Allstate Ins. Co. v. US Fidelity and Guar. Co.

• Decision Date: 15 June 1987
• Docket Number: Civ. No. 85-2295.
• Citation: 663 F. Supp. 548
• Parties: ALLSTATE INSURANCE COMPANY, Plaintiff, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Dennis K. Cumpton, Linda Cumpton and Jeffrey Gourley, Defendants.
• Court: U.S. District Court — Western District of Arkansas

663 F. Supp. 548

ALLSTATE INSURANCE COMPANY, Plaintiff, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Dennis K. Cumpton, Linda Cumpton and Jeffrey Gourley, Defendants.

Civ. No. 85-2295.

United States District Court, W.D. Arkansas, Fort Smith Division.

June 15, 1987.

Thomas B. Pryor, of Pryor, Barry, Smith and Karber, Fort Smith, Ark., for plaintiff.

Douglas O. Smith, Jr., of Warner and Smith, Fort Smith, Ark., for defendant U.S. Fidelity & Guar. Co.

Eddie N. Christian, of Christian & Beland, Fort Smith, Ark., for defendants Dennis K. Cumpton and Linda Cumpton.

William F. Smith, of Mobley and Smith, Russellville, Ark., for defendant Jeffrey Gourley.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

Introduction

This is a declaratory judgment action filed by Allstate Insurance Company against United States Fidelity and Guaranty Company, Dennis K. Cumpton and Linda Cumpton and Jeffrey Gourley. The court has jurisdiction by reason of diversity of citizenship and sufficient jurisdictional amount. 28 U.S.C. § 1332. The case was tried to the court on June 9, 1987.

The Facts

Many of the facts are disputed, but the evidence proves, unequivocally, if nothing else, that young men often make incredibly bad choices, especially when drinking. The two young men who are the central figures in the issues before the court are Jeffrey Gourley, age 24, and Monty Sowell, age 23. They first met during the summer and early fall of 1983 when they were in the pledge class of Kappa Alpha Fraternity at Arkansas Tech University in Russellville, Arkansas. The evidence indicates that they became friends, although not particularly close ones, at that time and remained friends over the succeeding years. It appears that they both had automobiles for their personal use during that time, and Gourley claims that the pledgees sometimes used other pledgees' automobiles, especially to do work of the fraternity.

During the summer of 1984, after completing their first year of college, Sowell and Gourley lived in a house in Russellville with two other young men, Larry Bateman and Thomas Bowden, also Kappa Alpha Fraternity members. Apparently Gourley already lived in the house when the other three young men moved in for the summer. In fact, the house was owned by one of the others, Thomas Bowden. According to the evidence, Gourley worked days at a local grocery store, and the other three men worked the night shift at a local processing plant that made pickles. Sowell and Bateman testified that because of the disparity in working hours, they seldom saw Gourley.

The credible evidence indicates that, while the young men lived together during the summer of 1984, Sowell had the 1981 Ford pickup (one of the vehicles covered by the insurance to be discussed below) and although at least his close friend, Larry Bateman, and perhaps others, sometimes used it, this was always done with Sowell's permission. Gourley seems to admit that. He testified that he used it on at least one occasion during that summer, but that he asked permission before doing so. He seems to think, or at least hopes the court will believe he thinks, that permission was not required because of his friendship with Sowell, but, nevertheless, he could recall no occasion on which he used the vehicle without Sowell's permission.

Before the 1984-85 school year, Sowell transferred to the University of Arkansas in Fayetteville, Arkansas, some 100 miles from Russellville. Gourley remained at Arkansas Tech. Shortly before Labor Day of 1985, Sowell transferred back to the Russellville school. Approximately one week before Labor Day of that year, he returned to Russellville.

Kappa Alpha Fraternity became involved in raising money for the Muscular Dystrophy Telethon to be held on Labor Day of 1985. The fraternity members collected money through various means and it was decided that, the day before Labor Day, they would "run" the money to Fort Smith to be delivered "on camera" during the telethon. Approximately the middle of the afternoon of the day before Labor Day, 15 to 18 members of the fraternity gathered to start the marathon run. They had several cars with them on the run (estimated by the witnesses to be from five to eight) and the practice apparently was for a member to run with the money for one mile and then ride in one of the vehicles while another member ran. At approximately 10:30 that night they made it to Charleston, Arkansas, approximately 20 miles from Fort Smith.

