Farmers Ins. Exchange v. Janzer

Citation42 St.Rep. 337,215 Mont. 260,697 P.2d 460
Decision Date20 March 1985
Docket NumberNo. 84-347,84-347
CourtUnited States State Supreme Court of Montana
PartiesFARMERS INSURANCE EXCHANGE, a reciprocal of interinsurance exchange, Plaintiff and Respondent, v. Redmond JANZER; Lucille Janzer Fitzwater, Jeffrey Janzer, Phillip Clutts, et al., Defendants and Appellants.

Dzivi, Conklin & Nybo, Great Falls, for defendants and appellants.

Smith, Baillie & Walsh, Great Falls, for plaintiff and respondent.

HARRISON, Justice.

Appellants, Phillip Clutts and All Nation Insurance Company appeal from a summary judgment entered by the District Court of the Eighth Judicial District of the State of Montana, in and for the County of Cascade, ruling that no material fact was in dispute and that Jeffrey Janzer was not entitled to insurance coverage under his parents' automobile policy.

Farmers Insurance Exchange (hereinafter referred to as Farmers) insured a 1965 Dodge Dart automobile owned by Redmond Janzer. Redmond Janzer and his wife, Lucille Janzer resided with their fourteen year old son, Jeffrey in Cascade County, Montana at the time of the accident.

On March 8, 1978, Jeffrey Janzer, Phillip Clutts and Warner Dalton decided to run away from home in the Janzers' Dodge Dart. No express permission to use the Dodge Dart to run away was given to Jeffrey Janzer by his parents. While Jeffrey was driving, the vehicle left the highway and struck an abutment in the vicinity of Spanish Fork, Utah. Phillip Clutts, a passenger in the Janzer vehicle, was seriously injured.

Farmers Insurance Exchange filed the present action under the Uniform Declaratory Judgments Act seeking a declaration that defendant Jeffrey Janzer was not entitled to liability insurance coverage under his parents' automobile policy for any liability he may have incurred in the accident occurring March 8, 1978.

A hearing on plaintiff's motion for summary judgment was held. The District Court considered the following documents of record, including: the plaintiff's motion for summary judgment, the oral arguments of counsel, the briefs in support and opposition thereto, the pleadings, the defendant's answers to plaintiff's written interrogatories and the depositions of Redmond Janzer, Jeffrey Janzer and Phillip Clutts. The District Court granted the motion for summary judgment ruling Jeffrey had neither express nor implied permission to use the car when he went to Utah. Further, the District Court ruled that Jeffrey Janzer was not entitled to insurance coverage under his parents' policy, nor was Farmers under a duty to defend against any claim arising against Jeffrey Janzer, Redmond Janzer or Lucille Janzer.

The following issues are raised on appeal:

(1) Whether there is a genuine issue as to any material fact which would preclude summary judgment.

(2) Whether the District Court erred in granting summary judgment that there was no liability insurance coverage for the insured's minor son under the parents' policy.

(3) Whether the District Court erred in determining that Farmers Insurance Exchange had no duty to defend under the policy.

Appellants argue the District Court erred in granting Farmers' motion for summary judgment because there existed genuine issues of material fact, namely, whether Jeffrey Janzer had the implied permission of either of his parents to use the vehicle at the time of the accident.

Respondent contends the summary judgment was proper. Respondent further contends the facts before the District Court were clear and undisputed that there was no express or implied permission to use the vehicle at the time of the accident.

Rule 56(c), M.R.Civ.P., provides that summary judgment is proper if: "... the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

This Court has on many occasions commented upon the nature of the burden of proof imposed on the moving party under Rule 56. This Court has consistently held that the party moving for summary judgment has the burden of showing the complete absence of any genuine issue as to all facts which are deemed material in light of those substantive principles which entitled him to a judgment as a matter of law. Bonawitz v. Bourke (1977), 173 Mont. 179, 567 P.2d 32; Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613. The rule imposes a strict standard upon the movant and in Kober and Kyriss v. Stewart & Billings Deaconess Hosp. (1966), 148 Mont. 117, 417 P.2d 476, this Court quoting from 6 Moore's Federal Practice 2nd Sec. 56.15, held: "... to satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact."

