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Cefaratti v. Aranow

Supreme Court of Connecticut

June 14, 2016

LISA J.CEFARATTI
v.
JONATHAN S. ARANOWET AL.

          Argued January 21, 2016

          Kelly E. Reardon, with whom, on the brief, was Robert I. Reardon, Jr., for the appellant (plaintiff).

          S. Peter Sachner, with whom, on the brief, was Amy F. Goodusky, for the appellee (defendant Middlesex Hospital).

          Jennifer L. Cox and Jennifer A. Osowiecki filed a brief for the Connecticut Hospital Association as ami-cus curiae.

          Alinor C. Sterling, Cynthia C. Bott and Kathryn Cal-ibey filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

          Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and Vertefeuille, Js.

          OPINION

          ROGERS, C.J.

         The primary issue that we must resolve in this certified appeal is whether this court should recognize the doctrine of apparent agency in tort actions, under which a principal may be held vicariously liable for the negligence of a person whom the principal has held out as its agent or employee. The plaintiff, Lisa J. Cefaratti, brought a medical malpractice action against the defendants, Jonathan S. Aranow, Shoreline Surgical Associates, P.C. (Shoreline), [1] and Middlesex Hospital (Middlesex), alleging that Aranow had left a surgical sponge in the plaintiff’s abdominal cavity during gastric bypass surgery. She further alleged that Middlesex was both directly liable for its own negligence during the surgery and vicariously liable for Aranow’s negligence, because Middlesex had held Aranow out to the public as its agent or employee. Thereafter, Middlesex filed a motion for summary judgment claiming, among other things, that the plaintiff did not have a viable claim of vicarious liability against it because Ara-now was not its actual agent or employee and the doctrine of apparent agency isnot recognized in tort actions in this state.[2] The trial court agreed with Middlesex and granted its motion for summary judgment on the vicarious liability claim. The plaintiff appealed to the Appellate Court, which affirmed the judgment of the trial court. Cefaratti v. Aranow, 154 Conn.App. 1, 45, 105 A.3d 265 (2014). We then granted the plaintiff’s petition for certification to appeal on the following issue: ‘‘Did the Appellate Court properly conclude that the doctrine of apparent authority does not apply to actions sounding in tort?’’ Cefaratti v. Aranow, 315 Conn. 919, 107 A.3d 960 (2015). We answer that question in the negative. We also conclude that, because we are adopting a new standard for establishing an apparent agency in tort actions, the case must be remanded to the trial court to provide the plaintiff with an opportunity to establish that there is a genuine issue of material fact as to each element of the doctrine.

         The record, which we view in the light most favorable to the plaintiff for purposes of reviewing the trial court’s rendering of summary judgment, reveals the following facts and procedural history. At some point prior to December, 2003, the plaintiff decided that she wanted to undergo gastric bypass surgery. The plaintiff knew that Aranow performed this type of surgery because he had performed the procedure on her partner’s mother, with very good results. The plaintiff researched the matter and determined that Aranow was considered to be the best gastric bypass surgeon in the state.[3]

         Before Aranow would accept the plaintiff as a patient and perform the surgery, the plaintiff was required to attend a seminar that Aranow conducted at Middlesex. In addition, she attended a number of informational session sat Middlesex that were conducted by Aranow’s staff. The plaintiff received a pamphlet at one of the informational sessions that had been prepared by Middlesex and that stated that ‘‘the health care team who will be caring for you has developed an education program that is full of important information.’’ In addition, the pamphlet stated that ‘‘[t]he team will go over every aspect of your stay with us. We will discuss what you should do at home before your operation, what to bring with you, and events on the day of surgery.’’[4] The plain-tiff assumed that Aranow was an employee of Middlesex because he had privileges there, and she relied on this belief when she chose to undergo surgery at Middlesex.