The members, which apparently still numbered somewhere between 15 and 18, then proceeded on to Fort Smith where the management of Kings Row Inn, a motel in Fort Smith, had provided them with two free rooms in which they were allowed to spend the night. The evidence indicates that the members had provided a keg of beer in at least one of the vehicles used on the trip, and it appears that after a member ran (and apparently sometimes before) that member imbibed. When the young men arrived at the Kings Row Inn, Gourley stayed in one of the rooms provided, and Sowell in the other. The keg of beer (or perhaps a substitute one) was available in the room occupied by Sowell.

It appears from the evidence that the young men, or at least most of them, continued to drink, at least to some extent, during the evening and at approximately midnight, or sometime shortly thereafter, Sowell went to bed and went to sleep, after obtaining from a local restaurant and eating a sandwich.

At some time during the evening, two young men who had ridden in Gourley's car apparently reminded him that he had indicated to them that he would return to Russellville. It appears at this time that young Gourley, for whatever reason, (probably because he was having a good time or thought he was) decided that he did not want to return. His friends reminded him that they had to return because they had jobs at which they had to appear the next morning. Gourley then gave to them the keys to his vehicle and told them to take it and return to Russellville.

The court believes that Gourley, as well as others, continued to drink during the evening, although Gourley, not surprisingly, says that he was not under the influence of alcohol and that he probably had "three, four or five beers."¹

Sometime during the early morning hours, and it is not at all clear when, Gourley finds himself to be the only non-sleeping member of the group. He decides, for some unknown reason, to go somewhere, although it is not at all clear where. He said at the trial that he had decided to return to Russellville, but the night of the occurrence to be described below, he didn't seem to be sure where he was going. It also appears from the evidence that he not only did not know where he was going, he didn't know what time he left to go there. Shortly after the occurrence to be described below, and in a deposition given during the pretrial stages of this proceeding, he says that he left the motel at approximately 4:30 a.m. During the trial, when it became obvious that the accident in which he was involved occurred at approximately 7:02 in the morning, he decided that he must have left later because he is certain that he proceeded from the motel directly to the place where the accident occurred.

In any event, when he decided to leave to go wherever he was going, at whatever time he decided to go, because he did not have his own vehicle, he decided to use Sowell's pickup. There is a dispute about how he obtained the keys. Sowell testified, and this was supported by his friend, Bateman, that Sowell always locked his vehicle because it contained stereo equipment, tapes, speakers, and the like. Sowell said that at the time he went to bed, he locked his vehicle and laid the keys on a table in the room that he was occupying. Shortly after the accident, Gourley told an insurance investigator (Defendants' Ex. 1) that he got the keys either from the room or found them in the ignition. He now says that he has thought about that and he is certain that they were lying in the seat of the unlocked pickup. He admits that he did go to Sowell's room before leaving, but because he found him asleep, he said nothing to him.

Gourley testified that he left the motel, he now says to return to Russellville. He says that he intended to call Sowell the next morning to tell him where his pickup was. He apparently pulled onto the interstate highway near the motel and says that he believed that he was headed towards Russellville to the east on Interstate 40. After driving a short time, he saw a road sign indicating that he was nearing Sallisaw, Oklahoma, some 20 miles west of the Arkansas-Oklahoma line, and he realized that he was headed in the wrong direction. He turned around and started east on Interstate 40. Shortly after that, he came upon a vehicle owned and operated by the Cumptons, pulling a boat on a boat trailer. Shortly after the accident, he indicated that he probably went to sleep, but he now says that he simply didn't see the vehicle and boat. He ran into the back of it, doing substantial damage to the Cumpton vehicle and to the Sowell pickup that he was driving. The Cumptons claim that they were severely injured. The pickup that he was driving ended up off the road in the ditch. He then panicked and left the scene of the accident, leaving the damaged vehicles and allegedly injured persons in his wake. He ran to a nearby farm house and found a farmer's vehicle parked with the keys in it. He then, according to his testimony, "obtained possession" of that vehicle and drove it back to the Sheraton Inn, next door to the Kings Row Inn. He parked the vehicle that he had "obtained possession of" and went back to the room in which he was staying and showered. He then called his girl friend in Russellville who came to Fort Smith to pick him up. He did not tell anyone at the motel about the accident and did not advise Sowell that his pickup was sitting wrecked in the ditch somewhere on Interstate...