Opinion
No. CV 03 0193482
April 16, 2004
MEMORANDUM OF DECISION RE SUMMARY JUDGMENT
The plaintiff, Progressive Northern Insurance Company, has brought a suit against the defendant, Jesus Flores, seeking reimbursement for money it paid to its insured, Marie Celesna, and her passenger, who were both injured in an automobile accident on January 21, 2001, involving a vehicle owned by the defendant and operated by Javier Perez, an uninsured driver. The plaintiff alleges in its complaint that Perez was operating his vehicle in a negligent manner and that it is entitled to seek reimbursement from Flores in accordance with its policy with Celesna. The plaintiff further alleges that Perez was operating the defendant's vehicle as an "agent" of the defendant with the latter's consent, and that the defendant vehicle owner is therefore liable to the plaintiff for the driver's negligence pursuant to General Statutes § 52-183, which creates a presumption that an operator of a motor vehicle is acting as an agent of the owner. The defendant Flores has filed motion #114 seeking summary judgment on the basis that the operator, Perez, did not have his permission to operate the defendant's vehicle and he attached to the motion for summary judgment his affidavit to that effect. The issue in this motion for summary judgment is whether the affidavit of Flores stating that Perez took his car without permission warrants the granting of summary judgment in his favor.
General Statutes § 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."
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. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). "[T]he genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." (Internal quotation marks omitted.) Id., 378-79.
"A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) United Oil Co. v. Urban Development Commission, supra, 158 Conn. 379. "Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." (Internal quotation marks omitted.) Id. "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "[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." (Internal quotation marks omitted.) Id., 752. "[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." Id.
As was said in a case very similar to this present action, "the affidavits attesting to the defendant-driver, having operated without permission, cannot create an absence of material factual dispute. Such a dispute stems from General Statutes § 52-183, which creates a presumption to the contrary and burdens the defendant with disproof. The dispute is sufficient to render summary judgment inappropriate, and one which must await the fact finder's pronouncement. See Bogart v. Tucker, 164 Conn. 277, 281-82, 320 A.2d 803 (1973); Del Valle v. Koulouris, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV 92 0519055 (April 30, 1993, Aurigemma, J.) ( 9 Conn. L. Rptr. 76).
"There is a conceptual space between an ostensibly likely victory on defendant's facts and entitlement to summary judgment. The Bogart court noted that the presumption shifts the burden of proof to the defendant and if the trier of fact finds defendant-owner's body of evidence unpersuasive, the statutory presumption carries the day. Here it is possible that testimony at trial from affiant driver and owner will be deemed self-serving and not credible. That prospect is not for the motion court to rule upon." Terry v. Gaucher, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 02 0079359S (Jun. 3, 2003, Nadeau, J.) ( 34 Conn.L.Rptr. 662).
This reasoning is persuasive as is an earlier 1975 case reaching the same conclusion. Summary judgment for the owner of a motor vehicle was denied despite her affidavit that she never gave the operator permission to drive her automobile. Sutphen v. Hagelin, 32 Conn. Sup. 158, 163, 344 A.2d 270 (1975) ("Because the jury were at liberty to disbelieve the defendant's testimony, and further because the evidence was that the statutory presumption would preclude the direction of a verdict against the plaintiff, the jury's verdict as to the defendant . . . must stand Within the rationale of the above-discussed cases, only a court or jury can give the final, binding answer").
The plaintiff has demonstrated the existence of a genuine issue of material fact regarding agency and the presumption thereof, and the motion for summary judgment is therefore denied.
So Ordered.
Dated at Stamford, Connecticut, this 16th day of April 2004.
William B. Lewis, Judge(TR)