United States District Court,

S.D. Florida.

WHEELER’S MOVING & STORAGE, INC., and Benjamin McTigue, Plaintiffs,

v.

MARKEL INSURANCE CO., Vanliner Insurance Co., Defendants.

 

No. 11–80272–CIV.

Jan. 11, 2012.

 

ORDER AND OPINION GRANTING VANLINER’S MOTION TO DISMISS

KENNETH A. MARRA, District Judge.

This Cause is before the Court upon Vanliner Insurance Company’s Amended Motion to Dismiss Complaint With Prejudice [DE 19]. The motion is fully briefed and ripe for review. The Court has carefully considered the motion, response, reply and is otherwise fully advised in the premises.

 

Introduction

This case arises out of a $1,419,128.56 judgment entered against Plaintiff, Wheeler’s Moving Et Storage, Inc. (“Wheeler’s”), in Palm Beach County Circuit Court. The judgment creditor is Benjamin McTigue (“McTigue”). The matter was removed from the state court to this court based upon diversity of citizenship of the parties and damages claimed by Plaintiff in excess of $75,000. Wheeler’s is suing its insurers, Markel Insurance Company (“Markel”) and Vanliner Insurance Company (“Vanliner”) (together, “Defendants”) seeking a determination as to whether Defendants had a duty to defend it in the case brought against it by McTigue and, if so, whether the insurers also have an obligation to indemnify Wheeler’s for the damages it has suffered as a result of the judgment. Previously, the Court denied Wheeler’s Motion for Remand and granted Markel’s Motion to Re–Align Defendant McTigue as a party plaintiff. See DE 64.

 

The Complaint alleges three counts: Count I is a Breach of Contract claim against Markel, Count II is a Breach of Contract claim against Vanliner, and Count III is a claim for declaratory judgment against Markel. DE 4–1. Plaintiff’s Complaint incorporates, among other things, the McTigue Amended Complaint, McTigue’s judgment and the Vanliner policy. In the instant motion, Vanliner moves to dismiss the complaint as to it (Count II) for failure to state a claim under Fed.R.Civ.P. 12(b)(6) arguing that it fails to allege a basis for coverage under the Vanliner commercial automobile liability insurance policy for the McTigue claim.

 

On January 11, 2012, Plaintiff filed an amended complaint which adds another count against Vanliner (Count III) pursuant to umbrella liability insurance policy issued by Vanliner. The filing of another count against Vanliner does not change the conclusions made herein regarding Count II, alleging breach of contract against Vanliner pursuant to its commercial auto policy.

 

Allegations

In the Complaint, Wheeler’s alleges that it was insured under policies of insurance which included commercial general liability coverage issued by Markel and commercial automobile liability coverage issued by Vanliner. Compl. ¶¶ 5, 8. In paragraph 10, Wheeler’s describes the underlying McTigue action as one arising from injuries suffered by McTigue due to having been “locked in a trailer located on the premises of the business operated by the Plaintiff.” Compl. ¶ 10. Wheeler’s alleges that it provided Markel and Vanliner with a copy of McTigue’s Amended Complaint and made a demand that they defend Wheeler’s in the lawsuit and that it be indemnified for any damages awarded to McTigue. Compl. ¶ 12. Wheeler’s alleges that Defendants refused to provide a defense to the lawsuit and have denied coverage to Wheeler’s for the claims made against it by McTigue. Compl. ¶ 13. The Complaint states that a final judgment was entered in favor of McTigue and against Wheeler’s in the amount of $1,419,128.56, exclusive of taxable costs, and that the judgment remains outstanding and unpaid. Count II, the only count against Vanliner’s, alleges that Vanliner’s failure to provide Wheeler’s with a defense to the lawsuit filed against it by McTigue constitutes a direct breach of the insurance contract. Compl. ¶ 33.

 

McTigue’s underlying Amended Complaint alleges two counts, one for “Negligent Hiring and/or Negligent Retention of Employee Dennis Crawford Against Defendant Wheeler’s Moving Et Storage,” and another for “Negligent Supervision Claim Against Defendant Wheeler’s Moving Et Storage.” See DE 14–1 at 10–13 of 19.

