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

• Decision Date: 20 August 1980
• Docket Number: No. CV 79-58-M.,CV 79-58-M.
• Citation: 495 F. Supp. 794
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois Corporation, Plaintiff, v. Larry Duane GUDMUNSON, Sharmon Kay Gudmunson, Jeffrey Brian Jones, Jack Jones, and Peggy Stevenson, Defendants.
• Court: U.S. District Court — District of Montana

495 F. Supp. 794

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois Corporation, Plaintiff, v. Larry Duane GUDMUNSON, Sharmon Kay Gudmunson, Jeffrey Brian Jones, Jack Jones, and Peggy Stevenson, Defendants.

No. CV 79-58-M.

United States District Court, D. Montana, Missoula Division.

August 20, 1980.

Richard Ranney, Williams Law Firm, Missoula, Mont., for plaintiff.

Edward A. Cummings, Missoula, Mont., for defendant Stevenson.

Norman C. Robb, Missoula, Mont., for defendant Jones.

Gudmunson had no counsel.

OPINION

RUSSELL E. SMITH, District Judge.

On June 29, 1978, Sharmon Kay Gudmunson (Sharmon) was driving a 1967 Jeepster automobile with a passenger, Peggy Jean Stevenson (Peggy). The car overturned, and Peggy received serious injuries. The Jeepster was owned by Jeffrey Brian Jones (Jeff), who was insured by Allstate Insurance Company.

On June 29, 1978, Larry Duane Gudmunson (Larry) owned two motor vehicles. These vehicles were insured by State Farm Mutual Automobile Insurance Company (State Farm) with combined limits of $150,000.00. Sharmon was the daughter of Larry and, at the time of the accident, was residing in the same household with him and her mother, Betty Gudmunson (Betty).

The only question in the case is whether the Jeepster "was furnished or available for the frequent or regular use" of Sharmon. If it was, the State Farm policies did not cover her at the time of the accident; if it was not, she was covered by the policies.

Sharmon and Jeff met as high school seniors in 1977. They both graduated on May 30, 1978, and sometime in June 1978 they were engaged to be married. Jeff lived in his parents' home and, as noted, Sharmon lived with her parents. The residences were about twelve miles apart. In the first six months of 1978, Jeff was employed in a job in which he worked four to five days a week, with a work day from 3:00 P.M. to 9:00 or 11:00 P.M. The Jeepster was his only means of transportation to and from work, a distance of four miles each way. He permitted Sharmon to drive the Jeepster, and she did so. Except for a period noted later in this opinion, Sharmon did not have the keys to the car. Her use of the car was generally conditioned on her being able to get from her home to Jeff's home, where the car was kept. Jeff's inclination was to accommodate Sharmon, but her use of the car was dependent upon the prior satisfaction of his needs for it. During a period of about seven days during the first or second week of June 1978 Jeff was out of town, and the Jeepster was left at the Gudmunson residence. While Larry was asked to and did make some minor repairs on the Jeepster, it was available during that one week for regular use by Sharmon. However, well before the date of the accident, the Jeepster was back in the possession of Jeff, and Sharmon's use of it returned to that previously described.

On the night of the accident Sharmon and Jeff attended a party at the home of Peggy. At about 11:00 P.M. Sharmon received Jeff's permission to use the Jeepster to go to her home and get some clothes so that she could spend the night at the Stevenson home. After returning to the party, and some time later, Sharmon, without the express permission of Jeff and without his knowledge, left the party with Peggy to get a bathing suit from her home. While on this trip the accident occurred. There is no issue as to Jeff's consent to the use of the Jeepster.

There is nothing in the evidence which would warrant a finding that the Jeepster was furnished to Sharmon or that she made regular use of it, with the possible exception of the period when Jeff was out of town, and the problem boils down to whether at the time of the accident the car was available for her frequent use. I find that Sharmon did use the Jeepster frequently.¹ It is somewhat paradoxical that a finding of frequency of use does not compel a ruling that the car was "available" for frequent use since, had it not been available, it would not have been used. But the policy uses the words, "furnished or available for the frequent or regular use," and if frequency of use is all that is required, then the words "furnished or available" are used without meaning. I believe that those words as used mean that there be some right in the borrower to use the car without satisfying more than minimal conditions precedent.² While the cases do not express the rule in this language, it seems to me that basically that is what the courts have done on a case-by-case basis.³

I conclude that the Jeepster was not available for Sharmon's frequent use and that there were more than minimal conditions precedent to her use of it.⁴ The word "available" has some stretch, and in one sense a thing is "available" unless it is unavailable under any circumstances. But on any given day the Jeepster was available to Sharmon only if on that day she could somehow solve the logistics of getting to Jeff's home in order to drive him to work. That in turn involved his schedule, her schedule, and the distance between her home and Jeff's home, where the car was stored. In short, the Jeepster was available only when a...