Alfa Mut. Ins. Co. v. Small
Decision Date | 15 March 2002 |
Citation | 829 So.2d 743 |
Parties | ALFA MUTUAL INSURANCE COMPANY v. Gladys L. SMALL. |
Court | Alabama Supreme Court |
Alex L. Holtsford, Jr., and David P. Stevens of Nix, Holtsford, Gilliland, Lyons & Higgins, P.C., Montgomery, for appellant.
Mark Allen Treadwell III of Oliver & Sims, Dadeville, for appellee.
Alfa Mutual Insurance Company (hereinafter referred to as "Alfa") appeals the trial court's declaratory judgment in favor of Gladys L. Small. We affirm. On March 9, 2001, Alfa sent a letter to the trial judge stating its arguments concerning this declaratory-judgment action. Small sent a similar letter on March 12, 2001. On that same day, the parties submitted the following stipulation of undisputed facts to the trial court:
On May 29, 2001, the trial court entered an order that stated, in pertinent part:
On July 2, 2001, the trial court made its order final pursuant to Rule 54(b), Ala. R. Civ. P.
Our review of a declaratory judgment is generally governed by the ore tenus standard of review. However, in cases such as this, where there are no disputed facts and where the judgment is based entirely upon documentary evidence, no such presumption of correctness applies; our review is de novo. As this Court has stated:
Cincinnati Ins. Co. v. Nelson, 668 So.2d 539, 540 (Ala.1995)(citing Parker v. Barnes, 519 So.2d 945 (Ala.1988)).
Alfa argues that the trial court erred in determining that Barclift had Young's "express permission" to drive her vehicle. The insurance policy at issue stated, in regard to covered persons, in pertinent part:
(Bold type in original.) Alfa correctly asserts that the clause at issue, also referred to as an "omnibus clause," requires a finding that Young gave Barclift her express permission to use her vehicle and that a finding of implied permission would not support Alfa's liability on any claim asserted by Small. See Pharr v. Beverly, 530 So.2d 808 (Ala.1988). Alfa also offers caselaw from other jurisdictions holding that for coverage to be found under an omnibus clause, permission must be a voluntary act of the insured, and that permission is not shown when another driver has taken the insured's vehicle without the insured's knowledge. See Dairyland Ins. Co. v. Makover, 654 F.2d 1120 (5th Cir.1981)(permittee's husband did not have the implied permission of the permittee or the insured and was not, at the time of the accident, operating the vehicle within the scope of permission given to the permittee); Insurance Co. of North America v. Norris, 116 Misc.2d 314, 455 N.Y.S.2d 190 (1982)(thief who was driving vehicle, while not a permissive user, was covered under the policy because of the insurer's failure to validly disclaim liability and deny coverage, and the insurer therefore waived the defense of lack of permissive use); Cutler v. Travelers Ins. Co., 138 Vt. 113, 412 A.2d 284 (1980)(thief did not have the insured's express or implied consent to operate vehicle).1
Alfa further argues that the law relating to bailment should be applied in determining whether Young had "delivered" her vehicle to Barclift in order to determine whether Young had...
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