Opinion
DBDCV176023446S
02-20-2019
Kelley DRUKKER v. NGM INSURANCE COMPANY et al.
UNPUBLISHED OPINION
OPINION
Krumeich, J.
Defendants Andre Gidden ("Gidden") and Shauna McLeggan ("McLeggan") have each brought a motion for summary judgment on the Eighth Count of the Complaint in which it was alleged that they entered into a joint venture with defendant Darrius Garner ("Garner") to rent a vehicle for Garner, who was under-aged to rent a vehicle, and as joint venturers in the rental, plaintiff seeks to hold them financially liable for injuries to plaintiff in an automobile accident in which Garner was driving the rented vehicle and plaintiff was a passenger. For the reasons stated below, the motion of Gidden is denied and the motion of McLeggan is granted.
The Standards for Deciding a Motion for Summary Judgment
"The standards ... [for] review of a ... motion for summary judgment are well established. 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 ... 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 ... A material fact ... [is] a fact which will make a difference in the result of the case ..." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16 (2012), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60 (2001) (citations omitted).
Once the movant for summary judgment has satisfied the initial burden of showing the absence of a material issue of fact, the burden shifts to the opponent to establish that there is a genuine issue of material fact: "it is then ‘incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.’" Iacurci v. Sax, 313 Conn. 786, 799 (2014), quoting Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990).
The Arrangement to Allow Garner to Rent the Vehicle Could Be A Joint Venture
Gidden argues that he cannot be found to be in a joint venture with Garner in the rental of the automobile because there is no evidence he intended to profit from the vehicle rental citing Marwin Production Systems, Ltd. v. Pratt & Whitney Co., 140 B.R. 327, 330 (B.Ct.D.Conn. 1992) (Krechevsky, J.), as authority that a profit motive is an essential element for a joint venture and cites R.S. Silver Enterprises Co. v. Pascarella, 2010 WL 3259869 *28 (Conn.Super. 2010) (Jennings, J.), for the proposition that a joint venture requires a provision for sharing profits and losses.
The Court does not agree that these cases stand for the proposition that profit motive is an essential element in proving a joint venture. In R.S. Silver Enterprises Co., Inc. v. Pascarella, 2010 WL 3259869 *28, Judge Jennings found after trial that plaintiff was not a joint venturer because there was no evidence of plaintiff’s control over the venture. The only reference to profit motive was a citation to an article about joint ventures in American Jurisprudence 2d, which did not purport to state Connecticut law. In Marwin Judge Krechevsky found that there was a joint venture because "Marwin and the debtor can reasonably be said to have sought ‘a profit jointly’ through combining their resources to accomplish the sale ..." 140 B.R. at 330. Nothing in the Marwin opinion suggests that a profit-sharing agreement is essential in every joint venture.
The proposition that a profit motive is required to prove a joint venture was directly rejected by the Supreme Court in Doe v. Yale University, 252 Conn. 641, 676-77 (2000): "The defendant next argues that the trial court improperly concluded that a profit motive is required in order for a joint venture to exist, thereby precluding the defendant, which is a nonprofit organization, from asserting that it was the plaintiff’s employer by virtue of its joint venture with the hospital, which also is a nonprofit organization. The plaintiff maintains, however, that the existence of a joint venture requires a profit motive and that, therefore, the relationship between the defendant and the hospital cannot constitute a joint venture because their affiliation lacks such a motive. We agree with the defendant, and we conclude that although a profit motive is often recognized as one factor suggesting the existence of a joint venture, the absence of a profit motive is not fatal, as a matter of law, to the existence of a joint venture." (Footnote omitted.)
A joint venture may be an informal arrangement limited to a single transaction where no profit motive is present. See e.g., Crosskey Architects, LLC v. D.R.D., Inc., 2010 WL 4612005 *2 (Conn.Super. 2010) (Rittenband, J.); Colon v. Metro-North Commuter Railroad Co., 2017 WL 3332972 *2 (D.Conn. 2017) (Meyer, J.).
In Doe v. Yale University, 252 Conn. at 672, the Supreme Court held that an informal joint venture may be based on an agreement to jointly carry out a single enterprise: "[o]ur case law has long recognized that a joint venture, also referred to as a joint adventure or joint enterprise, exists ‘where two or more parties combine their property, money, efforts, skill or knowledge in some common undertaking ..."
A reasonable jury could conclude that Gidden entered into a joint venture to rent the vehicle for Garner’s use to circumvent the rental company’s policy not to rent a vehicle to someone of Garner’s age. To this end the evidence would permit an inference that Gidden permitted Garner to use Gidden’s driver’s license and debit card to rent the vehicle in Gidden’s name for Garner’s use with Gidden present at the rental car agency.
Although Gidden argues there is no evidence of joint control of the rental car, which was driven by Garner, this argument misses the mark because there is ample evidence from which a jury could infer Gidden had control of the rental transaction jointly with Garner because he agreed to rent the car for Garner’s use, he was present at the rental agency and had the ability to withhold consent to the rental and use of his driver’s license, debit card and name on the rental agreement; Gidden also had the right to terminate the rental and control who drove the vehicle rented in his name. The jury could choose to disbelieve Gidden’s self-serving statements to the contrary in his affidavit. There are genuine issues of material fact that preclude summary judgment for Gidden and his motion is denied.
The same is not true for the allegations of joint venture against McLeggan. The only facts submitted relating to McLeggan’s alleged role in the alleged joint venture is that she obtained an automobile insurance policy from GEICO on which Gidden was an insured. In her sworn statement to GEICO McLeggan denied knowledge or authority relating to Gidden’s rental of a vehicle for Garner, who she professed, she did not know. In Gidden’s sworn statement to GEICO, he corroborated McLeggan’s lack of knowledge about the rental and denied telling McLeggan he was renting a car for Garner or asking her permission to do so.
Plaintiff has submitted no evidence that would contradict the evidence that McLeggan was unaware of and played no role in the rental of the vehicle in which plaintiff was later injured. Once McLeggan presented evidence that she was not a joint venturer in the rental of the subject vehicle the burden shifted to plaintiff, who has not borne her burden of showing by evidentiary facts the existence of a genuine issue of material fact as to McLeggan’s liability on the Eighth Count. See generally Iacurci, 313 Conn. at 799. McLeggan’s summary judgment motion is granted.