 

Standard of Review

The general rule in federal court is that a complaint need only set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, to survive a Rule 12(b)(6) motion to dismiss, a plaintiff is required to provide factual allegations that raise a right of relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). When ruling on a motion to dismiss for failure to state a claim upon which relief may be granted, a court must limit its consideration to the complaint, the written instruments attached to it as exhibits, and “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues Ft Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (citation omitted); GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir.1993). To resolve a motion to dismiss, the district court “may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth.”   Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940–41, 173 L.Ed.2d 868 (2009). Then, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

 

If an action is dismissed it should generally be dismissed without prejudice.   Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1239–40 (11th Cir.2000). Leave to amend, however, “need not be granted where amendment would be futile.” Id.; Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir.2004); see, also, Freeman v. Dean Witter Reynolds, Inc., 865 So.2d 543, 553 (Fla.Dist.Ct.App.2003). When a motion to amend is denied based upon futility, the court makes a legal conclusion that any amendment to the complaint necessarily would fail. St. Charles Foods, Inc. v. Am.’s Favorite Chicken Co., 198 F.3d 815, 822 (11th Cir.1999).

 

Discussion

At the outset, Wheeler’s concedes that the issue of whether its policy with Vanliner’s provides coverage for the McTigue claim is a question of law for the Court. DE 25 at 2 of 5; Fireman’s Fund Ins. Co. v. Tropical Shipping Ft Constr. Co., 254 F.3d 987, 1003 (11th Cir.2001) (“[t]he question of the extent of coverage under an insurance policy is a question of law”); Boatright v. State Farm Mut. Auto. Ins. Co., 2010 WL 2220250,n. 3 (M.D.Fla. June 2, 2010) (the phrase “arising out of the operation, maintenance or use of an uninsured motor vehicle” in an automobile insurance policy “is not ambiguous and should be construed by the Court as a matter of law”). “When assessing an insurance dispute, the insured has the burden of proving that a claim against it is covered by the policy, and the insurer has the burden of proving an exclusion to coverage.” Key Custom Homes, Inc. v. Mid–Continent Cas. Co., 450 F.Supp.2d 1311, 1316 (M.D.Fla.2006) (citations omitted). Wheeler’s argues that the Court should deny the motion to dismiss because it would be more appropriate to resolve the question of whether coverage exists under the Vanliner policy through competing motions for summary judgment, and because issues of fact may exist regarding whether Defendants were given proper notice of the McTigue claim. DE 25 at 2.

 

Duty to Defend

Under Florida law, an insurer’s duty to defend is determined solely from the allegations of fact in the complaint filed against the insured. See Higgins v. State Farm Fire Ft Cas. Co., 894 So.2d 5, 9–10 (Fla.2004); National Union Fire Ins. Co. v. Lenox Liquors Inc., 358 So.2d 533, 536 (Fla.1978). If the facts alleged show any basis for imposing liability upon the insured that falls within the policy coverage, the insurer has a duty to defend. Lime Tree Village Community Club Ass’n, Inc. v. State Farm General Ins. Co., 980 F.2d 1402, 140506 (11th Cir.1993); Trizec Properties Inc. v. Biltmore Const. Co., 767 F.2d 810, 811–12 (11th Cir.1985) (insurer must defend when alleged facts fairly and potentially bring the suit within policy coverage); Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So.2d 810, 815 (Fla.Dist.Ct.App.1985). If the allegations of the complaint leave any doubt as to the duty to defend, the question must be resolved in favor of the insured. Trizec Properties, 767 F.2d at 812; Baron Oil, 470 So.2d at 814. An insurer is under no duty to defend if the allegations in the complaint implicate a policy exclusion. Markel Intern. Ins. Co., Ltd. v. Florida West Covered RV Ft Boat Storage, LLC, 2011 WL 3505217,(11th Cir. Aug.11, 2011); State Farm Fire Ft Cas. Co. v. Tippett, 864 So.2d 31, 35 (Fla.Dist.Ct.App.2003). “[A] court’s determination that the insurer has no duty to defend requires a finding that there is no duty to indemnify.” Trailer Bridge, Inc. v. Illinois Nat. Ins. Co., 657 F.3d 1135, 1146 (11th Cir.2011) quoting Philadelphia Indent. Ins. Co. v. Yachtsman’s Inn Condo Ass’n, Inc., 595 F.Supp.2d 1319, 1322 (S.D.Fla.2009).

 

The Vanliner policy, attached to the Complaint as Ex. B, contains this provision defining the coverage provided:

 

SECTION II—LIABILITY COVERAGE

 

A. Coverage

 

We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered ‘auto’.

