Ulrigg v. Jones, 95-341

• Decision Date: 05 December 1995
• Docket Number: No. 95-341,95-341
• Citation: 274 Mont. 215,907 P.2d 937
• Parties: Jodie ULRIGG, Plaintiff and Appellant, v. Jack JONES and Safeco Insurance Co., Defendants, Respondents and Cross Appellants.
• Court: Montana Supreme Court

Page 937

907 P.2d 937

274 Mont. 215

Jodie ULRIGG, Plaintiff and Appellant, v. Jack JONES and Safeco Insurance Co., Defendants, Respondents and Cross Appellants.

No. 95-341.

Supreme Court of Montana.

Submitted on Briefs Oct. 26, 1995.

Decided Dec. 5, 1995.

Michael Sol, Sol & Wolfe, Missoula, for Appellant.

Mark S. Williams, Shelton C. Williams, Williams & Ranney, Missoula, for Respondents.

NELSON, Justice.

The Plaintiff, Jodie Ulrigg (Jodie), appeals from the February 6, 1995 opinion and order of the Fourth Judicial District Court, Missoula County, granting Defendant Jack Jones' (Jack) motion for summary judgment. Jack cross-appeals from that part of the June 9, 1995 opinion and order of the District Court granting Jodie's motion to add Safeco Insurance Co. (Safeco) as a party defendant to her lawsuit. We affirm the District Court's grant of summary judgment in favor of Jack; we reverse the District Court's order joining Safeco as a party to the lawsuit.

BACKGROUND

On August 18, 1994, Jodie filed her complaint in District Court naming Jack as the sole defendant in her personal injury suit. Jodie alleged that Jack is "the owner of an automobile which negligently struck an automobile driven by [Jodie] on or about September 10, 1991" and that Jack's automobile "was driven by a person whom [Jodie] believes to be [Jack's] daughter, as agent for [Jack] and with the knowledge and permission of [Jack]; [and] that [Jack] was negligent for entrusting his vehicle to his daughter to drive."

Jack answered, admitting that the automobile which he owned was involved in the subject collision on the date alleged and that his daughter Jacque Jones (Jacque) was driving the car at the time of the accident with his permission. Jack denied that Jacque was his agent or that he was negligent for permitting her to use his car.

Subsequently, Jack moved for summary judgment, supporting his motion and brief with the fruits of discovery and with his and Jacque's affidavits. Jodie filed opposing briefs. Following the District Court's February 6, 1995 decision granting Jack summary judgment, Jodie moved to alter or amend the summary judgment and to add Safeco as a party defendant. Jack objected, and on June 9, 1995, the District Court entered its opinion and order refusing to alter or amend its decision on summary judgment, but granting Jodie's motion to add Safeco. This appeal and cross-appeal followed. Other pertinent facts are set forth, as necessary, in our discussion.

We address the following issues on appeal:

I. Did the District Court err in granting summary judgment to Jack?

II. Did the District Court err in granting Jodie's motion to join Safeco as a party defendant in her lawsuit?

DISCUSSION

I.

Notwithstanding that Jodie's notice of appeal only states that she is appealing from the District Court's February 6, 1995 order granting Jack summary judgment, it is apparent from the briefs that both parties presume that Jodie's appeal also includes the District Court's June 9, 1995 denial of her motion to alter or amend the summary judgment order and her renewal of that motion. We will, likewise, proceed on that basis.

Our review of the trial court's grant of summary judgment is de novo; we utilize the same criteria as the district court. Summary judgment is proper only when no genuine issue of material fact exists and when the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Brown v. Demaree (1995), 272 Mont. 479, 481-82, 901 P.2d 567, 569, 52 St.Rep. 819, 820 (citing Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214). We look to the pleadings, depositions, answers to interrogatories, admissions on file and affidavits to determine the existence or nonexistence of a genuine issue of material fact. Krebs v. Ryan Oldsmobile (1992), 255 Mont. 291, 294, 843 P.2d 312, 314 (citing Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284, 815 P.2d 1135, 1136). We review the district court's conclusions of law to determine if the court's interpretation of the law is correct. Nimmick v. State Farm Mut. Auto. Ins. Co. (1995), 270 Mont. 315, 319, 891 P.2d 1154, 1156 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).

