Erin Deane v. Brie Hurd et al. (2011)

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (# 123, # 127) SHORT CALENDAR NOVEMBER 14, 2011

ISSUE

The issue before the court is whether to grant defendant Zeller Tire Company, Inc.'s motions for summary judgment on the ground that there is no genuine issue of material fact in that the defendant is immune from liability pursuant to General Statutes § 14–60.

I

FACTS

This memorandum of decision addresses two motions for summary judgment, identical in argument, filed in companion cases.¹  For purposes of these motions for summary judgment, Erin Deane and Richard Perrigo will collectively be referred to as “the plaintiffs.”

On May 3, 2011, plaintiff Richard Perrigo filed a third amended complaint alleging negligence against Brie Hurd, Erin Deane and Zeller Tire Company, Inc. On May 5, 2011, plaintiff Erin Deane filed an amended complaint alleging negligence against Brie Hurd, Richard Perrigo and Zeller Tire Company, Inc. (“Zeller”).²

Both complaints allege the same relevant facts.   On or about August 14, 2008, Perrigo was operating, and Deane was a passenger in, a motor vehicle owned by Deane.   On said date, Hurd was operating a motor vehicle owned by Zeller.   The motor vehicle being operated by Hurd collided with the rear of the motor vehicle carrying the plaintiffs.   The complaints allege that the vehicle owned by Zeller was operated by Hurd as an agent and/or servant of Zeller and within the general scope of Hurd's authority to do so pursuant to General Statutes § 52–183 and/or the vehicle was operated as a rented motor vehicle within the meaning of General Statutes § 14–154a.

Zeller filed an answer and special defense, asserting immunity under General Statutes § 14–60.   Zeller alleges that the vehicle being driven by Hurd was on temporary loan while her car was in the possession of Zeller for repairs, and Hurd had furnished proof to Zeller that she had liability and property damage insurance which would cover any damage to any person or property caused by the operation of the loaned vehicle.   The plaintiffs filed respective replies, denying all material allegations contained in Zeller's special defense.

On June 29, 2011, Zeller filed the present motions for summary judgment along with supporting memoranda of law and evidentiary support.   Zeller argues that it is entitled to summary judgment on the ground that there is no genuine issue of material fact in that it is immune from liability under General Statutes § 14–60.   Perrigo and Deane filed an opposition to the motion for summary judgment on August 9, 2011, and August 10, 2011, respectively.   Zeller filed reply memoranda on September 27, 2011.

II

DISCUSSIONASummary Judgment Standard

“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.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the 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.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

B

Parties' Arguments

Zeller moves for summary judgment on the ground that there is no genuine issue of material fact that it is immune from liability under General Statutes § 14–60.   According to Zeller, General Statutes § 14–60 precludes liability because Hurd's vehicle was temporarily in the custody of Zeller for repairs, Zeller provided a vehicle to Hurd for her temporary use while her car was being repaired, the loaning of the car was pursuant to a written agreement for a temporary loan, and Zeller documented and confirmed that Hurd had valid insurance to cover any claims for personal injury or property damage.   Zeller asserts that General Statutes § 14–60 has been interpreted to mean that “that if the person to whom the vehicle is loaned has no insurance, the dealer is jointly liable for the vehicle's operation.   However, if the person to whom the vehicle is loaned had insurance, the dealer is not liable at all.”   As support for this proposition, Zeller cites to Cook v. Collins Chevrolet, Inc., 199 Conn. 245, 249–52, 506 A.2d 1035 (1986).   Furthermore, Zeller argues that superior court decisions interpreting the statute have determined that any technical defect in compliance with the statute will not cause the imposition of vicarious liability on the vehicle loaner, i.e., Zeller, so long as the person taking the loaner vehicle has insurance.

In support of its arguments, Zeller submits the affidavit of David Zeller, the corporate secretary of Zeller, as well as copies of the documents referenced therein, i.e., an agreement entitled “Temporary Loan of Motor Vehicle,” and a photocopy of Hurd's driver's license and insurance card.

