarChoice International is a Massachusetts Corporation. The complaint does not identify Housen's residence; the rental application for the car involved in the collision gives a Boston address. None of the parties is alleged or shown to have been a resident of Connecticut or to have done any business there.
Three of the four factors thus weigh in favor of applying Massachusetts law; only the first, the location of the injury, favors Connecticut. The crux of the claim, as discussed, is negligent entrustment. On that issue there can be no doubt that Massachusetts has the most significant interest in regulating the conduct of a rental car company operating within the Commonwealth. Accordingly, the Court will apply Massachusetts law.
2. Negligent Entrustment.
As discussed supra, despite the varied labels given to the multiple counts of the complaint against these defendants, the essence of all counts is a claim of negligent entrustment; the plaintiff alleges that Boch and Humphrey were negligent in renting the car to Housen, and that such negligence resulted in the car being driven by Gomez, in turn causing the death of Nunez-Polcano. To prevail on a claim of negligent entrustment of a motor vehicle in Massachusetts, a plaintiff must show that "(1) the defendant entrusted a vehicle to an incompetent or unfit person whose incompetence or unfitness was the cause of the victim's injuries; (2) the persons who owned or controlled the vehicle gave special or general permission to the operator to drive the automobile; and (3) the defendant had actual knowledge of the incompetence or unfitness of the operator to drive the vehicle." Picard v. Thomas, 60 Mass. App. Ct. 362, 369 (2004), citing Mitchell v. Hastings Koch Enterprises, Inc., 38 Mass. App. Ct. 271, 276-77 (1995).
The Appeals Court applied this doctrine in two cases against rental car companies in 2005. In Nunez v. A M Rentals, Inc., 63 Mass. App. Ct. 20, 21 (2005), the renter, who was known to the company and had previously rented without incident, showed a facially valid Massachusetts driver's license, although in fact his license was under suspension at the time. The renter then drove on the wrong side of the street at approximately 100 miles an hour, causing the death of the plaintiff's son. The Appeals Court affirmed a grant of summary judgment for the rental car company on the ground that the evidence showed no "knowledge of any incompetence or unfitness on the part of [the renter]." Id. at 22-23.
In Ortiz v. North Amherst Auto Rental, Inc., 64 Mass. App. Ct. 499 (2005), the renter, who was again known to the defendant rental car company and had rented from it on previous occasions without incident, showed an international driving permit rather than an actual driver's license. He struck and injured the plaintiff. The Appeals Court reversed a judgment for the plaintiff after a jury verdict, holding that the rental car company could not be liable for negligent entrustment because there was no evidence that the renter had a poor driving record or that the defendant had any actual knowledge, "as opposed to just reason to know" of the driver's incompetence. Id. at 501.
Here, the undisputed facts establish that the plaintiff cannot prove the first and third elements of negligent entrustment as set out and applied in these cases. Boch did not entrust the vehicle to Gomez at all, or give him any permission to operate the vehicle. Indeed there is no evidence that Boch or Humphrey ever had any interaction with Gomez whatever, or had ever heard of him before the collision. Moreover, no evidence indicates either that he was an unfit driver, or that Boch and Humphrey had any reason to know, still less actual knowledge, that he was.
Boch did entrust the vehicle to Housen. No evidence offered indicates that Housen was in any way unfit or incompetent to take responsibility for the car. Housen in turn entrusted the car to Rodriguez, with Gomez listed as an additional driver; Housen thus gave permission for Gomez to drive. Housen's conduct in this regard was directly contrary to the prohibitions in the rental agreement. Nothing before the Court provides any evidence that Boch had any knowledge or reason to know that Housen would re-rent the car or otherwise violate the rental agreement. To the contrary, Housen, like the renters in the appellate decisions cited, had repeatedly rented from Boch without incident. That history, along with Housen's valid driver's license, provided a basis for the defendants to believe that Housen was an acceptable renter. No contrary information appears.
The plaintiff points to Trooper Padula's report as the basis of a factual dispute as to whether Boch rented the car to Rodriguez, with Gomez listed as an additional driver. The report, having been prepared by Padula based on information given to him by others, months after his investigation, would be admissible at trial only to impeach Padula's testimony, not as substantive evidence. See Wingate v. Emery Air Freight Corp., 385 Mass. 402, 405-407 (1982). His testimony, as indicated in his affidavit, would be that his report was erroneous in that regard, and that neither Humphrey nor anyone else ever told him that Boch rented the car to Rodriguez. Humphrey's deposition testimony and affidavit indicate that his trial testimony would be to the same effect. The plaintiff offers no substantively admissible evidence to contradict that of Padula and Humphrey, and nothing else to indicate that Boch rented the car to anyone except Housen.
As noted supra, the plaintiff's response to the defendants' statement under Superior Court Rule 9A(b)(5) effectively admits the defendants' version on this point.
The plaintiff cites Mitchell v. Hastings Koch Enterprises, Inc., 38 Mass. App. Ct. at 276-278. That case does not support his position. There the driver had a record of violations, including three convictions for driving under the influence of alcohol, and his license was suspended at the time of the accident. His personal relationship with one of the principals of the corporation that owned the vehicle was such as to support an inference that that person had actual knowledge of the driver's record. Even if he did not, the Court ruled, liability could be predicated on the failure to ascertain, before entrusting the vehicle, that the driver was licensed. Id. at 277. Here despite the plaintiff's assertions, no evidence indicates any personal relationship between Housen and Humphrey, or anyone else at Boch, nor does the evidence indicate any relationship or any interaction whatever between Boch and Rodriguez or Gomez. Further, Boch obtained a valid license from Housen before entrusting the vehicle to him.
