Midland Risk Ins. Co. v. White, Civil No. 96-6068.

• Decision Date: 07 February 1997
• Docket Number: Civil No. 96-6068.
• Citation: 959 F.Supp. 1092
• Parties: MIDLAND RISK INSURANCE COMPANY, Plaintiff, v. Daniel Aaron WHITE, Bob White, d/b/a ABC Auto Sales, Christopher Whitten, Benjamin Whitten, and Jerry Whitten, Defendants.
• Court: U.S. District Court — Western District of Arkansas

959 F.Supp. 1092

MIDLAND RISK INSURANCE COMPANY, Plaintiff, v. Daniel Aaron WHITE, Bob White, d/b/a ABC Auto Sales, Christopher Whitten, Benjamin Whitten, and Jerry Whitten, Defendants.

Civil No. 96-6068.

United States District Court, W.D. Arkansas, Hot Springs Division.

February 7, 1997.

Robert M. Honea, Hardin, Dawson & Terry, Fort Smith, AR, for Midland Risk Ins. Co. Daniel Aaron White, Hot Springs, AR, pro se.

Bob White, Hot Springs, AR, pro se.

Clifton M. Smart, Steve Garner, Strong & Associates, P.C., Springfield, MO, for Christopher Whitten, Benjamin Whitten and Jerry Whitten.

ORDER

HENDREN, District Judge.

Now on this 6 day of February, 1997, comes on for consideration the motion for Summary Judgment (Doc. # 7—the "motion") filed herein on November 15, 1996, by separate defendants Christopher Whitten, Benjamin Whitten and Jerry Whitten (hereinafter called the "Whittens" collectively or by their respective names as individuals). Plaintiff has responded and the Court, being well and sufficiently advised, finds and orders as follows with respect to the same:

1. This is a declaratory judgment action brought by plaintiff seeking a judgment that it is not obligated to provide insurance coverage to separate defendant Bob White ("White").

2. In their motion for summary judgment, the Whittens state that there are no genuine issues of material fact and that, as a matter of law, plaintiff is obligated to provide coverage pursuant to the insurance policy it issued to White.

Plaintiff purports to agree that there are no genuine issues of material fact to be decided but, in contrast to the position of Whitens, contends that those same facts entitle it—vice Whittens—to summary judgment declaring that, as a matter of law, plaintiff is not obligated to provide coverage under the policy in question.

3. The material facts which the parties appear to agree are not in dispute are as follows:

(a) On or about March 2, 1991, a collision occurred in Oregon County Missouri, between a Camaro automobile (Camaro) being operated by separate defendant Daniel Aaron White ("Daniel White") and an automobile being operated by Martha Whitten.

(b) As a result on the collision, Martha Whitten and Joel Whitten, her son, were killed, and separate defendant Christopher Whitten, another son, was injured.

(c) Daniel White was found guilty of involuntary manslaughter for the deaths of Joel Whitten, on October 22, 1993, and Martha Whitten, on October 20, 1995, in the Missouri Circuit Court of Carter County, Missouri.

(d) Defendant Christopher Whitten has filed suit against Daniel White and White (Daniel White's father) for his own injuries, and defendants Christopher Whitten, Benjamin Whitten and Jerry Whitten have filed suit against the same parties for the wrongful deaths of Martha Whitten and Joel Whitten. This suit is pending in the Circuit Court of Oregon County, Missouri.

(e) On or about January 6, 1991, plaintiff issued an insurance policy to defendant White, d/b/a ABC Auto Sales. The policy was a garage keeper's automobile liability insurance policy, numbered GL-1866 (the "policy"), with limits of liability of $100,00.00 per person, and $100,000.00 in the aggregate, per occurrence. This policy was in force at the time of the accident.

(f) The policy provided, in pertinent part, as follows:

(1) that coverage would be provided to the insured "for all sums which the insured shall become legally obligated to pay as damages because of [G.] bodily injury" ... "caused by an occurrence and arising out of garage operations" as follows:

IV. PERSONS INSURED

Each of the following is an Insured under this insurance to the extent set forth below:

A. Under the Garage Bodily Injury and property Damage Liability Coverages:

* * * * * *

(3) with respect to the automobile hazard:

(a) any person while using, with the permission of the named insured, any automobile to which the insurance applies under the automobile hazard, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission.

(2) The policy also featured the following "additional definitions":

VI. ADDITIONAL DEFINITIONS

When used in reference to this insurance (including endorsements forming a part of the policy):

"automobile hazard" means that one of the following hazards for which insurance is afforded as indicated in the schedule:

Automobile Hazard 1—(1) the ownership, maintenance or use (including loading or unloading) of any automobile for purpose of garage operations, and

(2) the occasional use for other business purposes and the use for non-business purposes of any automobile owned by or in charge of the named insured and used principally in garage operations, and

(3) the ownership, maintenance or use of any automobile owned by the named insured while furnished for the use of any person.