 

Compl. Ex. B ( Truckers Coverage Form CA 00 12 03 06 (Page 2 of 14)) (emphasis supplied).

 

McTigue’s Amended Complaint

As stated above, the Court must determine whether the allegations of fact made in McTigue’s Amended Complaint show any basis for imposing liability upon Wheeler’s that fairly and potentially bring the suit within the automobile policy issued by Vanliner’s to Wheeler’s. McTigue’s Amended Complaint (“McTigue Compl.”) against Wheeler’s alleges that McTigue visited Wheeler’s to retrieve his personal belongings stored at Wheeler’s premises. McTigue Compl. ¶ 6. While there, Wheeler’s employee, Dennis Crawford (“Crawford”), locked and falsely imprisoned Mctigue inside one of Wheeler’s moving vans. McTigue made repeated requests to Crawford to let him out of the moving van, in the presence of other employees of Wheeler’s. However, neither Crawford nor the other employees would let McTigue out of the moving van. McTigue Compl. ¶ 7. Subsequently, because he would not be let out of the moving van, McTigue attempted to break out and escape through a window in the van. In doing so, McTigue sustained physical injury to his body. Once McTigue got out, he was then physically assaulted and battered by Wheeler’s employee, Crawford, at Wheeler’s premises. Compl. ¶ 8.

 

McTigue’s Amended Complaint alleges two counts for Negligent Hiring and/or Negligent Retention and Negligent Supervision. A cause of action for negligent hiring, retention and supervision is well-established in Florida. See Mallory v. O’Neil, 69 So.2d 313, 315 (Fla.1954). “[A]n employer is liable for the willful tort of his employee committed against a third person if he knew or should have known that the employee was a threat to others.”   Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744, 750 (Fla.Dist.Ct.App.1991) (quoting Williams v. Feather Sound, Inc., 386 So.2d 1238, 1239–40 (Fla.Dist.Ct.App.1980). “Liability attaches when an employer (1) knows or should know about the offending employee’s unfitness and (2) fails to take appropriate action.” Green v. RJ Behar Ft Co., Inc., 2010 WL 1839262,(S.D.Fla. May 6, 2010) quoting Martinez v. Pavex Corp., 422 F.Supp.2d 1284, 1298 (M.D.Fla.2006) (citing Garcia v. Duffy, 492 So.2d 435, 438–39 (Fla.Dist.Ct.App.1986)).

 

Commission of a Tort in a Parked Vehicle

Liability for an injury resulting from a criminal assault in and about an automobile is generally not covered by a motor vehicle liability policy because such injuries cannot be said to arise out of use of an automobile within the meaning of a coverage provision. See Race v. Nationwide Mutual Fire Insurance Co., 542 So.2d 347, 349 (Fla.1989) (assault while exchanging insurance information after a fender-bender accident does not fall within uninsured motorist coverage); Lancers Insurance Co. v. Gomez, 799 So.2d 334, 337 (Fla. Dist. Ct. Appeal 2001) (bus owner’s automobile liability policy does not apply to injuries suffered when three men hijacked bus and drove it to a deserted grove where the passengers were robbed, and one passenger was shot and killed). In both Race and Lancers, the courts held the mere fact that an automobile is within the line of causation of an injury does not mean that the injury arose out of use, ownership or maintenance of the automobile. Both cases identified three criteria for determining whether an injury arises out of use of the automobile: (1) Did the accident arise out of the inherent nature of the automobile? (2) Did the accident arise within the natural territorial limits of an automobile, and did the accident occur before the actual use, loading, or unloading terminated? and (3) Did the automobile, itself, produce the injury, rather than merely contribute to the condition that produces the injury?

 

The facts alleged in this case do not meet this criteria. The injuries did not arise out of the inherent nature of the van; the injuries did not occur before the actual use, loading or unloading of the van, since it was not being used; and the van, itself, did not produce the injury. The mere fact that a vehicle is the site of an injury or incident is insufficient to create a connection between the use of the vehicle and the injury so as to bring the injury within coverage by an automobile policy. Lancer Ins. Co. v. Gomez, 799 So.2d 334, 337 (Fla.Dist.Ct.App.2001). If the assaults in Race and Lancer did not satisfy these criteria for purposes of establishing coverage, neither can the facts alleged here.