In opposition, the plaintiffs argue that there are genuine issues of material fact concerning whether Zeller is immune from liability under General Statutes § 14–60 because Zeller was not in strict compliance with the statute.   Specifically, the plaintiffs contend that the loaned vehicle was owned by Zeller and had passenger plates, as opposed to dealers' or repairers' plates, as required by the statute.   According to the plaintiffs, the misuse of the passenger plate raises a genuine issue of material fact which would not entitle Zeller to a judgment as a matter of law.

The plaintiffs also argue that Zeller's reliance on Cook is misplaced because, in that case, our Supreme Court found that “the trial court ․ correctly decided that ․ Collins was entitled to summary judgment because of its full compliance with the conditions of § 14–60.”  Cook v. Collins Chevrolet, Inc., supra, 199 Conn. 252.   Moreover, the plaintiffs contend that Cook is distinguishable on its facts and stands only for the proposition “that when a motor vehicle dealer has sold a new vehicle to a party, and that vehicle bears the dealer's license plate while the purchaser is operating it, awaiting completion of an initiated motor vehicle registration process, § 14–60 will protect the dealer from liability.”   Finally, the plaintiffs argue that the plain language of General Statutes § 14–60 states directly, and by implication, that Zeller's liability insurance is secondary or excess.

In support of their arguments, the plaintiffs submit certified copies of the department of motor vehicle records pertaining to the subject motor vehicle, as well as an unauthenticated copy of the temporary loan agreement.

In reply, Zeller argues the use of a private passenger license plate, as opposed to a dealers' or repairers' plate, is not in violation of the statute.

C

Analysis

General Statutes § 14–60, “specifically applies to loans made by a dealer or repairer to a customer whose car is currently being repaired by that dealer or repairer.”  Stein v. Lee, Superior Court, judicial district of New London, Docket No. CV 08 5009444 (April 1, 2010, Cosgrove, J.) (49 Conn. L. Rptr. 581).  General Statutes § 14–60(a) provides in relevant part:  “No 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, and in any case for not more than thirty days in any year, 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.   Each dealer or repairer shall keep a record of each loaned number plate showing the date loaned, the vehicle identification number of the vehicle on which such plate is displayed, the date returned and the name, address and operator's license number of the person operating any vehicle with such loaned number plate.”

“In Cook v. Collins Chevrolet, Inc., 199 Conn. 245, 252, 506 A.2d 1035 (1986), our Supreme Court examined the statutory liability of an automobile dealer when a vehicle bearing a loaned dealer's plate was involved in an accident.   The dealer there had loaned the plate only after the driver had furnished proof of insurance.   Accordingly, the court held that [the dealer] was entitled to summary judgment because of its full compliance with the conditions of § 14–60 ․ Though the court did not specifically address loans of motor vehicles, the statute explicitly applies to both loans of motor vehicles and loans of license plates.   Consequently, a number of Superior Court decisions have 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.”  (Citation omitted;  internal quotation marks omitted.)  Stein v. Lee, supra, 49 Conn. L. Rptr. 581;  see Saglimbene v. Baghdady, Superior Court, judicial district of Fairfield, Docket No. CV 04 0409434 (September 30, 2005, Skolnick, J.) (40 Conn. L. Rptr. 63);  Berube v. M & G Imports, Inc., Superior Court, judicial district of New Britain, Docket No. CV 03 0521466 (February 14, 2005, Berger, J.) (38 Conn. L. Rptr. 749);  Caccomo v. Parziale, Superior Court, judicial district of Middlesex, Docket No. CV 02 0097746 (January 29, 2003, Aurigemma, J.) (33 Conn. L. Rptr. 731).