Nunez v. A M Rentals, Inc., 63 Mass. App. Ct. at 21, suggests that theory of liability would not apply to a rental company with respect to a renter who shows a facially valid license.
The plaintiff also cites Peters v. Haymarket Leasing Co., 64 Mass. App. Ct. 767, 772-773 (2005). There the Court held that the record established a genuine dispute of material fact as to whether the driver was unfit, based on a history of accidents and violations, and whether the owner of the vehicle had actual knowledge, based on the recency of the driver's license, and the contract between them, which included terms prohibited by law. The record there also provided evidence sufficient to create a genuine issue as to whether the driver was acting as agent for the owner. The record here establishes no genuine dispute on any of these points, for the reasons already discussed.
The record thus establishes that the plaintiff cannot prove negligent entrustment by these defendants. As discussed, all of the plaintiff's claims against these defendants rest on that theory. Accordingly, the moving parties are entitled to judgment as a matter of law on all counts of the complaint.
3. G.L. c. 93A.
The plaintiff's claim under G.L. c. 93A, count ten of his complaint, like his other counts against these defendants, is based on a theory of negligent entrustment. Because that underlying theory must fail under the governing Massachusetts law, count ten must be dismissed. An additional defect appears in count ten as well; the plaintiff has failed to comply with the statutory requirement of a pre-suit demand letter.
Massachusetts General Laws c. 93A, § 9 provides that:
Any person, other than a person entitled to bring an action under section eleven of this chapter, who has been injured by another person's use or employment of any method, act or practice declared to be unlawful by section two . . . may bring an action in the superior court. . . . At least thirty days prior to the filing of any such action, a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be mailed or delivered to any prospective respondent.
The plaintiff acknowledges that he did not issue a demand letter to the defendants in compliance with this statutory provision. He seeks to avoid this requirement by arguing that he sues under § 11, rather than § 9. To support this contention, he points out that Boch was engaged in commerce, and argues that Housen was as well, since he rented cars on behalf of CarChoice; on that basis, he argues that both sides of the rental transaction were engaged in trade or commerce. The theory ignores the plain language of the statute.
General Laws c. 93A, § 11, creates a cause of action for "[a]ny person who engages in the conduct of any trade or commerce." AEngaging in trade or commerce," for purposes of an unfair trade practices claim, means acting in a business context. Frullo v. Landenberger, 61 Mass. App. Ct. 814, 821 (2004). Here, the plaintiff's claim arises from the death of a passenger in a motor vehicle collision. No evidence indicates that the decedent was in the vehicle for any business purpose, or was otherwise acting in any business context. Section 11 therefore does not give the plaintiff a cause of action. See Szalla v. Locke, 421 Mass. 448, 451 (1995) (liability under G.L. c. 93A, § 11, requires "that there be a commercial transaction between a person engaged in trade or commerce [and] another person engaged in trade or commerce"); Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 24 (1997) (General Laws c. 93A, § 11, applies to any "person who engages in the conduct of any trade or commerce," and trade and commerce includes "the sale, rent, lease or distribution of any services and any property"); Lantner v. Carson, 374 Mass. 606, 610 (1978) ("where § 9 affords a private remedy to the individual consumer . . ., an entirely different section, § 11, extends the same remedy to [a]ny person who engages in the conduct of any trade or commerce'"). Section 9 would provide a cause of action for a person in the position of this plaintiff. To invoke that provision, however, the plaintiff must have complied with the prerequisite set out therein. Since he did not, count ten must be dismissed.
4. The Other Defendants.
In addition to the moving parties presently before the Court, the complaint asserts claims against Housen, CarChoice International, Rodriguez, and Gomez. As to CarChoice, the docket reflects that the sheriff was unable to make service of process. Accordingly, M.R. Civ. P. 4(j) and Superior Court Standing Order 1-88 require dismissal of that defendant. The docket reflects that service was made on the other three defendants, Housen, Rodriguez, and Gomez, with returns filed on February 23, 2005. It appears that none of those three has filed an answer, and no other activity has occurred with respect to those three defendants. Accordingly, default shall enter against those three defendants. The plaintiff shall have thirty days from this date to file a motion for assessment of damages and entry of default judgment, and request for hearing on such motion, against those three defendants, which motion shall be served on each of them at the address at which service of process was made and any other address known to the plaintiff. Failure of the plaintiff to file such motion within that time shall result in dismissal of the action as against those defendants for failure to prosecute.
CONCLUSION AND ORDER
For the reasons stated, Boch Toyota, Inc., and Michael Humphrey's Motion for Summary Judgment is ALLOWED. All counts of the complaint as against those defendants shall be dismissed. All counts of the complaint as against Carchoice International shall be dismissed for lack of service. Default shall enter as to defendants Carl Housen, Persio Rodriguez, and Victor Gomez. Within thirty days of this date, the plaintiff shall file and serve on each of those defendants a motion for assessment of damages and entry of default judgment and request for hearing on such motion. Failure to do so shall result in dismissal of the action as against those defendants for failure to prosecute, and entry of judgment of dismissal on all counts as against all defendants.