Aetna Casualty & Surety Co. v. Barasch

Annotate this Case

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 91Ä340

                            DECEMBER TERM, 1991

Aetna Casualty & Surety Co.       }          APPEALED FROM:
     v.                           }          Rutland Superior Court
Norman Barasch                    }
and Suzanne Barasch               }          DOCKET NO. S0709Ä88RcC

             In the above entitled cause the Clerk will enter:

     This is a subrogation action brought by the insurer of a condominium
against invitees of the owner to recover sums paid to the owner as the
result of a fire allegedly resulting from the negligence of the invitees.
The action was brought against the owner's employee and the employee's adult
daughter.  The insurer appeals from summary judgment entered in favor of the
employee.  We affirm.

     Summary judgment is appropriate when, even if all allegations brought
by the nonmoving party that are supported by evidence are regarded as true,
there is no genuine issue of material fact.  Messier v. Metropolitan Life
Ins. Co., 154 Vt. 406, 409, 578 A.2d 98, 99Ä100 (1990).  Despite an adequate
opportunity for discovery, Aetna has failed to make any showing in support
of its assertions that the employee (the father) negligently caused the fire
or was responsible for the conduct of his daughter, who may have caused the
fire.  See Poplaski v. Lamphere, 152 Vt. 251, 254Ä55, 565 A.2d 1326, 1329
(1989) (in order to survive motion for summary judgment, party must make a
showing sufficient to establish the existence of elements essential to the
case).  Neither the police report nor any other potential evidence suggests
that the father's actions directly caused the fire.

     Further, Aetna has failed to show that the father is responsible for
the actions of his adult daughter.  See Id. at 256, 565 A.2d  at 1329 ("to
recover in a negligence action, a plaintiff must first establish a legally
cognizable duty on the part of the defendant"; generally, there is no duty
to control the conduct of another to protect a third person from harm);
Britton v. Cann, 682 F. Supp. 110, 116Ä17 (D. N.H. 1988) (parentage alone
does not trigger parental liability).  Even if the insurer is correct in
assuming that a landlord's insurer has a right of subrogation against a
tenant for fire damage caused by the tenant's negligence, compare Safeco
Ins. Companies v. Weisgerber, 115 Idaho 428, 429, 767 P.2d 271, 272 (1989)
(jurisdictions have overwhelmingly held that landlord's insurer has no right
of subrogation against a tenant, who stands as a co-insured absent an
express agreement to the contrary) with Fire Ins. Exchange v. Geekie, 179
Ill. App. 3d 679, 682, 534 N.E.2d 1061, 1062 (1989) (landlord's insurer
could maintain subrogation action against negligent tenant who had oral
lease and who had obtained a separate insurance policy for fire damage), the
insurer here has failed to counter the father's assertion that the parties
neither expressly nor impliedly intended to create a landlord/tenant
relationship.  See Reeder v. Reeder, 217 Neb. 120, 125Ä26, 129, 348 N.W.2d 832, 835, 837 (1984) (on similar facts, court concluded that occupiers of
home were "guests" rather than "tenants," and held that under such circum-
stances subrogation was unavailable); cf. Prevo v. Evarts, 146 Vt. 216, 219,
500 A.2d 227, 229 (1985) (tenant liable for waste to premises committed by
third persons who were occupying premises with permission of tenant);
Crawford v. Jerry, 111 Vt. 120, 122, 11 A.2d 210, 211 (1940) (tenant-
landlord relationship implied where there was long-term occupancy with
consent of owner and irregular payment of rent).

     Because the allegations in opposition to summary judgment that are
supported by evidence fail to raise disputed factual issues that, if proven,
could result in a judgment for plaintiff against the father, summary
judgment is affirmed. (FN1)


                                   BY THE COURT:

                                   Associate Justice

                                   James L. Morse, Associate Justice

[x]  Publish                       Denise R. Johnson, Associate Justice

[ ]  Do Not Publish

FN1.   The insurer's reliance on Barbagallo v. Gregory, 150 Vt. 653, 553 A.2d 151 (1988) is misplaced.  Neither the nature of the relationship
between the owner and the father with regard to the condominium, nor
information regarding the cause of the fire, requires a determination of the
father's state of mind or concerns knowledge exclusively within the
father's grasp.