RENDERED: JUNE 26, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-000007-MR STEVE SCARIOT and SJS ENTERPRISES, LLC APPELLANTS APPEAL FROM SCOTT CIRCUIT COURT v. HONORABLE ROBERT JOHNSON, JUDGE ACTION NO. 05-CI-00074 NOLSON AUTOMANAGE, LLC d/b/a NOLAN FORD OF GEORGETOWN and SAMUEL JEFFRIES APPELLEES OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: DIXON AND MOORE, JUDGES; KNOPF, 1 SENIOR JUDGE. MOORE, JUDGE: Steve Scariot and SJS Enterprises, LLC (collectively Scariot) appeal from the Scott Circuit Court s order granting the motion for summary 1 Senior Judge William L. Knopf, sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
judgment filed by Nolson Automanage, LLC, d/b/a Nolan Ford of Georgetown (Nolan) and Samuel Jeffries. After a careful review of the record, we reverse. Scariot took his 2003 Ford F-250 pick-up truck 2 to Nolan, a Ford dealership and service center, for repairs to a windshield washer nozzle and a recalled ground strap bolt. According to the affidavit of Nolan s service director, Shelley Summitt, 3 it was necessary to remove and reinstall a body panel to perform these repairs. Nolan s policy, as supported by Summitt s affidavit, is to test drive any vehicle which has had a body panel removed and reinstalled to determine whether any rattles or noises were created during the repair. This policy was not conveyed in writing or orally to Scariot. Upon completion of the repairs to Scariot s truck, Samuel Jeffries, one of Nolan s employees, took the truck for a test drive off Nolan s premises. During the test drive, as Jeffries was entering the intersection of Cherry Blossom Way and Champion Way in Georgetown, a vehicle driven by Jackie Finfrock struck the front driver s side of the truck, causing damage to the truck. According to Scariot, Finfrock ran a red light as Jeffries proceeded through a green light. Thus, Scariot concedes liability for the collision is not at issue. Scariot filed his complaint in Scott Circuit Court, seeking compensatory damages, costs and fees, and punitive damages as a result of the 2 SJS Enterprises, LLC, has title to the truck. The record establishes that Scariot is the sole member of SJS Enterprises, LLC, and the truck is his primary vehicle for personal and professional purposes. 3 Ms. Summitt s first name is spelled as Shelly and Shelley in her affidavit and Nolan s brief. -2-
accident. 4 Nolan moved for summary judgment, which the Circuit Court granted. Scariot filed a timely notice of appeal, claiming that the Scott Circuit Court improperly granted summary judgment in favor of Nolan. The standard of review on appeal when a trial court grants a motion for summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. Stewart v. University of Louisville, 65 S.W.3d 536, 540 (Ky. App. 2001) (quoting Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996)); Kentucky Rules of Civil Procedure (CR) 56.03. Because summary judgments involve only legal questions, this Court reviews them de novo, in the sense that we owe no deference to the conclusions of the trial court. Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000). The Court must view the record in a light most favorable to the party opposing summary judgment and all doubts are to be resolved in favor of that party adversely affected. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). In determining from the record whether facts exist that would make it possible for the non-moving party to prevail at trial, the focus of the analysis should be on what is of record rather than what might be presented at trial. Welch v. American Publishing Co. of Kentucky, 3 S.W.3d 724, 730 (Ky. 1999). Scariot argues that whether Nolan or the employee involved in the accident was negligent in causing the collision is irrelevant. Rather the issue 4 Nolan filed a third-party complaint against Finfrock, who thereafter filed a notice of bankruptcy. Finfrock was uninsured at the time of the accident. -3-
involves whether taking Scariot s vehicle for a test drive exceeded the scope of the agreement for a bailment between the parties. It should be noted that the record does not contain any writings between the parties regarding the repairs to be done on Scariot s vehicle or the scope of the duty of Nolan while in possession of Scariot s vehicle. In his deposition, Scariot references an authorization he signed for the repairs, but it is not of record. Additionally, the parties did not discuss the issue of whether the vehicle would be taken for a test drive after the repairs were completed. According to the opinion and order of the circuit court, the parties agree that the Plaintiff and Defendant contemplated a mutual benefit bailment when [Scariot] (bailor) delivered his truck to [Nolan] (bailee)... for repairs. The duties of a bailee have been explained in many cases by this and other courts. A bailment, in its ordinary legal signification, imports the delivery of personal property by one person to another in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed, and the property returned or duly accounted for when the special purpose is accomplished, or kept until the bailor reclaims it. Jones v. Hanna, 814 S.W.2d 287, 289 (Ky. App. 1991) (citing 8 Am. Jur. Bailments 2 and Commonwealth v. Polk, 256 Ky. 100, 75 S.W.2d 761 (1934)). When a relationship between a bailor and bailee for mutual benefit exists, the bailee must exercise ordinary care and diligence in safeguarding the property. Webb v. McDaniels, 205 Ky. 739, 205 S.W.2d 511, 513 (1947) (citing 6 Am. Jur. 333 248, Blackburn v. Depoyster, 209 Ky. 105, 272 S.W. 398 (1925); -4-