         On December 8, 2003, Aranow performed gastric bypass surgery on the plaintiff at Middlesex. On August 6, 2009, after being diagnosed with breast cancer by another physician, the plaintiff underwent a computerized tomography (CT) scan of her chest, abdomen and pelvis. The CT scan revealed the presence of foreign material in the plaintiff’s abdominal cavity. On Septem-ber9, 2009, the plaintiff met with Aranow, who informed her that the object in her abdominal cavity was a surgical sponge.

         Thereafter, the plaintiff brought a medical malpractice action alleging, among other things, that Aranow had negligently failed to remove the surgical sponge from her abdominal cavity during the gastric bypass surgery and that Middlesex was vicariously liable for Aranow’s negligence because it had held Aranow out as its agent or employee. Middlesex then filed a motion for summary judgment in which it contended that the plaintiff’s claim of vicarious liability was barred because Middlesex was not Aranow’s employer and the doctrine of apparent authority is not recognized as a basis for tort liability in this state as a matter of law. The plaintiff objected to Middlesex’ motion for summary judgment claiming that, contrary to its contention, the doctrine of apparent agency has been recognized in this state. The plaintiff also contended that there was a genuine issue of material fact as to whether Middlesex had held out Aranow as its agent or employee and whether the plaintiff had acted in reliance on her belief that that was the case. Relying on the Appellate Court’s decision in L & V Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., 136 Conn.App. 662, 47 A.3d 887 (2012), the trial court concluded that the doctrine of apparent agency has not been recognized in this state. See id., 670 (‘‘this court has held that the doctrine of apparent authority cannot be used to hold a principal liable for the tortious actions of its alleged agent’’). Accordingly, the trial court concluded that the plaintiff’s claim of vicarious liability against Middlesex was barred as a matter of law and it rendered summary judgment for Middlesex on that claim. The plaintiff appealed to the Appellate Court, which affirmed the judgment of the trial court. Cefaratti v. Aranow, supra, 154 Conn.App. 45. This certified appeal followed.[5]

         The plaintiff claims on appeal that the Appellate Court improperly concluded that the doctrine of apparent agency has not been recognized in the state as a basis for vicarious liability in actions sounding in tort. Middlesex contends that, to the contrary, the plaintiff has confused the doctrine of apparent authority, which expands the authority of an actual agent, with the doctrine of apparent agency, which creates an agency relationship that would not otherwise exist, and the Appellate Court properly held that the doctrine of apparent agency has been expressly rejected as a basis for tort liability in this state. Middlesex further contends that, even if the doctrine of apparent agency is generally applicable in tort actions, hospitals may not be held vicariously liable for the medical malpractice of their agents or apparent agents. Finally, Middlesex contends that, even if hospitals may be held vicariously liable for medical malpractice, the plaintiff has failed to establish the elements of the doctrine in the present case.

         ‘‘The standard of review of a trial court’s decision granting summary judgment is 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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.’’ (Citation omitted; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248, 253, 811 A.2d 1266 (2002).

         We begin our analysis with a review of our cases involving the doctrines of apparent agency and apparent authority.[6] The first case to come before this court involving the application of the doctrine of apparent authority in a tort action was Fireman’s Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., 127 Conn. 493, 18 A.2d 347 (1941). In that case, the named defendant, Longshore Beach and Country Club, Inc. (country club), employed certain persons to park club members’ cars upon their arrival and to retrieve the cars when the members departed. Id., 494. The country club also employed James Plant as a watchman. Id., 495. The parking attendants wore green uniforms, while Plant wore a blue one. Id. A club member, Fred Giorchino, was about to leave the club and asked Plant if he could drive. When Plant replied that he could, Giorchino offered Plant a tip to retrieve his car for him. Id. Plant agreed, but never returned with the car. Ultimately, the car was found submerged in nearby waters, with Plant in the driver’s seat, drowned. Id. The plaintiff, which had insured Giorchino’s car, brought a subrogation action against the country club and its operators contending that they were liable for Plant’s negligence because he was ‘‘acting either within the scope of [the country club’s] implied or [its] apparent authority.’’ Id., 496. The trial court concluded that, to the contrary, Plant was acting as Giorchino’s agent and, accordingly, it rendered judgment for the defendants. Id.

