Opinion
CV166063288S
11-27-2017
Paul DUBUC, Jr. v. David MILLER et al.
UNPUBLISHED OPINION
OPINION
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
On June 28, 2016, the plaintiff, Paul Dubuc, Jr., filed a fifteen-count complaint alleging the following facts. On June 5, 2014, the defendant David Miller was being pursued by at least three police vehicles on Frost Road in Waterbury, Connecticut, while operating a vehicle owned by the defendant Christopher Brenes, with Brenes’ full knowledge, permission, and consent. During this pursuit, the vehicle Miller was operating struck and/or was struck by the police vehicles, causing it to collide with Dubuc’s vehicle. Miller’s negligence caused Dubuc’s personal injuries and other harm. Brenes, therefore, is vicariously liable to Dubuc for Miller’s negligence. On February 1, 2017, Brenes filed an answer, in which he denied vicarious liability for Miller’s negligence and that Miller was operating the vehicle with Brenes’ knowledge, permission, and consent.
The first count of the complaint alleges negligence against Miller individually. This memorandum concerns the second count of the complaint, alleging that Brenes should be held vicariously liable for the negligence of Miller. The remaining counts allege (1) negligence against the defendants Eric Medina, Richard Innaimo, and Thomas Cavanaugh, the police officers involved in the accident, (2) vicarious and direct liability against the defendant, city of Waterbury for its police officers’ negligence, and (3) uninsured motorist liability against Dubuc’s employer, the defendant Southern New England Telephone Company.
On April 13, 2017, Brenes filed a motion for summary judgment on the ground that there is no genuine issue of material fact that Brenes cannot be vicariously liable for Miller’s negligence because Miller is not Brenes’ family member, Brenes’ vehicle was taken without his knowledge or permission, Miller was not Brenes’ agent and, therefore, as a matter of law, the motion for summary judgment must be granted. The motion is accompanied by a memorandum of law in support, and the following evidence is submitted: (1) a signed and sworn affidavit of Brenes; and (2) an unauthenticated copy of a Connecticut uniform police accident report. Dubuc filed an objection to Brenes’ motion for summary judgment on July 5, 2017, and exhibits on July 6, 2017, consisting of the following evidence: (1) uncertified deposition transcript of Brenes; (2) uncertified deposition transcript of Miller; (3) an unauthenticated property damage appraisal of Brenes’ vehicle; and (4) an unauthenticated portion of Brenes’ automobile insurance policy. In response, Brenes filed a reply brief on July 14, 2017. The court heard oral argument on the motion on August 7, 2017.
Dubuc filed a motion for extension of time to respond to Brenes’ motion for summary judgment on June 8, 2017, arguing that more time was needed to depose Brenes and Miller because Brenes’ assertion that Miller was operating the vehicle owned by Brenes without Brenes’ permission or knowledge was not asserted as a special defense, and Dubuc was therefore unaware of that defense. Brenes filed an objection to Dubuc’s motion for extension of time on June 13, 2017. This court, Wilson J., overruled Brenes’ objection and ordered that depositions of Miller and Brenes be conducted on or before June 27, 2017, that Dubuc was to file his objection to Brenes’ motion for summary judgment on or before July 5, 2017, and that Brenes file a reply brief on or before July 19, 2017.
DISCUSSION
" [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ... [A] directed verdict may be rendered only 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 verdict as directed." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). " In summary judgment, the court’s role is not to weigh the credibility of the parties, which falls within the province of the finder of fact ... When a court, in ruling on a motion for summary judgment, is confronted with conflicting facts, resolution and interpretation of which would require determinations of credibility, summary judgment is not appropriate." (Citation omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 710, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. 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 ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17-45] ..." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). " The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ... which contradict those stated in the movant’s affidavits and documents." (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut, 167 Conn.App. 347, 358, 143 A.3d 638 (2016).
Brenes argues that there is no genuine issue of material fact that as a matter of law he is not vicariously liable for the alleged negligence of Miller because Miller took Brenes’ vehicle without permission at the time of the accident. Brenes states that the presumption of agency liability established by General Statutes § 52-183, therefore, is rebutted. Moreover, even if there are inconsistencies between Miller’s testimony and his own, regarding the exact details of what happened on the day of the accident and how Miller obtained the keys to the vehicle, Brenes argues that such inconsistencies are immaterial, and more importantly, their testimonies are consistent as to Miller’s lack of permission to use the vehicle on the day of the accident. In support, Brenes offers as evidence an unauthenticated copy of a Connecticut uniform police accident report and his own affidavit, in which he states that on the date of the alleged accident, Miller used his vehicle without his permission.
Section 52-183 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. The defendant shall have the burden of rebutting the presumption."
