Clark v. Progressive Ins. Co., CA

• Decision Date: 23 December 1998
• Docket Number: No. CA,CA
• Citation: 64 Ark.App. 313,984 S.W.2d 54
• Parties: Bettie CLARK, et al., Appellants, v. PROGRESSIVE INSURANCE COMPANY, Appellee. 98-141.
• Court: Arkansas Court of Appeals

Page 54

984 S.W.2d 54

64 Ark.App. 313

Bettie CLARK, et al., Appellants, v. PROGRESSIVE INSURANCE COMPANY, Appellee.

No. CA 98-141.

Court of Appeals of Arkansas Division IV.

Dec. 23, 1998.

E. Dion Wilson, Helena, for Appellants.

Roger A. Glasgow, Kristi M. Moody, Little Rock, for Appellee.

JUDITH ROGERS, Judge.

This case arises out of a hit-and-run automobile accident in which a pedestrian, Otha Jordan, was struck and killed. The accident occurred at approximately 10:30 p.m. on July 21, 1995, when Reginald Moseby, who was fleeing from the Dermott police while driving Teresa Moore's Cadillac, ran over Mr. Jordan. Ms. Moore was Moseby's girlfriend. At the time of the accident, Ms. Moore had an automobile liability insurance policy on her Cadillac with appellee Progressive Insurance Company. Appellant Bettie Clark and the other appellants (other than Moore and Moseby) are the heirs of Otha Jordan. They appeal the Chicot County Circuit Court's order granting appellee Progressive Insurance Company's motion for summary judgment. The insurance company had initially sought declaratory judgment and subsequently moved for summary judgment on the basis that it had no contractual duty to defend any suit against Reginald Moseby brought by the heirs of Otha Jordan or to satisfy any judgment against Moseby obtained by the heirs. The insurance company alleged that its liability policy with Moore excluded non-permissive users of her Cadillac and, when Moseby struck and killed Otha Jordan, he did not have Ms. Moore's permission to drive the Cadillac. We reverse and remand the circuit court's order granting summary judgment to the insurance company. We do so because, based on our review of the pleadings and other filings before the circuit court, we conclude that there is a genuine issue of material fact regarding whether Reginald Moseby had Teresa Moore's implied permission to drive her automobile when he struck and killed Otha Jordan.

In April 1996, appellee Progressive Insurance Company filed in Chicot County Circuit Court a declaratory judgment complaint. In its declaratory judgment complaint, the insurance company recited the facts, noted above, and requested that the circuit court declare that it had no duty, based on its automobile liability insurance policy with Teresa Moore, to indemnify the heirs of Otha Jordan or to defend Reginald Moseby, if the heirs sued him. The insurance company asked for declaratory judgment on the basis that its liability insurance policy with Ms. Moore excluded non-permissive users and that Moseby was a non-permissive user of Ms. Moore's automobile when he struck and killed Otha Jordan. However, it conceded that it was contractually obligated to defend Teresa Moore. The insurance company's declaratory judgment action was assigned Chicot County Circuit Court Docket No. CIV96-49-1.

Just over a year later, in June 1997, the insurance company filed in Chicot County Circuit Court Docket No. CIV96-49-1 a motion for summary judgment. Therein, the insurance company repeated the facts and legal theory that it had set forth in its initial complaint requesting declaratory judgment and asserted that it was entitled to summary judgment because its liability policy with Ms. Moore specifically excluded coverage for non-permissive users of her automobile. The insurance company also noted in its brief in support of its summary-judgment motion that, subsequent to its requesting declaratory judgment, Bettie Clark, as the administratrix of the estate of Otha Jordan, filed a wrongful death action against Teresa Moore and Reginald Moseby in Chicot County Circuit Court Docket No. CIV 96-132-1.

On August 28, 1997, the circuit court handed down an order denying the insurance company's summary-judgment motion. In response to the circuit court's denial of its summary-judgment motion, the insurance company deposed Reginald Moseby and then attached a copy of Moseby's deposition to a supplement to its summary-judgment motion. ¹ At the time the parties deposed Moseby he was imprisoned in the Arkansas Department of Correction, where he was serving a two-year sentence imposed on him after he had been found guilty of the negligent homicide of Otha Jordan. The insurance company's supplement to its summary-judgment motion persuaded the circuit court to reconsider its denial of the company's summary-judgment motion. On October 28, 1997, the circuit court entered a second order granting summary judgment to the insurance company.

