Jacqueline Lasley v. Covenant Insurance Company (2012)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY ONLY

This is an underinsured motorist case.   A vehicle in which the plaintiff Jacqueline Lasley was riding as a front-seat passenger was struck from behind by another motor vehicle driven by one Alex J. Kerr. The plaintiff has recovered the full amount of Kerr's automobile liability insurance policy of $100,000.   The plaintiff has brought this action by summons and complaint dated December 19, 2011 against the defendant Covenant Insurance Company seeking to recover underinsured motorist benefits on her own automobile insurance policy.

By motion dated February 24, 2012, the plaintiff has moved for summary judgment on the issue of liability only.   In support of her motion the plaintiff has appended the Police Accident Report and affidavits of the plaintiff herself and the operator of the Vehicle in which she was a passenger (see Affidavit of Anna Lasley, plaintiff's mother).   The plaintiff suggests that, based on this documentary evidence, there is no genuine issue of material fact and the plaintiff is entitled to judgment as a matter of law on liability.   The plaintiff's principal argument is that “this is a rear-end motor vehicle accident and the vehicle containing plaintiff front-seat passenger, Jacqueline Lasley, was stopped when it was hit in the rear by a vehicle driven by Alex Kerr.”

As the plaintiff's memorandum of law observes, the defendant has filed an answer to the plaintiff's complaint which denies the alleged negligence of the underlying tortfeasor, Alex J. Kerr. (Plaintiff's Memorandum of Law at p. 2.) In addition, the defendant has denied all of paragraph 11 of the complaint, which specifically alleges “Jacqueline Lasley was injured in a May 14, 2006 motor vehicle collision caused by the negligence of an uninsured driver” as well as paragraph 18 of the complaint, which alleges that the defendant is “legally responsible to pay for the damages, injuries and losses suffered by Jacqueline Lasley in accordance with C.G.S. Section 38–336.”

The defendant has filed a memorandum in opposition to the motion for summary judgment, asserting that certain evidence offered by the plaintiff in support of her motion (i.e., the police report and statements of the non-party Alex Kerr) would be inadmissible at trial.   The defendant argues that genuine issues of material fact do exist with respect to negligence—especially with respect to what inferences and conclusions regarding negligence a trier of fact might draw from the testimony of witnesses regarding the facts and circumstances of the collision.   Finally, citing Practice Book section 17–47,¹ the defendant objects to summary judgment because it has been unable to complete discovery necessary to marshal facts needed to oppose the motion.   The plaintiff has been out of the country studying abroad for much of the time this case has been pending, and is not expected to be available for a deposition until July 2012.

The law concerning motions for summary judgment is well established.  “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 a 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 ․ In order for a motion for summary judgment to be granted properly, the moving party must demonstrate 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 ․ [A] summary disposition [must] ․ be on evidence which a jury would not be at liberty to disbelieve and ․ 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 [summary judgment].”  (Citation omitted;  internal quotation marks omitted.)  Farrell v. Twenty–First Century Ins. Co., 301 Conn. 657, 661–62, 21 A.3d 816 (2011).

“The facts at issue [in the context of summary judgment] are those alleged in the pleadings.”  (Internal quotation marks omitted.)  Arnone v. Connecticut Light & Power Co., 90 Conn.App. 188, 193, 878 A.2d 347 (2005).  “A material fact is a fact which will make a difference in the result of the case ․ [I]ssue-finding, rather than issue-determination, is the key to the procedure ․ [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ․ [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.”   (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 557–58, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).

It is axiomatic that “[i]ssues of negligence are ordinarily not susceptible to summary adjudication but should be resolved by trial in the ordinary manner.”   Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).   In the present case, the defendant has denied the allegations of negligence in the plaintiff's complaint.   As such, the present case is distinguishable from other underinsured motorist cases where the court has granted summary judgment as to liability on the basis that the defendant insurer had admitted the allegations of negligence.   See, e.g., Hannon v. Prudential Property, Superior Court, judicial district of New Haven, Docket No. CV 00 0447169 (April 29, 2002, Robinson, J.);   Taft v. Allstate Insurance, Superior Court, judicial district of New Haven, Docket No. CV 01 0449497 (June 7, 2002, Robinson, J.).

Nor can this court simply assume that negligence is the only explanation when, as here, the injured party's vehicle is struck from behind while at a full stop.   In O'Brien v. Cordova, 171 Conn. 303, 370 A.2d 933 (1976), our Supreme Court expressly rejected a claim that evidence of a rear-end collision compelled a finding of negligence:  “All the evidence indicates is that there was a rear-end collision.   Common experience shows that motor vehicle accidents are not all due to driver negligence.”  Id., 306.   See also Naarden v. Amendola, Superior Court judicial district of New Haven, Docket No. 09 5027075 (October 15, 2010, Zoarski, J.T.R.) (summary judgment denied where defendant driver was distracted and struck plaintiff's vehicle from behind);  Severino v. Gail, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0285227 (August 30, 2004, Frazzini, J.) (37 Conn. L. Rptr. 754) (rear-end collision, summary judgment denied).

After a careful review of the materials submitted, and viewing the evidence in the light most favorable to the nonmoving party, the court finds that the plaintiff has failed to establish that there is no genuine issue of material fact as to the negligence of the tortfeasor in this case and has failed to establish that she is entitled to judgment as a matter of law on issues of liability with respect to her underinsured motorist claim.

Given the court's finding, it is not necessary to address the defendant's Practice Book Section 17–47 argument.

For the foregoing reasons, the plaintiff's motion for summary judgment as to liability only is denied.

BY THE COURT,

David M. Sheridan

FOOTNOTES

FN1. Practice Book § 17–47 provides:  “Should it appear from the affidavits of a party opposing the motion that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.”.  FN1. Practice Book § 17–47 provides:  “Should it appear from the affidavits of a party opposing the motion that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.”

Sheridan, David M., J.