 

In Race, the Supreme Court also discussed the case of Watson v. Watson, 326 So.2d 48 (Fla.Dist.Ct.App.1976). Watson involved the death of a person caused by accidental discharge of a firearm as the person unloaded possessions from a vehicle prior to it being towed. The automobile liability carrier defended against a wrongful death claim by asserting that the accident did not arise out of the ownership, maintenance, or use of the vehicle. The Watson opinion was cited in Race with approval:

 

[I]n order for liability coverage to exist, the incident must arise out of the ownership, maintenance or use of the car. The term “arising out of” has been interpreted to mean “originating from”, “growing out of”, or “flowing from.” This does not require a showing of proximate cause between the accident and the use of the car, but there must be a causal connection or relation between the two for liability to exist.

 

326 So.2d at 49. Referring to the argument for coverage, the court said:

 

… We do not agree that this is sufficient to establish a causal relation between the death of John Watson and the use of the car.

 

Here, the car was merely the physical situs of the accidental discharge of the pistol. This could have occurred anywhere the pistol was located. The fact that the fatal event occurred at or near the car was fortuitous. There was no causal connection between it and the use of the auto. The death of John Watson occurred through the use of a pistol, not the use of a car. Thus, there is no coverage under Interstate’s policy. Id. at 49.

 

Race, 542 So.2d at 350 (quoting Watson, 326 So.2d at 49) (citations omitted).

 

Applying these principles, the Florida Supreme Court in Race determined that “the connection between Race’s injury and Thompson’s motor vehicle was too tenuous to provide [automobile] coverage.” Id. at 351. Application of the Race opinion to the facts here mandates the conclusion that injuries sustained as a result of an intentional crime perpetrated by a negligently hired, retained or supervised employee in his employer’s parked moving van, is not an accident arising from the vehicle’s “ownership, maintenance, or use.” Here, as a matter of law, the acts described in McTigue’s Amended Complaint are not those recognized as arising out of the “use” of a vehicle. Boatright v. State Farm Mut. Auto. Ins. Co., 2010 WL 2220250,(M.D.Fla. June 2, 2010). Since there are no allegations in Wheeler’s Complaint that identifies any provision in the Vanliner policy which would cover negligent hiring, retention or supervision claims, the complaint fails to state the basis of plausible entitlement to relief and instead relies on an unsupported conclusion that Vanliner’s refusal to defend and indemnify constitutes a breach of contract.

 

On January 11, 2012, Wheeler’s filed an amended complaint. See DE 96 Et 98. In this amended complaint, Wheeler’s adds another count against Vanliner (Count III). Wheeler’s alleges that at the time of the McTigue incident, Wheeler’s was also insured by Vanliner under an umbrella liability insurance policy. The filing of another count against Vanliner does not change the conclusions made herein regarding Count II, alleging breach of contract against Vanliner pursuant to its commercial auto policy. Therefore, in accordance with the findings and conclusions reached herein, it is hereby

 

ORDERED AND ADJUDGED that Vanliner Insurance Company’s Amended Motion to Dismiss Complaint With Prejudice [DE 19] is GRANTED in part and denied in part. Count II of the Complaint is stricken with prejudice. Since a new count alleging that the Vanliner umbrella liability insurance policy is applicable, the Court cannot dismiss the complaint as to Vanliner with prejudice. It is further

 

ORDERED AND ADJUDGED that Vanliner’s Appeal of Magistrate’s Omnibus Order [DE 66] is denied as moot.

 

DONE AND ORDERED.

Supreme Court, Appellate Division, First Department, New York.

Salimatou BAH, etc., Plaintiff–Respondent,

v.

Christopher BENTON, et al., Defendants–Appellants.

[And Another Action].

 

Jan. 10, 2012.

 

Defendants appeal from the order of the Supreme Court, Bronx County (Lucindo Suarez, J.), entered August 2, 2010, which, to the extent appealed from as limited by the briefs, denied their motions for summary judgment dismissing the complaint.

Carroll, McNulty & Kull LLC, New York (Sean T. Burns of counsel), for Christopher Benton, Arrow Recycling and Tempesta & Son Co., Inc., appellants.

 

Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for Truck King International Sales & Service, Inc., appellant.

 

DeAngelis & Hafiz, Mount Vernon (Talay Hafiz of counsel), for respondent.

