2003 Ct. Sup. 10266
No. 560159Connecticut Superior Court, Judicial District of New London at New London
September 2, 2003
MEMORANDUM OF DECISION
HURLEY, JUDGE TRIAL REFEREE.
In this action, the two plaintiffs, David N. Abrams, the administrator of the estate of Adam Kowalyshyn, brings this claim for his wrongful death, and the plaintiff, Brandon Kowalyshyn, brings claims for injuries and losses suffered in the same automobile accident. Both Brandon and Adam were passengers in a motor vehicle operated by defendant, Krystin Kowalyshyn, which was owned by the defendant, Barberino Brothers, when it collided with a vehicle operated by the defendant, Donna A. Lennox, causing the injuries and losses to the two plaintiffs.
The plaintiffs claim that the vehicle had a dealer’s license plate on it and that Barberino Brothers is liable for the injuries and damages suffered by the plaintiffs due to its violation of C.G.S. § 14-60 in that it loaned the vehicle for purposes not permitted by this statute. It is alleged that Barberino Brothers loaned the vehicle to two people by the names of Cheryl Foisey and Kenneth Kowalyshyn, parents of the operator, Krystin Kowalyshyn.
Barberino Brothers has moved for summary judgment claiming that it has complied with C.G.S. § 14-60. The statute reads in pertinent part:
No dealer . . . may loan a motor vehicle or number plate or both to any person except for the purpose of demonstrating a vehicle . . . or when such person has purchased a motor vehicle, the registration of which by him is pending, and in any case for not more than thirty days in any year, provided such person shall furnish proof to the dealer . . . that he has liability and property damage insurance which will cover any damage to any person or property caused by the operation of the loaned vehicle, on which the loan number plate is displayed or both.
Section 14-60 (a) established a two-pronged analysis to be used in determining whether the lessor, as a dealer defendant, is protected by the immunity offered by the statute. First the court must ascertain whether the operator was operating the vehicle owned by the dealership as CT Page 10267 part of a demonstration or “test drive,” whether she was operating that motor vehicle because her own car was undergoing repairs to be performed by the dealer, or whether she was awaiting registration of a vehicle she had already purchased from the dealer.
If any one of these three criteria has been satisfied, the protection of the statute might apply to the dealer if at the time the operator received the loaner vehicle the dealer also had obtained proof that this person had “liability and property damage insurance which will cover any damage to any person or property caused by the operation of the loaned vehicle,” satisfying the second prong of § 14-60 (a). If the person to whom the dealer or repairer loaned the motor vehicle or number plate did not at the time of such loan have in force any such liability and property damage insurance, “such person or such dealer or repairer shall be jointly liable for any damage to any person or property caused by the operation of the loaned motor vehicle . . .” § 14-60 (a). Dugay v. Brothers’ Toyota, Inc., 28 Conn.L.Rptr. 69, Docket No. CV97-0572734 (Rubino, J.) (September 2000).
The defendant claims that there is no genuine issue of material fact because it complied with the statute and that it is entitled to summary judgment as a matter of law.
Facts
The plaintiffs claim that there is a genuine issue of material fact as to whether or not Kenneth Kowalyshyn and Cheryl Foisey had purchased the Altima vehicle in question. The defendant claims that they had purchased the vehicle with the registration pending. The defendant refers to its Exhibit “A,” as a “Purchase and Sale Agreement.” However, it shows no purchase price, sales tax, registration charges, any financing arrangements, or other items essential to establish an agreement to purchase the vehicle.
Next, the defendant claims that Krystin Kowalyshyn was prohibited by the temporary loan agreement from driving the vehicle. However, Cheryl Foisey, her mother, did not sign any document regarding such limitation. Thus, the plaintiffs claim that Cheryl was free to allow Krystin to drive the vehicle. Cheryl’s affidavit states that the defendant knew the Altima was for Cheryl to drive. The defendant was aware that Cheryl would drive the vehicle and that it would be in effect her vehicle according to Cheryl’s affidavit. The defendant denies this statement.
The defendant claims that the Altima was loaned for demonstration purposes. The plaintiffs dispute this because they assert that the CT Page 10268 defendant hoped to persuade Krystin’s parents to purchase the vehicle by letting her drive the car for a while so they could “seal the deal.” Neither Krystin nor Kenneth nor Cheryl needed a demonstration because they were already familiar with the Altima to be purchased and had previously owned another Altima.
Discussion
The first question is whether the vehicle was being used as part of a demonstration or test drive, or because the purchaser’s car was being repaired or was awaiting registration for a vehicle already purchased. In this case, based upon the evidence submitted by both sides, the court finds that there is a genuine issue of material fact as to all of these questions.
As to the question of whether the car was already purchased, the defendant submitted an alleged purchase agreement which the buyers denied was in fact an agreement. They assert that the document itself clearly lacked the necessary conditions for such an agreement and that none of the required terms for an agreement were present in the document. Furthermore, the court cannot find that the purchase of the vehicle was made and only the registration was pending based upon the evidence submitted. The court finds to the contrary that there was no purchase. Among such exhibits is the police report of the accident which lists Barberino Brothers as the owner of the vehicle. The evidence submitted also fails to disclose that Krystin Kowalyshyn was prohibited by the temporary loan agreement to drive the Altima as defendant now contends because Cheryl Foisey, one of the authorized drivers, never agreed to any limitations as to who could drive the vehicle.
Under Connecticut law, auto dealers or repairers are vicariously liable when the insurance mandate of C.G.S. § 14-60 has been violated Whitfield v. Empire Mutual Insurance Co., 167 Conn. 479 (1975); Cook v. Collins Chevrolet, Inc., 199 Conn. 245 (1986). The dealer is immune from liability only if both parts of the two-pronged test of § 14-60 are met. Dugay v. Brothers’ Toyota, Inc., Judicial District of Hartford, Docket No. CV97-0572734 (September 11, 2000, Rubino, J.) (28 Conn.L.Rptr. 69). The reason behind the statute would be to insure that the dealer is also liable if it lends a vehicle for reasons other than specified in § 14-60.
Conclusion
Under C.G.S. § 14-60, there is a question of fact as to whether or not the lessor/lessee relationship was created under the circumstances in this case. Accordingly, the motion for summary judgment must be denied. CT Page 10269
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