Opinion
No. CV 04-0831039 S
February 10, 2005
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#113)
On January 18, 2005, the court heard oral argument concerning the defendant PV Holding Corp.'s motion for summary judgment (motion) as to the third count of the plaintiff's complaint in this personal injury action. For the reasons stated below, the motion is denied.
According to the affidavit of Wilma Bledsoe, regional liability claims manager for Budget Rent-A-Car and PV Holding Corp., PV Holding Corp. rents motor vehicles. See Exhibit A to the motion. Annexed to the affidavit is a copy of a lease agreement under which defendant Rhonda Hammonds leased a Ford Taurus from PV Holding Corp. See Exhibit B to the motion. Since the lease agreement has the word "Budget" prominently displayed on its first three pages, and for ease of reference, the court will refer to PV Holding Corp. as "Budget."
In the complaint, the plaintiff alleges that on April 11, 2003, he was a pedestrian and was struck by a motor vehicle which was owned by Budget and leased to defendant Hammonds, and which was being operated by Hammonds' daughter, defendant Nikkia M. Coleman. He claims to have suffered personal injuries as a result of Coleman's negligent and reckless operation of the vehicle. In the third count, the plaintiff alleges that Budget is liable to the same extent as Coleman, under General Statute § 14-154a, which, at the time of the alleged accident, provided, "[a]ny person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner."
"In deciding a motion for summary judgment, the trial court must review the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . . The test is whether a party would be entitled to a directed verdict on the same facts . . ." Bartlett v. Heise, 84 Conn.App. 424, 428, 853 A.2d 612 (2004).
In the motion, Budget claims that, since Coleman was not authorized to operate the leased vehicle, it cannot be liable for the plaintiff's claimed injuries. The evidence presented by Budget in support of its motion consists of the Bledsoe affidavit, the copy of the lease agreement, and discovery responses from Coleman.
In opposition to the motion, the plaintiff relies on the statutory presumption set forth in General Statute § 52-183, which provides, "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." In addition, the plaintiff has submitted an unauthenticated copy of a Hartford Police Department incident report, which the court has not considered. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. See Practice Book § [17-46.]" Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995).
In support of its position, Budget relies on Pedvillano v. Bryon, 231 Conn. 265, 270, 648 A.2d 873 (1994), where, in discussing General Statute § 14-154a, our Supreme Court stated, "[t]he statute does not, in its terms, preclude a lessor from imposing reasonable restrictions on the identity of those to whom it is willing to entrust its property and for whose conduct it is willing to assume risk. In the cases in which we have found a basis for enforcing statutory liability, the tortfeasor invariably has been found to have been a person who had possession of the vehicle in accordance with the lease agreement." " Pedvillano makes clear that the lessor is not liable under the statute even when the lessee allows another party to drive the vehicle." Blackwell v. Bryant, 45 Conn.App. 26, 31, 692 A.2d 862 (1997). Budget's motion asserts that its evidentiary presentation shows that only Hammonds, and not Coleman, was an "authorized driver," under the terms of the lease agreement.
Neither Pedvillano v. Bryon, supra, nor Blackwell v. Bryant, supra, addressed the relationship of General Statute § 52-183s presumption to General Statute § 14-154a. While Budget contends that § 52-183 is inapplicable in the rental car context, post- Pedvillano decisions in the Superior Court have not so found. See, for example, Doonan v. Clark, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV95 0148729 S (October 21, 1997, Nadeau, J).
As noted above, in this context, the court must apply the test of whether Budget would be entitled to a directed verdict. Our Supreme Court has stated, concerning § 52-183, "our so-called agency statute, 52-183, generally precludes the direction of a verdict for the defendant on the basis of the plaintiff's failure to establish agency . . . The statute creates the presumption that the operator of a car is the agent of the owner, and it places the burden of rebutting the presumption on the owner. Since the existence and scope of permission is a matter peculiarly within the knowledge of the defendant, the strict rule that any testimony contra ousts the presumption would seem to operate unfairly, since it may enable the defendant to overcome the effect of the presumption by a simple assertion that no consent was ever given. Indeed, . . . the statute goes further than merely establishing a presumption in that it definitely places a burden of rebutting it on the defendant. Thus, the presumption does not necessarily vanish on the introduction of any evidence to the contrary. Rather, [t]he presumption ceases to be operative when the trier finds proven facts which fairly put in issue the question, and the burden of proving that the car . . . was operated by an agent of the owner . . . then rests upon the plaintiff; if no evidence relevant to the issue is produced; or, if countervailing evidence is produced but the trier does not believe it, the presumption applies, and the plaintiff is entitled to have the issue found in his favor . . . Clearly, the only basis on which the defendant . . . could succeed in her effort to secure a directed verdict, that is, to remove the issue from the jury's consideration, would involve rebuttal evidence of such a nature that it could not rationally be disbelieved." (Citations omitted; footnote omitted; internal quotation marks omitted.) Bogart v. Tucker, 164 Conn. 277, 281-82, 320 A.2d 803 (1973).