The legal principles that govern our review of a trial court's grant of summary judgment are well established. Summary judgment should be granted only when a review of the pleadings and other filings reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Grayson v. Bank of Little Rock, 334 Ark. 180, 971 S.W.2d 788 (1998). The moving party always bears the burden of sustaining a motion for summary judgment. Liberty Mut. Ins. Co. v. Thomas, 333 Ark. 655, 971 S.W.2d 244 (1998). Summary judgment should not be granted when reasonable minds could differ as to the conclusions that could be drawn from the facts presented. Thompson v. City of Siloam Springs, 333 Ark. 351, 969 S.W.2d 639 (1998). After the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998). On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We review the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998). A party seeking a declaratory judgment may move for summary judgment. Ark. R. Civ. P. 56(a).

Reginald Moseby's deposition, which Progressive Insurance Co. introduced to support its renewal of its summary-judgment motion, leaves a genuine issue of material fact to be decided--whether Reginald Moseby had Teresa Moore's implied permission to drive her automobile when he ran over Otha Jordan. In his deposition Reginald Moseby stated that, at the time of the accident, Teresa Moore was his girlfriend, that he and Ms. Moore had "been together" for almost twelve years, that they lived together and that they had three children. Moseby also stated that he had never owned an automobile, but that he had helped Ms. Moore pay "the notes" on her Cadillac, which she had had about two months before the accident. When asked if he considered Ms. Moore's Cadillac to be his car, too, Moseby replied, "I been with her twelve years, so she's my wife, so what's hers is mine and what's mine is hers." Moseby admitted that even though Ms. Moore had forbidden him from driving her Cadillac, he had done so anyway and that she knew that he had done so. On this point, Moseby stated, "I say she knew I was driving the car, but I still didn't have her permission to drive it." Finally, with regard to whether Ms. Moore had given him permission to drive her Cadillac on the night that he struck and killed Otha Jordan, Moseby stated he confronted Ms. Moore, who was at the home of her sister and brother-in-law, Brenda and Robert Staggers, that Ms. Moore did not want him to drive her automobile that evening, that they struggled over the keys to the automobile, which Ms. Moore had in her hand, and that he took the keys from her and drove away.

Whether the owner has given another person implied permission to drive his or her automobile depends on the nature of the relationship between the owner and the borrower. The standard treatise on the law of insurance describes "implied permission to drive an automobile" as follows:

An implied permission ... is not confined to affirmative action, but means an inferential permission, in which a presumption is raised from a course of conduct or relationship between the parties in which there is a mutual acquiescence or lack of objection signifying consent.

But implied permission is not limited to such situations, and will be evaluated in light of all the facts and circumstances surrounding the parties.

Implied permission may be proved by circumstantial evidence. Circumstances such as usage, practice, or friendship may be used to show implied permission.

It may be found that the insured has given implied permission where the named insured has knowledge of a violation of instructions and fails to make a significant protest.

....

It has also been stated, however, that the term "permission" contemplates something more than mere sufferance or tolerance without taking steps to prevent, and the term is used in the sense of leave, license, or authority with the power to prevent.

Such implied permission is usually shown by usage and practice of the parties over a period of time preceding the day upon which the insured automobile was being used, assuming, of course, that all parties had knowledge of the facts. When this showing is made, there is considered to be a sufficient showing of a course of conduct in which the parties mutually acquiesced to bring the additional insured within the policy protection, provided, of course, that any acquiescence on the part of the insured was by some one having authority to give permission for him.

6C Appleman, Insurance Law and Practice § 4365 at 177-87 (Buckley rev. ed.1979)(internal citations omitted). If the owner of an automobile forbids another person from driving the automobile, but the other person continues to do so with the knowledge of the owner, then the owner has given implied permission to drive the automobile. See Turner v. Alexander, 690 So.2d 756 (La.Ct.App.1997). Given Reginald Moseby's statement in his deposition...