Opinion
NO. 2017-CA-002047-MR
03-13-2020
BILLY DICK, JR. APPELLANT v. RUSS EDWARDS AUTO SALES, INC. APPELLEE
BRIEF FOR APPELLANT: Daryl T. Dixon Paducah, Kentucky BRIEF FOR APPELLEE: R. Kent Westberry Kristin Logan Mischel Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE TIM KALTENBACH, JUDGE
ACTION NO. 15-CI-00162 OPINION
AFFIRMING
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BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES. KRAMER, JUDGE: Billy Dick, Jr., appeals the McCracken Circuit Court's summary dismissal of his negligent entrustment claim against appellee, Russ Edwards Auto Sales, Inc. ("Russ Auto"). Upon review, we affirm.
This litigation arose from an automobile accident that occurred on or about November 11, 2014, in Paducah, Kentucky. Allegedly, Billy and James Dick sustained injuries when a vehicle (a Porsche) belonging to Russ Auto, which Daniel Lee was "test-driving" at the time to determine whether to purchase it, collided with a trailer connected to the rear of their vehicle. On March 10, 2015, Billy and James filed suit in McCracken Circuit Court and asserted claims of negligent entrustment against Russ Auto.
Billy and James also asserted claims of negligence against Lee, but their claims were voluntarily dismissed and are not at issue.
Russ Auto answered shortly thereafter, denying liability. It also propounded interrogatories asking Billy and James, among other things, to identify any expert witnesses and summarize any expert opinions they intended to rely upon in support of their negligent entrustment claim. Responding on September 11, 2015, Billy and James stated they "were in the process of gathering this information and will supplement upon receipt and in accordance with the Official Trial Order of this Court."
In an order of December 23, 2015, the circuit court directed Billy and James to identify "on or before March 1, 2016," any expert witness they planned to call at trial; and to otherwise complete discovery by August 1, 2016. And, on March 1, 2016, Billy and James filed an expert disclosure identifying Mike Cassinelli as their standard of care expert. They stated in relevant part as follows:
Mr. Cassinelli's opinions are based upon his education, training and experience, his review of depositions and documents produced in this case, and his understandings
and personal experiences of managing a car lot. Mr. Cassinelli has worked in the auto sales industry for 11 years. Mr. Cassinelli is the Vice President for IPS Agency. IPS Agency is a company that focuses on training dealership [sic] in the selling of vehicles.
Mr. Cassinelli is expected to testify that Russ Edwards Auto Sales [sic] negligent entrustment of this vehicle to Daniel Lee caused this wreck. Mr. Cassinelli is expected to testify that Russ Edwards Auto Sales policies and procedures were inadequate or not followed, and had the policies and procedures been adequate/followed, then this wreck would not have taken place. He will testify as to what policies and procedures a car lot should have when allowing someone to have a vehicle.
The next day, Russ Auto moved for summary judgment. Citing Morgan v. Scott, 291 S.W.3d 622, 629 (Ky. 2009), Russ Auto correctly pointed out that if Billy and James planned to assert that a vehicle's owner or its owner's representative is required to accompany a prospective purchaser during a test drive, Kentucky law regarding negligent entrustment was to the contrary. Rather, "a vehicle owner generally satisfies his or her duty of care in test-drive situations simply by determining before the test drive that the prospective purchaser and test driver is duly licensed and is otherwise not obviously impaired." Id. at 631 (footnote omitted).
And in that vein, Russ Auto produced the affidavit of Mike Steele. Steele was the employee of Russ Auto who permitted Lee to test drive the vehicle that collided with Billy's and James's vehicle. Steele averred that to the best of his recollection, Lee had visited the dealership on two occasions prior to the date of the accident to view the vehicle. On his first visit, Lee had simply looked at the vehicle. On his second visit, Lee test drove the vehicle two or three blocks. Regarding the third visit, Steele recalled Lee was going to have the vehicle inspected by a mechanic in anticipation of purchasing it.
Steele averred that Lee presented his driver's license and an insurance card that bore his name, and that it was the dealership's common practice to make a copy of an individual's driver's license prior to allowing him or her to test drive a vehicle. Furthermore, per his common practice, Steele did not accompany Lee on the test drive, and thus was not present for and did not witness the accident. Steele did not know Lee personally and had only met and interacted with him as described above. Additionally, Steele averred that through those interactions, Lee gave him no reason to believe he may have been an inexperienced, careless, or reckless driver.
In actuality, the insurance card bearing the name of "Daniel Lee" bore the name of Lee's father, Daniel Lee, Sr. This point is irrelevant, however, because Lee was nevertheless deemed an insured under his father's policy. Incidentally, Lee was also deemed an insured under Russ Edwards' insurance policy, and Billy and James received settlements in the full amounts of that policy's minimum limits. --------
Billy and James filed a response on March 31, 2016. They included no affidavits or other evidence with their response but made three assertions. First, without citing any legal authority, they asserted the tort of negligent entrustment did not require them to demonstrate Russ Auto acted negligently, and that they only needed "to prove the Defendant gave permission to operate the vehicle, and that Lee's negligence caused the damages Plaintiffs are seeking to recover."
Second, they asserted:
Lee was possibly intoxicated, and that Lee was not test driving the vehicle, but in fact using the vehicle for other purposes. Defendant reasonably should have been aware of this. Plaintiffs will both expected [sic] to testify as to Lee's state after the accident, as well as Lee's passenger fleeing the scene of the accident.
Third, once again citing no supportive legal authority, Billy and James asserted Russ Auto was legally required to have a representative accompany Lee while he used its vehicle.