Threlkeld v. Breaux Ballard, 296 Ky. 334, 177 S.W.2d 157 (1944); 151 A.L.R. 708)). The bailee is liable for injury to or loss of the property resulting from his failure to exercise such care. Id. If the bailed property is used for a different purpose than that intended by each of the parties, for a longer time period, or in a different manner or place than the parties intended, the bailee will be responsible for the damage. Williams v. Buckler, 264 S.W.2d 279, 280 (Ky. App. 1954). Where a bailee fails to return the property according to the contract of the bailment, the burden is on the bailee to prove that the loss was not due to his negligence or any negligence of his employees. Webb, 205 S.W.2d 511 at 513. In this jurisdiction the rule also is that once the bailor makes out a prima facie case and proves the bailed goods were damaged or lost, the bailee has the burden of proving that the loss resulted other than from his negligence. Monarch Warehouse Co. v. Major Breckinridge Corp., 518 S.W.2d 779, 781 (Ky. App. 1975) (citing Welch v. L. R. Cooke Chevrolet Co., 314 Ky. 634, 236 S.W.2d 690 (1950); D.H. Overmeyer Co. v. Hirsch Bros. & Co, 459 S.W.2d 598 (Ky. 1970)). Whether the bailee has taken reasonable precautions under the circumstances is a question of fact for the trier of fact. Griffin v. Nationwide Moving and Storage Co., Inc., 446 A.2d 799, 801 (Conn. 1982) (citations omitted). Regarding a case wherein the bailed property was damaged by fire, Kentucky s highest Court at the time stated that: -5-
It is common knowledge that fires may and often do result from negligence and that property in the custody of a bailee may be damaged or consumed by fire caused by the negligence of the bailee, as well as by theft or other negligence. We see no reason why the bailee should be favored by such exception. In A.L.R., vol. 71, page 774, supplementing the earlier annotations on the question, the text writer uses this language: The cases decided since the preparation of the earlier annotation on this subject have shown a tendency, however, not to permit the bailee necessarily to avoid liability by showing merely the loss or damage of the property by fire. The evidence as to the origin of the fire, or other surrounding circumstances tending to explain it, being often in the bailee's possession, it seems to be a plausible rule, as suggested in the earlier annotation on this subject, which imposes on the bailee the duty of going forward with evidence that he exercised due care, or at least of explaining the loss by evidence other than the mere fact of the fire. And, according to this view, the mere fact that it is proved or conceded that the property was destroyed or damaged by fire will not, in the absence of any other evidence, necessarily preclude recovery. Also, in Fleischman, Morris & Co. v. Southern Ry. Co., 76 S.C. 237, 56 S.E. 974, 977, 9 L.R.A.,N.S., 519, it is said: The rule in this state, as indicated by the cases above referred to, is that the bailor must prove delivery to the bailee and his refusal to return as required by the contract of bailment. The burden is then on the bailee to prove that he has not converted the property, and this he may do by showing its loss and the manner of its loss; but by the manner of loss is meant, not only the isolated fact of destruction by fire, or loss by theft or otherwise, but the circumstances connected with the origin of the fire or other cause of loss or injury, as far as known to the bailee, and the precautions taken to prevent the loss or injury. Threlkeld, 296 Ky. 344, 177 S.W.2d at 161-62. We believe the Threlkeld case is an excellent one to use for guidance in deciding the case at hand. -6-
