United States District Court, D. Connecticut
PROGRESSIVE CASUALTY INS. CO., Plaintiff,
DOMENIC MONACO, JR., SUZANNE BURR MONACO, Defendants.
OPINION ON MOTION FOR SUMMARY JUDGMENT
A. Bolden, United States District Judge
Casualty Insurance Company (“Progressive” or
“Plaintiff”) seeks a declaratory judgment against
Domenic Monaco, Jr.; Suzanne Burr Monaco; EAN Holdings, LLC
(“EAN”); Hunter Edward Kay; Jordans Future LLC
(“Jordans”); Robert T. Dunn; and Sentinel
Insurance Company, Ltd. (“Sentinel”)
(collectively, “Defendants”). ECF No. 1; ECF No.
27. Mr. Monaco and Ms. Monaco (collectively, the
“Monaco Defendants”) are the only Defendants who
have appeared in this case. ECF No. 7; ECF No. 8.
case arises out of a motor vehicle accident that occurred on
February 3, 2016 in Trumbull, Connecticut, and the resulting
civil action in the Superior Court of the State of
Connecticut, which the Monaco Defendants bring against EAN,
Jordans, Sentinel, Mr. Dunn, and Mr. Kay in connection to
that accident (the “Monaco Lawsuit”). Through
this case, Progressive seeks to establish whether it is
liable to the Monaco Defendants for any of the claims in the
now moves for summary judgment, ECF No. 41, on all claims
asserted in their Amended Complaint, ECF No. 27. For the
reasons that follow, the Court GRANTS summary judgment in
favor of Progressive on all claims and finds that Progressive
is not liable to the Monaco Defendants.
FACTUAL AND PROCEDURAL BACKGROUND
issued a commercial auto insurance policy, bearing policy
number 02781455-0, to Jordans, with effective dates of
November 18, 2015 to November 18, 2016 (the
“Policy”). Def.'s Rule 56 Statement ¶ 1,
ECF No. 53. As of February 3, 2016, the Policy identified the
insured automobile as a 2016 Land Rover Range Rover HSE,
bearing VIN SALGS2VF3GA269656 (the “2016 Land
Rover”). Id. ¶ 2. By February 5, 2016,
Mr. Dunn or Jordans had removed the 2016 Land Rover from the
Policy. Id. ¶ 24. Mr. Dunn and Jordans
routinely added and dropped different luxury vehicles from
the Policy, which Progressive never questioned and which
appeared to be permitted under the Policy. See Dunn
Dep. 72:7-73:2, ECF No. 43-3 (testifying that “[i]f you
have a good - a policy in good standing, you can add and
delete as many cars as you want, whether it's
Progressive, Geico, Allstate”).
Policy with Progressive provides, in relevant part, with
respect to “Part I - Liability to Others”, that:
Subject to the Limits of Liability, if you pay the premium
for liability coverage for the insured auto involved, we will
pay damages, other than punitive, exemplary, or statutory
multiple damages, for bodily injury [and] property damage . .
. for which an insured becomes legally responsible because of
an accident arising out of the ownership, maintenance or use
of that Insured auto.
at 6, Pl.'s Rule 56 Statement Ex. 1-A, ECF No. 43-1
(emphasis in original). The Policy defines Insured Auto, in
relevant part, as “[a]ny auto specifically described on
the declarations page.” Id. at 2. The parties
do not dispute that, as of February 3, 2016, the Policy
listed the 2016 Land Rover on the declarations page, as the
insured automobile. Def.'s Rule 56 Statement ¶ 2.
Policy further provides that, for the purposes of “Part
1 - Liability to Other”, in relevant part,
“Insured auto also includes . . . Any temporary
substitute auto.” Policy at 7 (emphasis in original).
The Policy defines temporary substitute auto as follows:
“Temporary substitute auto” means any auto you do
not own while used with the permission of its owner as a
temporary substitute for an insured auto that has been
withdrawn from normal use due to breakdown, repair,
servicing, loss or destruction.
Id. at 5 (emphasis in original).
The Insured Auto
times relevant to this case, Mr. Dunn was a manager at
Jordans. Def.'s Rule 56 Statement ¶ 3. Jordans acted
as, among other things, a purchasing agent for customers in
Asia who were interested in purchasing luxury automobiles in
the United States and shipping them back to Asia.
Id. Jordans's customers had an expectation that
the luxury automobiles that Jordans obtained in the United
States on behalf of their customers would be tendered to the
customer with less than three hundred (300) miles on the
vehicle, or less than five hundred (500) miles in some
instances. Id. ¶ 4. Within that
mileage limitation, however, Mr. Dunn regularly drove the
cars that Jordan obtained for its customers for brief
intervals, at his discretion. See Dunn EUO Trans.
132:5-15 (“And that [customer's] vehicle would have
been used on that day in the course of my business;
that's for sure.”), 160:11-15 (“[I]f I really
did want to pick up a car with 25 miles on it and I had it
for a week and I wanted to take it, if I wanted to, I could
take it anywhere I want to and use it for other
was a general expectation that, after obtaining a vehicle on
behalf of a Jordans customer, Mr. Dunn would promptly
“park it at 145 Canal, [and] let it sit there until
conveyed to [his] customer” or at his other
“office address. . . at 865 River Road . . . in
Shelton.” Id. 129:6-14. In practice, however,
it appears that Mr. Dunn was able to drive the cars to run
errands or in the course of conducting his day to day
business or personal matters, so long as the mileage on the
cars remained under three hundred miles total. See
Id. 132:5-15, 159:7-160:16; Dunn Dep. 22:4-12.