         On appeal, this court stated that ‘‘[a]pparent and ostensible authority is such authority as a principal intentionally, or by want of ordinary care, causes or allows a third person to believe that the agent possesses. This authority to act as agent may be conferred if the principal affirmatively or intentionally, or by lack of ordinary care, causes or allows third persons to act on an apparent agency. It is essential to the application of the above general rule that two important facts be clearly established: (1) that the principal held the agent out to the public as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act as having such authority; and (2) that the person dealing with the agent knew of the facts and acting in good faith had reason to believe and did believe that the agent possessed the necessary authority. The apparent power of an agent is to be determined by the acts of the principal and not by the acts of the agent; a principal is responsible for the acts of an agent within his apparent authority only where the principal himself by his acts or conduct has clothed the agent with the appearance of authority, and not where the agent’s own conduct has created the apparent authority. The liability of the principal is determined in any particular case, however, not merely by what was the apparent authority of the agent, but by what authority the third person, exercising reasonable care and prudence, was justified in believing that the principal had by his acts under the circumstances conferred upon his agent.’’[7] (Internal quotation marks omitted.) Id., 496–97.

         After setting forth these legal principles, this court concluded that, under the specific facts of the case, ‘‘Plant was not acting . . . even in the apparent or ostensible scope of his authority. The plaintiff failed to establish that the defendants held Plant out to the [country club] members as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act as having such authority; or that Giorchino acting in good faith had reason to believe and did believe that Plant possessed the necessary authority. The defendants’ liability is determined by what authority Giorchino, exercising reasonable care and prudence, was justified in believing that the defendants had by their acts under the circumstances conferred upon Plant. Giorchino’s question whether Plant could drive a car, and his bargain with him are among the significant facts.’’ Id., 497–98. Accordingly, this court concluded that the defendants were not liable for Plant’s negligence. Id., 498.

         Despite the clear language of Fireman’s Fund Indemnity Co., in which this court recognized the doctrine of apparent authority but rejected the plaintiff’s claim because it had failed to establish the factual elements of that claim, the Appellate Court has subsequently suggested in a series of cases that that doctrine and the related doctrine of apparent agency have been rejected in this state as a matter of law.[8] It was not until its decision in the present case that the Appellate Court finally recognized that this conflict exists.[9] We agree that L&V Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., supra, 136 Conn.App. 662, Davies v. General Tours, Inc., 63 Conn.App. 17, 774 A.2d 1063, cert. granted, 256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October 18, 2001), and Mullen v. Horton, 46 Conn.App. 759, 700 A.2d 1377 (1987), cannot be reconciled with Fireman’s Fund Indemnity Co., and must, therefore, be overruled. Although this court in Fireman’s Fund Indemnity Co. did not expressly analyze the issue of whether the doctrine of apparent authority should apply, it clearly believed that the doctrine did apply in tort cases. Nothing in the language of this court’s decision suggests that this court had merely assumed, without deciding, that the defendants could be held vicariously liable for the tortfeasor’s negligence. Moreover, this court has characterized its decision in Fireman’s Fund Indemnity Co. as ‘‘applying’’ the doctrine of apparent authority in a tort case. (Emphasis added.) Hanson v. Transportation General, Inc., 245 Conn. 613, 617 n.5, 716 A.2d 857 (1998).

