Ison v. Southern Farm Bureau Cas. Co.

• Decision Date: 11 January 2006
• Docket Number: No. CA 05-313.,CA 05-313.
• Citation: 221 S.W.3d 373
• Parties: Sheila Lynette ISON, Appellant v. SOUTHERN FARM BUREAU CASUALTY COMPANY and Farm Bureau Mutual Insurance Co. of Arkansas, Inc., Appellees.
• Court: Arkansas Court of Appeals

221 S.W.3d 373

Sheila Lynette ISON, Appellant v. SOUTHERN FARM BUREAU CASUALTY COMPANY and Farm Bureau Mutual Insurance Co. of Arkansas, Inc., Appellees.

No. CA 05-313.

Court of Appeals of Arkansas, Division II.

January 11, 2006.

Huckabay, Munson, Rowlett & Moore, P.A., by: John E. Moore and Sarah E. Greenwood, Little Rock, for appellants.

David A. Hodges, Little Rock, for appellee.

JOHN MAUZY PITTMAN, Chief Judge.

This is an appeal from a summary judgment entered by the Pulaski County Circuit Court for appellees Southern Farm Bureau Casualty Insurance Company and Farm Bureau Mutual Insurance Company of Arkansas, Inc., declaring that appellees have no duty to defend appellant Sheila Ison in her individual capacity and as her son's parent, or to pay benefits for damages caused by her son in an accident on March 8, 2003. The circuit judge based his decision on his ruling that, as a matter of law, appellant's son's use of the vehicle was without permission. We agree and affirm the award of summary judgment to appellees.

After Mrs. Ison and her former husband, Gordon Brown, were divorced, they shared joint custody of their son. Mrs. Ison remarried, and her husband, Richard Ison, had an auto insurance policy with appellees. Appellant's son had a driver's permit, but did not have a license, and was not a named insured or driver on either of his parent's insurance policies. Under the "Bodily Injury" and "Property Damage" subsection of the "Auto Liability" section, the Isons' policy stated:

We will pay damages for bodily injury and property damage you are legally obligated to pay, except punitive damages, caused by an accident, and arising out of the ownership, maintenance, and use of your auto. For the purpose of this coverage, the words "covered person(s)" include any members of your household and any person or organization legally responsible for the use of your auto with your permission.

The policy defined "covered person" as "the persons and organizations specifically indicated as entitled to protection under the coverage being described."

In the "Auto Liability" section, the "Coverage Extensions" subsection provided in relevant part:

When your policy insures a private passenger auto for Bodily injury and Property Damage Liability Coverage, we will provide those same coverages for the use of certain other private passenger autos.

1. Use of Other Private Passenger Autos.

Coverage applies to you or dependent relatives living in your household while using another private passenger auto. However, the private passenger auto cannot be:

a. owned by you or dependent relatives of your household; or

b. furnished or available for regular use by you or dependent relatives of your household.

. . . .

These coverage extensions do not apply to accidents:

1. that involve any auto you are driving without permission that is stolen or is reasonably suspected to be stolen. . . .

Under the "Coverage Exclusions" section, the policy stated:

We will not pay for:

1. bodily injury or property damage caused by intentional acts committed by or carried out at the direction of you or any other covered person. The expected or unexpected results of these acts or directions are not covered;

. . . .

13. bodily injury or property damage while you or anyone using your auto, with your permission, is involved in the commission of a felony; or while any such person is seeking to elude lawful apprehension or arrest by any law enforcement official. . . .

On March 8, 2003, while appellant's son, aged fifteen years, was at his father's house, he learned that his girlfriend was pregnant. Distraught, he took an overdose of his medicine for attention-deficit disorder, his stepmother's antidepressants, and some nonprescription medicine; took the keys to his father's pickup truck; slashed the tires on the family's other vehicle; drove in his father's truck to a family member's house, where he stole some guns; led the police on a high-speed chase and crossed the median and drove into the opposite lane of traffic on Interstate 30, causing an accident involving Sonia Rogers and James Rogers (now deceased).