We assume that Jodie's motion to alter or amend was considered by the trial court under Rule 60(b), M.R.Civ.P., since her motion was filed more than 10 days following the court's February 6, 1995 order and was, therefore, untimely under Rule 59(g). See Ring v. Hoselton (1982), 197 Mont. 414, 424, 643 P.2d 1165, 1171 (citing 7 Moore's Federal Practice, p 60.18, at 216.1 (2d ed. 1979)). "[A] motion that is made under Rule 59, which is not timely ... may, nevertheless, be considered as a motion under Rule 60 when it states grounds for relief under this latter rule." Ring, 643 P.2d at 1171. Under such circumstances, the appropriate standard of review is whether the District Court abused its discretion in denying a motion to alter or amend the summary judgment order. Goodover v. Lindey's, Inc. (1988), 232 Mont. 302, 312, 757 P.2d 1290, 1296.

Under the applicable standards of review, we determine that the District Court's legal conclusions for granting Jack summary judgment were correct and that it, therefore, did not abuse its discretion in refusing to alter or amend its summary judgment order.

Jodie first argues that she attempted to "streamline" the litigation by simply suing Jack as the owner of the automobile and by not suing the driver, Jacque, who Jodie believed was out of state and unavailable--i.e. she limited her suit to "one plaintiff and one defendant." Jodie claims that her approach was proper because Jack, as the owner of the car, was the real party in interest or a necessary party. Under Jodie's theory, an action may be brought against the owner of a motor vehicle directly to invoke insurance coverage because the controlling statutes, the Motor Vehicle Safety-Responsibility Act, § 61-6-101 through § 61-6-304, MCA, (the Act) while, not imputing negligence to the vehicle owner, nevertheless, does, under Montana's mandatory motor vehicle insurance laws, impute responsibility for financial liability. Jodie bases her argument on her interpretation of those statutes, on her view of what the legislature intended in adopting the Act, and, by analogy, on the fact that the legislature has, in certain other instances, mandated financial responsibility of one person for the acts, omissions, negligence, necessities or support of others (in this regard, Jodie cites §§ 41-1-201, 40-6-237, 40-2-106, 40-2-103, and 23-2-505, MCA). We reject this argument.

Generally, the owner of a motor vehicle is not vicariously liable for the acts or omissions of the driver, absent statute or proof of some other legal theory such as agency or negligent entrustment. See Smith v. Babcock (1971), 157 Mont. 81, 84-87, 482 P.2d 1014, 1016-17 (citing Clawson v. Schroeder (1922), 63 Mont. 488, 499, 208 P. 924, 927). See also Forrester v. Kuck (1978), 177 Mont. 44, 49, 579 P.2d 756, 759 (quoting 8 Am.Jur.2d, Automobiles and Highway Traffic, § 571).

Contrary to Jodie's argument, except in two instances mentioned below, the Act does not impose vicarious liability on a third party. Rather, the Act requires the owner of a motor vehicle to continuously provide liability insurance coverage for operation of the vehicle by the owner and any permissive user. Section 61-6-301(1)(a), MCA. In that respect, it is undisputed that Jack fulfilled his obligation under the Act in this case--he provided liability insurance through Safeco which covered the permissive use of his car by his daughter, Jacque. Nothing in the Act made Jack personally liable, however, for Jacque's alleged negligent driving. The Act as written imposes only financial responsibility, not liability.

As noted above, the legislature has imposed vicarious liability on third parties for the acts and omissions of motor vehicle drivers in two instances. First, under § 61-5-108, MCA, a parent or other responsible adult must sign the driver's permit or license application of a person under age 18 and, along with the minor driver, assume the financial obligation of any negligence or willful misconduct of the minor while driving. Under that statute, the negligence or willful misconduct of the minor is statutorily imputed to the adult signing the minor's application. Section 61-5-108(2), MCA. Second, § 61-6-201, MCA, imposes vicarious liability upon owners of vehicles used in commercial passenger transportation for acts and omissions of their employees while driving such vehicles.

Neither of those statutes is applicable in the instant case. Jacque was not a minor at the time of the accident nor was she driving Jack's commercial passenger transportation vehicle as his employee. Moreover, contrary to Jodie's arguments, it is apparent that where the legislature intends to impose vicarious liability on a third person for a driver's acts or omissions, it does so by statute specifically written to accomplish that purpose. (To the same effect, See § 23-2-505, MCA, wherein the legislature has statutorily imposed vicarious liability on the owner of a vessel for injury or damage occasioned by its negligent operation.)

Jodie also argues that Jack is properly sued as a necessary party to her litigation, regardless of fault, in order to recover on his insurance, since the insurer's duty to defend is only to the person who purchases the insurance and owns the policy and because the insurance contract is not designed to protect permissive users. Nothing could be further from the truth.

Section 61-6-103(2)(b), MCA, provides, in pertinent part, that the owner's policy must:

insure the person named therein and any other person, as insured, using any motor vehicle or motor vehicles with the express or implied permission of the named insured....

Jack's policy issued by Safeco conforms to this statutory...