Opinion
No. CV03-035117 S
July 28, 2005
MEMORANDUM OF DECISION
The plaintiffs filed a seven-count amended complaint against the defendants after Jone Sigovich sustained injuries as a passenger in a vehicle struck in the rear by a tractor-trailer traveling east bound on an interstate highway, I-84. Her husband, David Sigovich, claims derivative damages for loss of consortium. At the time of the accident, they allege in count three that Kunes, acting as an agent, servant and/or employee of Avery and/or Stoughton, operated a tractor-trailer owned by Avery and Stoughton. In count six, they allege that Kunes, acting as an agent, servant and/or employee of Haynes and/or Stoughton, operated a tractor-trailer owned by Haynes and Stoughton. Before the court is Stoughton's motion for summary judgment on the grounds that it leased only the trailer involved in the incident and neither employed Kunes nor maintained a relationship with Kunes or the owner of the tractor.
In counts one, two and thee, the plaintiffs allege claims for damages to Jone Sigovich against Avery, Kunes and Stoughton, respectively, on the factual allegation that Kunes, acting as an agent, servant and/or employee of Avery and/or Stoughton, operated a tractor-trailer owned by Avery and Stoughton. The plaintiffs, in counts four, five and six, allege claims for damages to Jone Sigovich against Haynes, Kunes and Stoughton, respectively, on the factual allegation that Kunes, acting as an agent, servant and/or employee of Haynes and/or Stoughton, operated a tractor-trailer owned by Haynes and Stoughton. Count seven is a claim against each defendant for damages to David Sigovich for loss of consortium. The plaintiffs subsequently withdrew the complaint with respect to Haynes.
Though the plaintiffs cite neither statutory provision in the complaint, Stoughton argues in its supporting memorandum of law that it avoids liability under the leasing liability provisions of § 14-154a of the General Statutes, while the plaintiffs argue in the opposing memorandum of law that Stoughton is liable under the presumption of agency found in § 52-183 of the General Statutes.
"Practice Book § 10-3(a) provides: `When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.' This section is directory rather than mandatory, and its primary purpose is to ensure that a defendant is sufficiently apprised of the applicable statute during the proceedings." Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn.App. 663, 671, cert. denied, 272 Conn. 912 (2005). "[F]ailing to [plead a statute in a complaint] will not necessarily bar recovery as long as the defendants are sufficiently apprised of the applicable statute during the course of the proceedings." (Internal quotation marks omitted.) Caruso v. Milford, 75 Conn.App. 95, 101, cert. denied, 263 Conn. 907 (2003). A review of Superior Court cases shows that courts have, under various circumstances, allowed claims relying on both §§ 52-183 and 14-154a to proceed even when the plaintiff has not specifically pleaded the statutes by number. See, e.g., Duperry v. Rodrigues, Superior Court, judicial district of New Haven, Docket No. CV 01 0278771 (May 5, 2004, Wiese, J.) (under § 52-183); Mitchals v. Russell, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 96 0335076 (June 17, 1998, Skolnick, J.) (same); Allison v. Brookshire, Superior Court, judicial district of New Haven, Docket No. CV 00 0443429 (April 8, 2003, Harper, J.) (under § 14-154a). The plaintiffs in the present action relied on § 52-183 in their memorandum of law in opposition to the motion for summary judgment and in oral argument before the trial court; that sufficiently apprised Stoughton that the plaintiffs were relying on the statute. See Spears v. Garcia, 66 Conn.App. 669, 676 (2001), aff'd, 263 Conn. 22 (2003).
Section 52-183 provides: "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." Meanwhile, pursuant to § 14-154a(a): "Any 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."
Along with an affidavit signed by its general counsel and secretary, Stoughton submitted a copy of an equipment lease agreement between Stoughton and Davy Express, Inc. (Davy), wherein Stoughton leased the subject trailer to Davy. The affidavit recites that the lessee had stopped making payments and continued to operate the trailer in violation of the lease. Stoughton also includes the answer filed by Kunes and Avery, wherein they admit that Avery owned the subject tractor and employed defendant Kunes, and a portion of a deposition of Jone Sigovich in which she recounts that Kunes had stated after the incident that the accident occurred when he leaned over to pick up his cellular telephone.
Relying on the evidence provided to the court, Stoughton maintains it is not subject to liability because Stoughton merely owned the attached trailer, while Kunes, an employee of Avery who has no relationship with Stoughton, caused the accident as the operator of the tractor. It points to language in paragraph ten (10) of the lease agreement between Stoughton and Davy stating that the equipment leased under the contract "shall be used and operated only by safe and licensed drivers to be employed by Lessee, said drivers to be, and to be deemed to be, agents of the Lessee only." Stoughton further argues it is not subject to liability under § 14-154a because Superior Court cases interpreting the statute do not interpret the word "motor vehicle" to include trailers.
The plaintiffs submit no opposing affidavits or countervailing evidence. They instead rely on the presumption of agency found in § 52-183 and provide Superior Court cases finding that a trailer constitutes a "motor vehicle" under the terms of the statute.