Russ Auto replied, noting the dearth of supporting authority and evidence in Billy's and James's response. Additionally, in contravention of their suggestion that Lee "was possibly intoxicated," it produced the Kentucky Uniform Police Traffic Collision Report associated with the November 11, 2014 accident, in which the responding officer, according to his noted observation of Lee, wrote "no" in the box labeled "suspected drinking driver."
The circuit court denied Russ Auto's motion for summary judgment on June 7, 2016. In the relevant part of its order of that date, the court concluded that Billy and James were entitled to more time to conduct discovery, explaining:
In this case, though the police report states otherwise, plaintiffs should be given a reasonable chance to discover if Lee was under the influence of drugs when Russ Edwards entrusted the Porsche to him. The police report is hearsay. Based upon the limited record submitted, there is no evidence (ii) [sic] as to Lee's impairment at the time he took the Porsche for a test drive, and (ii) concerning Russ Edwards' knowledge of that impairment assuming he was impaired.
On November 10, 2016, James voluntarily dismissed his suit against Russ Auto.
On October 27, 2017, Russ Auto renewed its summary judgment motion against Billy. There, it reiterated the substance of its prior motion. Moreover, it chronicled the discovery that had taken place since June 7, 2016, and argued Billy, who had failed to adduce any evidence in support of his claims since that date, was not entitled to more time.
And, on November 13, 2017, Billy responded in the same manner as before, adding:
Defendant argues that there are no facts presented by Plaintiff that shows negligent entrustment by Defendant. However, Plaintiff has named an expert witness, with 11 years of experience and expertise in the field, who will testify that if Defendant had proper policies and procedures in place and had followed these policies and procedures, this collision would have been prevented as Mr. Lee should never have been entrusted with a vehicle, much less a Porsche, by Defendant Russ Edwards Auto Sales, Inc. Further, an issue of fact exists because both parties' accounts of the factual events on November 11, 2014 differ. Plaintiff contends that summary judgment is
premature and [that] attempts to schedule depositions have and will continue. Until such discovery is allowed without Defendant's interference, not enough information exists to warrant summary judgment.
In an order of December 5, 2017, the circuit court considered and granted Russ Auto's renewed motion for summary judgment. After reviewing the breadth of what is set forth above, it explained in relevant part as follows:
Here, Billy cannot prove negligent entrustment because there is no evidence that Lee was incompetent to drive or impaired in any way. Further, even if such evidence existed, there is no evidence that Russ Auto knew or under the exercise of ordinary care should have known that Lee was incompetent or impaired in any way. On a motion for summary judgment, "[t]he moving party bears the initial burden of demonstrating that no genuine issue of material fact exists and then the burden shifts to the party opposing summary judgment to produce at least some affirmative evidence showing that there is a genuine issue of material fact requiring trial." First Fed. Sav. Bank v. McCubbins, 217 S.W.3d 201, 203 (Ky. 2006).
Russ Auto met its burden by submitting Steele's affidavit which stated that Lee presented to Steele what appeared to be a valid driver's license and that Steele had no reason to believe that Lee was an incompetent driver. In fact, Lee's previous test drive, completed without incident, was some evidence to Steele that Lee was competent to drive. The burden then shifted to Billy to present some affirmative evidence that Lee was incompetent to drive or impaired on the day of the accident. Billy's response to the motion merely states that discovery is ongoing and that plaintiffs "will testify . . . that it appeared Mr. Lee was under the influence of drugs." Billy has not submitted an affidavit supporting this expected testimony.
"[S]ummary judgment is . . . appropriate in cases where the nonmoving party relies on little more than 'speculation and supposition' to support his claims." Id. at 201 (citing O'Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006)). "The party opposing summary judgment cannot rely on their own claims or arguments without significant evidence in order to prevent a summary judgment." Id. (citing Wymer v. JH Properties, Inc., 50 S.W.3d 195, 199 (Ky. 2001)). In sum, Billy has not presented any affirmative evidence that Lee was incompetent to drive or impaired when Russ Auto entrusted the vehicle to him. Neither has Billy presented any evidence that Russ Auto knew or should have known such, if evidence of such existed. Therefore, there is no genuine issue of material fact for trial and Russ Auto is entitled to judgment as a matter of law.
Further, Billy has had ample time to complete discovery on his negligent entrustment claim. Billy has had sixteen (16) months to conduct discovery since the Court previously denied summary judgment to specifically allow him time to do so. See Henninger v. Brewster, 357 S.W.3d 920, 928 (Ky. Ct. App. 2012) (holding two-year period between filing of complaint and entry of judgment adequate time to complete discovery in case with less-than-complex facts); Rich for Rich v. Kentucky Country Day, Inc., 793 S.W.2d 832, 838 (Ky. Ct. App. 1990) (holding that thirteen-month period between filing of complaint and entry of judgment was adequate time for plaintiff to complete discovery). In that sixteen month period, plaintiff conducted no discovery and never filed a motion to compel discovery. Because there is no issue of material fact, the motion will be granted.
Billy now appeals; and, repeating the substance of what he set forth in his responses to Russ Auto's motions for summary judgment, he argues the circuit court erred in dismissing his negligent entrustment claim.
We see no need to retrace the circuit court's analysis, which was legally sound. Instead, we adopt it. As the circuit court correctly held, Russ Auto's summary judgment motion was properly supported; Billy's pleadings, expert disclosure, and promise of forthcoming evidence were insufficient to overcome it; and nothing of record demonstrates Billy was provided less than a full and fair opportunity to conduct discovery.
Accordingly, we AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: Daryl T. Dixon
Paducah, Kentucky BRIEF FOR APPELLEE: R. Kent Westberry
Kristin Logan Mischel
Louisville, Kentucky