Michael Cloutier v. LLC (2012)

MEMORANDUM OF DECISION

This action arises out of personal injuries suffered by the plaintiff while helping to unload an electric panel from a flatbed truck.   On August 13, 2010, the plaintiff, Michael Cloutier, filed a two-count complaint against the defendants, Four Seasons Transport, LLC (Four Seasons) and TC & Sons Trucking, LLC (TC & Sons Trucking).   In count one, the plaintiff alleges negligence and negligent hiring and supervision against Four Seasons.   Count two contains the same allegations, but as to TC & Sons Trucking.   The following facts are alleged in the complaint.   On August 13, 2008, the plaintiff was injured while assisting with the removal of an electrical panel from a flatbed truck when an agent, servant and/or employee of the defendants released a strap without warning.   The strap was holding the panel in place, so its release caused the panel to shift, knocking the plaintiff off the truck.   As a result of the fall, the plaintiff suffered “serious and painful injuries.”

On July 7, 2011, TC & Sons Trucking moved for summary judgment with respect to count two arguing that it was not involved in the incident and it did not owe a duty to the plaintiff.   The motion is accompanied by:  a memorandum of law, an affidavit of Thomas E. Charbonneau, Sr. who is a member of TC & Sons Trucking, an excerpt from an uncertified transcript of the plaintiff's deposition, a sworn and witnessed handwritten statement by the plaintiff, a transcript of an interview of the plaintiff taken at his attorney's office, an excerpt from an uncertified transcript of the plaintiff's brother's deposition who witnessed the accident, and a copy of the straight bill of lading between “TC & Sons” and the plaintiff's employer, Wire & Plastic Machinery Corporation (Wire & Plastic).

On December 14, 2011, the plaintiff filed an objection to the motion for summary judgment along with a memorandum of law, a copy of the motor carrier agreement between “Four Seasons Transport LLC” and “TC & Sons Brokerage,” a copy of the straight bill of lading, a print-out of a “company profile” for TC & Sons Brokerage, a print-out from C.O.N.C.O.R.D.¹ providing information about TC & Sons Trucking, L.L.C., and excerpts from a certified transcript of the deposition of Marcele Languerand, who is a former employee of Four Seasons.   Included with Languerand's deposition were the following exhibits:  a copy of the straight bill of lading, a hand-drawn diagram of the truck and the positions of the people and objects involved in the incident, as well as a copy of the truck's registration.

TC & Sons Trucking filed a reply memorandum on January 12, 2012 accompanied by another affidavit by Thomas E. Charbonneau, Sr. with exhibits ² and excerpts from an uncertified transcript of Languerand's deposition.

The plaintiff filed his surreply on January 18, 2012 accompanied by an affidavit of attorney William P. Horan, Jr., who was the plaintiff's former attorney in this case, along with what appears to be a handwritten letter and a copy of the straight bill of lading.   Oral argument was heard on January 23, 2012.

DISCUSSION

“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).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ [T]he moving party ․ 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 ․ 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).

In this case, TC & Sons Trucking argues that it was not involved in the alleged incident and had no duty to the plaintiff.   As evidence of this, TC & Sons Trucking relies on the affidavit of its member Charbonneau and the plaintiff's deposition.   They testified that Four Seasons' truck and employee were present during the incident, not TC & Sons Trucking's truck and employee.

The plaintiff counters by arguing, in essence, that Four Seasons is an agent of TC & Sons Trucking and, therefore, TC & Sons Trucking “assumed responsibility under respondeat superior for any negligent acts of Four Seasons.   The plaintiff appears to claim that there are two genuine issues of material fact:  1) TC & Sons Trucking was hired by Wire & Plastic, the plaintiff's employer, to arrange for the shipment of goods and 2) Four Seasons is an agent of TC & Sons Trucking.   Regarding the first issue, the plaintiff asserts that TC & Sons Trucking has a brokerage division, which is doing business as TC & Sons Brokerage (Brokerage).   To connect the Brokerage with TC & Sons Trucking, the plaintiff relies on evidence that indicates that the Brokerage is not incorporated, that it shares the same address as TC & Sons Trucking and Charbonneau is an officer of each entity.   The plaintiff then focuses on the fact that “TC & Sons” is listed as the carrier on the straight bill of lading with Wire & Plastic.   The plaintiff suggests that this creates a genuine issue of material fact as to whether TC & Sons Trucking, acting through its Brokerage department, was hired by Wire & Plastic to arrange for the shipment of goods.