As Stoughton notes in its supporting memorandum of law, the claims against Stoughton are either based on (1) the allegation that Kunes served as an agent, servant or employee of Stoughton, which implicates agency presumption in § 52-183, and/or (2) the liability imposed under § 14-154a upon an owner for damage caused by a rented or leased motor vehicle.
Interpreting § 52-183, two Superior Court cases have determined that a trailer, once it is attached to a tractor, becomes a motor vehicle for the purpose of applying the statute. See Keels v. Henderson, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93 0133996 (January 5, 1995, Lewis, J.) ( 23 Conn. L. Rptr. 236); La Flamme v. Raymond, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 94 0461446 (September 7, 1994, Lavine, J.). Both decisions rely on Dennler v. Dodge Transfer Corp., 201 F.Sup. 431 (D.Conn. 1962), a United States District Court opinion applying § 52-183 to a trailer pulled by a tractor because "the term `motor vehicle' means any vehicle propelled or drawn by any power other than muscular . . . Once a trailer and tractor are attached and pulled over the highway by means of a motor, the trailer becomes an integral part of the unit and constitutes one motor vehicle." (Internal quotation marks omitted.) Id., 438.
In Dennler, the court specifically acknowledged arguments that a trailer may not meet the statutory definitions of a motor vehicle in § 14-1. Under § 14-1(a)(51), "`[m]otor vehicle' means any vehicle propelled or drawn by any nonnmuscular power . . ." Under § 14-1(a)(89), "`[t]railer' means any rubber-tired vehicle without motive power drawn or propelled by a motor vehicle." Notwithstanding the discrepancy, the Dennler court, interpreting the presumption of agency in § 52-183, purported, that "it should be noted that these statutory definitions are specifically limited to Chapter 246 of the General Statutes, which pertain to the administrative laws of the motor vehicle department . . ." Dennler v. Dodge Transfer Corp., supra, 201 F.Sup. 438. See also Keels v. Henderson, supra, 13 Conn. L. Rptr, 236 n. 3 ("The definitions for `motor vehicle' and `trailer,' which appear in . . . § 14-1(a) do not apply.").
The definitions in § 14-1(a) nonetheless apply to the statutory liability for leasing motor vehicles in § 14-154a, inasmuch as § 14-154a is found under Chapter 246. Stoughton maintains it is not subject to liability because a trailer is not considered a motor vehicle under the leasing statute. It cites two cases to support its argument. Berry v. Transport International Pool, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 96 0561150 (July 8, 1997, Sullivan, J.) ( 19 Conn. L. Rptr. 681); Barbarbula v. Eagle Leasing Co., Superior Court, judicial district of New Haven, Docket No. CV 02 0468969 (April 24, 2003, Gilardi, J.) ( 34 Conn. L. Rptr. 359). At least one Superior Court decision under § 14-154a, however, utilizes the Dennler opinion to "[find] that a tractor trailer is a `motor vehicle' within the terms of the statute, and that [an] action is maintainable as to the trailer owner and lessor." Kline v. Cannon, Superior Court, judicial district of New Haven, Docket No. CV 259937 (November 17, 1988, Burns, J.) ( 4 C.S.C.R. 5), cited in D. Wright, J. Fitzgerald W. Ankerman, Connecticut Law of Torts (3d Ed. 1991 Sup. 2002) § 66, Sup. 31. The result is a split in Superior Court decisions unresolved by appellate authority.
The court declines to take a position on whether a trailer constitutes a motor vehicle under §§ 14-154a or 52-183. The definition of a motor vehicle relates to the legal sufficiency of the cause of action, which Stoughton could have contested under a motion to strike. Instead, the court will focus on whether the plaintiffs have submitted authenticated evidence demonstrating the absence of any genuine issue of material fact.
The plaintiffs root the basis for the claims against Stoughton on the general principles of vicarious liability when they state in the complaint that Kunes was "the agent, servant and/or employee" of Stoughton. "The existence of agency is a question of fact to be determined by the trier of fact. Beckenstein v. Potter Carrier, Inc., 191 Conn. 120, 133 . . . (1983)." Gateway Co. v. DiNoia, 232 Conn. 223, 240 (1995). "Thus even where no evidence of agency is presented by the plaintiff the questions of fact exist because a jury is entitled to weigh the defendant's credibility and disbelieve the defendant's evidence." Izzo v. GMAC, Superior Court, judicial district of New Haven, Docket No. CV 01 0453550 (May 28, 2004, Corradino, J.) (37 Conn. L. Rprt. 181, 182) (applying Beckenstein to actions specifically under §§ 52-183 and 14-154a). In rare instances, agency may be determined as a matter of law when no reasonable juror could find actual or implied agency under the circumstances. Hallas v. Boehmke Dobosz, Inc., 239 Conn. 658, 674 (1997). When a statutory scheme permits a finding of an agency relationship, the issue of whether an agency relationship actually exists becomes a question of fact. Connecticut Air Service, Inc. v. Danbury Aviation Commission, 211 Conn. 690, 697 (1989).