" [B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document’s] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be ... Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012). The trial court has discretion in determining whether to consider unauthenticated documentary evidence submitted by a party in support of or in opposition to a motion for summary judgment to which there is no objection. See Bruno v. Whipple, 138 Conn.App. 496, 506-07, 54 A.3d 184 (2012). In the present case, Brenes’ affidavit is signed and sworn and, thus, has been properly authenticated. Further, Dubuc has not objected to the admissibility of any of Brenes’ documents. " [T]hus, any objection is deemed waived and all documents are admissible within the court’s discretion." (Internal quotation marks omitted.) Tassmer v. McManus, Superior Court, judicial district of New Haven, Docket No. CV-09-5028470-S (January 15, 2010, Wilson, J.). Accordingly, the court will consider Brenes’ Connecticut uniform police accident report.
Dubuc counters that there are genuine issues of material fact because he is entitled to take advantage of the presumption of agency liability created by § 52-183, as it is undisputed that Brenes owned the vehicle Miller was operating at the time of the alleged accident. This presumption, he argues, has not been defeated by Brenes’ self-serving statements in his affidavit, which is the only relevant evidentiary support Brenes has provided. Dubuc further asserts that, even if Brenes rebuts the statutory presumption, there are genuine issues of material fact regarding Brenes’ and Miller’s statements in their depositions that Miller was not given permission to operate Brenes’ vehicle on the date of the alleged accident, as Miller and Brenes offer conflicting descriptions of the events of that day, thus calling into question their credibility. In support of his objection, Dubuc provides (1) uncertified deposition transcripts of Brenes and Miller; (2) an unauthenticated property damage appraisal of Brenes’ vehicle; and (3) an unauthenticated portion of Brenes’ automobile insurance policy.
See footnote 4. As Brenes has not objected to the admissibility of any of Dubuc’s documents, the court will consider the documents.
" [Common law agency] is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act ... Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking ... The existence of an agency relationship is a question of fact." (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543, 893 A.2d 389 (2006). Section 52-183 creates a presumption of agency in motor vehicle cases. Section 52-183 provides that " [i]n 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."
Section 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; internal quotation marks omitted.) Bogart v. Tucker, 164 Conn. 277, 281-82, 320 A.2d 803 (1973).
" [I]t is only after the trier of fact has found that the defendant’s evidence is credible that the presumption ceases to operate and the plaintiff is burdened with producing evidence to establish the agency relationship." Engram v. Kraft, 83 Conn.App. 782, 789, 851 A.2d 363 (2004). The defendant vehicle owner in Engram argued in his motion for summary judgment that he had successfully rebutted the presumption in § 52-183 by offering his own affidavit attesting that he had not known the operator at the time of the accident, his recorded statement to his insurance company stating that his vehicle was taken without his permission, portions of his deposition testimony stating that his vehicle was stolen, and the police report that he had filed on the day of the accident alleging that his vehicle had been taken without his permission and noting his desire that a nonparty be arrested for the theft of his vehicle. Id., 784-85. The Appellate Court reversed the trial court’s summary judgment in favor of the defendant vehicle owner, holding that " [t]he fact that the plaintiff presented no evidence to support his theory of agency does not preclude the issue from being decided by a jury ... [T]he court ... improperly drew its own conclusion as to the credibility of the defendant’s testimony rather than submitting the issue to the jury." Id., 789; see also Wentland v. Charette, Superior Court, judicial district of New Britain, Docket No. CV-04-0526969-S (May 19, 2006, Shapiro, J.) (41 Conn.L.Rptr. 476, 476-78) (denying vehicle owner’s motion for summary judgment, whereby, in order to rebut presumption pursuant to § 52-183, owner submitted affidavit stating that operator did not have permission to operate vehicle and owner’s recorded statement, because credibility of such assertions must be assessed by trier of fact); Barnett v. Brown, Superior Court, judicial district of Hartford, Docket No. CV-90-0376745-S (March 22, 1993, Aurigemma, J.) (8 Conn.L.Rptr. 513, 514) (denying vehicle owner’s motion for summary judgment, whereby, in order to rebut presumption pursuant to § 52-183, owner alleged that operator did not have permission to operate vehicle, did not submit supporting evidence, and operator stated in deposition that she thought she had implied permission to use vehicle, because trier of fact must determine credibility of witnesses).