On the second issue, the plaintiff presents evidence that TC & Sons Trucking has a relationship with Four Seasons through the Brokerage.   The plaintiff submits the motor carrier agreement between the Brokerage and Four Seasons as evidence of this relationship.   According to the plaintiff, the agreement provides that:  1) Four Seasons will indemnify the Brokerage, 2) the Brokerage will pay Four Seasons directly 3) and Four Seasons bills the Brokerage rather than the shipper directly.   The plaintiff argues that these provisions raise an issue of material fact regarding whether Four Seasons is an agent of TC & Sons Trucking.   As further evidence to show that Four Seasons was an agent, the plaintiff states that the straight bill of lading identifies the carrier's duly appointed agent as “Marcel,” which is an apparent reference to Marcel Languerand, the driver of the Four Seasons truck.   Additionally, the plaintiff notes that Languerand testified during his deposition that Four Seasons worked for “TC & Sons.”

In its reply memorandum, TC & Sons Trucking insists that the Brokerage is not a division of TC & Sons Trucking.   Even if the Brokerage was a division, TC & Sons Trucking argues that Four Seasons was an independent contractor because TC & Sons had no control over Four Seasons.   TC & Sons Trucking relies on the second affidavit of Charbonneau as evidence that the Brokerage hired Four Seasons as an independent contractor.   Charbonneau testified that no employee of TC & Sons Trucking or the Brokerage was contacted “regarding the methods, manner, equipment, personnel or safety precautions to be sued by Four Seasons.”   Moreover, TC & Sons Trucking relies on the motor carrier agreement which it claims states:  that Four Seasons “agrees to transport [freight] in its own equipment,” that Four Seasons “shall employ for its services hereunder only competent and legally licensed personnel” and that the relationship between Four Seasons and the Brokerage “shall, at all times, be that of an independent contractor.”   Finally, TC & Sons Trucking declares that “there is no evidence that the Brokerage/LLC was negligent in its selection of Four Seasons as the independent contractor to transport this load.”   TC & Sons Trucking relies on the motor carrier agreement and the second affidavit of Charbonneau as evidence that Four Seasons was a licensed motor carrier and its driver was properly licensed.

In his surreply, the plaintiff claims there is a genuine issue of material fact regarding the relationship between TC & Sons Trucking and Four Seasons.   He argues that Languerand's deposition testimony that “five or six trucks from Four Seasons that worked strictly for T.C. & Sons” indicates that TC & Sons Trucking was actually the carrier.   Moreover, the plaintiff points to the affidavit of his former attorney in the case as more evidence of TC & Sons's “interconnected relationship” with Four Seasons.   In the affidavit, the attorney notes that Four Seasons and TC & Sons have the same representative answer the telephone.

At oral argument, the plaintiff argued that despite the contract defining Four Seasons as independent contractor, this is not determinative of the issue because the totality of the circumstances must be viewed when determining an agency relationship.   TC & Sons Trucking asserted that the court should not consider the affidavit of the attorney included in the surreply because attorney affidavits are inappropriate when used for the purpose of establishing facts.

I. Negligence/Respondeat Superior

“A corporation may ․ be held vicariously liable under the doctrine of respondeat superior if the person actually committing the violation was a servant of the corporation when the acts were committed, and the acts were committed within the scope of the servant's employment and in furtherance of the corporation's business.”  Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, 125 Conn.App. 678, 702, n.24, 10 A.3d 61 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011).   However, “[a]s a general rule, an employer is not liable for the negligence of its independent contractors.”   (Internal quotation marks omitted.)  Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517, 825 A.2d 72 (2003).³

“[The Supreme Court] adopted the definition that an independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.   This definition has been amplified in subsequent cases but at no time has the basic principle been altered ․ The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work ․ It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.”  (Citation omitted, emphasis in original;  internal quotation marks omitted.)  Nationwide Mutual Ins. Co. v. Allen, 83 Conn.App. 526, 534, 850 A.2d 1047, cert. denied, 271 Conn. 907, 859 A.2d 562 (2004).

Here, TC & Sons Trucking meets its initial burden by presenting evidence, through the plaintiff's deposition testimony and the affidavit of Charbonneau that its trucks and employees were not involved in the incident.   The plaintiff, in turn, presents evidence that TC & Sons hired Four Seasons to deliver the electrical panel.   TC & Sons Trucking does not dispute the fact that Four Seasons was hired to deliver the equipment.   However, TC & Sons Trucking does argue that Four Seasons is an independent contractor.

TC & Sons Trucking meets its burden of showing that an employer-independent contractor relationship existed.   In Charbonneau's second affidavit, he testifies that the Brokerage hired Four Seasons as an independent contractor and neither TC & Sons Trucking or the Brokerage had any control over how Four Seasons delivered the electric panel.   Moreover, Languerand, the Four Seasons driver, testified in his deposition that he was unaware of TC & Sons having any input into how Four Seasons goes about transporting equipment.   Finally, the motor carrier agreement provides that Four Seasons “agrees to transport [freight] in its own equipment,” that Four Seasons “shall employ for its services hereunder only competent and legally licensed personnel” and that the relationship between Four Seasons and the Brokerage “shall, at all times, be that of an independent contractor.”

