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American Family Mut. Ins. Co. v. AN/CF Acquisition Corp.

Court of Appeals of Colorado, Div. A

September 10, 2015

American Family Mutual Insurance Company, Plaintiff-Appellant,
v.
AN/CF Acquisition Corporation d/b/a Go Courtesy Ford, Defendant-Appellee

Editorial Note:

This Opinion is subject to revision upon final publication.

Douglas County District Court No. 13CV30709. Honorable Paul A. King, Judge.

Law Office of Roger Moore, Roger Moore, W. Bryant Bodie, Denver, Colorado, for Plaintiff-Appellant.

White and Steele, P.C., Grant R. Curry, Denver, Colorado, for Defendant-Appellee.

OPINION

LOEB, CHIEF JUDGE

[¶1] Plaintiff, American Family Mutual Insurance Company, appeals the district court's entry of summary judgment in favor of defendant, AN/CF Acquisition Corporation d/b/a Go Courtesy Ford, and the court's order denying American Family's cross-motion for summary judgment. We reverse the judgment and remand the case with directions to enter summary judgment in favor of American Family on its cross-motion and for further proceedings as appropriate.

I. Background and Procedural History

[¶2] This case requires us to determine whether a car dealership is vicariously liable for a prospective purchaser's negligence during a test drive under the doctrine of joint venture.

[¶3] The events leading up to the accident in this case are undisputed. Kristin Hart asked to test drive a car she was interested in buying from Go Courtesy Ford, a car dealership. A Go Courtesy Ford salesman accompanied Hart as a passenger on the test drive. The salesman chose the route and directed her where to turn. During the test drive, Hart negligently attempted to turn left in front of oncoming traffic and collided with a car driven by Kelly Minna-Angard.

[¶4] Minna-Angard filed a claim with her insurer, American Family, for damages resulting from the accident. American Family paid her claim. American Family then filed

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this negligence action as the subrogee of Minna-Angard against Hart and Go Courtesy Ford to recover both the amount it paid to Minna-Angard and the amount of her deductible. Hart did not defend the case, and the district court entered a default judgment against her.[1]

[¶5] American Family and Go Courtesy Ford filed cross-motions for summary judgment. Based on the undisputed facts, American Family argued that the test drive constituted a joint venture between Go Courtesy Ford and Hart, making Go Courtesy Ford vicariously liable for Hart's negligence. Go Courtesy Ford argued that the test drive was not a joint venture because the participants had adverse financial interests.

[¶6] After briefing, the district court issued a written order granting Go Courtesy Ford's motion and denying American Family's cross-motion. Based on undisputed facts, the court ruled, as a matter of law, that the test drive was not a joint venture and, therefore, that Go Courtesy Ford was not liable for Hart's negligence. The court entered summary judgment in favor of Go Courtesy Ford.

[¶7] The sole issue on appeal is whether, as a matter of law, the test drive in this case constituted a joint venture between Go Courtesy Ford and Hart. For the reasons set forth below, we conclude that it did. Accordingly, we reverse the judgment in favor of Go Courtesy Ford and remand for entry of summary judgment in favor of American Family.

II. Standard of Review

[¶8] Summary judgment is appropriate under C.R.C.P. 56 when the pleadings and supporting documents establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Gibbons v. Ludlow, 304 P.3d 239, 2013 CO 49, ¶ 11. We review a trial court's order on a summary judgment motion de novo. Id.

III. Applicable Law

[¶9] Under the common law doctrine of joint venture, each participant in a joint venture is vicariously liable for the negligence of the other participants. Mayer v. Sampson, 157 Colo. 278, 282, 402 P.2d 185, 188 (1965).

[¶10] No published Colorado case has considered this doctrine in the context of a test drive. However, Colorado courts have applied the joint venture doctrine in other circumstances involving the operation of a car. We first review those Colorado cases. We then examine cases from other jurisdictions that have considered the issue of vicarious liability in the context of a test drive.

A. Colorado Joint Venture Cases

[¶11] Colorado courts recognize two distinct types of joint ventures: joint business ventures and joint ventures in the operation of automobiles. See Watson v. Reg'l Transp. Dist., 762 P.2d 133, 137 n.6 (Colo. 1988); Bainbrich v. Wells, 28 Colo.App. 432, 434-35, 476 P.2d 53, 54 (1970), aff'd, Wells v. Bainbrich, 176 Colo. 503, 491 P.2d 976 (1971); cf. CJI-Civ. 7:21 (2012) (defining joint venture generally); ...


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