Barela v. Lopez

• Decision Date: 14 October 1963
• Docket Number: No. 7257,7257
• Parties: Fedelina BARELA, Plaintiff-Appellant, v. Carpio LOPEZ and Willie C. De Baca, Defendants, Atlantic Insurance Company, Garnishee-Appellee.
• Court: New Mexico Supreme Court

Page 975

385 P.2d 975

73 N.M. 121

Fedelina BARELA, Plaintiff-Appellant, v. Carpio LOPEZ and Willie C. De Baca, Defendants Atlantic Insurance Company, Garnishee-Appellee.

No. 7257.

Supreme Court of New Mexico.

Oct. 14, 1963.

Patricio S. Sanchez, Annette R. Shermack, Santa Fe, for appellant.

Gilbert, White & Gilbert, Summer S. Koch, Santa Fe, for appellee.

CHAVEZ, Justice.

Appellant seeks to have a summary judgment entered in favor of appellee set aside, contending that there are genuine issues of fact to be resolved.

This was an action in garnishment brought by appellant against Atlantic Insurance Company, garnishee-appellee, as insurer of the automobile belonging to defendant, Willie C. De Baca, and operated by defendant, Carpio Lopez, at the time of the accident. For a complete statement of the facts, see Barela v. De Baca, 68 N.M. 104, 359 P.2d 138, which affirmed a directed verdict for Willie C. De Baca and against appellant. Subsequently, this action was brought by appellant against appellee, alleging that, as Lopez was operating the automobile owned by De Baca, with De Baca's permission, and that as Atlantic Insurance Company was the insurer of said automobile under an insurance policy containing an omnibus clause, that the automobile was covered by the insurance policy at the time of the accident.

Appellant's answer to the response of garnishee-appellee stated that Atlantic Insurance Company was liable for the amount of a default judgment recovered by appellant against Lopez to the extent of $5,000 for bodily injuries to appellant and $500 additional for medical payments. On motion of appellee, Atlantic Insurance Company, summary judgment was rendered in its favor.

It is appellant's contention that the omnibus clause of the insurance policy issued by Atlantic Insurance Company insured the operation by Lopez of De Baca's automobile.

The clause of the policy afforded insurance to:

'(2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured;'

The 'Medical Payments' coverage of the policy is, in part, as follows:

'To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, x-ray and dental services, including prosthetic devices and necessary ambulance, hospital, professional nursing and funeral services;

* * *

* * *

'Division 2. To or for any * * * person who sustains bodily injury, caused by accident, while occupying (a) the owned automobile, while being used by the named insured, by any resident of the same household or by any other person with the permission of the named insured;'

Appellant sought to garnishee the Atlantic Insurance Company under both of these clauses, alleging damages under each clause. In order for appellant to prevail in the garnishment action, she would have to establish that Lopez was using De Baca's automobile, with De Baca's permission at the time of the accident. By the same token, for Atlantic Insurance Company to prevail, the contrary would have to be proven. In its motion for summary judgment, Atlantic Insurance Company alleged that this issue had been resolved by the decision of this court in Barela v. De Baca, supra. Such is not the case. Barela v. De Baca, supra, decided that Lopez, at the time of the accident, was acting beyond the scope of his employment, if any employment ever existed. That action sought to have De Baca held liable for the actions of Lopez because Lopez was allegedly the agent, representative and servant of De Baca, and De Baca was responsible under the doctrine of respondeat superior. This action seeks to hold Atlantic Insurance Company liable under the permissive user clause of the insurance policy issued to De Baca. Appellant contends that the accident resulting in her injuries occurred while Lopez was driving the automobile with the permission of De Baca, the owner, and that Atlantic Insurance Company, the garnishee, is liable for the payment of appellant's default judgment against Lopez. The question of whether Lopez was acting within the scope of the permission granted by De Baca was not resolved in Barela v. De Baca, supra; nor has it been resolved in this action. Appellant alleged that Lopez was so acting; Atlantic Insurance Company denied it. There is, therefore, an unresolved issue of material fact and summary judgment should not have been granted. Rule 56(c), (Sec. 21-1-1(56)(c), N.M.S.A., 1953 Comp.); Gonzales v. Gackle Drilling Company, 70 N.M. 131, 371 P.2d 605; Hewitt-Robins, Inc., Robins Conveyors Division v. Lea County Sand and Gravel, Inc., 70 N.M. 144, 371 P.2d 795; Sooner Pipe & Supply Corp. v. Doerrie, 69 N.M. 78, 364 P.2d 138; Ballard v. Markey, 66 N.M. 265, 346 P.2d 1045.

The question before us is almost identical to the situation in Stoll v. Hawkeye Cas. Co. of Des Moines, Iowa, (8 C.C.A.1952), 193 F.2d 255. There suit was filed in the South Dakota court against the truck driver and the owner of the truck by a minor girl, Joyce Stoll, who had been riding on the running board and was injured when the truck overturned. She obtained judgment against Wagaman, the driver, which was later affirmed on appeal. The state court directed a verdict in favor of Manhalter, the owner, and plaintiff did not appeal from the judgment. After the judgment against the driver became final, Joyce Stoll garnished the Hawkeye Casualty Company, the owner's liability insurer, in the state court, asserting that under the 'omnibus clause' of its policy covering the truck the insurance company was indebted to the driver as an insured in the amount of her judgment against him.

The insurance company removed the garnishment proceedings to the federal court, denying that it was indebted to Wagaman. The case was tried to a jury and at the close of the evidence both parties moved for a directed verdict. Plaintiff's motion was denied. The insurance company's motion was on the ground that the evidence established as a matter of law that the 'acutal use' of the truck by Wagaman was without permission from...