Opinion
No. CV-04-0485317S
March 11, 2005
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #110
On December 31, 2003, the plaintiff, Anthony Lewis, filed a three-count complaint against the defendants, Carle M. Rodgers, Marvin O. Collins and Dairyland Insurance Company (Dairyland) aka Sentry Insurance a Mutual Company. This action arises out of injuries, losses and damages sustained by the plaintiff as a result of a two-car collision.
In count one, the plaintiff alleges a negligence claim against Rodgers due to the fact that while she was driving an automobile, she failed to stop at a stop sign, and, "in doing so collided with the plaintiff's automobile . . ." In count two, the plaintiff alleges that Collins is liable for the negligence of Rodgers because Rodgers was operating a car owned by Collins and, thus, was an agent of Collins. In count three, the plaintiff alleges that, at the time of the accident, he was insured by Dairyland under a policy that provided uninsured/underinsured motorist coverage and, thus, Dairyland is obligated to him under the law for all the injuries and losses he sustained as a consequence of the accident.
On February 11, 2004, Collins filed an answer and two special defenses. In his answer, Collins denies the plaintiff's allegations that Rodgers was operating the vehicle as his agent and that he was in any way liable for the injuries sustained by the plaintiff. In addition, in his second special defense, Collins asserts that he bears no responsibility for the plaintiff's injuries because Rodgers did not have his permission to operate the vehicle and was not acting "in pursuit of any business or activity of the defendant, Marvin O. Collins."
On August 26, 2004, Collins filed a motion for summary judgment, accompanied by a memorandum in support. In support of his motion, Collins submitted the following evidence: (1) his own signed and sworn affidavit, (2) a copy of the police report from the accident, and (3) a certified copy of the deposition of Rodgers.
Collins is the only defendant who filed the motion for summary judgment at hand.
Collins has not submitted an affidavit authenticating the police report. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). The police report does not, however, contain any information relevant to the issue presented by Collins' motion for summary judgment. Therefore, its consideration has no impact on the court's ruling on this motion.
Dairyland filed a memorandum of law in opposition to the motion on December 16, 2004. It did not submit any evidence in support. The plaintiff has not filed an opposition to the motion.
The court heard argument on the Short Calendar list of December 20, 2004.
I. Summary Judgment
A "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 . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). A material fact has been defined as a fact "which will make a difference in the result of the case." (Internal quotation marks omitted.) Williams v. Best Cleaners, Inc., 237 Conn. 490, 500 n. 11, 677 A.2d 1356 (1996). "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary matter." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).
Collins moves for summary judgment as to the plaintiff's claim against him (count two) on the ground that there are no genuine issues of material fact and he is entitled to judgment as a matter of law because Rodgers was not acting as his agent at the time of the accident. Although Collins does not dispute that his car was involved in the accident with the plaintiff he specifically argues that Rodgers did not have his permission to operate his vehicle.
Collins argues that, on the day of the accident he was at Rodgers' apartment, and Rodgers took his keys while he was asleep and without asking for his permission to use the car. Therefore, according to Collins, Rodgers should not be considered to be his agent or servant, and he should not be liable for the injuries and damages the plaintiff suffered as a result of the accident.
Dairyland objects to the motion arguing that summary judgment is inappropriate in cases such as this one in which the question of whether the driver had the owner's permission to use the vehicle remains unresolved.
II General Statutes § 52-183: Presumption of agency in motor vehicle operation
"As a threshold matter, [General Statutes] § 52-183 provides that in any action for damages brought against the nonoperator owner of a motor vehicle for the negligent or reckless operation of [that] motor vehicle, the operator of the motor vehicle shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment . . . Section 52-183 . . . provides that the defendant, that is, the owner of the vehicle, bears the burden of rebutting the presumption. With respect to the latter provision, [t]his court has repeatedly held that our statute goes further than merely establishing a presumption, in that it expressly places upon the defendant the burden of introducing evidence to rebut the presumption created by the statute. Moreover, that presumption is not ousted simply by the introduction of any evidence to the contrary." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 837, 836 A.2d 394 (2003). "The presumption ceases to be operative [only] when the trier finds proven facts which fairly put in issue the question . . . [I]f countervailing evidence is produced but the trier does not believe it, the presumption applies, and the plaintiff is entitled to have the issue found in his favor." (Internal quotation marks omitted.) Id., 837-38.
