Opinion
12-P-1210
11-21-2014
JANICE SILVERIO, temporary guardian, & another v. LYDIA GENTILE & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Douglas and Joseph Homsi were injured when the car Douglas was driving on Blue Hill Avenue (Route 138) in Milton was struck head on by a sport utility vehicle (SUV) driven by Vittorio Gentile, Jr. (Junior), the grandson of defendants Vittorio and Lydia Gentile (the Gentiles). To recover for their injuries, Joseph, and Douglas through his guardian Janice Silverio, brought this action alleging negligence, negligent entrustment, agency, and negligent failure to secure a motor vehicle. A jury, on special questions, returned a verdict in favor of the plaintiffs and awarded a total of $12 million. The defendants filed a motion for judgment notwithstanding the verdict, which was allowed only as to Vittorio on the claim of negligent entrustment. This appeal ensued.
Douglas and Joseph Homsi are brothers who share the same surname. We use their first names for ease of reference.
As with the Homsi brothers, we use first names where necessary, and refer to the defendants' grandson as Junior for ease of reference.
Background. The jury could have found from the evidence that at the time of the accident, Junior was driving a Lexus SUV owned by the Gentiles. The Lexus was insured under an automobile insurance policy (policy) issued by Commerce Insurance Company (Commerce). The policy had been purchased through a local insurance agency, Pollicelli & Mullen, through William Mullen who was the Gentiles' insurance agent. Mullen also was a friend and a neighbor of the Gentiles. It is undisputed that Junior had a poor driving record and had been involved in at least two motor vehicle accidents prior to the accident at issue. One of those accidents involved a fatality. The Gentiles' insurance premiums rose as a result of Junior's driving history, and in 2004 the Gentiles decided to remove Junior from their policy. The change was made by Mullen, who had Lydia and Junior sign an "Operator Exclusion Form." At the time the form was executed, Mullen informed Lydia and Junior that Junior could no longer drive the vehicles insured under the policy. However, there was no dispute that Junior continued to drive the Gentiles' Lexus on occasion.
After the accident, Junior told one of the police officers who responded to the scene that he had come from his grandparents' beauty salon where he had been cleaning. The Gentiles, who were notified by the police of the accident, arrived at the scene to pick up Junior. The next morning, Lydia called Mullen and asked him to submit a claim to Commerce. Lydia relayed the version of events told to her by Junior, essentially that the other driver was at fault. Mullen took notes on his conversation with Lydia and made the report to Commerce on Lydia's behalf. Although Lydia did not expressly state that Junior was operating the Lexus with permission, Mullen understood from the conversation that Junior had permission and reported that fact to Commerce.
Commerce's claims department then requested a copy of the Operator Exclusion Form, which Mullen sent. Mullen testified that the next day he spoke to Lydia, who was upset and frantic after finding out that Junior had been charged with driving to endanger. During this conversation, Mullen testified, Lydia told him that she had to give her grandson the Lexus because he needed to drive his former wife, who was having a difficult pregnancy, to doctors' appointments. At trial, Lydia denied making that statement to Mullen and asserted that Junior had taken the Lexus and drove it without the Gentiles' permission.
Discussion. 1. Mullen's testimony. The crux of the Gentiles' argument on appeal is that the judge erred by denying their motion to strike Mullen's deposition testimony about his conversation with Lydia regarding Junior's use of the Gentiles' Lexus SUV. Mullen's deposition testimony was recorded and played at trial.
The Gentiles argue that Mullen's deposition testimony should have been excluded at trial because it was speculative and had no evidentiary value. They point to the fact that Mullen used words like "pretty sure" and "one way or another" in support for their position that the testimony was based on conjecture. They also argue that Mullen's inability at trial to recall his conversation with Lydia with specificity demonstrates that the testimony consisted of nothing more than "guess work."
The plaintiffs argue that any objection to this testimony was waived for failure to object to it during Mullen's videotaped deposition. The defendants counter in their reply brief that the ground rules set for the deposition permitted a continuing objection that was broad enough to cover this testimony. In light of the fact that we conclude that the admission of the testimony at issue was proper, we need not address this issue.
The defendants rely upon the following testimony solicited during Mullen's cross-examination at trial:
Q. "And at that time, you learned that [Junior] needed the car for something relating to his wife or girlfriend's pregnancy problems, right?"
A. "That's what was stated to me, yes."
Q. "But Lydia didn't say I gave him permission for that reason, she said he had the car for that reason, is that correct?"
