Western Casualty & Surety Company v. Grice

• Decision Date: 05 March 1970
• Docket Number: No. 414-69.,414-69.
• Citation: 422 F.2d 921
• Parties: WESTERN CASUALTY & SURETY COMPANY, a corporation, Plaintiff-Appellee, v. Richard GRICE, Esther Aguirre, minors; and Miguel E. Lozano, Julia Lozano, and Hector Lozano, a minor, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

422 F.2d 921 (1970)

WESTERN CASUALTY & SURETY COMPANY, a corporation, Plaintiff-Appellee, v. Richard GRICE, Esther Aguirre, minors; and Miguel E. Lozano, Julia Lozano, and Hector Lozano, a minor, Defendants-Appellants.

No. 414-69.

United States Court of Appeals, Tenth Circuit.

March 5, 1970.

Mary C. Walters, of Toulouse, Moore & Walters, Albuquerque, N. M., for plaintiff-appellee.

Joe H. Galvan, Las Cruces, N. M. (Avelino V. Gutierrez, Albuquerque, N. M., on the brief) for defendants-appellants.

Before PICKETT, HILL and HICKEY, Circuit Judges.

HILL, Circuit Judge.

Appellee Western Casualty & Surety Company brought this declaratory judgment action to determine its liability under an automobile insurance policy issued to one Raymundo Saucedo. The trial court on appellee's motion for summary judgment determined from the pleadings, affidavits, and depositions that there was no genuine issue of fact and granted judgment to appellee as a matter of law.

Appellee's auto liability policy was issued in New Mexico and covered three cars owned by Raymundo Saucedo. On Sunday, November 10, 1968, Saucedo permitted his son Gilbert to take one of the cars back to college for one week. Gilbert was a Freshman at Western New Mexico University at Silver City, which is 45 miles from his family home at Lordsburg, New Mexico. The day after Gilbert arrived at school with the car, one Richard Grice, a classmate, asked Gilbert to loan him the car for a date the following Wednesday. Gilbert told Grice he would think about it. When Grice asked again on Wednesday, Gilbert agreed to loan the car to Grice. While driving the borrowed car that evening, Grice was involved in a collision with a vehicle driven by appellant Miguel Lozano. Appellant Esther Aquirre was a passenger in the car driven by Grice, and appellants Julia Lozano and Hector Lozano were passengers in the other vehicle. Each appellant suffered bodily injury and Miguel Lozano also suffered property damage.

Appellee's complaint denied liability for any bodily injury or property damage from the accident because the insured automobile was not being used with either the express or implied permission of the named insured or his spouse so as to provide coverage under the policy. Appellants answered in general that Grice had express or implied permission from the named insured to drive the car, and consequently each appellant is covered under the terms of the policy. Upon entry of summary judgment against them, appellants take this appeal contending that the trial judge's grant of summary judgment against them was in error because the pleadings, affidavits, and depositions before the trial judge, taken in the light most favorable to appellants and granting every inference in favor of appellants, raised a question of fact as to whether Richard Grice was driving the named insured's car with his implied permission.

The automobile liability policy issued by appellee to Raymundo Saucedo contains an omnibus clause which defined the word "insured" as follows: "With respect to the insurance under coverages A and B, the unqualified word `insured' includes the named insured and, if the named insured is an individual, his spouse and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or spouse or with the permission of either." New Mexico statute provides, "The owner's policy of liability insurance: (1) * * * (2) Shall insure the person named therein, and any other person, as insured, using any such vehicle or vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such vehicle or vehicles within the United States of America * * *."¹ However, the New Mexico courts have not yet had occasion to consider what constitutes implied permission in this context. So we turn to our case of United Services Auto. Ass'n v. Preferred Acc. Ins. Co., 190 F.2d 404 (10th Cir. 1951) which states the generally accepted principle² that permission may be in the form of implied affirmative assent resulting from the relationship of the parties and a course of conduct in which they mutually acquiesce, or a course of conduct with knowledge of the facts for such time and in such manner as to signify clearly and convincingly a consent which amounts to a grant of the privilege involved.

Having carefully considered the pleadings and documents before the trial judge, we can only conclude that even when they are taken in the light most favorable to appellants and granting appellants every reasonable inference, no genuine issue of fact existed and summary judgment was proper under Rule 56 of the Federal Rules of Civil Procedure. Appellants' conclusionary allegations and general denials cannot perpetuate an issue of fact, and their affidavit in opposition to summary judgment supports rather than contradicts appellee's pleadings and affidavits. The undisputed facts effectively pierced the sham of false generality of claim, so the case was ripe for summary judgment.³ Were we to reverse and require that the case be tried, we cannot conceive of any proper disposition other than a directed verdict for appellee. As we have recently said, "While different rules have been promulgated to explicate directed verdicts and summary judgments, in the final analysis they both turn on whether any genuine issue of fact survives the pleadings and depositions or evidence, requiring fact-findings. * * * In practical effect the underlying rule is the same and in both instances the trial court is empowered and enjoined to look through transparency to substance."⁴

It is undisputed that Raymundo Saucedo and Grice were strangers, having no direct relationship. Moreover, the friendly relationship between Gilbert Saucedo and Grice alone is not so significant as to yield a reasonable inference that Gilbert's father impliedly consented to Grice's use of the car.⁵ Similarly, the father-son relationship between Raymundo and Gilbert Saucedo, standing alone, is not sufficient to infer that the latter was authorized to loan out the former's car. And we cannot agree with appellants that Raymundo Saucedo gave Gilbert such broad and unfettered dominion over his automobile so as to empower Gilbert to loan the car to a third party and thereby render the third party an additional insured under the policy. Everything in the affidavits and depositions shows that when Gilbert...