Opinion
No. CV 00 0443429
April 8, 2003
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #115
Whether the court should grant the defendant's motion for summary judgment on the ground that the defendant lessor is not liable to the plaintiff pursuant to Connecticut General Statutes § 14-154a because the driver of the vehicle at the time of the accident was not an authorized driver? The defendant's motion for summary judgment should be granted because there are no genuine issues of material fact as to whether Sean Brookshire was an authorized driver of the vehicle at the time of the accident.
Facts
The plaintiff, Lolitha Allison, filed a three-count complaint on September 21, 2000, against the defendants, Sean Brookshire, Timothy Cooney and Danby's Renting and Leasing doing business as Ugly Duckling Rent A Car (Danby's). Counts one and two allege negligence claims against Brookshire and Cooney, respectively. Count three alleges a claim against Danby's purportedly under General Statutes § 14-154a.
The plaintiff does not specifically cite § 14-154a in count three as required by Practice Book § 10-3.
The plaintiff alleges that she was injured when the automobile that she was driving was struck from behind by a vehicle operated by Brookshire. The plaintiff further alleges that the vehicle driven by Brookshire had been leased from Danby's by Cooney and that Brookshire was operating the leased vehicle with Cooney's permission.
On December 5, 2000, Danby's filed an answer to the plaintiff's complaint and asserted a special defense alleging that Danby's "is not liable to the plaintiff because the subject vehicle was not operated by a driver authorized under the lease." On October 23, 2002, Danby's filed a motion for summary judgment on the ground that there are no genuine issues of material fact as to whether Brookshire was an authorized driver.
Discussion CT Page 5163
"The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Practice Book § [17-49] provides that summary judgment shall be rendered forthwith 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. 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 . . ." (Citations omitted, internal quotation marks omitted.) Gaynor v. Payne, 261 Conn. 585, 590-91, 804 A.2d 170 (2002). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "As the party moving for summary judgment, the movant is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, supra, 231 Conn. 796. The opposing party " must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Emphasis in original; internal quotation marks omitted.) Mytych v. May Dept. Stores Co., 260 Conn. 152, 264 n. 8, 793 A.2d 1068 (2002). "When a party moves for summary judgment and there are no contradictory affidavits the court shall decide the motion only by looking at the sufficiency of the moving party's affidavits along with other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).Danby's argues in support of its motion for summary judgment that pursuant to § 14-154a, the owner of a leased vehicle can only be liable for the injuries to a third party caused by the tortious conduct of the lessee, or an authorized driver. Danby's further argues that Brookshire was not named on the leasing agreement and is not an authorized driver under the terms of the lease. In support of its motion, Danby's has submitted the following: a memorandum of law; a certified affidavit of Milt Smedberg, the manager of Danby's, along with a copy of the lease agreement (Exhibit A); a request for admissions to Cooney to which he did not reply (Exhibit C); and a request for admissions to Brookshire, to which he did not respond (Exhibit B).
Smedberg attests that the lease agreement is a true and accurate copy.
Cooney had not responded to Danby's request for admissions at the time that Danby's filed its motion for summary judgment, and Danby's relied on the provision of Practice Book § 13-23 that "[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). . . the party to whom the request is directed files and serves . . . a written answer or objection . . ." The court file, however, contains Danby's notice of filing of a request for admissions, which was only filed on November 18, 2002. Cooney filed his responses to Danby's request on December 5, 2002. These admissions, therefore, will be considered in deciding Danby's motion for summary judgment.
Brookshire never entered an appearance and was subsequently defaulted for failure to appear. Practice Book § 10-12 requires that pleadings subsequent to the complaint be served upon parties who have entered an appearance; service of pleadings on parties who have failed to appear is only required when the pleading asserts new or additional claims for relief against the non-appearing party. See 10-12 (b). Thus, the request for admissions sent to Brookshire, although not responded to within thirty days, will not be deemed admitted and will not be used by this court in determining Danby's motion for summary judgment.