 

ANGELA M. MAZZARELLI, J.P., JOHN W. SWEENY, LELAND G. DeGRASSE, ROSALYN H. RICHTER, SALLIE MANZANET–DANIELS, JJ.

 

MANZANET–DANIELS, J.

In this case we address the interplay between the Noseworthy doctrine and the familiar presumption that applies in cases of rear-end collision. We hold that where a plaintiff has established, through medical evidence, that he has no memory of an accident, plaintiff’s burden is to submit prima facie evidence of defendant’s negligence. To hold otherwise, in a case involving a rear-end collision, would be to effectively deprive a plaintiff of the benefit of the Noseworthy doctrine with respect to his claims against the driver and the owner of the other vehicle.

 

It is not contested, for purposes of these motions, that plaintiff’s significant head injuries plunged him into a coma and resulted in post-traumatic amnesia that rendered him unable to recall or relate the circumstances of the accident. Plaintiff, having presented medical evidence establishing the loss of memory and its causal relationship to defendant’s fault, is entitled to the lesser standard of proof applicable to a party unable to present his version of the facts (see Noseworthy v. City of New York, 298 N.Y. 76 [1948] ).

 

In order to avail himself of the Noseworthy doctrine, it was incumbent on plaintiff to present prima facie evidence of defendants’ negligence. This he has amply done. Plaintiff submitted, inter alia, the affirmed reports of accident reconstruction experts who opined that the driver of the truck, defendant Christopher Benton, was negligent in driving in the left lane; in bringing his vehicle to a stop in the right lane in contravention of the Vehicle and Traffic Law when he had sufficient momentum to steer onto the right shoulder; in failing to move his vehicle off the roadway once he was in the right lane; and in failing to deploy the required warning devices, including the setting off of flares and the placement of three reflective triangles around the disabled vehicle, at distances of approximately 10 feet, 100 feet and 200 feet behind the subject vehicle and in the center of the incident lane. Had these devices been properly placed at the appropriate distances, plaintiff would have had over 200 feet to avoid the stalled truck and to be warned of its presence, significantly increasing his ability to react and maneuver his vehicle so as to avoid the truck. Plaintiff’s experts noted that placement of reflective triangles was especially critical because the roadway was straight and level, making it more difficult to judge the separation distance between plaintiff and the stopped truck, leaving plaintiff with no perceptual cues but a change in the truck image size. Plaintiff’s experts noted that trucks are not permitted in the left lane of the Bruckner Expressway in the area where the accident occurred, and opined that if the truck driver had been traveling in any other lane he would have been able to stop on the shoulder since he in fact managed to travel the distance from the left to the far right lane. Both plaintiff’s experts and the trucking company’s expert opined that the repeated breakdown of the truck was the result of negligent repair and faulty service rendered by third-party defendant Truck King, and was an essential factor in causing the subject accident.

 

The truck driver testified that the vehicle stalled while he was driving in the left lane of the expressway. The driver testified that he placed the truck in neutral, tried several times, unsuccessfully, to restart it, and ultimately steered the truck partially onto the shoulder, with a portion of the vehicle still in the right lane. The driver instructed his helper to “put out the triangles,” in the rear of the truck and proceeded to call his boss. He testified that his helper brought two triangles with him and placed at least one of the triangles at the rear of the truck prior to the accident. (It may be noted that applicable safety regulations require placement of three emergency reflective triangles in the case of a stopped emergency vehicle.) The record does not indicate whether this triangle was placed at the required distance from the rear of the truck so as to apprise approaching vehicles of the truck’s presence in the roadway in sufficient time to allow approaching vehicles to stop or otherwise avoid the truck; moreover, the police officer who responded to the scene testified that he did not observe any reflective triangles, broken or otherwise, in the roadway. The record similarly is unclear as to whether the truck’s flashers were on at the time of impact, and whether, in the gloomy weather, any such flashers would have apprised an approaching vehicle of the presence of the truck in adequate time to stop.

 

The driver maintained that only one quarter of the vehicle protruded into the right lane; the police report and the officer on the scene, however, place the vehicle entirely in the right travel lane.

 

The truck driver testified that he put the flashers on as soon as the truck stalled, and assumed, because they worked on battery, that the flashers were still operable at the time of the accident, though he did not personally observe the flashers illuminated in the minutes prior to the accident. The police officer who responded to the accident could not recall whether the flashers were operational when he arrived on the scene.