"In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption." General Statutes § 52-183.
In this case, in his affidavit Collins admits that he is the owner of the automobile, and he denies that Rodgers had his permission to drive his car. In Rodgers' deposition, she testifies that she took Collins' car without first asking for his permission. In Bogart v. Tucker, 164 Conn. 277, 282-83, 320 A.2d 803 (1973), the court was presented with evidence of a similar nature testimony of the defendant owner, the defendant driver and the police officer to whom the driver gave a statement after the accident. In their testimony, these individuals indicated that the driver did not have the owner's permission to use the vehicle involved in the accident. The Supreme Court concluded that the evidence was not sufficient to rebut the presumption that the owner was liable for the driver's negligence and, thus, the trial court's ruling denying the driver's motion for a directed verdict was appropriate. The court explained that "[i]t is the function and exclusive province of the jury to pass on the credibility of witnesses . . . [T]he defendant asks this court to substitute its own judgment concerning the credibility of witnesses for that of the jury . . . This court has never arrogated to itself such a power." (Citations omitted.) Id. In addition, the court reasoned, "[b]ecause the jury were at liberty to disbelieve the defendant's testimony, and further because the evidence was such that the statutory presumption would preclude the direction of a verdict against the plaintiff the jury's verdict as to the defendant . . . must stand." Id., 283. As interpreted by the Appellate Court, "[a] defendant's testimony that he had never granted consent for use of his vehicle apparently was not the type of evidence that the Bogart court intended to fall within the category of that which could not rationally be disbelieved . . . Rather, such evidence likely would have to demonstrate that it was all but impossible for the defendant to have consented to the use of his vehicle." (Citation omitted; internal quotation marks omitted.) Engram v. Krafi, 83 Conn.App. 782, 788, 851 A.2d 363 (2004).
Similarly, in the present case, the court should not be the one deciding the issue of credibility of the statement of Collins and Rodgers in the context of a motion for summary judgment. This job should be left to the trier of fact. "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original; internal quotation marks omitted.) Id. To grant the motion for summary judgment under § 52-183, the rebuttal evidence must be "of such a nature that it could not rationally be disbelieved." Bogart v. Tucker, supra, 164 Conn. 282.
The evidence submitted by Collins is simply not of the kind that a jury "would not be at liberty to disbelieve." The affidavit is not reliable because it is a statement made by Collins, an interested party. "`Self-serving affidavits of moving parties are insufficient to support a motion for summary judgment.' (Internal quotation marks omitted.) Limestone v. Reilly, Superior Court, judicial district of New Haven, Docket No. CV 02 0459818 (July 24, 2003, Gilardi, J.)." Cavalier v. Bank One NA., Superior Court, judicial district of New Haven, Docket No. CV 03 0480474 (November 5, 2004, Skolnick, J.). Moreover, a party's conclusory statements, in an affidavit may 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).
It is especially appropriate to hold an affidavit submitted by a moving party to a stringent standard. Evans Products Co. v. Clinton Building Supply Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978). Rodgers' deposition testimony could also be reasonably questioned because there is evidence that there is some kind of a relationship between Collins and Rodgers, thus, taking away from the credibility of the deposition testimony. It also does not matter that Dairyland did not submit any evidence to prove an agency relationship between Collins and Rodgers because even "if countervailing evidence is produced but the trier does not believe it, the presumption applies, and [nonmovant] is entitled to have the issue found in his favor." (Internal quotation marks omitted.) Matthiessen v. Vanech, supra, 266 Conn. 838. The presumption actually ceases to exist only after the trier of fact has decided that the defendant's evidence is credible, and only then does the burden to produce evidence shift to the party opposing the motion for summary judgment. Engram v. Kraft, supra, 83 Conn.App. 788-89.
III. Conclusion
For the foregoing reasons, the court finds that a genuine issue of material fact exists as to whether Rodgers had Collins' approval to drive his car. Therefore, the motion for summary judgment is denied.
Lopez, J.