In Nelson v. Crowe, Superior Court, judicial district of New Britain, Docket No. CV-13-6022022-S (July 28, 2014, Swienton, J.) (58 Conn.L.Rptr. 671, 675), a case involving facts similar to those in the present case, a defendant vehicle owner’s motion for summary judgment was denied. The defendant vehicle owner in Nelson introduced affidavits and deposition excerpts of several other defendants, each corroborating the others’ testimonies setting forth that the operator did not have permission to use the vehicle. Id., 674. The plaintiff relied entirely on the statutory presumption created by § 52-183 in support of his position and asserted that it is up to the jury to determine the validity of the defendants’ testimonies. Id. " [T]he plaintiff is entitled to the benefit of the statutory presumptions, and the normal rules for summary judgment requiring him to adduce more than a general denial or bald assertion to defeat summary judgment do not apply. The facts rebutting the presumption of agency under ... § 52-183 ... must be proven ... While it is improbable that the plaintiff will prevail based upon the [testimonies] of the defendant[s] ... particularly where the testimony of [the defendant operator] is against his own financial interest, this is an issue to be determined by a jury. The court cannot make this credibility determination and must submit the issue to the jury." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 675. Therefore, notwithstanding the evidence submitted by the defendant vehicle owner, the court held that, because the issue to be decided concerned the defendants’ credibility, it must be submitted to the jury. Id.
In the Superior Court decisions finding that the statutory presumption has been sufficiently rebutted, evidence submitted by defendant vehicle owners consisted of more than self-serving affidavits and was of such a nature that it could not be rationally disbelieved. See, e.g., Pranulis v. Kay, Superior Court, judicial district of Waterbury, Docket No. CV-14-6025632-S (March 7, 2017, Roraback, J.) (granting defendant vehicle owner’s motion for summary judgment, whereby owner submitted affidavit of its general manager, deposition testimony of alleged vehicle operator, and its company policy regarding vehicle use, because evidence that there was no agency relationship between owner and alleged operator could not rationally be disbelieved); Skane v. Perusse, Superior Court, judicial district of Fairfield, Docket No. CV-06-5005713-S (October 27, 2008, Arnold, J.) (46 Conn.L.Rptr. 596, 597-99) (granting defendant vehicle owner’s motion for summary judgment because deposition testimonies of plaintiff, vehicle operator, and owner each corroborated operator’s lack of permission from owner, plaintiff offered no evidence to contradict, and credibility was not at issue); Fletcher v. Stoleson, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket, Docket No. X05-CV-00-0177740-S (March 11, 2002, Rogers, J.) (31 Conn.L.Rptr. 518, 519-21) (granting defendant vehicle owners’ motion for summary judgment, whereby one owner submitted affidavit stating permission was not given to vehicle operator, opposing parties offered no contradicting evidence, and because credibility was not at issue).
In Sumler v. Galloway, Superior Court, judicial district of New Haven, Docket No. CV-10-6008976-S (August 31, 2010, Wilson, J.) (50 Conn.L.Rptr. 546, 548), the defendant vehicle owner’s motion for summary judgment was granted. In Sumler, " the defendant produced a sworn affidavit attesting that he did not provide the driver with permission to operate his vehicle, that he did not know this individual and that his vehicle was stolen from the driveway outside his apartment ... several days prior to the accident. The defendant also submitted] certified copies of two stolen vehicle reports ..." Id., 548. This court held that such evidence constituted " more than mere testimony, because it include[d] an uncontroverted document that attribute[d] significant credibility to the defendant’s testimony that he did not grant the driver consent to operate his vehicle. Moreover ... there [were] no facts ... that create[d] an issue as to the defendant’s credibility. Because no rational jury could disbelieve the defendant’s evidence, there [was] no genuine issue of material fact as to the absence of an agency relationship ... [T]he defendant [was] entitled to judgment as a matter of law." Id.
In support of his motion for summary judgment, Brenes submits his own affidavit wherein he states that, on the day of the alleged accident, Miller used his vehicle without his permission or authority. The submission of Brenes’s testimonial affidavit is not enough to overcome the statutory presumption in § 52-183. See Bogart v. Tucker, supra, 164 Conn. 281-82 (" [s]ince 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"); see also Sumler v. Galloway, supra, 50 Conn.L.Rptr. 547 (" [I]f the substance of the evidence amounts to nothing more than mere testimony, a jury’s determination of credibility is still required notwithstanding the form taken by the evidence").