The plaintiff has filed only a memorandum of law in opposition to Danby's motion. The plaintiff argues that there is a question of fact as to whether the lease agreement is a valid contract and further argues that because she has not yet deposed Danby, Cooney or Brookshire, the record contains too much conjecture as to what the facts are.
General Statutes § 14-154a provides that "[a]ny 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." Section 14-154a "[imposes] on one who rents or leases a motor vehicle to another the same liability as that of its operator, provided the vehicle, at the time in question, is being operated by one in lawful possession of it pursuant to the terms of the contract of rental." (Emphasis in original; internal quotation marks omitted.) Pedevillano v. Bryon, 231 Conn. 265, 268, 648 A.2d 873 (1994). "The statute does not, in its terms, preclude a lessor from imposing reasonable restrictions on the identity of those to whom it is willing to entrust its property and for whose conduct it is willing to assume risk. In the cases in which we have found a basis for enforcing statutory liability, the tortfeasor invariably has been found to have been a person who had possession of the vehicle in accordance with the lease agreement." Id., 270.
The cover page of the lease agreement between Danby's and Cooney lists Cooney as the customer. In a section that reads "Customer will not under any circumstances surrender the use of the Rented Vehicle to any person other than those listed below or in Paragraph 1 of Page 1," the only name entered is Michelle Cooney. Paragraph 1 of Page 1, titled Driver, states the following: "In no event shall the vehicle be used, operated or driven by any person other than (1) Customer, or (2) qualified licensed drivers over 21 years of age who have Customer's advance permission to use the Vehicle, and are (a) members of Customer's immediate family and permanently residing in Customer's household, (b) the employer, partner or an executive officer of Customer, or (3) qualified licensed drivers over 21 years of age whose names appear on Page 2 hereof. A valid driver's license for each potential driver must be presented."
The uncertified deposition testimony of Michelle Colona (formerly Cooney) submitted by Danby's as an attachment to a memorandum filed in reply to the plaintiff's memorandum of opposition indicates that Michelle Colona was married to Timothy Cooney at the time that the lease agreement was executed and at the time of the subject accident. Although not relied upon by the court, the deposition of Colona further corroborates Cooney's responses to the request for admissions. Colona testifies that Cooney never gave Brookshire permission to use the car, Brookshire was not living with Cooney at the time of the accident, and is not a family member.
As has been previously noted, the Supreme Court in Pedevillano stated that § 14-154a "does not preclude a lessor from imposing reasonable restriction on the identity of those to whom it is willing to entrust its property and for whose conduct it is willing to assume risk." The restrictions of the leasing agreement under discussion in Pedevillano were not unlike those in the present case. Danby's motion for summary judgment, therefore, turns on whether Brookshire was an authorized driver under the terms of the leasing agreement between Danby's and Cooney.
In his responses to Danby's request for admissions, Cooney admits that he did not give Brookshire permission to use the car, that Brookshire was not a member of his immediate family, did not permanently reside in Cooney's house and was not Cooney's employer, partner or executive officer. (Cooney's Responses to Plaintiff's Request For Admissions, Pleading #119, ¶¶ 3-5.) Based upon these admissions and the lease agreement Brookshire was not an authorized driver of the vehicle.
Although the plaintiff has alleged in her complaint that Brookshire was in lawful possession of the vehicle pursuant to the terms of the rental contract, the plaintiff has not provided any evidence to prove this allegation. The plaintiff relies on her argument that the lease is invalid; however, that argument is conclusory, and "[c]onclusory statements, in the affidavits and elsewhere . . . do not constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996). Because the plaintiff has failed to file any affidavits or other evidence to establish the existence of a genuine issue of material fact, this court decides the motion for summary judgment by looking at the sufficiency of Danby's proof. See Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, supra. Danby has provided the language of the leasing agreement as well as Cooney's admissions to meet its burden of proof that there is no genuine issue of fact as to Brookshire's lack of authorization to drive the vehicle leased by Cooney. This court finds that evidence sufficient to prove that there exists no genuine issue of material fact, and that Danby is entitled to judgment as a matter of law. Danby's motion for summary judgment is hereby granted.
Harper, J.