Connecticut's "so-called agency statute, § 52-183, generally precludes the direction of a verdict for the defendant on the basis of the plaintiff's failure to establish agency . . . The statute creates the presumption that the operator of a car is the agent of the owner, and it places the burden of rebutting the presumption on the owner. Since the existence and scope of permission is a matter peculiarly within the knowledge of the defendant, the strict rule that any testimony contra ousts the presumption would seem to operate unfairly, since it may enable the defendant to overcome the effect of the presumption by a simple assertion that no consent was ever given. Indeed, as Chief Justice Maltbie noted in Koops v. Gregg, 130 Conn. 185, 187 . . . [1943], the statute goes further than merely establishing a presumption in that it definitely places a burden of rebutting it on the defendant. Thus, the presumption does not necessarily vanish on the introduction of any evidence to the contrary. Rather, [t]he presumption ceases to be operative when the trier finds proven facts which fairly put in issue the question, and the burden of proving that the car . . . was operated by an agent of the owner . . . then rests upon the plaintiff; if no evidence relevant to the issue is produced, or, if 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." (Citation omitted, internal quotation marks omitted.) Bogart v. Tucker, 164 Conn. 277, 281-82 (1973). See also Felsted v. Kimberly Auto Services, Inc., 25 Conn.App. 665, 670, cert. denied, 220 Conn. 922 (1991).
"Clearly, the only basis on which [a] defendant . . . could succeed in [an] effort to secure a directed verdict, that is, to remove the issue from the jury's consideration, would involve rebuttal evidence of such a nature that it could not rationally be disbelieved." Bogart v. Tucker, supra.
"While, to the court's knowledge, no appellate court in our state has addressed whether summary judgment is appropriate when § 52-183 of the General Statutes is asserted, several Superior Court decisions have considered whether the existence of the statutory presumption precludes summary judgment. There is a split of authority within the Superior Court as to this question." Crawford v. Coleman, Superior Court, judicial district of Hartford, Docket No. CV 04 0831039 (February 10, 2005, Shapiro, J.) (38 Conn. L. Rptr 701, 703). See also Fletcher v. Stoleson, Superior Court, complex litigation docket at Stamford-Norwalk at Stamford, Docket No. X05 CV 00 0177740 (March 11, 2002, Rogers, J.) ( 31 Conn. L. Rptr. 518); Curran v. Duncan, Superior Court, judicial district of Danbury, Docket No. CV 98 0333456 (October 25, 2000, Adams, J.) ( 28 Conn. L. Rptr. 640), and cases cited therein.
Stoughton maintains that its lease agreement with Davy, which states that the equipment must be used and operated by drivers "employed by Lessee" and deemed to be "agents of the Lessee only," removes any genuine issue regarding whether Kunes operated as an agent of Stoughton. Avery and Kunes admit an employer-employee relationship, argues Stoughton, and the accident occurred as a result of Kunes's negligence, not a mechanical defect with the trailer.
Though the terms of the lease agreement are strong evidence in support of the defendant's contention that an agency relationship did not exist, the evidence is not so overwhelming that the presumption set forth in § 52-183 vanishes in its face. See Crawford v. Coleman, supra, 38 Conn. L. Rptr. 703. "The statutory presumption created by § 52-183 is not one which is rebutted by the mere offer of substantial countervailing evidence." Torres v. Dellaghelf, Superior Court, judicial district of Waterbury, Docket No. CV 125808 (March 20, 1996, Pellegrino, J.). "The fact that the plaintiff[s] presented no evidence to support [their] theory of agency does not preclude the issue from being decided by a jury." Engram v. Kraft, 83 Conn.App. 782, 789 (2004).
However paragraph ten indicates that drivers are to be deemed agents of the lessee only, it may also be argued that Stoughton asserted a degree of direction or control over the relationship, as paragraph ten continues: "Lessee shall require its drivers to use and operate the Equipment with reasonable care and to use every reasonable precaution to prevent loss or damage to any Equipment because of fire, theft, collision, or any other reason, and to prevent injury to third persons or property of third persons. At no time may any Equipment be loaded beyond the gross weights recommended by the manufacturer or allowed by government laws or regulations." A lease agreement between Stoughton and Davy, moreover, falls short of a factual basis upon which no rational juror could disbelieve a relationship existed between Stoughton and Avery, or Stoughton and Kunes. Stoughton also provides evidence that an employer-employee relationship existed between Kunes and Avery, and it asserts that the accident occurred as a result of the negligence of Kunes. Similarly, however, an employer-employee relationship between Avery and Kunes does not remove the possibility of a relationship between Stoughton and Avery or Kunes. In addition, Stoughton has not submitted evidence That would explain why it is not liable as a lessor under § 14-154a as the owner of the trailer involved in the incident. See D. Wright, J. Fitzgerald W. Ankerman, § 66, p. 174 ("[A]n automobile lessor's statutory liability under . . . § 14-154a is not subject to contractual limitation.").
In light of the split in authority concerning whether summary judgment is appropriate under § 52-183, together with the split in authority with respect whether a trailer is a motor vehicle in the context of § 14-154a, the court finds the foregoing issues of material fact are best determined by a jury with the full aid of the surrounding facts and circumstances. Accordingly, Stoughton's motion for summary judgment is denied.
Howard J. Moraghan, Judge Trial Referee