Opinion
No. CV04 040 94 34 S
September 30, 2005
MEMORANDUM OF DECISION
Before this court is the defendant Milford Gateway, Inc.'s motion for summary judgment as to count one of the plaintiff's complaint.
On September 8, 2004, the plaintiff, Nicholas F. Saglimbene, filed a two-count revised amended complaint against the defendants, Joseph G. Baghdady and Milford Gateway, Inc. (Gateway). This action arises out of injuries and losses allegedly sustained on August 6, 2002 as a result of a collision between Saglimbene and Baghdady at the intersection of Elm Street and Purdy Hill Road in Monroe, Connecticut.
Count one alleges negligence on the part of Baghdady, the operator of the vehicle that collided with Saglimbene due to his failure to exercise reasonable care. Count one also alleges vicarious liability on the part of Gateway as the owner of the vehicle who permitted Baghdady to drive the motor vehicle as its agent, servant or employee. Count two alleges Baghdady's operating of said motor vehicle in violation of General Statutes §§ 14-222, 14-218a, and 14-227 deliberately or with reckless disregard, seeking multiple damages under § 14-295.
On June 7, 2005, Gateway moved for summary judgment as to count one, accompanied by a memorandum in support. On July 12, 2005, Saglimbene filed a memorandum in opposition. Gateway filed two further memorandums. Saglimbene filed a supplemental memorandum.
Baghdady did not move for summary judgment.
Gateway also filed Baghdady's answer to their request for admission, affidavit of Gateway's general manager Douglas Anderson, the daily rental agreement between Baghdady and Acura of Milford, an unauthenticated copy of Baghdady's insurance declarations page, an uncertified and unauthenticated deposition of Baghdady, and the affidavit of Gateway's office manager Chrisse Elmazi. Not all of the admitted evidence will be admissible. See New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).
Saglimbene also filed the daily rental agreement between Baghdady and Acura of Milford, affidavit of Saglimbene, and a copy of the police report.
"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." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "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) . . . "The courts hold the [summary judgment] movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.
When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2005).
"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. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
Gateway moves for summary judgment as to count one on the grounds that pursuant to General Statutes § 14-60(a) Gateway cannot be held liable for the acts or omissions of Baghdady. In support of the motion, Gateway argues that General Statutes § 14-60(a) provides immunity from liability for automobile dealers and repairers who loan a car to an insured driver while that driver's car is under repair. They argue that the undisputed material facts satisfy the requirements under the statute. They assert that there is no genuine issue of material fact concerning Baghdady's operation of a loaner vehicle that he received from Gateway because his car was undergoing repairs at Gateway. They also assert that Baghdady had liability and property damage insurance both at the time he signed the renter/loaner agreement and at the time of the accident.
Saglimbene counters that he has not alleged a cause of action against Gateway under General Statutes § 14-60(a) and therefore Gateway would not be held liable under § 14-60(a). He further argues, in the case of a motor vehicle, there is a statutory presumption of agency pursuant to General Statute § 52-183 and § 14-60 does not negate common law and statutory causes of action against the owner of a vehicle loaned to another. He also argues that there are several questions of fact sufficient to defeat the motion for summary judgment. He argues that there is a question of fact as to which form of two different forms, of a renter/loaner agreement, was signed by Baghdady. He also claims there is an issue of fact whether Baghdady rented or loaned the motor vehicle from Gateway. Saglimbene also points out that the copy of the signed daily rental agreement is between Acura of Avon and Acura of Milford and Baghdady while the owner of the car Baghdady was driving is Milford Gateway, Inc. He, therefore, asserts that the entity that rented the car to Baghdady is different from the one that owned the car. He finally states that General Statutes § 14-154a addresses the liability of a renter or lessor of an automobile and makes him liable to the same extent as the operator would have been if he had also been the owner. He argues there is a question of material fact as to whether General Statutes § 14-154a is applicable to the alleged facts.