         Indeed, in the present case, Middlesex does not dispute that Fireman’s Fund Indemnity Co. stands for the proposition that the doctrine of apparent authority may be applied in tort cases in this state. Rather, it contends that there is a distinction between the doctrine of apparent authority and the doctrine of apparent agency, and that Fireman’s Fund Indemnity Co. recognized only the former. We agree with Middlesex that Fireman’s Fund Indemnity Co. involved the doctrine of apparent authority, not the doctrine of apparent agency, and that there is a useful semantic distinction between the two doctrines. Specifically, the doctrine of apparent authority expands the authority of an actual agent, while the doctrine of apparent agency creates an agency relationship that would not otherwise exist. See footnote 6 of this opinion. We do not agree, however, that this distinction between the two doctrines justifies recognizing one, but not the other. As in many other jurisdictions, [10] it has been the rule in this state for courts to use the terms apparent agency and apparent authority interchangeably. For example, in Fireman’s Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., supra, 127 Conn. 496–97, a case in which an actual employment relationship existed between the defendants and the tortfeasor, this court first referred to the law governing ‘‘apparent authority’’ and then immediately noted that apparent authority may be found when the principal ‘‘causes or allows third persons to act on an apparent agency.’’ (Emphasis added.) In Davies v. General Tours, Inc., 63 Conn.App. 17, 31, 774 A.2d 1063, cert. granted, 256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October 18, 2001), acase in which no actual agency relationship was established between the defendant and the tortfeasor, the Appellate Court referred to the ‘‘doctrine of agency by estoppel, or apparent authority . . . .’’ (Emphasis added; internal quotation marks omitted.) Similarly, in L & V Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., supra, 136 Conn.App. 669, the Appellate Court concluded that there was no actual agency relationship, but then referred to the plaintiff’s claim under the doctrine of ‘‘apparent authority.’’ (Emphasis added.) See also City Bank of New Haven v. Throp, 78 Conn. 211, 217, 61 A. 428 (1905) (in contract case, ‘‘[w]hether the subject is treated as an agency by estoppel or as one of apparent or ostensible authority, the principle is the same, and the law is well settled’’ [emphasis added]).[11] Thus, the cases assume that the same policy considerations underlie both doctrines.

         Moreover, the Restatement (Third) of Agency now sets forth a single doctrine that expressly applies both to actual agents and to apparent agents. 1 Restatement (Third), Agency § 2.03 (2006). That Restatement (Third) provides: ‘‘Apparent authority is the power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.’’ (Emphasis added.) Id.; see also id., comment (a), p. 113 (‘‘[t]he definition in this section does not presuppose the present or prior existence of an agency relationship’’); id., comment (b), p. 114 (‘‘The doctrine stated in this section applies to agents and other actors who purport to act as agents on a principal’s behalf. The doctrine also applies to the ‘apparent authority’ of actors who are agents but whose actions exceed their actual authority. Many judicial opinions use the terms ‘apparent agency’ and ‘apparent authority’ interchangeably.’’ [Emphasis added.]); 2 Restatement (Third), Agency § 7.08 (2006) (providing that principal is vicariously liable for tort committed by person with apparent authority as defined by § 2.03).

         Indeed, Middlesex has not identified a single case from any other jurisdiction in which the court has recognized the applicability of the doctrine of apparent authority in tort actions, but has refused to recognize the doctrine of apparent agency, and we decline to follow such a course here. As this court stated more than 100 years ago in the context of a contract case, regardless of whether there is an actual agency relationship between the defendant and the direct tortfeasor or only an apparent agency, if the defendant ‘‘has justified the belief of a third party that the person assuming to be his agent was authorized to do what was done, it is no answer for [the defendant] to say that no authority had been given, or that it did not reach so far, and that the third party had acted upon a mistaken conclusion. . . . If a loss is to be borne, the author of the error must bear it.’’ (Internal quotation marks omitted.) City Bank of New Haven v. Throp, supra, 78 Conn. 217; see also Alvarez v. New Haven Register, Inc., 249 Conn. 709, 720, 735 A.2d 306 (1999) (‘‘The rules of vicarious liability . . . respond to a specific need in the law of torts: how to fully compensate an injury caused by the act of a single tortfeasor. Upon a showing of agency, vicarious liability increases the likelihood that an injury will be compensated, by providing two funds from which a plaintiff may recover. If the ultimately responsible agent is unavailable or lacks the ability to pay, the innocent victim has recourse against the principal.’’ [Emphasis omitted; internal quotation marks omitted.]); Mendillo v. Board of Education, 246 Conn. 456, 482, 717 A.2d 1177 (1998) (‘‘the fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct’’), overruled on other grounds by Campos v. Coleman, 319 Conn. 36, 57, 123 A.3d 854 (2015). ‘‘Whether the subject is treated as an agency by estoppel or as one of apparent or ostensible authority, the principle is the same, and the law is well settled.’’ City Bank of New Haven v. Throp, supra, 217; see also Baptist Memorial Hospital System v. Sampson, 969 S.W.2d 945, 948 n.2 (Tex. 1998) (‘‘[r]egardless of the term used, the purpose of the [various doctrines under which a principal who has held out a person as an agent may be held vicariously liable for the person’s negligence] is to prevent injustice and protect those who have been misled’’). Accordingly, we conclude that both the doctrine of apparent authority and the doctrine of apparent agency may be applied in tort actions.