Herein, Scariot delivered his vehicle for the purpose of having a windshield washer nozzle and a ground strap bolt repaired, and Nolan accepted the vehicle to complete the repairs. Thus, Scariot has proved delivery. The vehicle having been damaged while in Nolan s possession, it was Nolan s the burden to prove that it exercised due care while the vehicle was in its care. As noted supra, the parties did not discuss whether the vehicle would be taken for a test drive prior to Scariot s leaving it with Nolan. In his answers to interrogatories, Scariot stated that Nolan was not authorized to drive his truck. And, in his deposition he testified that based on the reasonable engine repairs being done that it would be implied that the truck would not be taken for a test drive. The parties did not discuss the scope of the bailment when Scariot left his vehicle for repairs with Nolan. On the other hand, according to the affidavit submitted by Summitt, the repairs required the removal of at least part of the vehicle s body panel or cover. In accordance with Nolan s policy in test driving any vehicle that has a body panel or cover removed, a Nolan employee took Scariot s vehicle for a test drive to ensure that replacing the body panel did not create any unusual rattles or noises. Nolan, however, never informed Scariot of its policy of test driving vehicles on the public highways if panels were removed. We note that Scariot has not put forth any affirmative evidence regarding whether removal of the panels was necessary for the repairs. Moreover, Scariot concedes there was no negligence on the part of Nolan in regard to the -7-
actual cause of the accident. Nonetheless, we do not believe either of these factors to be fatal to his case on summary judgment review. Rather, his argument is that regardless of the repairs or who was at fault for the accident, Nolan should not have taken his truck on the public highway because this placed it in a location where there was the potential of a collision. Scariot continually maintains that the test drive exceeded the scope of the bailment. Nolan relies heavily on Webb, 305 Ky. 739, 205 S.W.2d 511, which we find distinguishable. In that case, a vehicle was left at a repair shop. An employee of the repair shop informed the owner that he could pick up his car the same day. Later the vehicle owner called to see if the car was repaired and ready to be picked up. An employee for the repair shop told him the car was not repaired but should be by the end of the day. The repairs were completed by late in the afternoon, but the owner was not informed of this although an employee had told him he would receive a telephone call when the vehicle was ready to be picked up. The owner, however, did not call the shop again nor stop by to see if his vehicle was repaired. The shop closed at 9:30 p.m., and the vehicle was locked inside the garage. Sometime during the night, a theft broke into the garage and stole the vehicle. The Court held that keeping the car in their garage overnight and not returning it the same day, as they had agreed, was not the proximate cause of its loss. Id. at 513. The Court ruled that the mere promise to return the vehicle did not make the repair shop an insurer; it needed only to exercise ordinary care and diligence in safeguarding the property. -8-
While in Webb the repair shop may have kept the vehicle overnight when it told the owner he could pick it up the same day, the owner did nothing further to try to retrieve the same day. The repairs were completed, and the owner could have called to check on it or stopped by to pick it. But, he did neither. The vehicle was in the same location where the owner left it, and it was locked up. Thus, the repair shop used ordinary care in safekeeping the vehicle. In the case at hand, Scariot testified in his deposition that he did not believe it was implied that the truck would be test driven based on reasonable engine repairs. And, in his answers to interrogatories, he stated he did not give Nolan permission to drive his car. Nolan, on the other hand, has a policy to drive vehicles if it removes panels. Consequently, there is a material factual issue regarding the actual scope of the bailment. Whether the damage to the vehicle occurred within the scope of the bailment, based on the parties conflicting views on the issue of the test drive, is a question of disputed material fact. See, e.g., Rothenberger v. Wilks, 184 N.E.2d 626, 628 (Neb. 1971). It is reasonable that the finder of fact may conclude that the scope of the bailment did not include taking Scariot s truck on the public highways; thus, the truck should not have been in a location subjecting it to a collision. And, it is a jury question whether Nolan s decision to test drive the vehicle on a public road was an exercise in ordinary care in safekeeping the vehicle. See, e.g., Indiana Insurance Co. v. Ivetich, 445 N.E.2d 110, 112 (Ind. App. 1983) (citations omitted). Pursuant to Threlkeld, Nolan cannot just rely on the isolated fact that the accident was caused by someone else. -9-
Rather, it must show that it exercised reasonable care in the circumstances leading to the accident, i.e., that it exercised ordinary care and safekeeping of the vehicle in its decision to take a bailed vehicle, which was only in its care for repairs, on the public roadways. Accordingly, we find that factual issues exist in this matter that must be decided by the finder of fact. For the reasons as stated, we reverse and remand this matter back to Scott Circuit Court for proceedings not inconsistent with this opinion. ALL CONCUR. BRIEF FOR APPELLANTS: Don A. Pisacano Lexington, Kentucky BRIEF FOR APPELLEES: Cynthia M. Chiaro, Esq. Michael P. Foley, Esq. Cincinnati, Ohio -10-