The initial burden of proof must attach to the movant, however, that burden shifts where the record discloses no genuine issue of material fact. Harland v. Anderson, supra. The party opposing the motion must come forward with substantial evidence raising the issue. Rickard v. Paradis (1975), 167 Mont. 450, 539 P.2d 718; Roope v. The Anaconda Company (1972), 159 Mont. 28, 494 P.2d 922; Flansberg v. Montana Power Company (1969), 154 Mont. 53, 460 P.2d 263.

The testimony presented must be reviewed in a light most favorable to the party opposing the summary judgment. The right of the opposing party to present the merits of his case to the fact finder must be preserved. Mally v. Asanovich (1967), 149 Mont. 99, 423 P.2d 294; Johnson v. St. Patrick's Hosp. (1967), 148 Mont. 125, 417 P.2d 469. In reviewing Farmers' motion for summary judgment, the foregoing rules and principles will control.

Jeffrey Janzer testified by deposition to the conditions under which he was allowed to use the Dodge Dart:

"Q And can you tell me who taught you to drive?

"A My father did.

"Q Can you give me some idea as to when that learning process started?

"A About three years before the accident.


"Q And did you drive the car when your father was present during those three years?

"A Yes.

"Q Can you tell me what kind of places--where you drove it?

"A I drove it when my father was present on the highway. There is a time, I believe when I was 13, we had a 110-acre farm out at Fairfield, and I drove quite often by myself out there during irrigating.

"Q Did you drive on the county roads out there?

"A No; that was just on the farm itself.

"Q And when you lived in Utah, did you live on a farm?

"A No, it was just another five-acre place like this one.

"Q On the outskirts of some town?

"A Yes.

"Q Did you drive in Utah?

"A Yes, I did.

"Q What kind of places there?

"A Mainly with my parents on the highway.


"Q ... after your parents came back in the fall, up until the time of this accident, would you say that you regularly drove the car when your parents were present? When you took a trip or something?

"A When I took a trip, yes, it was pretty common occurrence.

"Q Now, when you say take a trip, you mean you drove on the highway?

"A Right.

"Q How about driving to and from town? Did you regularly drive when your folks and you were coming to and from town to Manchester?

"A That was the time period that I learned city driving, right there. So I was driving fairly regularly then too. If my parents didn't have anything important to do in town.

"Q So if the family was coming to town or you were coming along, you generally drove?

"A Yes.

"Q And would you say that most of the time?

"A No, not most of the time; maybe 50 percent of the time.

"Q Now, did your mother know that your father taught you to drive as early as he did?

"A Yes.

"Q How many vehicles of various kinds did your folks own?

"A They owned?

"Q I'm talking about March of '78.

"A They owned a Dodge Club Cab pickup, 4-wheel drive; a Thunderbird, '77 Thunderbird; and that '65 Dodge Dart.


"Q Did you drive all those cars?

"A Yes.

"Q Can you tell me any times before March of '78 that you were allowed to drive the car without your parents present?

"A I worked about a mile at a family's house--was kind of a hand. It was about a mile away from our place.

"Q Out at Manchester?

"A Yes. I drove to and from there.

"Q And your parents knew that?

"A Yes.

"Q You did that alone?

"A Right.

"Q Now, was that on a county road or the highway?

"A County road.

"Q How often? Was this from the fall when you started school and finished out at your uncle's place?

"A It was from late December till--

"Q Up to the time of the accident and past, probably?

"A Right.

"Q How often during the week would you make that trip?

"A Every day.

"Q And when you worked up at your uncle's farm that prior summer, that would be the summer of '77?

"A Right.

"Q Did you drive without an adult present in those vehicles?

"A Yes.

"Q Did you drive any of those vehicles on the highway alone?

"A No.

"Q Just county roads?

"A Right.

"Q I take it that you drove them with the knowledge and permission of your uncle?

"A Yes.

"Q And did they know that you were driving them without anybody being present?

"A Yes.

"Q Did you ever have a limited driver's license from the State of Montana--

"A No.


"Q When you took these trips back and forth to this job, to the neighbor's house, out at Manchester, what vehicle did you usually drive?

"A The Dart.

"Q The Dodge Dart?

"A Yes.

"Q When you took the Dart on those trips back and forth to your job, did you ask your mother or your father for permission to drive the car each time?

"A Not each time, no. They knew I was doing it.

"Q They generally gave you permission to do that?

"A Yes.

"Q Where were the keys to the Dodge Dart generally kept?

"A Upstairs in the kitchen.

"Q Whereabouts in the kitchen?

"A On the counter.

"Q Was there a set place for them?

"A No; there was no set place.

"Q They were usually in the...

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