Nautilus Ins. Co. v. I-70 Used Cars, Inc.

• Decision Date: 08 February 2005
• Docket Number: No. WD 63202.,No. WD 63203.,WD 63202.,WD 63203.
• Citation: 154 S.W.3d 521
• Parties: NAUTILUS INSURANCE COMPANY, Respondent, v. I-70 USED CARS, INC., Darren Bertrand, Robert Nelson, Ricky Ridgeway, Defendants, Forrest Holtkamp, Defendant Ad Litem in the Interest of Marty Holtkamp, Deceased, and Progressive Specialty Insurance Company, Appellants.
• Court: Missouri Court of Appeals

154 S.W.3d 521

NAUTILUS INSURANCE COMPANY, Respondent, v. I-70 USED CARS, INC., Darren Bertrand, Robert Nelson, Ricky Ridgeway, Defendants Forrest Holtkamp, Defendant Ad Litem in the Interest of Marty Holtkamp, Deceased, and Progressive Specialty Insurance Company, Appellants.

No. WD 63202.

No. WD 63203.

Missouri Court of Appeals, Western District.

February 8, 2005.

Susan Ford Robertson, Jeffrey O. Parshall, Co-Counsel, Columbia, MO, for appellant Progressive Specialty Insurance Company.

Kurt P. Valentine, Jefferson City, MO, for appellant Holtkamp.

Teresa A. Drew, St. Louis, for respondent Nautilus Insurance Company.

Michael A. Dallmeyer, Jefferson City, MO, for defendant I-70 Used Cars, Inc.

David A. Oliver, Columbia, MO, for defendant Bertrand.

L.G. Copeland, Columbia, MO, for defendant Nelson.

Before BRECKENRIDGE, P.J., SMART and HOWARD, JJ.

PATRICIA BRECKENRIDGE, Judge.

Forrest Holtkamp, defendant ad litem in the interest of Marty Holtkamp, deceased, and Progressive Specialty Insurance Company, who is Marty Holtkamp's automobile insurer, appeal the trial court's entry of a directed verdict in favor of Nautilus Insurance Company on Nautilus' petition for declaratory judgment. Nautilus had sought a declaration of no coverage under a garage operations insurance policy issued to I-70 Used Cars, Inc., for an accident that occurred when a car owned by I-70 Used Cars and driven by Rickey Ridgeway collided with a car driven by Marty Holtkamp. The trial court found that Mr Ridgeway was not covered under the policy.

Mr. Holtkamp raises four points on appeal, and Progressive raises one point. One of Mr. Holtkamp's points alleges that the evidence supporting coverage was sufficient to withstand Nautilus' motion for directed verdict. Mr. Holtkamp's remaining points and Progressive's sole point allege that the judgment was not supported by the evidence and was against the weight of the evidence. This court finds that the judgment was not the entry of a directed verdict but was a decision on the merits and should be reviewed as any other court-tried case. The trial court's finding that Mr. Ridgeway was operating the car outside the scope of the permission granted by the named insured and, therefore, was not covered by Nautilus' policy was supported by sufficient evidence and was not against the weight of the evidence. The judgment is affirmed.

Factual and Procedural Background

Mr. Ridgeway was in the business of cleaning vehicles and operated an unincorporated business called Detail Service. His base of operations was an address in Columbia. In the first week of May 2000, Mr. Ridgeway went to I-70 Used Cars in Columbia and made an offer to its owner, Norman Dietzel, to detail cars for $40 per car. Mr. Dietzel understood the word "detail" to mean totally clean the car, including "the inside, engine, truck and exterior." Mr. Ridgeway gave Mr. Dietzel his business card, which indicated that Mr. Ridgeway's business was in Columbia. The two men agreed that Mr. Ridgeway would take the cars and bring them back clean the same day, and then Mr. Dietzel would pay Mr. Ridgeway. Mr. Ridgeway told Mr. Dietzel that he was going to take the cars to his Columbia address, and Mr. Dietzel believed that Mr. Ridgeway performed all of his detail work in Columbia.

Mr. Dietzel did not consider Mr. Ridgeway to be an employee, representative, or agent of I-70 Used Cars, and Mr. Ridgeway understood that he was not an employee of I-70 Used Cars. Mr. Dietzel did not give Mr. Ridgeway any instructions on how to detail cars, nor did he give him any supplies or tell him where to detail the cars. Mr. Ridgeway had experience in detailing cars, knew what materials he needed, and had bought the materials before he offered to detail cars for Mr. Dietzel.

Mr. Ridgeway took the first car he detailed for I-70 Used Cars to his Columbia address, cleaned it inside and out, and returned it the same day. Mr. Dietzel paid him $40. On another occasion, Mr. Dietzel gave Mr. Ridgeway a second car to detail. Mr. Ridgeway took this second car to his Columbia address, cleaned it, and returned it the same day. Mr. Dietzel paid Mr. Ridgeway $40. Mr. Dietzel did not give Mr. Ridgeway permission, on either of these two occasions, to drive the cars for his personal use, nor did Mr. Ridgeway use the cars to pick up the supplies needed to detail the cars.

