Opinion
No. 319121
December 4, 1996
MEMORANDUM OF DECISION
This is an action seeking money damages for injuries sustained in a motor vehicle accident. The defendant D'Elia Pontiac, Inc. has moved for summary judgment on the basis that the plaintiff is precluded from recovering against it pursuant to General Statutes § 14-60.
General Statutes "Sec. 14-60. Use of dealers' and repairers' plates. (a) No dealer or repairer may rent or allow or cause to be rented, or operate or allow or cause to be operated for hire, or use or allow or cause to be used for the purpose of conveying passengers or merchandise or freight for hire, any motor vehicle registered under a general distinguishing number and mark. 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 his 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. Such dealer or repairer shall give a copy of this record to each person to whom such plate or vehicle and plate are loaned which shall be carried in the motor vehicle at all times when operated upon a public highway. This record shall be retained by the dealer or repairer for a period of six months from the date on which the number plate or motor vehicle or both were loaned and such record shall be available during business hours for examination by any police officer or inspector designated by the commissioner of motor vehicles.
"(b) Any licensed dealer or repairer may operate or cause to be operated by a bona fide full-time employee such motor vehicle for (1) use in connection with his business, (2) the pickup and delivery of parts, and (3) his personal use, or by a part-time employee for use only in connection with the business of such dealer or repairer. Each dealer or repairer shall maintain a record of the following: (A) Each number plate issued by the commissioner to such dealer or repairer, (B) the name, address and occupation of the bona fide full-time employee or part-time employee to whom such plate has been assigned, (C) the date of assignment of each such plate, and (D) the exact location of each unassigned plate. For the purposes of this subsection, "bona fide full-time employee" means a person who is employed by a licensed dealer or repairer for not less than thirty-five hours per week and appears on the records of such employer as an employee for whom social security, withholding tax and all deductions required by law have been made." (Emphasis added.)
Insofar as the plaintiff is asserting a claim against the defendant D'Elia Pontiac, Inc. in her single count complaint, based on the defendant operator being an agent of the defendant D'Elia, the motion for summary judgment is granted based on Cook v. Collins, 199 Conn. 245, 506 A.2d 1035 (1986), and on General Statutes § 14-60. Section 14-60, being more specific, prevails over General Statutes § 52-183. Charlton Press, Inc. v. Sullivan, 153 Conn. 103, 110, 214 A.2d 354 (1965); Baker v, Baningoso, 134 Conn. 382, 385, 58 A.2d 5 (1948); Oles v. Furlong, 134 Conn. 334, 342, 57 A.2d 405 (1948). The undisputed evidence is that the defendant operator, Palatnick, did have liability insurance at the time of this accident; indeed, the plaintiff does not deny this. The plaintiff's claim that the defendant D'Elia did not "loan" the vehicle to Palatnick is utterly unpersuasive in light of the record as a whole, the common sense reality of the transaction and the dictionary definition of "loan" as something lent for temporary use. Webster's Ninth New Collegiate Dictionary (1988); The American Heritage Dictionary (2d Col. Ed.); Black's Law Dictionary (6th ed.) ("Anything furnished for temporary use to a person at his request, on condition that it shall be returned, or its equivalent in kind, with or without compensation for its use."); see Cherry v. Mitosky, 353 Pa. 401, 45 A.2d 23, 25 (1946); see also Peters v. Thompson, 42 So.2d 91, 92 (Fla. 1949); Industrial Lumber Co. v. Strickland, 71 Ga. App. 298, 30 S.E.2d 792, 793 (1944).
"Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint"; Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985); and to state those theories in a single count. Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 552, 227 A.2d 418 (1967); Veits v. Hartford, 134 Conn. 428, 434-35, 58 A.2d 389 (1948). Nothing in our rules of practice precludes the court from rendering summary judgment as to one theory, or one cause of action, when another is stated in the same count. See Practice Book § 378 et seq. In fact, Practice Book § 386, entitled "Judgement for Part of Claim", provides: "If it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of his claim as the defense does not apply to, or as is admitted, on such terms as may be just; and the action may be severed and proceeded with as respects the remainder of the claim." While this section contemplates judgment for the plaintiff on part of a claim, federal courts acting under Rule 56 of the Federal Rules of Civil Procedure have recognized that under appropriate circumstances "[p]artial summary judgment may be granted with respect to one of several claims" for a defendant. Moss v. Ward, 450 F. Sup. 591, 594 (W.D.N.Y. 1978); see also Weva Oil Corp. v. Belco Petroleum Corp., 68 F.R.D. 663, 667 (N.D.W.V. 1975). "There is no use on insisting on procedural niceties when the proof shows a party does not have a case." Moss v. Ward, supra. This court may refer to caselaw arising under Rule 56 of the Federal Rules of Civil Procedure on which our rules for summary judgment are patterned. Plouffe v. New York, N.H. H.R. Co., 160 Conn. 482, 490, 280 A.2d 359 (1971); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969); Dorazio v. M. B. Foster Electric Co., 157 Conn. 226, 230, 253 A.2d 22 (1968); New Haven Redevelopment Agency v. Research Associates, 153 Conn. 118, 120, 214 A.2d 375 (1965); Sheridan v. Board of Education, 20 Conn. App. 231, 237, 565 A.2d 882 (1989). It must be conceded, however, that the federal courts are not in agreement as to the circumstances under which summary judgment may be granted as to part of a claim. See Wright, Miller Kane, Federal Practice Procedure § 2737, pp. 462-463.
General Statutes "Sec. 52-183. Presumption of agency in motor vehicle operation. In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption."
However, insofar as the single count complaint also alleges active negligence by the defendant D'Elia, the motion for summary judgment is denied. To obtain summary judgment in its favor the defendant must show that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Practice Book § 384; Field v. Kearns, 43 Conn. App. 265, 269-270, ___ A.2d ___, cert. denied, 239 Conn. 942. ___ A.2d ___ (1996). It must do more than prove that Palatnick operated the vehicle and even more than prove that he was in control of the vehicle. The law in this area recognizes that there may be joint control of a motor vehicle. Archambault v. Holmes, 126 Conn. 191, 193, 10 A.2d 364 (1939). Under Archambault v. Holmes, 125 Conn. 167, 4 A.2d 420 (1939), "[t]he seller is absolved only where his agent has abandoned his right to control the operation of the car and surrendered that operation wholly to the [actual or prospective] purchaser." (Emphasis added.) Id., 171; accord, Plunkett v. Nationwide Mutual Insurance Co., 150 Conn. 203, 209-210, 187 A.2d 754 (1963), and cases cited therein. The affidavits and other documentary proof in the file do not clearly negate this factor. See, e.g., Fogarty v. Rashaw, 193 Conn. 442, 445, 476 A.2d 582 (1984); Kosloff v. Fairfield County Boy Scouts, Superior Court, Judicial District of Fairfield at Bridgeport, No. 280331 ( 1993 Ct. Sup. 8900, 8 CSCR 1094) (Sept. 30, 1993); Dapice v. Eastern Elevator Co., Inc., Superior Court, Judicial District of Stamford-Norwalk at Stamford, No. 105979 ( 1993 Ct. Sup. 8905, 8 CSCR 1097) (Sept. 16, 1993). Additionally, the defendant D'Elia has not briefed the issue of whether a person retains control of a vehicle where, as here, that person or the person's agent directs what course the operator shall drive.
The affidavits of the defendant D'Elia were filed three months after it had filed its motion and subsequent to the filing of the plaintiff's memorandum of law in support of its objection to the motion. Therefore, the affidavits were not timely filed. See Practice Book § 380.
Insofar as the complaint alleges active negligence by the defendant D'Elia, the motion for summary judgment is denied.
BY THE COURT
Bruce L. Levin Judge of the Superior Court