Mrs. Rogers, individually, and as Administratrix of the Estate of James Rogers, filed a lawsuit against Mr. Brown and Mrs. Ison, individually and as their son's parents, in the Saline County Circuit Court for damages caused by the accident. Allstate Insurance Company, Mr. Brown's insurer, refused to defend Mrs. Ison, who had signed as the responsible party for the son's driver's permit. With a reservation of rights, appellees agreed to provide her with a limited defense in that lawsuit.

Appellees filed this action against Mrs. Ison and Mr. Brown, individually and as their son's parents, and Mrs. Rogers, individually and as administratrix of the Estate of James Rogers, on May 19, 2004, seeking a declaratory judgment stating that they had no duty to defend or to provide coverage for the accident on the grounds that appellant's son was not a permissive driver; that there was no coverage for accidents involving an auto driven without permission or that was stolen; that damages caused by intentional acts were excluded from coverage; and that damages incurred while the insured or anyone using the automobile with permission was involved in the commission of a felony or seeking to elude lawful apprehension or arrest by any law enforcement official were also excluded. Mrs. Ison, individually and as her son's mother, filed a counterclaim against appellees requesting a declaration that they were contractually bound to provide her with a defense to Mrs. Rogers's action and to provide coverage for any damages awarded. In his answer, Mr. Brown admitted that his son took his vehicle without permission.

Appellees moved for summary judgment, arguing that the policy conditioned coverage on the permissive use of a vehicle and unambiguously excluded coverage for intentional acts and for accidents occurring during flight from law enforcement officers. In support of their motion, appellees filed a certified copy of the insurance policy in effect at the time of the accident and a copy of Mrs. Rogers's complaint in the Saline County Circuit Court. In their brief, appellees argued that the insurance policy's initial statement of coverage did not apply because Mrs. Ison's automobile was not involved in the accident; that the coverage extension, which gave the same coverage to a dependent relative living in the insured's household while using another private passenger automobile, did not apply because appellant's son was not living in her household when the accident occurred and was not using the other automobile with permission; that the coverage extension did not apply to accidents involving stolen vehicles; that the policy excluded from coverage bodily injury or property damage caused by intentional acts; that the policy also excluded bodily injuries occurring "while you or anyone using your auto, with your permission, is involved in the commission of a felony . . . or while any such person is seeking to elude apprehension or arrest by any law enforcement official"; that, after the accident, appellant's son was charged with felony fleeing, criminal mischief, reckless driving, possession of a firearm, and the unauthorized use of a vehicle and was found guilty of fleeing; and that appellees had not agreed to protect Mrs. Ison from liability she assumed by signing her son's application for a driver's permit. In opposition to appellees' motion for summary judgment, Mr. Brown filed a copy of his deposition.

Mrs. Ison moved for partial summary judgment on October 20, 2004, requesting a determination that appellees owed her a defense with independent counsel of her choosing. She filed copies of Mrs. Rogers's first amended complaint and appellees' responses to her interrogatories and requests for production of documents, including copies of her March 16, 2004 statement to appellees' investigator, Jason Grady, and appellees' March 22, 2004 letter to her denying coverage but agreeing to provide her with a limited defense (its reservation of rights).

At the conclusion of the hearing on the motions, the circuit judge stated:

From my reading of everything before me, I do not see how a jury could conclude that there was permission to drive the vehicle under these facts. I guess to state it more clearly, I do not know that there is sufficient evidence from which a jury could conclude that there was permission.

If I get to that point, I do not know whether a ruling on other issues is necessary or not. I do not believe what I will call the "you" argument for lack of a better means to articulate it. I do not believe that argument applies. I think there is language in here that says that whatever coverage goes to the primary person is given is extended to the other one and the policy ... exclusions. The other person does not have less exclusions. The other person has the same exclusions of whoever the primary person was.

I guess I am confusing one affirmative motion for summary judgment with reasons to deny the other. I am going to find as a matter of law that there was not permissive use of this vehicle. Unless asked to, I am not going to make a finding on the intentional act. I do not believe that is necessary. I do not know whether I have sufficient information before me one way or the other.

The circuit judge entered an order granting appellees' motion for summary judgment and denying Mrs. Ison's motion on January 20, 2005, stating that appellees had no duty to defend Mrs. Ison or to pay benefits as a result of the accident. Mrs. Ison has appealed from that order.

We approve the granting of a motion for summary judgment only when the state of the evidence portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., there is no genuine issue of material fact...