Within the same week, Mr. Ridgeway obtained a third car from Mr. Dietzel to detail. Mr. Ridgeway obtained the car, a 1988 Oldsmobile, at about 2:00 or 3:00 in the afternoon of May 4, 2000. Mr. Ridgeway told Mr. Dietzel he would take the car, detail it, and return it by the time the dealership closed that evening, which was 6:00. According to Mr. Dietzel, Mr. Ridgeway had permission to drive the Oldsmobile to wherever he cleaned it and bring it back to the dealership. Mr. Dietzel did not give Mr. Ridgeway permission to drive the Oldsmobile for personal use, including allowing others to ride in the car, nor did Mr. Dietzel give Mr. Ridgeway permission to drive the car outside of Columbia or to drink alcohol and drive the car. Mr. Ridgeway did not ask Mr. Dietzel's permission to have another person in the car or to take the car outside of Columbia, nor did he advise Mr. Dietzel that he needed to use the car to obtain additional supplies to detail the car. Mr. Dietzel understood that Mr. Ridgeway would take the car to his place of operations in Columbia, detail it, and return it to I-70 Used Cars that evening.

After picking up the car from I-70 Used Cars, Mr. Ridgeway took it to his Columbia address, detailed it, and then drove it to Centralia. In Centralia, he bought some beer and went to the home of an acquaintance, Bob Nelson. While at Mr. Nelson's home, Mr. Ridgeway started drinking the beer. Mr. Ridgeway and Mr. Nelson left and drove to the home of Glen and Annette VanVactor in Mexico, Missouri. Mr. Ridgeway was unable to remember whether he was drinking during the drive from Centralia to Mexico. Mr. Ridgeway socialized and drank beer at the VanVactors' home in Mexico for over forty-five minutes before he and Mr. Nelson left, with Mr. Ridgeway driving.

Shortly after leaving, however, Mr. Ridgeway realized that he had left his cigarettes and alcohol at the VanVactors' home. He turned around in the middle of the street to go back and, in doing so, hit a fence owned by Andrea Willer. Ms. Willer and a friend were outside at the time. After smelling alcohol on his breath and hearing Mr. Ridgeway's slurred speech, Ms. Willer asked Mr. Ridgeway if he had been drinking. Mr. Ridgeway admitted that he had. When Ms. Willer asked Mr. Ridgeway why he turned around in the middle of the street, Mr. Ridgeway told her that he and his girlfriend were in a fight and he thought he saw her going the opposite direction, so he was trying to turn around to follow her.

Mr. Ridgeway then drove back to the VanVactors' home and picked up his cigarettes and alcohol. According to Mr. Ridgeway, when he left the VanVactors' home the second time, sometime between 8:30 and 9:00 P.M., he was driving to a shop in Mexico owned by his friend, Forrest Zeltner, for the purpose of obtaining supplies to repair the headliner in the Oldsmobile. Mr. Zeltner was not aware, however, that Mr. Ridgeway was coming to obtain those supplies. Moreover, in his deposition, which was admitted into evidence, Mr. Dietzel stated that he did not recall having a conversation with Mr. Ridgeway regarding Mr. Ridgeway's repairing the Oldsmobile's headliner. Indeed, Mr. Dietzel did not recall what kind of condition the Oldsmobile's headliner was in before he gave the car to Mr. Ridgeway to detail.

About five minutes after he left the VanVactors' home the second time, Mr. Ridgeway, who was driving approximately sixty to seventy miles per hour, ran a stop sign and hit a truck. The collision killed the driver of the truck, Marty Holtkamp, and injured Mr. Ridgeway and Mr. Nelson. After hitting the truck, the Oldsmobile bounced off of the truck and hit a house that was owned by Darren Bertrand.

An officer who arrived at the accident scene smelled the odor of an intoxicating beverage inside the Oldsmobile and on Mr. Ridgeway's person and noticed that Mr. Ridgeway's speech was slurred, his movements were slow, he was having difficulty following simple instructions, and he was combative. Additionally, the officer found several open beer bottles in the Oldsmobile and the empty packaging from a twelve-pack of beer.

After the accident, Nautilus Insurance Company, I-70 Used Cars' insurer, filed a petition for declaratory judgment, naming as defendants the estate of Marty Holtkamp, Mr. Ridgeway, Mr. Nelson, Mr. Bertrand, and I-70 Used Cars. In its petition, Nautilus asked the court for a declaration that the garage operations insurance policy Nautilus issued to I-70 Used Cars did not cover the accident. In particular, Nautilus cited the policy provision that defines who is an insured under the policy:

SECTION II — LIABILITY COVERAGE

A. Coverage

....

1. Who Is An Insured

a. The following are "insureds" for covered "autos":

(1) You for any covered "auto".

(2) Anyone else while using with your permission a covered "auto" you own, hire or borrow except:

....

(c) Someone using a covered "auto" while he or she is working in a business of selling, servicing, repairing, parking or storing "autos" unless that business is your "garage operations".

Nautilus claimed that Mr. Ridgeway was not an employee, representative, or agent of I-70 Used Cars at the time of the accident or at anytime prior to the accident, was not operating the Oldsmobile with the permission of I-70 Used Cars at the time of the accident, and was in the business of servicing and repairing cars. For these reasons, Nautilus claimed that Mr. Ridgeway was not an insured under the policy and the accident was excluded from coverage. Progressive, who provided uninsured motorist coverage to Marty Holtkamp, was...