The plaintiff fails to meet its burden of presenting evidence that demonstrates the existence of a dispute over whether Four Seasons was an independent contractor.⁴  Specifically, the plaintiff offers insufficient evidence that TC & Sons Trucking had the right to control Four Seasons, which is necessary to distinguish between employees and independent contractors.

The plaintiff's claim that the straight bill of lading identifies the carrier's duly appointed agent as “Marcel” is misleading because nothing on the bill of lading suggests that Marcel Languerand was the duly appointed agent of the carrier TC & Sons Trucking.   The bill of lading only notes that the equipment was delivered “per marcel.”   This information does not indicate that TC & Sons Trucking had the right to control Marcel.

The plaintiff's reliance on Languerand's deposition testimony that Four Seasons worked for TC & Sons is only evidence that TC & Sons hired Four Seasons.   That is to say, this testimony does not demonstrate that the existence of some dispute that TC & Sons Trucking had the right to control Four Seasons.   In fact, the opposite is true.   Languerand testified that he was unaware of TC & Sons having any input into how Four Seasons goes about transporting the equipment.

Finally, the plaintiff's evidence of the “interconnected relationship” between Four Seasons and TC & Sons Trucking, based upon the sharing of a receptionist, does not suggest Four Seasons is subject to the control of TC & Sons, only that the companies share facilities.   Accordingly, there is no evidence that TC & Sons had the right to control Four Seasons' performance of the shipment.   As a result, the evidence only shows that Four Seasons was an independent contractor.   Therefore, there is no genuine issue of material fact and TC & Sons Trucking is entitled to judgment as a matter of law on the negligence claim.

II. Negligent Hiring and Supervision

With regards to the claims of negligent hiring and supervision, TC & Sons Trucking meets its burden by presenting evidence, in the form of Charbonneau's second affidavit, that Four Seasons was a licensed motor carrier and the driver was properly licensed.   The plaintiff offers no evidence on these claims.   Accordingly, there is no genuine issue of material fact and TC & Sons Trucking is entitled to judgment as a matter of law on the negligent hiring and supervision claims.

CONCLUSION

For the foregoing reasons, TC & Sons Trucking's motion for summary judgment is granted.

Woods, J.

FOOTNOTES

FN1. C.O.N.C.O.R.D. is the secretary of state's online filing system, which allows the public to view the “records showing the formation of and fundamental changes to corporations, limited liability companies, limited liability partnerships, limited partnerships and other businesses.”   See Commercial Recording Division, Secretary of the State of Connecticut, http://www.concord-sots.ct.gov/CONCORD/index.jsp (last visited January 30, 2012)..  FN1. C.O.N.C.O.R.D. is the secretary of state's online filing system, which allows the public to view the “records showing the formation of and fundamental changes to corporations, limited liability companies, limited liability partnerships, limited partnerships and other businesses.”   See Commercial Recording Division, Secretary of the State of Connecticut, http://www.concord-sots.ct.gov/CONCORD/index.jsp (last visited January 30, 2012).

FN2. The following exhibits were attached to Charbonneau's affidavit:  a copy of a certificate for TC & Sons Trucking from the department of transportation, a letter from the U.S. Department of Transportation Federal Motor Carrier Safety Administration reinstating TC & Sons brokerage's broker license, the motor carrier agreement and the straight bill of lading..  FN2. The following exhibits were attached to Charbonneau's affidavit:  a copy of a certificate for TC & Sons Trucking from the department of transportation, a letter from the U.S. Department of Transportation Federal Motor Carrier Safety Administration reinstating TC & Sons brokerage's broker license, the motor carrier agreement and the straight bill of lading.

FN3. The exceptions to this rule are outlined in Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 518, 825 A.2d 72 (2003).   However, in this case there is no indication from the evidence, nor does the plaintiff argue, that one of these exceptions applies.   Accordingly, the court will not address the issue..  FN3. The exceptions to this rule are outlined in Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 518, 825 A.2d 72 (2003).   However, in this case there is no indication from the evidence, nor does the plaintiff argue, that one of these exceptions applies.   Accordingly, the court will not address the issue.

FN4. The evidence submitted on the issue of whether TC & Sons Trucking was the actual carrier hired by Wire & Plastic is immaterial at this point because regardless of who hired Four Seasons, the employer is not liable if there is no dispute that Four Seasons is an independent contractor..  FN4. The evidence submitted on the issue of whether TC & Sons Trucking was the actual carrier hired by Wire & Plastic is immaterial at this point because regardless of who hired Four Seasons, the employer is not liable if there is no dispute that Four Seasons is an independent contractor.

Woods, Glenn A., J.