Dunn also previously had another 2016 Range Rover bearing a
VIN with “the last four digits 8259” (the
“8259 Range Rover”). Dunn EUO Trans. 9:2-9. That
Range Rover “happened to have like a shimmy in the
tires, ” so Mr. Dunn “wanted to get it checked
out.” Id. 10:1-11. Mr. Dunn took that vehicle
to “Imported Cars of Stamford” (“Imported
Cars”) to have it checked out. Id. 10:8-11:15.
Mr. Dunn's contact at Imported Cars informed Mr. Dunn
that “[t]here was nothing to be concerned with, ”
and that it was “okay, ” and “just might be
something inherent in the vehicle.” Id.
the 2016 Land Rover that was identified in the Policy with
Progressive, Mr. Dunn has testified that he originally
thought that it, like the 8259 Range Rover, had “some
type of shimmy going on in the front wheel at like 45 to 50
miles an hour, ” which prompted Mr. Dunn to try to get
it checked out. Dunn EUO Trans. 117:2-10. Mr. Dunn further
testified that the people at the shop were unable to look at
the 2016 Land Rover when Mr. Dunn brought it in, and instead
recommended that he go to “Enterprise” to rent a
car and leave the 2016 Land Rover at the shop until later.
See Id. 117:12-118:7. “[I]t was ultimately
determined that there were no mechanical problems and the
[2016 Land Rover] did not need any service or repairs.”
Id. 118:8-12. These facts are, however, disputed.
See Kakaletris Email, ECF No. 43-8 (explaining that
Imported Cars of Stamford did not have any work orders for
“the Range Rover 2016 in question” between
January and March of 2016 and while Mr. Dunn had brought in a
Range Rover that George Kakaletris had “told him since
it was a 2016 vehicle and was under warranty to bring it to
the dealer” and “[n]o work was done to the
vehicle at my shop”); Dunn Dep. 20:20-21:3 (“I
did have a shimmy in one of the other vehicles . . . But it
wasn't this [the 2016 Land Rover] that was on the
Dunn eventually admitted that he wasn't sure which
vehicle had a “shimmy” around February 2, 2016 or
February 3, 2016 and would have been brought to Imported
Cars. See Dunn Dep. 89:10-90:6 (admitting that
“I thought that it was that particular car, bearing
that last four of that VIN number. I thought it was that car
. . . I look back at it now and I had a lot going on that
time, so, you know, I wasn't too sure”).
The February 3, 2016 Accident
around February 2, 2016, Mr. Dunn rented a 2016 Chevrolet
Tahoe (the “2016 Tahoe”) from Enterprise Rent A
Car (“Enterprise”). Def.'s Rule 56 Statement
¶ 7. On his rental agreement with Enterprise, Mr. Dunn
listed his employer as “Mac Daddy's” rather
than Jordans. Id. ¶ 8.
February 2, 2016, Mr. Dunn contacted a friend, A.J.
Fernandez, and asked Mr. Fernandez to be Mr. Dunn's
designated driver for the day of February 3, 2016. Def.'s
Rule 56 Statement ¶ 6. Mr. Fernandez was unable to be
Mr. Dunn's driver that day, and recommended that Mr. Dunn
contact Hunter Edward Kay. Id. ¶ 9. Mr. Dunn
then hired Mr. Kay to be his designated driver on February 3,
2016, paying Mr. Kay either $10.00 or $12.00 dollars an hour.
February 3, 2016, Mr. Kay drove Mr. Dunn in the 2016 Tahoe.
Def.'s Rule 56 Statement ¶ 10. First, Mr. Kay drove
Mr. Dunn and his business partner, Nick Tripoli, to a meeting
in New Rochelle, New York. Id. After the meeting in
New Rochelle, Mr. Kay then drove Mr. Dunn and Mr. Tripoli to
Joseph's Steakhouse in Bridgeport, CT
(“Joseph's”). Id. ¶ 11.
they arrived at Joseph's at approximately 7:00 PM, the
Monaco Defendants allege that there is an issue of disputed
fact as to whether Mr. Dunn told Mr. Kay to stay with the
2016 Tahoe and not leave the Joseph's parking lot while
Mr. Kay waited for Mr. Dunn, or whether Mr. Dunn had allowed
Mr. Kay to drive elsewhere while waiting. Id. ¶
12; compare Dunn Dep. 65:18-66:9 (stating that Mr.
Dunn had informed Mr. Kay that “[m]y car and my
belongings stay here” at the restaurant) with
Kay Dep. 41:2-24, ECF No. 43-6 (showing that Mr. Kay asserted
his Fifth Amendment right against self-incrimination in
response to questions about whether Mr. Dunn asked him to run
errands with the car including errands involving the
transportation of drugs). The only evidence in the record
that could potentially contradict Mr. Dunn's consistent
testimony that he did not give Mr. Kay permission to