Even if Brenes’ affidavit was sufficient, the present case is similar to Nelson v. Crowe, supra, 58 Conn.L.Rptr. 674, whereby the defendant vehicle owner introduced affidavits and deposition testimonies of several defendants setting forth that the operator did not have permission to use the vehicle. In the present case, in response to Brenes’ affidavit stating that he did not give permission to Miller to use the vehicle, Dubuc presents Miller’s and Brenes’ deposition testimonies, whereby they both state that Miller lacked permission. Like in Nelson v. Crowe, supra, 674-75, Dubuc argues that he may rely on the presumption created by § 52-183. Dubuc, however, goes further than the defendant vehicle owner in Nelson v. Crowe, supra, 674, as he submits this deposition evidence challenging the credibility of Miller and Brenes as their recollections of the events that occurred on the day of the accident conflict. Similar to Nelson v. Crowe, supra, 675, the issue of the defendants’ credibility must be submitted to the jury. See Bogart v. Tucker, supra, 164 Conn. 282-83; Engram v. Kraft, supra, 83 Conn.App. 788-89.
Even assuming arguendo that Brenes has presented evidence to properly rebut the presumption created by § 52-183, in light of the evidence submitted by Dubuc, there remain genuine issues of material fact. Dubuc, in objecting to the motion for summary judgment, provides deposition testimonies of Brenes and Miller, in which they consistently state that Miller did not have permission to use Brenes’ vehicle on the date of the accident. Brenes Dep., pp. 18-19; Miller Dep., p. 18. Dubuc notes, however, that Miller and Brenes offered conflicting recollections of the events of the day of the accident and how Miller obtained the keys to Brenes’ vehicle. Brenes states that he left his keys under a mat in the vehicle, and was attending school in Massachusetts when the vehicle was taken; Brenes Dep. 15-21; whereas Miller recalls taking the keys from a shelf in Brenes’ kitchen, after hanging out, while Brenes was sleeping. Miller Dep., p. 10. There are also discrepancies in their testimonies as to how often Miller borrowed Brenes’ vehicle; Brenes Dep., pp. 10, 12; Miller Dep., p. 15; and whether Brenes had told Miller to stop using the vehicle prior to the date of the accident. Brenes Dep., pp. 18-19; Miller Dep., pp. 11-12. Brenes also states that, although he told his insurance company that his vehicle was taken without his permission when he filed a claim, his insurance company did not require him to submit a police report in conjunction with his claim. Brenes Dep., pp. 23-25. Brenes further testifies that he did not report his vehicle as stolen to the police; Brenes Dep., pp. 23-24; and Miller states that no criminal charges were prosecuted against him for the theft of Brenes’ vehicle. Miller Dep., pp. 13-14. Even if Brenes could successfully rebut the presumption created by § 52-183, the evidence submitted by Dubuc raises issues of credibility that must be determined by a jury. See Bogart v. Tucker, supra, 164 Conn. 282-83; Engram v. Kraft, supra, 83 Conn.App. 788-89.
Moreover, unlike Sumler v. Galloway, supra, 50 Conn.L.Rptr. 548, whereby the defendant vehicle owner submitted two stolen vehicle reports in support of his argument that the operator of his vehicle lacked permission, attributing significant credibility to his testimony, in the present action, Brenes has not made a similar showing. In fact, Brenes’ deposition testimony states that he did not file a stolen vehicle report, and Miller’s deposition testimony states that he was not charged with stealing Brenes’ vehicle. Both testimonies do not bolster Brenes’ argument that Miller lacked permission to use the vehicle on the date of the accident and, in fact, their testimonies demonstrate that factual issues remain as to Brenes’ and Miller’s credibility. This case is therefore distinguishable from Sumler v. Galloway, supra, and those Superior Court cases wherein the defendant vehicle owners’ motions for summary judgment were granted.
CONCLUSION
There are genuine issues of material fact as to the defendants’ credibility, and Brenes does not successfully rebut the statutory presumption of agency pursuant to § 52-183 as a matter of law. Accordingly, the motion for summary judgment is denied.
Brenes also argues that there is no genuine issue of material fact that he is not vicariously liable for the alleged negligence of Miller because there is no familial relationship between them, as required by General Statutes § 52-182. Section 52-182 provides: " Proof that the operator of a motor vehicle or a motorboat, as defined in section 15-127, was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle or motorboat was being operated as a family car or boat within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption." In his objection to the motion for summary judgment, Dubuc concedes that he is not alleging that Brenes and Miller are family members, and therefore, Dubuc is not asserting a claim pursuant to § 52-182. See Dubuc’s Obj. to Mot. Summ. J., p. 1 n.1.
Brenes further argues that, under Mitchell v. Resto, 157 Conn. 258, 253 A.2d 25 (1968), the presumption created by § 52-183 requires that use of the vehicle benefit the owner, and because Miller’s use could not have benefitted Brenes, the statutory presumption does not apply. The holding in Mitchell, however, applied to common-law, rather than statutory, agency. Id., 263-64. Thus, it is unnecessary for Dubuc to demonstrate that Miller’s use of Brenes’ vehicle benefitted Brenes.