Opinion
No. HHB CV 03 0522605-S
July 6, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #108.50
I. FACTS PROCEDURAL BACKGROUND
On August 7, 2003, the plaintiff, Alexia Vento, filed a one-count complaint against the defendant, Safeco Insurance Company of America (Safeco), alleging that the defendant has a duty under automobile insurance policy #CK0600337 (the policy) to provide the plaintiff with underinsured/uninsured motorist coverage for injuries and losses sustained by the plaintiff as a passenger in a motor vehicle accident. The policy, which was in effect on the date of the accident, was issued by the defendant to the plaintiff's parents, John and Rita G. Vento, and named the plaintiff as an insured family member.
The complaint alleges that on August 26, 2000 the plaintiff sustained injuries while riding as a passenger in a 1991 Plymouth (the vehicle) operated by Brenda Karwoski, (Karwoski) an unlicensed and uninsured motorist, when the vehicle collided with a telephone pole guide wire. The vehicle was owned by one Bruce Blackman and was insured by Safeco. At the time of the accident, Karwoski was a roommate of Ivy Blackman, the daughter of the vehicle's owner. The defendant denied coverage under Bruce Blackman's policy on the ground that Karwoski was not authorized to operate the vehicle.
On September 3, 2002, the plaintiff filed a civil action against Karwoski, the vehicle operator, and Bruce Blackman, the vehicle owner. On August 15, 2005, the court, Robinson, J., granted a motion to consolidate both that action with the instant matter. Trial is scheduled to commence on July 11, 2006.
On January 24, 2006, the defendant filed a motion for permission to file a motion for summary judgment, which was granted by the court, Robinson, J. On that same date, the defendant filed its motion for summary judgment, accompanied by a memorandum of law and the following exhibits: (A) a certified copy of the insurance policy issued to the Ventos; (B) a copy of pages 1 (the cover page), 15-17 and 60 (the certification page) of the plaintiff's deposition dated September 24, 2002; (C) a copy of pages 1 (the cover page), 19 and 43 (the certification page) of the plaintiff's deposition; (D) a copy of pages 17-18 of the plaintiff's deposition dated September 24, 2002; (E) a copy of page 39 of the plaintiff's deposition dated September 24, 2002; (F) a copy of pages 19-20 of the plaintiff's deposition dated June 7, 2005; (G) a copy of pages 32-33 of the plaintiff's deposition dated June 7, 2005; (H) a copy of pages 12-13, 19 and 23 of the plaintiff's deposition dated September 24, 2002, as well as pages 31-32 of the plaintiff's deposition dated June 7, 2005; (I) a copy of page 37 of the plaintiff's deposition dated September 24, 2002; (J) a copy of pages 1 (the cover page), 19-22 and 97 (the certification page) of Karwoski's deposition dated July 22, 2003, and page 40 of the plaintiff's deposition dated September 24, 2002; (K) a copy of the policy report; (L) a copy of page 43 of the plaintiff's deposition dated September 24, 2002; (M) a copy of pages 43 and 47 of the plaintiff's deposition dated September 24, 2002, as well as page 23 of the plaintiff's deposition dated June 7, 2005; (N) a copy of pages 25-26 of the plaintiff's deposition dated June 7, 2005; (O) a copy of page 27 of the plaintiff's deposition dated June 7, 2005; (P) a copy of page 28 of the plaintiff's deposition dated June 7, 2005; (Q) a copy of pages 53-54 of plaintiff's deposition dated September 24, 2002 and pages 29-30 of the plaintiff's deposition dated June 7, 2005; and (R) a copy of page 53 of the plaintiff's deposition dated September 24, 2002.
On April 11, 2006, the plaintiff filed an objection to the defendant's motion for summary judgment, accompanied by a memorandum of law and the following evidence: (1) a copy of the insurance policy; (2) a copy of pages 1-43 of the plaintiff's deposition dated July 7, 2005; (3) a copy of pages 44-46 of Karwoski's deposition dated July 22, 2003. Thereafter, on May 1, 2006, the defendant filed a "reply to plaintiff's opposition to motion for summary judgment." Oral argument was held before the court on that date. Thereafter, on May 15, 2006, the plaintiff filed a "response to defendant's reply in support of its motion for summary judgment."
