Jasmine Durham v. Arch Ins. Co. (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 129.01)

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff, Jasmine Durham, commenced this action by service of process against Arch Insurance Company (Arch) and Victoria DePaolo (the defendant) on April 15, 2008.   She named Murray O'Reilly (O'Reilly) and Hunter's Ambulance Service (Hunter's) as additional defendants on September 17, 2008, when she filed an amended complaint.   The operative complaint in the present action is the amended version filed by the plaintiff on May 27, 2010.   The three-count complaint alleges the following facts.

On or around April 26, 2006, the plaintiff was a passenger in a motor vehicle owned by Hunter's, driven by O'Reilly and covered by Hunter's automobile liability insurance policy with Arch. Hunter's policy with Arch also provided for uninsured/underinsured motorist coverage.   The motor vehicle occupied by O'Reilly and the plaintiff was stopped and waiting to merge with traffic at entrance ramp # 3 on I-91 northbound in New Haven when it was struck from behind by a motor vehicle driven by the defendant.   The defendant's motor vehicle was struck from behind by a motor vehicle operated by an unidentified hit-and-run driver.   The plaintiff sustained injuries as a result of the collision.   The following counts comprise the complaint.   Count one is against Arch and brought under the uninsured/underinsured motorist provision of Hunter's policy.   The plaintiff alleges that she is covered by the provision and that Arch is therefore liable for the damages attributable to the unidentified hit-and-run driver.   Count two is against the defendant and sounds in negligence.   The plaintiff added count three to the complaint after the defendant filed an apportionment complaint against O'Reilly and Hunter's on July 7, 2008.   Count three is against O'Reilly and Hunter's and sounds in negligence.

On March 1, 2010, the defendant filed a motion for permission to file a motion for summary judgment under Practice Book § 17-44 because the case had already been assigned for trial.   The motion for permission was accompanied by the proposed motion for summary judgment, a supporting memorandum of law and exhibits.   The court, Silbert, J., granted the motion for permission on March 15, 2010.   Arch then filed an objection to the motion and an accompanying memorandum of law on March 24, 2010.   The plaintiff likewise filed an objection to the motion and an accompanying memorandum of law on April 15, 2010.   The defendant filed memoranda in response to both objections on May 6, 2010.   The court heard the matter at short calendar on May 10, 2010.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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 ․ 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).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).  “[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 ․ [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.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

“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 ․ 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 ․” (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

In the present case, the defendant moves for summary judgment on the ground that there is no genuine issue of material fact that her motor vehicle was fully stopped when it was struck by the unidentified hit-and-run driver's motor vehicle.   She argues that she therefore was not negligent in the collision because her motor vehicle was not moving when it struck the motor vehicle occupied by O'Reilly and the plaintiff.   In support of the motion, the defendant submits an affidavit in which she avers that her motor vehicle was stopped behind the motor vehicle occupied by O'Reilly and the plaintiff when it was struck by the unidentified hit-and-run driver's motor vehicle.   She also avers that she had been “in the process of turning [her] head to observe oncoming traffic” when the collision occurred.¹

Arch opposes the motion by arguing that there is a genuine issue of material fact about whether the defendant's motor vehicle was fully stopped at the time of the collision.   In support of its opposition to the motion, Arch submits pages from the transcript of the defendant's January 14, 2010 deposition.   The defendant made the following statements during the deposition:

A.  The gentleman in front of me slammed on his brakes, I slammed on my brakes.   When I went to go around him after the car had stopped, I got hit from behind and pushed into his vehicle.   I stopped directly where the two vehicles met, and I didn't move until the police officer came ․

Q. After the car in front of you started to proceed on 1-91 and you were proceeding behind him, you said that the car in front of you came to a stop.

A. Yes.

Q. And then-I believe you said that you came to a stop?

A. Yes.

Q. So was your vehicle actually stopped -

A.  Yes.

Q. - for some time behind the vehicle before you went to turn by him?

A. Yes.

Q. How long-could you tell us how long your car was stopped behind vehicle number one?

A. Very briefly.   I don't know.   A matter of seconds.

Q. And why did you decide to go around vehicle number one?

A. Because he stopped and I was going to go around him.   I didn't know why he stopped ․

Q. How far away was the front end of your car from the rear of vehicle number one when you were stopped, before going around vehicle number one?

