Opinion
No. CV 08 5009444
June 18, 2009
MEMORANDUM OF DECISION
The plaintiff, Katherine Stein, alleges the following facts. On January 28, 2007, her husband, Wayne Lacredo, was a passenger in an Audi driven by John Geise. That night, as a result of John Geise's negligence, the Audi collided with another car in Groton, Connecticut. Wayne Lacredo sustained severe injuries in the accident and died as a result.
In count XVI of the plaintiff's revised complaint, she alleges that the defendant, LeasePlan USA, Inc., is vicariously liable for her husband's death because it owned the Audi driven by John Geise with the defendant's general permission. In count XVII of her revised complaint, the plaintiff seeks loss of consortium damages relating to the death of her husband.
On January 30, 2009, the defendant filed a motion to strike counts XVI and XVII of the plaintiff's revised complaint on the ground that the plaintiff failed to allege that the John Geise was acting as the agent or servant of the defendant at the time of the accident and that absent any theory of liability for the death of the plaintiff's husband, her claim of loss of consortium must also fail. The plaintiff filed an objection to the defendant's motion to strike on May 12, 2009. On May 13, 2009, the defendant filed a reply to the plaintiff's objection and on May 22, 2009, the plaintiff filed a surreply in opposition to the defendant's motion to strike.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
"It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988). "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).
"[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
In its memoranda of law in support of its motion to strike, the defendant argues that while General Statutes § 52-183 creates the rebuttable presumption that the driver of a vehicle involved in an accident was acting as the agent of the vehicle's owner, the plaintiff's revised complaint is legally insufficient in that she fails to allege that § 52-183 applies in this case and she has not alleged any facts that would, if proven, establish an agency relationship between the defendant and John Geise. The defendant also argues that a mere allegation of ownership of a vehicle involved in an accident is insufficient to establish a legally sufficient claim of liability for injuries caused by the vehicle's operation. The defendant further argues that because the plaintiff has not pled a legally sufficient cause of action regarding the defendant's liability for the underlying accident, the court should also strike the plaintiff's loss of consortium claim.
In her memoranda in objection to the defendant's motion to strike, the plaintiff argues that count XVI of her revised complaint contains a legally sufficient cause of action in that she has alleged that the defendant owned the Audi driven by John Geise at the time of the accident, John Geise drove the Audi with the defendant's permission, and his negligent operation of the Audi caused the accident that killed her husband. As such, the plaintiff argues that the statutory presumption of agency expressed in § 52-183 has been triggered and her claim is legally sufficient because defendant is vicariously liable for John Geise's negligence.
General Statutes § 52-183 provides that "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." Our Supreme Court has stated that "by its plain terms, the sole purpose of § 52-183 is to shift the burden of adducing evidence regarding an agency relationship between the owner and the operator of a vehicle from the plaintiff to the defendant: unless the defendant introduces persuasive evidence that no agency relationship exists, the plaintiff need not present any evidence to prove it but, instead, may rely entirely on the statutory presumption. From the standpoint of the plaintiff, the obvious benefit of establishing an agency relationship stems from the fact that, under the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment . . . In the absence of a relationship between the owner and the operator of a motor vehicle such that the liability of the operator is imputed to the owner, either by statute or at common law, a plaintiff has no recourse against the owner. Section 52-183 does nothing more than create a rebuttable presumption of such a relationship between the owner and the operator of a motor vehicle, namely, an employer-employee relationship, which, under the common-law principle of respondeat superior, renders the owner vicariously liable for compensatory damages arising out of the negligent and reckless conduct of the operator." (Citations omitted; emphasis added.) Matthiessen v. Vanech, 266 Conn. 822, 839-40, 836 A.2d 394 (2003).
The presumption of operator agency, once triggered, remains in effect until the defendant introduces evidence that rebuts that presumption. Our Supreme Court has stated that "[s]ection 52-183 . . . provides that the defendant, that is, the owner of the vehicle, bears the burden of rebutting the presumption . . . [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 . . . The 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."(Citations omitted; internal quotation marks omitted.) Engram v. Kraft., 83 Conn.App. 782, 787, 851 A.2d 363 (2004).