II. STANDARD OF REVIEW
"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." (Citations omitted.) 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 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." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005).
"[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [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." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
III. DISCUSSION
The defendant moves for summary judgment on the ground that there is no genuine issue of material fact, and that, based on the evidence submitted, the exclusionary clause of the insurance policy precludes the plaintiff from recovering for bodily injury as a matter of law. The policy language cited by the defendant states as follows: "We do not provide Uninsured/Underinsured coverage for bodily injury sustained by any person . . . (3) [u]sing a vehicle without a reasonable belief that that person has permission to do so." (Emphasis in original.) The Connecticut courts employ a two-prong test to determine whether an insured has a reasonable belief that he or she has permission to use the vehicle: first, the court examines the insured's subjective belief and, if the court finds that such subjective belief exists, the court determines whether the subjective belief is, in fact, reasonable. See, e.g., Metropolitan Property Casualty Ins. Co. v. Espach, 313 F.Sup.2d 109, 114 (D.Conn. 2004). As to whether the belief is reasonable, the guidelines used by the court in Nicholas v. Amica Mutual Ins. Co., supra, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 94 047942 (April 4, 2002, Moran, J.) ( 32 Conn. L. Rptr. 82, 87), are illuminating and provide as follows: "1) whether the driver had express permission to use the vehicle; 2) whether the driver's use of the vehicle exceeded the permission granted; 3) whether the driver was `legally' entitled to drive under the laws of the applicable state; 4) whether the driver had any ownership or possessory right to the vehicle; and 5) whether there was some form of relationship between the driver and the insured, or one authorized to act on behalf of the insured, that would have caused the driver to believe he was entitled to drive the vehicle." (Internal quotation marks omitted.)
The defendant contends that even if the court assumes that the plaintiff had a subjective belief that Karwoski had permission to drive the vehicle, such belief was not reasonable as a matter of law because the plaintiff knew that Karwoski did not have a license, did not own the vehicle and did not have express permission to drive the vehicle. Accordingly, the defendant maintains that it is entitled to judgment as a matter of law.
The plaintiff argues that there are, at a minimum, three genuine issues of material fact in the case before the court: (1) whether Karwoski had permission to drive the vehicle; (2) whether the plaintiff had a subjective belief that Karwoski had permission to drive the vehicle; and (3) whether such subjective belief was reasonable. The plaintiff further contends that it is inappropriate to grant summary judgment unless the five factors enumerated by the court in Nicholas v. Amica Mutual Inc. Co., supra, 32 Conn. L. Rptr. 87, negatively reflect upon the driver and that such is not the case in the instant matter. Accordingly, the plaintiff maintains that the court must deny the motion.
Before addressing the arguments of the parties, the court notes that the vast majority of the exhibits submitted by the parties are copies of certified documents with no original certification page or other verification of their authenticity. Several of the documents are referred to as "certified copies." However a copy of a certified document is not the same as a certified copy of a document. Normally, "only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005). "However, our Supreme Court has stated that parties may `knowingly waive compliance with the procedural provisions of the Practice Book relating to motions for summary judgment.' Krevis v. Bridgeport, 262 Conn. 813, 824, 81 A.2d 628 (2003). Also, our Supreme Court has stated, `[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency.' Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003) . . . [W]here each party has asked the court to consider uncertified documents, and no objection was raised on that basis to their consideration, the court, in the exercise of its discretion, has reviewed the exhibits submitted by each side." Fabrizio v. Bristol Housing Authority, Superior Court, judicial district of New Britain, Docket No. CV 05 5000208 (October 21, 2005, Shapiro, J.); see Barlow v. Palmer, 96 Conn.App. 88, 92 (2006) ("In interpreting the rules liberally, the deposition testimony could have been admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists particularly where, as here, both parties submitted uncertified deposition transcripts."). Here too, both parties have submitted uncertified documents and neither party has objected to the consideration of such documents. In that there has been no objection raised, the court will, in the exercise of its discretion, consider those portions of the deposition testimony which are uncertified along with the other documents submitted that are not originals in the interest of judicial economy and fairness.
Note Practice Book § 1-8 which provides: "The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice."