         Middlesex claims, however, that a principal should not be held liable for the negligence of a person who was not an actual agent under the doctrine of apparent agency because ‘‘[a] necessary element of demonstrating that there is a principal and agent relationship is to show that the principal is in control.’’ L & V Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., supra, 136 Conn.App. 668; see also Tianti v. Wil- liam Raveis Real Estate Inc., 231 Conn. 690, 696–97, 651 A.2d 1286 (1995) (‘‘[i]t has long been established that [t]he fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work’’ [internal quotation marks omitted]). Middlesex contends that it would be unfair to hold an entity responsible for conduct that it had no ability to prevent. Middlesex does not dispute, however, that a principal may be held liable under the doctrine of apparent authority for the acts of an actual agent who is acting beyond his or her authority, i.e., who is not acting under the control of the principal, when the principal’s conduct has led the plaintiff reasonably to believe that the agent was acting within his or her authority and the plaintiff has detrimentally relied on that belief. We see no reason why a different rule should apply when the principal lacks control over an apparent agent. See D. Janulis & A. Hornstein, ‘‘Damned If You Do, Damned If You Don’t: Hospitals’ Liability For Physicians’ Malpractice, ’’ 64 Neb. L. Rev. 689, 702 (1985) (requiring plaintiff to prove that principal controlled apparent agent in order to establish apparent agency blurs theories of responde at superior and apparent agency).

         Middlesex also contends that, even if the doctrine of apparent agency may be applied in tort actions, ‘‘[a] hospital cannot practice medicine and therefore cannot be held directly liable for any acts or omissions that constitute medical functions.’’ Reed v. Granbury Hospital Corp., 117 S.W.3d 404, 415 (Tex.App. 2003); id. (when decision that resulted in plaintiff’s injury ‘‘was one that only a physician could have made, ’’ hospital employer could not be held liable for it); see also Browning v. Burt, 66 Ohio St.3d 544, 556, 613 N.E.2d 993 (1993) (‘‘[a] hospital does not practice medicine and is incapable of committing malpractice’’). We again disagree. First, it appears that, to the extent that Reed stands for the proposition that a hospital cannot be held liable for the medical malpractice of its agents and employees, that case is inconsistent with the decision of the Texas Supreme Court in Baptist Memorial Hospital System v. Sampson, supra, 969 S.W.2d 948; see id. (‘‘[h]ospitals are subject to the principles of agency law which apply to others . . . [therefore] a hospital may be vicariously liable for the medical malpractice of independent contractor physicians when plaintiffs can establish the elements of ostensible agency’’ [citations omitted; internal quotation marks omitted]); and Browning held only that hospitals cannot commit medical malpractice directly, not that they cannot be held vicariously liable for the medical malpractice of their agents, employees and apparent agents. See Comer v. Risko, 106 Ohio St.3d 185, 187, 833 N.E.2d 712 (2005) (hospital may be held liable for torts of employees under doctrine of responde at superior and for torts of apparent agents under doctrine of agency by estoppel).