 

The driver testified that the helper did not know how to deploy the flares, and that he did not deploy the flares himself, even though the flares were contained in the same box as the triangles and nearly three minutes elapsed before the truck was struck in the rear by the vehicle driven by plaintiff. During this time the driver was apparently on the radio with his boss.

 

The trucking company’s accident reconstruction expert cited as three “critical factors” in the happening of the accident the improper servicing of the truck by defendant/third-party defendant Truck King, the characteristics of the stall, which prevented the driver from driving the truck off the roadway, and the presence of the truck in the travel portion of the roadway, a happenstance precipitated by the improper servicing.

 

The weather conditions at the time of the accident were described as “hazy,” “misty” and “gloomy,” and the roadway described as “wet” by officers who arrived on the scene.

 

Under these circumstances, plaintiff has more than adequately raised a triable issue of fact concerning the reasonableness of the truck driver’s actions, and thus he is entitled to a trial on his claims.

 

Plaintiff alleges that Truck King was negligent in repairing the truck prior to the accident and that its negligence was a proximate cause of the accident. We note that the Noseworthy doctrine does not apply to plaintiff’s claim against Truck King because that claim is not based upon facts that plaintiff might have testified to had he not lost his memory (see Bin Xin Tan v. St. Vincent’s Hosp. & Med. Ctr. Of N.Y., 294 A.D.2d 122 [2002] ). We reject Truck King’s argument that truck driver Benton’s negligence was a supervening cause absolving it of liability, and the argument by Benton and his employer, defendant Arrow Recycling and Tempesta & Son Co., Inc., that plaintiff’s negligence in avoiding the rear-end collision renders their negligence—amply documented above—“immaterial.” Whether Truck King’s negligence was a proximate cause of the accident and whether Benton’s negligence is an intervening cause relieving Truck King of its liability for negligent maintenance of the truck are issues for the trier of fact (see White v. Diaz, 49 AD3d 134 [2008] [triable issue of fact existed as to negligence of driver of double-parked van, who was sleeping at the time the van was struck in the rear by another vehicle]; Dowling v. Consol. Carriers Corp., 103 A.D.2d 675 [1984] [where buses were stopped “where they had no right to be,” on shoulder of expressway, triable issue of fact existed as to whether negligence of bus operator was a proximate cause of accident, even where vehicle in which plaintiff had been traveling experienced recurrence of a mechanical problem], affd 65 N.Y.2d 799 [1985]; Sutton v. Carolei, 244 A.D.2d 156 [1997] [triable issue of fact existed as to whether negligent repairs to plaintiff’s vehicle, which was disabled and struck from behind, was a proximate cause of plaintiff’s injuries] ).

 

Further, if the Noseworthy doctrine is applicable—as defendants concede it is—Benton and his employer are not entitled to mechanical application of the presumption which typically pertains in cases of rear-end collision. The Noseworthy doctrine entitles a plaintiff to a lesser burden of proof in instances where plaintiff—owing to a defendant’s negligence—is rendered incapable of testifying or offering his version of the facts. To say that Noseworthy applies, on the one hand, and then to say, on the other, that defendants are entitled to dismissal of the complaint because plaintiff has not put forth a non-negligent explanation for the accident—undermines the very purpose of the doctrine.

 

We also reject Truck King’s argument that as a matter of law its allegedly negligent repair to the truck “merely furnished the occasion for the accident without actually being a cause of the accident.” Engineering experts who submitted affidavits on behalf of plaintiff and the truck’s owner opined that the truck’s mechanical failure on November 24, 2005, the day of the accident, was caused by the misalignment of the moving parts of the engine/transmission assembly, particularly the flex plate. The truck had been brought to Truck King for repairs to address engine stalling on May 24, October 17 and October 31, 2005. In fact, Truck King replaced the flex plate as part of the October 17, 2005 repair.

 

Accordingly, the order of the Supreme Court, Bronx County (Lucindo Suarez, J.), entered August 2, 2010, which, to the extent appealed from as limited by the briefs, denied the motion of defendants Christopher Benton, Arrow Recycling and Tempesta & Son Co. and the motion of defendant/third-party defendant Truck King International Sales and Service, Inc. for summary judgment dismissing the complaint as against them, should be affirmed, without costs.

 

All concur.