Def. DePaolo's Reply to Def. Arch's Opposition to Motion for Summary Judgment, Ex. A at 14;  Def. Arch's Opposition to Motion for Summary Judgment, Ex. D at 21-22.   Arch contends that the evidence presently before the court is an insufficient basis for the court to determine whether the defendant's motor vehicle was fully stopped or whether her conduct was negligent at the time of the collision.   Therefore, according to Arch, the existence of disputed factual issues should defeat the motion.   The plaintiff's opposition to the motion is nearly identical to Arch's opposition.

“Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotation marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).  “Summary judgment procedure is especially ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ․ [T]he conclusion of negligence is necessarily one of fact.”  (Citation omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).   The issue in the present case is whether the defendant was negligent because she breached her duty to drive her motor vehicle reasonably and safely.   In other motions for summary judgment brought by defendants in motor vehicle collision cases, courts have deemed affidavits similar to the defendant's affidavit in the present case to be sufficient for the purpose of initially showing that there is no genuine issue of material fact.   See Johnbatiste v. Granskog, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0186063 (October 21, 2002, D'Andrea, J.T.R.) (33 Conn.L.Rptr. 285);  Rivera v. Flynn, Superior Court, judicial district of Fairfield, Docket No. CV 95 0319280 (June 7, 1996, Moran, J.);   Siciliano v. Lenoue, Superior Court, judicial district of Stamford-Norwalk at Stamford, DocketNo.   CV 93013078 (January 12, 1994, Lewis, J.).

The court in the present case therefore directs its attention to the question of whether the nonmovants have met their respective burdens of demonstrating with contradictory evidence that there is indeed a genuine issue of material fact.   The plaintiff provides no such evidence in support of her opposition to the motion and instead relies only upon her argument that the defendant's evidence is insufficient.   The plaintiff has not met her burden, because “a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.  (Internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002).   Arch, however, does provide contradictory evidence in the form of pages from the transcript of the defendant's January 14, 2010 deposition.   In the exchange between Arch's counsel and the defendant, Arch's counsel distinguished when the defendant's vehicle was fully stopped from when the defendant attempted to drive around the motor vehicle occupied by O'Reilly and the plaintiff.   The defendant did not challenge the distinction.   There is no dispute that the defendant's motor vehicle was struck from behind by the unidentified hit-and-run driver's motor vehicle when the defendant attempted to drive around the motor vehicle occupied by O'Reilly and the plaintiff.

Viewing the evidence in the light most favorable to Arch, however, the court concludes that there is a factual dispute about whether the defendant's motor vehicle was stopped or moving when she made the attempt.   The defendant argues that the attempt only consisted of a look over her shoulder and a turn of her steering wheel while her motor vehicle was fully stopped.   Arch argues that the defendant may have started to drive her motor vehicle around the motor vehicle occupied by O'Reilly and the plaintiff when the collision occurred.   Arch's argument is supported by the content of the deposition transcript excerpts, because the distinction drawn by Arch's counsel, unchallenged by the defendant, between the defendant's act of stopping and her act of attempting to drive around the motor vehicle occupied by O'Reilly and the plaintiff suggests that the second act may have involved movement.  “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).   Whether the defendant's motor vehicle was stopped or moving when she attempted to drive around the motor vehicle occupied by O'Reilly and the plaintiff is a genuine issue of material fact that cannot be resolved in the present motion.   The court therefore denies the defendant's motion for summary judgment.

CONCLUSION

Accordingly, for the foregoing reasons, the defendant's motion for summary judgment is denied.

Wilson, J.

FOOTNOTES

FN1. The defendant has also submitted a copy of the police report chronicling the collision as an exhibit to the present motion.   Both Arch and the plaintiff objected to the copy of the report on the ground that it was neither certified nor accompanied by an affidavit.  “[B]efore a document may be considered by the court in support of a motion for summary judgment, ‘there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․’ Conn.Code Evid. § 9-1(a), commentary.”  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   In her reply memoranda to both oppositions, the defendant concedes that the copy of the police report is unauthenticated and therefore cannot support the present motion..  FN1. The defendant has also submitted a copy of the police report chronicling the collision as an exhibit to the present motion.   Both Arch and the plaintiff objected to the copy of the report on the ground that it was neither certified nor accompanied by an affidavit.  “[B]efore a document may be considered by the court in support of a motion for summary judgment, ‘there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․’ Conn.Code Evid. § 9-1(a), commentary.”  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   In her reply memoranda to both oppositions, the defendant concedes that the copy of the police report is unauthenticated and therefore cannot support the present motion.

Wilson, Robin L., J.