         Second, regardless of the rule in Texas and Ohio, it has never been the rule in this state that hospitals cannot be held vicariously liable for the medical malpractice of their agents and employees.[12] To the contrary, this court, the Appellate Court and the Superior Courts have consistently assumed that the doctrine of respondeat superior may be applied to hold hospitals vicariously liable for the medical malpractice of their agents and employees.[13] Because a hospital may be held vicariously liable for the medical malpractice of its agents and employees under the doctrine of respondeat superior, it may also be held vicariously liable under the doctrine of apparent agency.[14]

         We next address Middlesex’ claim that, even if hospitals may be held liable for the negligence of their agents and employees under the doctrine of apparent agency, the plaintiff in the present case cannot prevail on her claim because she has not established a genuine issue of material fact as to each element of the doctrine. Specifically, Middlesex contends that the plaintiff is required to, and cannot, prove that she detrimentally relied on Middlesex’ representations that Aranow was its agent or employee. Cf. Menzie v. Windham Community Memorial Hospital, 774 F.Supp. 91, 97 (D. Conn. 1991) (observing that application of doctrine of apparent authority to tort action is ‘‘rife with speculation, suggesting the need for a more definitive reading of Connecticut laws, ’’ but concluding that plaintiff failed to demonstrate genuine issue of material fact as to whether doctrine applied because he presented no evidence of reliance), vacated on other grounds, United States Court of Appeals, Docket No. 92-7350 (2d Cir. February 8, 1993). The plaintiff contends that, to the contrary, our cases have consistently held that all that is required to establish apparent agency[15] is proof: ‘‘(1) that the principal held the agent out to the public as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act has having such authority; and (2) that the person dealing with the agent knew of the facts and acting in good faith had reason to believe, and did believe, that the agent possessed the necessary authority.’’ (Internal quotation marks omitted.) Fireman’s Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., supra, 127 Conn. 497; see also Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 140–41, 464 A.2d 6 (1983) (‘‘Apparent authority . . . must be determined by the acts of the principal rather than by the acts of the agent. . . . Furthermore, the party seeking to impose liability upon the principal must demonstrate that it acted in good faith based upon the actions or inadvertences of the principal.’’ [Citations omitted; internal quotation marks omitted.]).[16] At oral argument before this court, the plaintiff further contended that there is a difference between the doctrine of apparent agency, on which she relies, and the doctrine of agency by estoppel, and that only agency by estoppel requires proof of detrimental reliance.[17] Thus, the plaintiff contends, all that she is required to prove to establish apparent agency is that Middlesex held out Aranow as its employee or agent and that she actually, reasonably, and in good faith believed that to be the case.

         Although we agree with the plaintiff that our cases involving the doctrine of apparent agency have not required a showing of detrimental reliance, we note that all of the cases except Fireman’s Fund Indemnity Co. involved contract actions, and Fireman’s Fund Indemnity Co. adopted its standard from cases involving contract actions. It may be that proof of detrimental reliance has not been required to establish apparent agency in contract actions because such reliance is generally implicit in the conduct at issue.[18] No such presumption of reliance arises in tort actions pursuant to the doctrine of apparent agency. See Fernander v.Thigpen, 278 S.C. 140, 148, 293 S.E.2d 424 (1982) (‘‘[i]n the ordinary personal injury case the injured person does not rely upon authority of any kind in getting hurt’’); D. Janulis & A. Hornstein, supra, 64 Neb. L. Rev. 697 (‘‘the required change of position suggests that the estoppel doctrine will generally be inapplicable in the typical personal injury case’’), citing Stewart v.Midani, 525 F.Supp. 843, 851 (N.D.Ga. 1981); Stewart v.Midani, supra, 851 (‘‘it cannot reasonably be contended that a motorist would be more likely to wish to collide with a truck bearing the insignia of [Texaco] than with one bearing any other insignia’’).[ ...


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