As noted above, the parties have made several references to deposition testimony. "While the plaintiff's deposition testimony is not conclusive as a judicial admission . . . it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." (Citation omitted.) Collum v. Chapin, 40 Conn.App. 449, 450 n. 2, 671 A.2d 1329 (1996); see Worcester Ins. Co. v. Bacon, Superior Court, judicial district of Tolland, Docket No. 95 059047 (February 21, 1997, Hammer, J.T.R.) ( 19 Conn. L. Rptr. 54). In the present case, the defendant has presented evidence of the following facts, which the plaintiff does not dispute or has not contradicted: (1) on August 26, 2000, after an evening of dancing with friends, the plaintiff met Karwoski at approximately 2:00 a.m. in front of a church; (2) at that time, Karwoski told the plaintiff that the vehicle she was driving belonged to her roommate, Ivy Blackman; (3) at no time on August 26, 2000 did the plaintiff see or hear Ivy Blackman or Bruce Blackman give Karwoski permission to use the vehicle; (4) the plaintiff knew, and had known for some time, that Karwoski did not have a valid operator's license, but nevertheless got into the vehicle; (5) shortly thereafter, Karwoski drove through a stop sign and hit the guide wires of a telephone pole; (6) the plaintiff, though injured, got out of the vehicle, but Karwoski urged her to get back into the vehicle and the plaintiff did so; (7) thereafter, the plaintiff and Karwoski left the scene of the accident; (8) Karwoski told the plaintiff sometime after the accident that she did not have permission to use the vehicle.
As noted previously, the vehicle actually was owned by Bruce Blackman, Ivy's father.
A. Definition of the Term "Use" in the Insurance Policy
The exclusionary clause of the plaintiff's policy precludes an insured from recovering where such individual is "[u]sing a vehicle without a reasonable belief that that person has permission to do so." However, the policy fails to define the term "using." In considering the motion, the court must determine whether the term "using," applies to a passenger in a vehicle or if it refers exclusively to the operator.
"In ascertaining the meaning of the terms of the [insurance] policy, [the courts] . . . are guided by well established principles [of contract law.]" Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 399, 757 A.2d 1074 (2000). "[C]onstruction of a contract of insurance presents a question of law for the court . . ." (Internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 462, 876 A.2d 1139 (2005). "It is the role of this court to construe contracts based on the actual language of the policy." Id., 470.
In the context of automobile insurance policies, the term "use" is defined broadly by our Supreme Court and is applicable, not only to the operator, but also to the passenger of an automobile. Aetna Life Casualty Co. v. Bulaong, 218 Conn. 51, 63, 588 A.2d 138 (1991) (the term "use" is broader than operation and, therefore, it is possible to use an automobile without being the actual operator). Therefore, the court finds that the policy's exclusionary clause bars recovery by passengers, as well as drivers, where such individuals do not have a reasonable belief that they have permission to use the vehicle.
B. Permission to Use the Vehicle
In the present case, there has been no material evidence presented that Karwoski had expressly received permission from the owner to drive the vehicle. Nor has there been any evidence presented that Karwoski represented to the plaintiff that she had permission to drive the vehicle on the evening of August 26, 2000. Further, there is no evidence that the plaintiff herself had the owner's permission to use the vehicle either as a passenger or operator. The plaintiff, however, argues that express permission is unnecessary and that there was implied permission in the present case.
"Because the language of the insurance policy does not limit such permission to that which is expressed and specific, actual permission may be `implied from a course of conduct known to and acquiesced in by the named insured.' Tomasetti v. Maryland Casualty Co., 117 Conn. 505, 507, 169 A. 54 (Conn. 1933). Implied permission may be found where there is a course of conduct consisting of a `prolonged, frequent, and habitual use [of the subject vehicle where the owner] was with knowledge and acquiescence.' [ Id., 508.] Moreover, an owner's grant of permission to one person may be broad enough so as to authorize that person to grant permission to a third party to operate the vehicle. [ Id., 509.]" Metropolitan Property Casualty Ins. Co. v. Espach, 313 F.Sup.2d 109, 113 (D.Conn. 2004).