(3) The policy also featured a "Furnished Automobiles Exclusion" as a part of its Garage Liability Master Endorsement (Hazard I) which states:

It is hereby agreed and understood that Bodily Injury and Property Damage coverage for those Automobiles owned by the Named Insured and furnished for the regular use of Owners, Partners, Executive Officers, Employees, spouses, children or relatives of the foregoing; or any other person or organization is limited to the following scheduled persons or organizations and the drivers listed below:

(4) The only name "listed below" pursuant to the said "Furnished Automobiles Exclusion" is: Bob White.

(g) White purchased the Camaro—a few days before March 2, 1991—for the purpose of resale in the regular course of his business.

(h) White has testified, under oath, that he did not furnish the Camaro for Daniel White's regular use.

(i) Daniel White has testified, under oath, that every time he drove the Camaro from the date White purchased it until the date of the accident (March 2, 1991) he did so with White's permission.

(j) On March 2, 1991, White had authorized Daniel White to take the Camaro and show it to a prospective purchaser.

(k) In a statement given under oath on March 19, 1991—some seventeen days after the accident in question—White stated:

(1) In a response to questions concerning the Camaro:

... Now, when I bought the car, I bought it to be never have been worked on. (sic) And, when we got it home and started cleaning it up, it looked like it might have been worked on. I relayed the message to the auction that I was figuring on bringing the car back because it showed signs of prior body work. They said if that was the case, the way I had bought, that I had the right to bring it back, and that was our intention. (Emphasis added)

Q: Was to take it back?

A: Yeah.

(2) In a response concerning the alleged sale of the Camaro to Daniel White:

... Daniel had talked to me that afternoon about—oh maybe an hour and half before the wreck, and said, "Dad, I would like to buy this car—I like it a lot. I'd like to put it on payments." And I said, "we'll have to check how much the insurance and the payments would be and find out on Monday" ... (emphasis added)

(3) In a response as to who owned the Camaro at the time of the accident:

Q: But at the time the accident happened, it was your car?

A: It was still my car. (Emphasis added).

(1) In a deposition given under oath on March 30, 1994—over three (3) years after the accident in question—White stated:

(1) In response to questions about his verbal sale of the Camaro to Daniel White on March 2, 1991:

... He had shown the vehicle to a girl who was interested in buying it, he worked some with me, and he said, "Dad, I would like to get this vehicle for myself, if I could." I said, "Well, I'll trade you—take your little car in and we'll figure out something. We'll call the insurance in on Monday" that was on a Saturday, "We'll get your insurance taken care of on Monday and then whenever the title comes in, we'll get a loan on it."

Q: Now, your son verbally purchased that vehicle that day from you. How did he purchase it? I know you said verbally, but, I mean, did he give you any monies?

A: No. He was just sitting in that car and my wife and I were coming from shopping, and we just pulled along side of him.

(2) In further response to questions about his verbal sale of the Camaro to Daniel White on March 2, 1991:

Q. Mr. White, your son, Daniel, was going to purchase this vehicle from you?

A. Yes.

Q: What was your selling price from this vehicle?

A: I would have probably let him just have it and traded his car in, but we didn't actually ...

Q: Have a chance to discuss that

A: We didn't, no. (Emphasis added)

(m) In a deposition given under oath on July 14, 1995—over four (4) years after the accident in question—White stated:

(1) In response to questions about his verbal sale of the Camaro to Daniel White on March 2, 1991:

... I said: "Well, what did the girl say about the car?" And he said, "Her mother doesn't know if she would be able to afford the insurance or whatever. She will check up on it." And he said, "I would really like to have this car." ... I said, "Well, then, I'll give you a couple hundred on your old car and the bank money. We'll go get a loan. I'll call in the insurance, and I'll let you go ahead and buy it then." (Emphasis added)

Q: So basically he was a potential customer at that point in time? (Emphasis added)

A: Yeah. (Emphasis added)

* * * * * *

Q: So he was certainly driving the car with your permission—

A: Yes.

Q: —on the day of this wreck?

A: Yes sir.

Q: And in your mind, might have pretty well just bought the car from you: (Emphasis added)

A: Yes sir.

(n) In a statement given under oath on March 19, 1991—some seventeen days after the accident in question—Daniel White stated:

(1) In a response to questions concerning the ownership of the Camaro on the date of the accident:

Q: And you were involved in an accident on March 2, 1991. And who's car was it that you were driving? (...