Metropolitan Prop. & Cas. Ins. Co. v. McCall, No. A03A0062

• Decision Date: 11 April 2003
• Docket Number: No. A03A0062, No. A03A0063.
• Parties: METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY v. McCALL et al. McCall et al. v. Smallwood et al.
• Court: Georgia Court of Appeals

581 S.E.2d 651

261 Ga. App. 92

METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY v. McCALL et al.

McCall et al. v. Smallwood et al.

Nos. A03A0062, A03A0063.

Court of Appeals of Georgia.

April 11, 2003.

Reconsideration denied May 2, 2003.

L. Lee Bennett, Jr., Atlanta, for Metropolitan Property & Casualty Insurance Company.

Temple, Strickland, Dinges & Schwartz, William D. Temple, Decatur, for Jason McCall.

Duncan & Mangiafico, George E. Duncan, Jr., Atlanta, Jennifer C. Adair, Dothan, AL, for Howard McCall, et al.

Lander & Osborne, Kenneth J. Lander, Monroe, Donald W. Osborne, for Smallwood, et al.

Chambers, Aholt & Rickard, Dale C. Ray, Jr., Suwanee, Allen & Associates, John A. Pape, Atlanta, for Allstate Insurance Company.

ANDREWS, Presiding Judge.

These cases arose as a result of a traffic accident between Jason McCall and Tonya Smallwood. The car Jason was driving was owned by Howard and Marcia McCall, Jason's father and stepmother. They often loaned the car to Lacey Bush, Jason's girlfriend and the mother of his two children, when she needed it for family purposes. The sole issue before us on appeal is whether Howard and Marcia McCall gave Jason permission to drive the car. Because the only evidence in the record is that Jason did not have permission to drive the car, we reverse.¹

After the accident, Smallwood and the passengers in her vehicle filed suit against Jason McCall and Howard and Marcia McCall. Metropolitan Property & Casualty Insurance Company, Howard and Marcia McCall's insurer, filed a declaratory judgment action, seeking a ruling on whether it had a duty to defend the lawsuit.

In Case No. A03A0062, Metropolitan appeals the denial of its motion for summary judgment, arguing the trial court erred in holding that there was an issue of fact as to whether Jason was an insured under the policy. In Case No. A03A0063, Howard and Marcia McCall appeal the trial court's denial of their motion for summary judgment on Smallwood's claim of negligent entrustment. For the following reasons, we reverse in both cases.

Jason McCall, who was 32 years of age at the time of the accident, lived with his girlfriend Lacey Bush and their two children. Jason did not have a driver's license, and neither Jason nor Lacey owned a car. Accordingly, Jason would be an insured under Howard and Marcia McCall's policy only if he were driving their car with their permission.

The evidence in the record consists solely of the depositions of Howard McCall, Marcia McCall, and Jason McCall. In those depositions, each party consistently testified that Jason did not have permission to drive the car, knew he did not have permission to drive the car, and also that Lacey Bush knew he did not have permission to drive the car.

For instance, Jason testified that it was "strictly forbidden" for him to drive any of the McCalls' cars because they knew he did not have a driver's license. He said that "[t]he car was loaned to Lacey with the express consent that I would not drive that vehicle." Jason testified that Lacey did not know he was driving the car on the day of the accident. Marcia McCall testified: "Jason was not allowed to drive anything." She stated that she allowed Lacey to use one of the cars when she needed it. Lacey used the car to take the children to the doctor or to visit her parents. Each time Lacey used the car, she would ask permission. At the time of the accident, Lacey had taken the car to show to her father because she wanted him to help her buy the car. Marcia McCall testified that Lacey knew Jason did not have permission to drive the car because she told her that Jason was not to drive. Howard McCall testified that they had not allowed Jason to drive any of their cars for several years because he did not have a driver's license. He stated that Lacey had permission to drive the car but was told that Jason was not to drive.

In its order, the trial court found an issue of fact as to whether the McCalls gave Jason permission to drive. The trial court pointed out that Jason testified that his father told him not to "get caught" while driving the car. But, this ignores the context of the statement. Jason testified as follows: "And they have told me several times don't get caught behind that vehicle or was caught—or if I was caught driving that vehicle Lacey would no longer be—be able to drive the car."

The trial court also held that there was a question of fact as to the purpose and scope of the permission given to Lacey Bush and whether Lacey gave Jason permission to take the car. But there is no evidence in the record that Lacey gave Jason permission to take the car. Rather, the evidence is undisputed that she did not give Jason permission to use the car.

"Summary judgment is proper when there is no genuine issue of material fact and the undisputed facts, taken in the light most favorable to the nonmoving party, warrant judgment as a matter of law in favor of the moving party." Arkwright v. Taulbee, 248 Ga.App. 219, 220, 546 S.E.2d 335 (2001). "To obtain summary judgment, a defendant must point to an absence of evidence supporting at least one essential element of the plaintiff's claim. Consequently, summary judgment is properly granted to the defendant if the evidence is insufficient as a matter of law to support a finding necessary to establishment of the plaintiff's claim." (Footnote omitted.) Id. "Summary judgment rulings are not based on weighing of evidence or on credibility of witnesses." Id.

Although the trial court acknowledged that Jason McCall's testimony was not "directly rebutted," it ruled that his credibility was "questioned" by Howard and Marcia McCall and his prior felony convictions made the believability of his testimony a jury issue. This holding completely overlooks the unrebutted deposition testimony of Howard and Marcia McCall in which they state that Jason never had permission to drive, he knew he was not allowed to drive their cars, and Lacey Bush knew he was not allowed to drive their cars.

Accordingly, the trial court erred in not granting Metropolitan's motion for summary judgment. See Cook v. Prudential Property &c. Ins. Co., 206 Ga.App. 492, 426 S.E.2d 222 (1992). Likewise, if the evidence is undisputed that Jason was not allowed to drive the McCalls' car, then Smallwood cannot recover on her claim of negligent entrustment.² See Williams v. Britton, 226 Ga.App. 263, 264, 485 S.E.2d 835 (1997). Therefore, the trial court also erred in not granting Howard and Marcia McCall's motion for summary judgment in Smallwood's suit.

Judgments reversed.

JOHNSON, P.J., BLACKBURN, P.J., MIKELL and ADAMS, JJ., concur.

ELDRIDGE and BARNES, JJ., dissent.

BARNES, Judge, dissenting.

For the reasons stated in Judge Ozburn's order denying summary judgment, I must respectfully dissent. While the judge found that Jason McCall was not a "relative" entitled to coverage under the terms of the policy, he further found that a genuine issue of material fact exists regarding whether Jason was driving the vehicle...