The plaintiff summarizes, in her response memorandum, the undisputed evidence concerning Karwoski's previous use of the vehicle: "(a) Ms. Karwoski previously drove the plaintiff in Ms. Blackman's car after obtaining the keys while both Ms. Karwoski and Ms. Blackman were in the same house and Ms. Karwoski expressly indicated to plaintiff she had permission to do so . . .; (b) Ms. Karwoski and Ms. Blackman were good friends . . .; (c) Ms. Karwoski had driven Ms. Blackman's vehicle with plaintiff on a previous occasion . . .; (d) Ms. Karwoski drove Ms. Blackman's vehicle on several other occasions." The plaintiff also presented evidence of Karwoski's use on the evening of August 26, 2000: "(e) on the night of the accident, Ms. Karwoski picked up plaintiff in Ms. Blackman's vehicle and told plaintiff she and Ms. Blackman were `hanging out' that night . . .; (f) Ms. Karwoski never stated to plaintiff that Ms. Blackman did not give her permission to drive before the accident; and (g) plaintiff never stated that she knew Ms. Karwoski did not have permission to drive the vehicle." (Citations omitted.) The plaintiff points to Karwoski's prior use of the vehicle on other occasions well prior to August 26, 2000 as evidence of implied permission. The deposition transcript referred to by the plaintiff provides no evidence of any express permission from either Ivy or Bruce Blackman to Karwoski (or the plaintiff) to use the vehicle on August 26, 2000. That evidence, absent more, is too speculative to support the position that Karwoski had implied permission to operate the vehicle that evening. It cannot be said that Karwoski's or the plaintiff's course of conduct was one that constituted a prolonged, frequent or habitual use of the owner's vehicle with the owner's knowledge or acquiescence. Nonetheless, the issue remains as to whether the plaintiff had a subjective belief that either she or Karwoski had permission to use the vehicle.
The evidence does show that at least on one occasion prior to August 26, 2000 the plaintiff was in the presence of Karwoski when they departed with the vehicle from Blackman's residence with Karwoski driving. Moreover, in the wee hours of August 26, 2000, Karwoski spoke to the plaintiff, invited her to meet her at the church, and then offered her a ride in the vehicle which she indicated belonged to her roommate Ivy Blackman. However, there is no evidence that the plaintiff or Karwoski had express permission to use the vehicle. At best, her prior experience with Karwoski at the Blackman residence, coupled with Karwoski's comments on August 26, 2000, could have led plaintiff to the plausible belief that Karwoski had implied permission to operate the vehicle, and by extension, offer the plaintiff a ride. Reading the motion before the court most favorably to the non-movant, it is plausible that the plaintiff had a subjective belief that both Karwoski and she had implied permission to operate or use the vehicle.
C. Reasonable Belief
Even if the plaintiff subjectively believed she had permission to use the vehicle, the court must still also determine whether that belief was objectively reasonable. See Metropolitan Property Casualty Ins. Co. v. Espach, supra, 313 F.Sup.2d 114. As noted, there are five factors that the court considers in determining whether an individual had a reasonable belief that he or she had permission to use the vehicle in question: "1) whether the driver had express permission to use the vehicle; 2) whether the driver's use of the vehicle exceeded the permission granted; 3) whether the driver was `legally' entitled to drive under the laws of the applicable state; 4) whether the driver had any ownership or possessory right to the vehicle; and 5) whether there was some form of relationship between the driver and the insured, or one authorized to act on behalf of the insured, that would have caused the driver to believe he was entitled to drive the vehicle." (Internal quotation marks omitted.) Nicholas v. Amica Mutual Ins. Co., supra, 32 Conn. L. Rptr. 87. The court recognizes that ordinarily a determination of reasonableness is question for the finder of fact; see Worcester Ins. Co. v. Bacon, supra, 19 Conn. L. Rptr. 55; however, "summary 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., supra, 265 Conn. 815.
