American Family Mutual Insurance Company v. Arnold Muffler Inc.
| Decision Date | 11 July 2000 |
| Citation | 21 S.W.3d 881 |
| Parties | (Mo.App. E.D. 2000) . American Family Mutual Insurance Company, Appellant, v. Arnold Muffler, Inc., Stacy Zenk Fry, and Jason Travis Noyes, Respondents. Case Number: ED76859 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Lincoln County, Hon. Fred S. Rush
Counsel for Appellant: Lawrence F. Hartstein
Counsel for Respondent: John M. McIlroy, Jr.
Opinion Summary: American Family Mutual Insurance Company appeals the trial court judgment in its declaratory judgment action for a determination of coverage under an insurance policy.
AFFIRMED.
Northern Division holds: (1) The trial court did not err in concluding American Family had failed to meet its burden of proving there is a valid exclusion from coverage because the trial court applied the appropriate burden of proof. (2) The trial court did not err in finding Stacy Zenk Fry was acting within the scope of her permission to operate her employer's van. Fry's deviation was minor, and she had returned to her employer's business when the accident occurred.
Appellant American Family Mutual Insurance Company (American Family) appeals the judgment of the trial court in its declaratory judgment action for a determination of coverage under an insurance policy. We affirm.
Stacy Zenk Fry (Fry) was an employee of Arnold Muffler, Inc. (AMI). AMI was in the business of selling car parts, mufflers, exhaust pipes, and tail pipes wholesale to various dealers throughout Missouri and Illinois. AMI had a main office in Barnhart and five satellite offices/warehouses in other locations. In October of 1996, Fry was employed by AMI as a driver to deliver parts. AMI furnished Fry a delivery van to make the deliveries. Her job duties required her to go to the warehouse in St. Peters, pull the order sheets, get the parts from the warehouse and then deliver them to the retailer. Usually, her supervisor Jim Lesh would assist her and then review the delivery route with her. She understood that she should take the most direct route to make the deliveries unless there was a problem with road construction. Fry understood that AMI's policy was that she should not deviate from the route unless she had permission. Fry testified that in the past she had talked with the dispatcher if she had to deviate from her route. The dispatcher was Jim Lesh.
Vice-President of AMI, Judy Hegar, testified that the written policy for the "hotshot" drivers was that In addition, "If a driver must deviate from the route for any reason he or she must notify the dispatcher for approval." She further stated the drivers had no designated route to take, but were encouraged to use paved streets and take the safest route.
On October 4, 1996, Fry's supervisor Jim Lesh was on vacation. As a result, no supervisor was on site and employees were expected to carry out their duties without any on-site supervision. Fry left the warehouse in St. Peters located at the intersection of Interstate 70 and Route 79 to make deliveries. She was driving a 1985 Chevrolet Van leased to AMI. She planned to deliver a part to a repair shop in Old Monroe, Missouri and then go to B & B Auto Parts located at the intersection of Route 47 and EE just west of Winfield, Missouri.
Fry completed her delivery in Old Monroe. The most direct route from Old Monroe to B & B Auto Parts was to travel north on Route 79 to Route 47, and then travel west on Route 47 to Route EE. Instead, Fry drove north on Route 79 to Route C and turned west on Route C and then went north on County Road 857, a gravel road. Fry's purpose in going this way was so she could pick up her child's homework at her babysitter's house. After picking up the homework, Fry continued north on County Road 857, then turned right on County Road 850. Her intention was to take 850 to County Road 861 until she again reached Route 47. However, Fry was involved in an automobile accident on 850 with Jason Travis Noyes. She was about a mile and a half from Route 79 when the accident occurred.
At the time of the accident, AMI was insured by a policy of insurance issued by American Family. The policy provides liability coverage for insured persons. It defines them as follows:
Insured person or insured persons means:
a. You.
b. Any person using your insured car.
. . .
But the following are not insured persons:
a. Any person using your insured car without your permission.
b. Any person using your insured car with your permission, but who exceeds the scope of that permission.
Noyes filed a cause of action for personal injuries against Fry and AMI. American Family filed this declaratory judgment to determine if it was obligated to defend Fry in the suit filed by Noyes. American Family contended that Fry was using the insured vehicle outside the scope of AMI's permission and...
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