Barnett v. Peters

• Citation: 254 Neb. 74,574 N.W.2d 487
• Decision Date: 27 February 1998
• Docket Number: No. S-96-705,S-96-705
• Parties: Desiree BARNETT, Appellee, v. Charles R. PETERS, Appellee, and Farmers Insurance Exchange, also known as Farmers Insurance Group, Garnishee-Appellant.
• Court: Nebraska Supreme Court

Page 487

574 N.W.2d 487

254 Neb. 74

Desiree BARNETT, Appellee, v. Charles R. PETERS, Appellee, and Farmers Insurance Exchange, also known as Farmers Insurance Group, Garnishee-Appellant.

No. S-96-705.

Supreme Court of Nebraska.

Feb. 27, 1998.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

3. Garnishment: Appeal and Error. Garnishment is a legal action; to the extent factual issues are involved, the findings of the fact finder will not be set aside on appeal unless clearly wrong; however, to the extent issues of law are presented, an appellate court has an obligation to reach independent conclusions irrespective of the determinations made by the court below.

4. Attorney Fees: Appeal and Error. When an attorney fee is authorized, the amount of the fee is addressed to the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion.

5. Motions for New Trial: Appeal and Error. A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.

6. Insurance: Motor Vehicles: Words and Phrases. Under the initial permission rule, if permission to use an automobile is initially given, then recovery may be had regardless of the manner in which the automobile is subsequently used. As long as the first use is with the permission of the owner, later deviations are immaterial.

7. Insurance: Contracts: Liability: Motor Vehicles. Once the named insured of a policy which contains an omnibus clause extending liability coverage to those driving the covered automobile with the insured's consent gives such consent to another, any third person allowed to drive the vehicle by the initial permittee likewise is covered, barring theft or conversion.

Kristen D. Mickey, of Sorensen & Zimmerman, P.C., Scottsbluff, for garnishee-appellant.

Robert M. Brenner, of Robert M. Brenner Law Office, Gering, for appellee Barnett.

CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

McCORMACK, Justice.

Farmers Insurance Exchange (Farmers) appeals the entry of a summary judgment by the district court for Scotts Bluff County, Nebraska, which determined Farmers was liable for injuries sustained by Desiree Barnett when she was struck by an automobile driven by Charles R. Peters. At the time of the accident, Ronald G. Miglia was the named insured on a liability policy with Farmers and had given his permission to his daughter, Alison, to operate the vehicle. Alison, in turn, allowed Peters to drive the vehicle. On our own motion, we removed the matter to this court under our authority to regulate the caseloads of the Nebraska Court of Appeals and this court. We reverse the decision of the district court and remand the cause for further proceedings.

FACTUAL BACKGROUND

On February 18, 1991, an automobile driven by Peters struck Barnett, a pedestrian, in Scottsbluff, Nebraska. A default judgment was entered against Peters in the amount of $29,412.88 plus costs and interest. Ten days after the default judgment was entered, Barnett's attorney wrote a letter to Miglia with a copy to Farmers' agent, enclosing a copy of the judgment. In its judgment, the district court further made a finding of fact that Peters was driving a 1985 Oldsmobile owned by Miglia, of Gering, Nebraska, at the time of the accident.

Miglia carried a liability insurance policy on the vehicle through Farmers which outlined coverage for any "insured person." Excluded from the definition of an "insured Alison and Peters were living together at the time of the accident. It is undisputed that Alison had her father's permission to operate the vehicle at the time of the accident. Alison gave Peters express permission to drive the vehicle on the date that he struck Barnett, and Alison was present in the vehicle when it struck Barnett.

                person" under [254 Neb. 76] the policy is "[a]ny person who uses a vehicle without having sufficient reason to believe that the use is with the permission of the owner."   The only named insured under the language of the policy was Miglia
                

The record does not reflect the method used to serve notice on Peters. No one seemed to know his whereabouts. Alison testified in her deposition that she had last seen Peters in 1993, and at that time, he was living with his father in Torrington, Wyoming. The police report of the accident, which is in evidence in this case, lists Peters' address as 6th Street in Gering, Nebraska. The record does not reflect if there was service of notice by leaving at Peters' place of residence.

Neither Miglia nor Farmers was ever given notice of the pending action against Peters. Farmers did, however, have notice of the accident and the claim, because Farmers' agent had helped Miglia fill out an accident report form, SR-21, for filing with the State of Nebraska. There is correspondence in evidence between Farmers and State Farm Insurance, Barnett's insurance carrier, about State Farm's subrogation rights because State Farm had paid medical bills for Barnett. Farmers also had notice of the judgment, albeit more than 10 days after the judgment, when Barnett's attorney sent a copy of the judgment to Miglia with a copy to Farmers' agent.

A motion to vacate and a special appearance were filed by Peters' attorney, both of which were denied by the district court and from which no appeals were taken. Barnett filed an affidavit and praecipe for garnishment which was served on Farmers and pertained to their insured, Miglia. Barnett then timely filed an application to determine liability against the garnishee.

Barnett filed a motion for summary judgment in the garnishment action against Farmers, alleging no genuine issue of material fact existed which precluded the court from ruling, as a matter of law, that Farmers was liable to Barnett under the policy covering Miglia. The court sustained Barnett's motion for summary judgment, entering an award against Farmers in the amount of $29,412.88 plus costs and interest. The trial court overruled Farmers' motion for a new trial and sustained Barnett's request for attorney fees, awarding fees and costs in the amount of $10,221.84. Farmers appealed.

ASSIGNMENTS OF ERROR

Farmers alleges as error the district court's (1) granting Barnett's motion for summary judgment, (2) taxing costs and attorney fees to Farmers, and (3) overruling Farmers' motion for a new trial. Farmers also alleges that the district court erred in finding insurance coverage despite Peters' failure to inform Farmers of the original district court action against him.

STANDARD OF REVIEW

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Whalen v. U S West Communications, 253 Neb. 334, 570 N.W.2d 531 (1997); Billups v. Troia, 253 Neb. 295, 570 N.W.2d 706 (1997); Hobbs v. Midwest Ins., Inc., 253 Neb. 278, 570 N.W.2d 525 (1997). In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Whalen v. U S West Communications, supra; Hobbs v. Midwest Ins., Inc., supra; Eiche v. Blankenau, 253 Neb. 255, 570 N.W.2d 190 (1997).

Garnishment is a legal action; to the extent factual issues are involved, the findings of the fact finder will not be set aside on appeal unless clearly wrong; however, to the When an attorney fee is authorized, the amount of the fee is addressed to the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion. Rapp v. Rapp, 252 Neb. 341, 562 N.W.2d 359 (1997); National Am. Ins. Co. v. Continental Western Ins. Co., 243 Neb. 766, 502 N.W.2d 817 (1993).

extent issues of law are presented, an appellate court has an obligation to reach independent conclusions irrespective of the determinations made by the court below. Farr v. Designer Phosphate & Premix Internat, 253 Neb. 201, 570 N.W.2d 320 (1997); Barry v. Tanner, 250 Neb. 116, 547 N.W.2d 730 (1996); Watts v. Watts, [254 Neb. 78] 250 Neb. 38, 547 N.W.2d 466 (1996); Koterzina v. Copple Chevrolet, 249 Neb. 158, 542 N.W.2d 696 (1996).

A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of...