In the present case, in his affidavit, David Zeller attests that the vehicle was temporarily loaned to Hurd for use while her personal vehicle was in for service at Zeller, after Hurd signed a written temporary loan of motor vehicle agreement (“agreement”) and Zeller obtained a copy of Hurd's driver's license and active insurance card.   David Zeller further attests that the loan of the vehicle to Hurd was temporary, for an estimated two or three days, while repairs were done to her vehicle;  that Zeller never loaned Hurd a vehicle for more than thirty days in any one calendar year;  and that the copies of the agreement, the license and the insurance card were retained in Zeller's files.   Attached to the affidavit is a copy of the agreement, as well as a copy of the license and the insurance card that Zeller made before loaning the car to Hurd.

The plaintiffs do not dispute that Hurd was insured at the time Zeller loaned Hurd the vehicle.   The plaintiffs contend, however, that Zeller was not in strict compliance with the requirements of the statute by virtue of its use of passenger plates, as opposed to dealers' or repairers' plates.   The plaintiffs submit certified copies of the department of motor vehicle records pertaining to the subject motor vehicle, which indicate that the plate number on the loaned vehicle was not a dealer or repairer plate.   Rather, the records indicate that Zeller is the registered owner of the plate, which has a class code “01,” denoting it as a passenger plate, as opposed to a dealer or repairer plate.   The records also indicate that Zeller is the registered owner of the vehicle.

Zeller argues that it is in complete compliance with the statute by virtue of the use of the disjunctive word, “or,” in the statute.   According to Zeller, the statutory immunity provided by General Statutes § 14–60 applies if the dealer or repairer provides a vehicle or a number plate both to a customer to use while the customer's vehicle is undergoing repairs.   Thus, according to Zeller, it is immaterial that the plate attached to the loaner vehicle was a passenger plate.

Some courts have held that a procedural deficiency in compliance with General Statutes § 14–60, e.g., failure to properly execute the temporary loan agreement or failure to obtain the proper documentation, is insufficient to defeat a motion for summary judgment.   See Caccomo v. Parziale, supra, 33 Conn. L. Rptr. 731 (holding that because the driver had insurance, factual issues as to whether or not a form agreement was filled out or signed by the driver were immaterial and insufficient to defeat a motion for summary judgment);  Slossar v. Taylor, 30 Conn.Sup. 131, 134, 305 A.2d 289 (1972).   In Slossar v. Taylor, supra, 134, the court found that the failure to receive proof of liability and property damage insurance did not “affect the question of coverage.”   Rather, such a violation was a “disciplinary matter to be considered by the motor vehicle commissioner under § 14–64.”  Slossar v. Taylor, supra, 134.

In the present case, however, Zeller's use of a passenger plate on the loaned vehicle is not merely a procedural deficiency.  General Statutes § 14–60 is entitled “Use of dealers' and repairers' plates.”   As such, the use of passenger plates raises a genuine issue of material fact as to whether Zeller can take advantage of the immunity provided by the statute.   This issue bears on the question of coverage.   Accordingly, the Court holds that the motions for summary judgment in both referenced files are hereby denied.

BY THE COURT,

Roche, J.

FOOTNOTES

FN1. Summary judgment motion # 123 relates to Deane v. Hurd, Docket No. LLICV106002953S, and summary judgment motion # 127 relates to Perrigo v. Hurd, Docket No. LLICV106002964S..  FN1. Summary judgment motion # 123 relates to Deane v. Hurd, Docket No. LLICV106002953S, and summary judgment motion # 127 relates to Perrigo v. Hurd, Docket No. LLICV106002964S.

FN2. On July 22, 2011, the plaintiff filed a second amended complaint.   The motion for summary judgment was filed on June 29, 2011.   Therefore, the amended complaint filed on May 5, 2011, is the operative complaint for purposes of the motion for summary judgment..  FN2. On July 22, 2011, the plaintiff filed a second amended complaint.   The motion for summary judgment was filed on June 29, 2011.   Therefore, the amended complaint filed on May 5, 2011, is the operative complaint for purposes of the motion for summary judgment.

Roche, Vincent E., J.