General Statutes § 52-183 creates the presumption that the operator of a vehicle involved in an accident, if he or she is not the owner, was acting as the agent of the owner at the time of the accident. This presumption, unless rebutted, renders the vehicle's owner vicariously liable for any tortious conduct on the part of the vehicle's operator. To rebut this presumption, the vehicle's owner must introduce evidence which puts the issue of agency in question for the trier of fact. However, in deciding a motion to strike, the court is limited to the facts as they are alleged in the complaint. Zirinsky v. Zirinsky, supra, 87 Conn.App. 268 n. 9. As such, if § 52-183 is operative in this case, the defendant cannot, at this time, introduce any additional evidence not found in the complaint that would rebut the statutory presumption of agency and its motion to strike must be denied.
The defendant, in its memoranda of law in support of its motion to strike, argues that General Statutes § 52-183 does not apply in the present case because the plaintiff has not pleaded any facts that establish an agency relationship between John Geise and the defendant. We disagree. In Trichilo v. Trichilo, 190 Conn. 774, 780, 462 A.2d 1048 (1983), our Supreme Court held that a complaint need not explicitly allege that the operator of a vehicle was acting as the agent of the vehicle's owner to trigger the statutory presumption of agency provided by § 52-183 and present a legally sufficient cause of action. There, the court stated "General Statutes § 52-183 creates a presumption that the operator of a motor vehicle is the `agent and servant of the owner of such motor vehicle and operating the same in the course of his employment, and the defendant shall have the burden of rebutting such presumption.' In referring to the parallel presumption raised by the `family car' doctrine as set forth in General Statutes § 52-182, we have held that it is not essential, where the complaint states the facts which make the statutory presumption of agency applicable, to allege that fact expressly . . . What is necessarily implied need not be expressly alleged . . ." (Citations omitted; internal quotation marks omitted). Id.
Several Connecticut Superior Court decisions have similarly held that a plaintiff need not specifically allege facts that would prove agency to trigger the statutory presumption provided by § 52-183 . White Pellegrini v. Pellegrini, Superior Court, judicial district of New Haven, Docket No. 06 5004181 (December 28, 2006, Skolnick, J.T.R.); Castro v. Altra Auto Rental, Superior Court, judicial district of Waterbury, Docket No. 0100092 (April 16, 1991, Byrne, J.), Blake v. New England Survey Service, Inc., 17 Conn.Sup. 48 (1950). In each of those cases, the court held that the plaintiff was not required to plead facts that demonstrate an agency relationship to advance a legally sufficient cause of action against a vehicle owner so long as they have alleged that the operator and owner of the vehicle involved in the accident are separate entities.
The authorities cited by the defendant in its memoranda in support of its motion to strike are distinguishable from the issues raised in the present case. In Schimmelpfennig v. Cutler, 65 Conn.App. 388, 783 A.2d 1033 (2001), the Appellate Court held that because the plaintiff conceded that there was no agency relationship between the vehicle operator and the vehicle owner, the trial court properly granted the defendant's motion for a directed verdict. In the present case, the plaintiff has made no such concession in her complaint that the court could consider in ruling on the defendant's motion to strike.
The holdings in the two other cases cited by the defendant, Olekinski v. Filip, 129 Conn. 701, 30 A.2d 912 (1943); Knapp v. Chamberlain, 5 Conn.Sup. 97 (1937), were both delivered after the case had proceeded to trial and the defendant had adduced evidence that rebutted the statutory presumption of agency. In the present case, the court is limited to the facts alleged in the complaint and the defendant has not yet had the opportunity to submit any evidence which would rebut the statutory presumption of agency created by § 52-183. The type of evidence submitted in those cases is simply unavailable in considering this motion to strike.
In the present case, the plaintiff has alleged in her complaint that the Audi operated by John Geise at the time of the accident was, in fact, owned by the defendant and that John Geise operated the Audi in a negligent manner. Having pleaded that the operator and the owner of the vehicle were separate entities, the plaintiff has triggered the presumption of agency provided by General Statutes § 52-183 and may rely upon this presumption until the defendant presents evidence to the contrary. Because the defendant is presumed to be vicariously liable for John Geise's allegedly negligent operation of the Audi, the plaintiff's complaint advances a legally sufficient cause of action and the defendant's motion to strike count XVI of the plaintiff's complaint is denied.
Because the plaintiff's complaint does contain a legally sufficient basis for finding the defendant liable for the death of her husband, the plaintiff's loss of consortium claim is also legally sufficient. The defendant's motion to strike count XVII of the plaintiff's complaint is denied.