General Statutes § 14-60(a) provides, in relevant part, that "[n]o dealer or repairer may loan a motor vehicle or number plate or both to any person except for the purpose of demonstration of a motor vehicle, or when a motor vehicle owned by or lawfully in the custody of such person is undergoing repairs, or when such person has purchased a motor vehicle, the registration of which by him is pending . . . provided such person shall furnish proof to the dealer or repairer that he has liability and property damage insurance which will cover any damage to any person or property caused by the operation of the loaned motor vehicle, motor vehicle on which the loaned number plate is displayed or both. Such person's insurance shall be the prime coverage. If the person to whom the dealer or repairer loaned the motor vehicle or the number plate did not, at the time of such loan, have in force any such liability and property damage insurance, such person and such dealer or repairer shall be jointly liable for any damage to any person or property caused by the operation of the loaned motor vehicle or a motor vehicle on which the loaned number plate is displayed."
In Cook v. Collins Chevrolet, Inc., 199 Conn. 245, 249-50, 506 A.2d 1035 (1986), the Connecticut Supreme Court examined the language, history and applicability of General Statute § 14-60 as it applied to an automobile dealer lending a dealer license plate to a purchaser of a motor vehicle. The court held that where a dealer or repairer complies with § 14-60 and where the borrower has insurance, that the dealer or repairer is not liable for damage which may be caused as a result of the borrowed license plate. Id., 248-51. Although Cook did not specifically address General Statute § 14-60 as it applied to a dealer or repairer who may loan a motor vehicle to a person, as opposed to a loan of just a license plate, the statute explicitly applies to both the loan of a motor vehicle and the loan of a maker plate.
Several superior court judges have agreed and interpreted Cook to hold that "under § 14-60, an automobile dealer will be liable to an injured person only if he lends a car to someone who is uninsured." CT Page 13258 Caccomo v. Parziale, Superior Court, judicial district of Middlesex, Docket No. CV 02 0097746 (January 29, 2003, Aurigemma, J.) ( 33 Conn. L. Rptr. 731).
See also Berube v. MG Imports, Inc., Superior Court, judicial district of New Britain, Docket No. CV 03 0521466 (February 14, 2005, Berger, J.) ( 38 Conn. L. Rptr. 749); Carey v. D'Elia Pontiac, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 0319121 (December 4, 1996, Levin, J.); Garfield v. Mason, Superior Court, judicial district of Litchfield, Docket No. CV 93 0061794 (October 22, 1993, Pickett, J.) ( 8 C.S.C.R. 1242) ( 10 Conn. L. Rptr. 277).
In the present case, the court should grant the motion for summary judgment as to count one because the requirements under General Statute § 14-60 have been satisfied. In Baghdady's answers to Saglimbene's request for admissions and in the affidavits of Gateway's general manager Douglas Anderson and office manager Chrisee Elmazi it is asserted that Baghdady borrowed the motor vehicle owned by Gateway because his own motor vehicle was undergoing repairs at Gateway. Saglimbene asserts that it is a material issue as to whether Baghdady loaned or rented the vehicle. He has, however, not provided any admissible evidence to support his argument and to rebut Gateway's supporting affidavits. Although the agreement is called a rental agreement, the affidavit of Elmazi states that nothing was paid for the use of the car. No evidence has been submitted that would raise a "genuine" issue that the use of the car was anything other than a loaner vehicle to be used while Baghdady's car was being repaired. Saglimbene also argues that a material issue of fact is present as to whether Gateway or Acura of Milford is the owner of the motor vehicle that Baghdady was driving at the time of the accident. The affidavits of Anderson and Elmazi both state that Gateway does business as Acura of Milford. Saglimbene has not provided any admissible evidence to refute Gateway's position. Saglimbene also argues that in the case of the loan of a motor vehicle, there is a statutory presumption of agency pursuant to General Statute §§ 52-183 and 14-60 does not negate common law and statutory causes of action against the owner of a vehicle loaned to another. "Section 14-60, [however], being more specific, prevails over General Statutes § 52-183." Carey v. D'Elia Pontiac, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 0319121 (December 4, 1996, Levin, J.)
General Statues § 52-183 provides, in relevant part, that "[i]n 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 . . ."
Gateway asserts that at the time it loaned the motor vehicle to Baghdady, he had Nationwide liability and property insurance that would cover any damage to any person or property caused by the operation of the loaned vehicle. Saglimbene has not challenged or rebutted this assertion.
Accordingly, the motion for summary judgment in favor of Gateway as to count one of the plaintiff's complaint is granted, as Gateway has satisfied the requirements of General Statutes § 14-60(a) and therefore is protected from liability.
SKOLNICK, J.