In the case before the court, the undisputed evidence demonstrates that none of the five factors are satisfied. First, there is no evidence that: (1) Karwoski ever received express permission to operate the vehicle (either in or outside of the plaintiff's presence); (2) Karwoski ever had permission to use the vehicle on the night of the accident; or that (3) the plaintiff herself ever had express permission to use the vehicle on the night of the accident. Additionally, there is no reasonable basis to find that Karwoski or the plaintiff had implied permission to drive or use the vehicle. Second, because Karwoski did not have permission to drive in the first place, the second factor set forth in Nicholas v. Amica Mutual Ins. Co., supra, 32 Conn. L. Rptr. 87, relative to the scope of her permission to operate the vehicle cannot be met. Third, Karwoski was not legally entitled to drive the vehicle under the laws of Connecticut because she did not have a valid operator's license at the time of the accident. Furthermore, the plaintiff knew that Karwoski did not have her license and yet still elected to ride in the vehicle with her. Fourth, neither Karwoski nor the plaintiff had any ownership interest in the vehicle. Finally, no familial relationship existed between Bruce Blackman, the owner of the vehicle, and Karwoski, nor did such relationship exist between Bruce Blackman and the plaintiff. Also, the relationship between Karwoski and the plaintiff as friends was insufficient to cause the plaintiff to believe she was entitled to use the vehicle. Accordingly, the court finds that even if the plaintiff had a subjective belief that she had permission to use the vehicle, and believed that Karwoski had permission to drive it, such belief was not reasonable given the circumstances of this case.
The court notes that if Karwoski had permission from Ivy Blackman to drive the vehicle, such permission might have satisfied the first prong of the test, even though Ivy Blackman was not the vehicle's owner. See Vine v. Watson, Superior Court, judicial district of New Britain, Docket No. CV 02 0513581 (December 10, 2003) (denying the plaintiff's motion for summary judgment on its declaratory judgment action). In Vine, the vehicle in question, a Dodge Neon, was owned by Donna J. Vine. However, Vine's daughter Durenda Moss-Vine had been given virtually exclusive control over the Neon and allowed her friend, Kevin Vos, to drive the Neon. In opposition to the summary judgment motion, the defendant, who was the administratrix of Vos' estate, argued that Moss-Vine gave Vos permission to use the vehicle and that "Vos had implied permission from the Vines to drive the Neon because the Vines gave Moss-Vine unfettered control of the Neon, which made it reasonably foreseeable that Moss-Wine would allow other people to drive the automobile." Vine v. Watson, supra, Superior Court, Docket No. CV 02 0513581. In the present case, the plaintiff has relied on Vine to support her argument that the motion must be denied. However, the court finds that Vine is distinguishable from the present action because there is no evidence here that the plaintiff had permission from anyone to use the vehicle, nor had Karwoski been given unfettered control of the vehicle. In fact she ultimately acknowledged to the plaintiff that she did not have permission to operate it: "Ivy doesn't know I have her car." (Plaintiff's Exhibit 2, p. 23.)
While finding there is no genuine issue of material fact as to the reasonableness of plaintiff's belief based on the facts presented and the language of the policy's exclusionary clause, "[t]he court [also] note[s] . . . the public policy against awarding recovery to a participant in unlawful activity, particularly where the unlawful activity is a major factor in causing the injury which is the basis for the claim . . . [T]he established purpose of the uninsured motorist law [is] to provide protection to innocent victims of financially irresponsible drivers." (Citations omitted; internal quotation marks omitted.) Nicholas v. Amica Mutual Ins. Co., supra, 32 Conn. L. Rptr 87; see Harvey v. Travelers Indemnity Co., 188 Conn. 245, 250, 449 A.2d 157 (1982) ("The public policy embodied in [the uninsured] statutes `favors indemnification of accident victims unless they are responsible for the accident.'"). In this case, the plaintiff cannot be said to be an innocent victim as she willingly entered a motor vehicle that she knew was being operated illegally. It could not be reasonable for the plaintiff to believe or infer that the owner of the vehicle would consent to it being operated illegally. Awarding relief or coverage to one who knowingly used a vehicle operated by an unlicensed driver contradicts the purpose of the law which is to protect innocent victims. Such a result would be against common sense and public policy which obligates those who operate or use motor vehicles in the state to comply with all laws governing their operation or usage.
IV. CONCLUSION
Viewing the evidence in the light most favorable to the nonmovant, the court finds that summary judgment is appropriate in the present case as a fair and reasonable person could conclude only one way. The plaintiff's belief that she had permission to use the vehicle and that Karwoski had permission to drive the vehicle was unreasonable. Although plaintiff was a named insured, the language of the exclusionary clause of the insurance policy precludes coverage of the plaintiff's claim. Based on the foregoing, the defendant's motion for summary judgment is granted on the ground that there is no genuine issue of material fact and the defendant is entitled to judgment as a matter of law.