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Progressive Casualty Ins. Co. v. Monaco

United States District Court, D. Connecticut

July 5, 2017



          Victor A. Bolden, United States District Judge

         Progressive 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.

         This 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 Monaco Lawsuit.

         Progressive 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.


         A. The Policy

         Progressive 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”).

         1. Policy Terms

         The 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.

         Policy 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.

         The 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).

         2. The Insured Auto

         At all 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[1]. 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 business.”).

         There 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.

         Mr. 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. 11:4-7.

         As for 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 policy.”).

         Mr. 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”).

         B. The February 3, 2016 Accident

         On or 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.

         Also on 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. Id.

         On 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.

         After 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[2] that he did not give Mr. Kay permission to ...

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