A. "I can't recall the exact conversation."
Q. "So you can't recall what she said one way or the other?"
A. "That's correct."
Q. "You just recall that the need for him having the car dealt with something relating to Diane Cerro's pregnancy problems?"
A. "That's correct."
This argument is unavailing. Contrary to the cases on which the Gentiles rely, Mullen's testimony was not based on speculation or conjecture, but on his recollection of a conversation he had with Lydia. Mullen did not, as the Gentiles suggest, testify at his deposition that he suspected Lydia had given Junior permission to drive the car. Mullen testified that he had a conversation with Lydia in which she told him that she "had to give" her grandson the car so he could drive his former wife to doctors' appointments due to her troubled pregnancy. Furthermore, Mullen's testimony on cross-examination that he could not remember the details of his conversation with Lydia goes to the weight of the evidence and has no bearing on the admissibility of the deposition testimony.
2. Denial of the motions for directed verdict and judgment notwithstanding the verdict. Lydia argues that her motion for a directed verdict or subsequent motion for judgment notwithstanding the verdict on the claim of negligent entrustment should have been allowed because the only evidence that she entrusted her vehicle to Junior was the alleged erroneously admitted testimony of Mullen. As we have previously discussed, however, Mullen's testimony was properly admitted and provided an adequate basis for the jury's verdict. Accordingly, the motions for directed verdict and judgment notwithstanding the verdict were properly denied as to Lydia on this basis.
When considering a judge's denial of a motion for directed verdict or judgment notwithstanding the verdict, this court's task is to determine "whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff." Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972) (quotation omitted).
Next, Lydia argues that there was no evidence that she knew her grandson was an incompetent driver. See Peters v. Haymarket Leasing, Inc., 64 Mass. App. Ct. 767, 771 (2005) (entruster must have "actual knowledge" of unfitness of entrustee to sustain negligent entrustment claim). We disagree. There was ample circumstantial evidence demonstrating the Gentiles' actual knowledge of Junior's incompetent and dangerous driving, including Mullen's testimony that he told Lydia that Junior's driving record was one of the worst he had ever seen, and the Gentiles' subsequent decision to remove him as an operator as a result of the effect his poor driving record had on their insurance premiums.
The Gentiles argue that the orders denying their motion for a directed verdict and their motion for judgment notwithstanding the verdict should have been allowed as to the claim for liability under an agency theory under G. L. c. 231, § 85A, because the only evidence at trial supporting the claim of agency was Mullen's testimony which should have been struck. Again, as that evidence was properly admitted, the Gentiles' argument fails.
The statute provides:
"In all actions to recover damages for injuries to the person or to property or for the death of a person, arising out of an accident or collision in which a motor vehicle was involved, evidence that at the time of such accident or collision it was registered in the name of the defendant as owner shall be prima facie evidence that it was then being operated by and under the control of a person for whose conduct the defendant was legally responsible, and absence of such responsibility shall be an affirmative defence to be set up in the answer and proved by the defendant."Because the statute creates a presumption that Junior was operating the vehicle as their agent, it was the Gentiles' burden to prove the absence of their responsibility. See Mitchell v. Hastings & Koch Enterprises, Inc., 38 Mass. App. Ct. 271, 276 (1995).
Finally, the Gentiles argue that the evidence supporting the claim of negligent failure to secure the motor vehicle was insufficient to go to the jury because there was no evidence at trial that they knew Junior drove any of their vehicles from the time that he signed the Operator Exclusion Form to the time of the accident. We disagree. There was evidence that Junior did not live with the Gentiles, but they knew he had access to their car keys and frequently visited their home, sometimes when they were not there. Moreover, the Gentiles knew that Junior was going through a difficult period and wanted to drive their vehicle to bring his wife to doctors' appointments. This evidence provided a sufficient basis from which a jury could find that the Gentiles knew Junior had a propensity to use their vehicle without their permission.
Although this argument seems counter to the jury's finding that Junior used the vehicle with the Gentiles' permission implicit in the verdict for the plaintiffs on the other counts, there was no objection at trial or on appeal that the jury verdict was internally inconsistent.
Order partially denying motion for judgment notwithstanding the verdict affirmed.
Judgment, as modified affirmed.
By the Court (Vuono, Grainger & Agnes, JJ.),
Panel members appear in order of seniority.
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Clerk Entered: November 21, 2014.