Collins v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 01 July 1966
• Docket Number: No. 1743,1743
• Citation: 188 So.2d 460
• Parties: Joseph L. COLLINS et ux., Plaintiffs-Appellants-Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellees- Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 460

188 So.2d 460

Joseph L. COLLINS et ux., Plaintiffs-Appellants-Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al Defendants-Appellees- Appellants.

No. 1743.

Court of Appeal of Louisiana, Third Circuit.

July 1, 1966.

Rehearing Denied July 28, 1966.

Gist, Methvin & Trimble, by DeWitt T. Methvin, Jr., Alexandria, for defendants-appellants.

Gold, Hall & Skye, by Jimmy M. Stoker, Alexandria, Neblett & Fuhrer, by Robert B. Neblett, Jr., Alexandria, for plaintiffs-appellees.

Before SAVOY, TATE and HOOD, JJ.

HOOD, Judge.

This is a tort action arising out of a two-car motor vehicle collision. One of the automobiles involved was being driven by Mrs. Joseph L. Collins and the other was being driven by Nathaniel L. Ellis. The suit was instituted by Mr. and Mrs. Collins against Ellis and his alleged liability insurer, Fireman's Fund Insurance Company, and also against the insurer of plaintiffs' own automobile, State Farm Mutual Automobile Insurance Company.

Plaintiffs allege primarily that the accident was caused by the negligence of defendant Ellis, that Ellis was an insured under a public liability insurance policy issued by Fireman's Fund, and that he and that insurer are liable in damages. They allege alternatively, and in the event it is determined that Ellis was not insured at the time of the accident, that their own insurer, State Farm, is responsible under an 'uninsured motorist' provision in the policy. State Farm filed an answer and a third party demand against Ellis, demanding judgment against the latter for any amount which State Farm may be condemned to pay.

Fireman's Fund filed a 'Motion for Summary Judgment,' praying that the suit be summarily dismissed as to that company on the ground that at the time the accident occurred Ellis was not covered by any policy which it had issued. State Farm thereupon filed an opposition to the motion for summary judgment. After hearing, this motion was granted and a summary judgment was rendered by the trial court dismissing the suit as to Fireman's Fund. State Farm has appealed.

The basic question presented is whether defendant Ellis was an 'insured' under a liability policy issued by Fireman's Fund at the time the accident occurred. If he Was an insured under any such policy, then Fireman's Fund should be required to remain in the suit as a party defendant. But, if Ellis Was not an insured of Fireman's Fund at that time, then the latter is entitled to a judgment of dismissal. This appeal, of course, is from a summary judgment of dismissal, and the rules relating to summary judgment are applicable .

The summary judgment remedy is not a substitute for a trial, and it may not be resorted to when there is a genuine issue of material fact which must be resolved. In passing upon a motion for summary judgment, the function of the court is not to determine the merits of the issues raised, but rather it is to determine whether there is a genuine issue of a material fact. The burden of showing that there is not a genuine issue as to a material fact is upon the mover for the summary judgment, with all doubts to be resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts. Aymond v. Missouri Pacific Railroad Company, La.App. 3 Cir. 179 So.2d 460.

The summary judgment appealed from in this case was based on facts which were established by the pleadings, by answers to interrogatories and by affidavits. This evidence shows that the accident which gave rise to this suit occurred on December 11, 1964. At that time, Mr. and Mrs. Ellis were married and were living together in Alexandria, Louisiana. Mrs. Ellis is the daughter of Ervin B. Fisher, who resides in Florida. Mr. Ellis was not a resident of the household of his father-in-law, Mr. Fisher, at the time the accident occurred.

Sometime prior to the date of the accident, Mr. Fisher purchased a 1961 Ford convertible, which he furnished to Mrs. Ellis, his daughter, 'for her sole and exclusive use.' The title to this automobile was registered in the name of Mr. Fisher, and a public liability insurance policy was issued by Fireman's Fund covering that particular automobile and showing Mr. Fisher as the 'named insured.' This policy was in effect at the time the accident occurred. Although the title to the 1961 Ford convertible was registered in the name of Mr. Fisher, and he was the 'named insured' in the policy issued by Fireman's Fund, Mrs. Ellis has had the full and complete use of the car. She, in fact, has kept the car with her in Louisiana, where she resides with her husband.

When Mr. Fisher furnished this 1961 Ford convertible to his daughter for her exclusive use, he specifically informed Mr. and Mrs. Ellis that the car was not to be driven by Mr. Ellis. Mr. Fisher stated, by affidavit, that to the best of his knowledge that car was not used by Nathaniel L. Ellis at any time on or before December 11, 1964.

At the time the accident occurred, Mr. Ellis was driving a 1962 Corvair Monza automobile, which was owned by John A. Lalley, and was being driven by Ellis with Lalley's permission. There was no insurance policy in effect covering the Lalley car, as an 'owned automobile,' at the time the accident occurred. Mr. Ellis states in an affidavit, however, that the 1961 Ford convertible, which had been furnished to his wife by her father, was 'out of service' because he was doing some repair work on it.

State Farm contends that Ellis was an 'insured' under the Fireman's Fund policy because the 1962 Corvair which he was driving was a 'temporary substitute automobile' for the 1961 Ford convertible which was specifically covered by that policy. The trial judge held that the car involved in the accident was not a 'temporary substitute automobile' for the insured car, and thus that no coverage was provided by the Fireman's Fund policy. He concluded that the evidence showed, beyond any genuine issue of fact, that Ellis did not have the permission of Fisher to drive the insured 1961 Ford automobile, that Ellis was not an 'omnibus insured' under the Fireman's Fund policy, and that he did not have the authority to borrow a substitute for the insured car. He further held that even if Ellis did have the express or implied permission of Fisher to use the 1961 Ford, that permission went to further than to use the automobile, and it did not include authority to borrow a substitute.

Under the provisions of the insurance policy issued to Fisher by Fireman's Fund, the insurer obligates itself:

'To pay on behalf of The insured all sums which the insured shall become legally obligated to pay as damages because of: (a) Bodily injury, sickness or disease including death resulting therefrom hereinafter called 'bodily injury' sustained by any person; * * * arising out of the ownership, maintenance or use of the Owned automobile or any non-owned automobile * * *'

The persons insured under that contract are defined in the policy as follows:

'Persons insured: the following are insureds under part one:

(a) With respect to the owned automobile,

(1) The named insured and any resident of the same household. * * *'

"named insured' means the individual named in Item 1 of the declarations and also includes his spouse, if a resident of the same household; * * *'

The term 'owned automobile,' as used in the policy, is defined as including a 'temporary substitute automobile.'...