While, to the court's knowledge, no appellate court in our state has addressed whether summary judgment is appropriate when General Statute § 52-183 is asserted, several Superior Court decisions have considered whether the existence of the statutory presumption precludes summary judgment. There is a split of authority within the Superior Court as to this question. See Fletcher v. Stoleson, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. XO5CV 00 017 7740S (March 11, 2002, Rogers, J.) ( 31 Conn. L. Rptr. 518) (collecting cases).
After review of the evidence, the court concludes that Budget, the movant, has not submitted evidence contravening the presumption of agency which is so overwhelming that a jury could not rationally disbelieve it. Rather, all that has been presented is Bledsoe's affidavit, with the lease agreement, and Coleman's discovery responses. Bledsoe, states that, as regional liability claims manager, based in Orlando, Florida, she manages liability claims. She states that Coleman was not an authorized driver under the lease agreement. See Exhibit A to Budget's motion.
The terms of the lease agreement state, on the first three pages, that the renter was Hammonds and under the words "Additional Drivers," the word "NONE" appears. Budget's address is listed as 107 Burnside Avenue, East Hartford, Connecticut. The "Return Location" is listed as East Hartford. Further, paragraph 2 on page 2 of 4 defines "Authorized Drivers," stating "[o]nly the Renter and the following people who have a valid driver's license, have Renter's express permission to operate the Vehicle and are at least 25 years old (unless otherwise agreed by Budget) are `Authorized Drivers':
A. Renter's spouse;
B. Renter's employer, employees, or co-workers while engaged in a business activity with Renter; and
C. `Additional Drivers' named on the front of this Agreement."
See Exhibit B to Budget's motion.
In her discovery responses, Coleman listed her date of birth as being April 15, 1985, meaning that she was just under eighteen years old on April 11, 2003, the date of the alleged accident. In a written statement, Coleman stated that her mother, Hammonds, let her use the car on that date. See Exhibit C, statement dated June 25, 2003, pages 1-2 of 4.
Budget's evidentiary presentation raises certain factual questions. Did Budget ever agree, as is contemplated by its lease agreement, to modify its terms? See paragraph 21 of the lease agreement, page 4 of 4, Exhibit B to the motion. Bledsoe's affidavit does not address this issue. Did someone in the East Hartford office of Budget authorize Hammonds to let Coleman use the vehicle? Bledsoe does not claim to have personal knowledge on this subject. Does Hammonds contend that she had Budget's permission to allow Coleman to use the vehicle? No deposition testimony from Hammonds is presented.
In addition to these factual issues, the court also notes paragraph 20, page 4 of 4 of the lease agreement, which states, "Renter is not the agent or authorized representative of Budget for any purpose." See Exhibit B to Budget's motion. The parties have not addressed the legal effect of this paragraph.
While the terms of the lease agreement are strong evidence in support of Budget's contention that Coleman was an unauthorized driver, the evidence here is not so "overwhelming" that the presumption set forth in § 52-183 vanishes in its face. See Fletcher v. Stoleson, supra. There, in contrast to the record here, the unrefuted evidence showed that the vehicle owners' son dropped off the `vehicle at JM Auto Body; after working hours, an employee of the body shop drove the car, consumed alcohol at two locations, became intoxicated, and then, while operating the vehicle, collided with another. The court found that the evidence of the lack of an agency relationship between the owners and the operator was "of such a nature that it could not rationally be disbelieved." Id.
Similarly, in Izzo v. GMAC, Superior Court, judicial district of New Haven at New Haven, Docket No. CV01-0453550 S (May 28, 2004, Corradino, J.) ( 37 Conn. L. Rptr. 181), the court granted summary judgment where the unrefuted evidence, which also could not "rationally be disbelieved," showed that GMAC leased the vehicle to two individuals whose house guest stole it, after which the alleged accident occurred. As the court noted there, Pedvillano "made clear that a thief cannot be an authorized driver of the rented vehicle and thus an agent in any sense of GMAC." Regarding § 52-183, the court stated that "[b]y definition . . . the person who stole the car, could not be the agent of the lessees from whom he stole the car at the time of the theft or while he was operating it as a stolen vehicle which includes the time at which the accident occurred. It is just as clear that he could not be the agent of GMAC." Here, as discussed above, there is no evidence that Coleman stole the vehicle from Hammonds, or that she was an intoxicated driver.
"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." (Footnote omitted and internal quotation marks omitted.) Allstate Insurance Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004). Under these circumstances, Budget has not met its burden.
CONCLUSION
Based on the foregoing reasons, the motion for summary judgment is denied. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT