Van v. Ferrell, 45,977–CA.

• Decision Date: 02 March 2011
• Docket Number: No. 45,977–CA.,45,977–CA.
• Citation: 58 So.3d 522
• Parties: Ellen T. VAN and Ralph E. Van, Plaintiffs–Appellantsv.Steven FERRELL and Safeway Insurance Company, Defendants–Appellees.
• Court: Court of Appeal of Louisiana — District of US

58 So.3d 522

Ellen T. VAN and Ralph E. Van, Plaintiffs–Appellants

v.Steven FERRELL and Safeway Insurance Company, Defendants–Appellees.

No. 45,977–CA.

Court of Appeal of Louisiana, Second Circuit.

March 2, 2011.

Rankin, Yeldell, Katz & Lowery by: Alex W. Rankin, Scotty W. Lowery, for Appellants.Borne & Wilkes by, Lafayette, LA: Keith M. Borne for Appellees, Ellen Van and Ralph Van.Tracy L. Oakley, Ruston, LA, for Appellee, Safeway Insurance Comp.Before DREW, MOORE and LOLLEY, JJ.LOLLEY, J.

[2 Cir. 2] Ellen and Ralph Van appeal the judgment of the 4th Judicial District Court, Parish of Morehouse, State of Louisiana, granting the motion for summary judgment by Safeway Insurance Company of Louisiana. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.

Facts

On April 26, 2002, Ellen Van was operating her vehicle on McReight Street in Bastrop, Louisiana. April Canada, a minor, was driving a 1998 Ford Ranger truck owned by Steven Ferrell.¹ As April approached the intersection of Ross and McReight Streets, the Vans allege that she failed to stop and/or yield at the intersection, which was controlled by a stop sign. April collided with Van's vehicle as she was also going through the intersection. Ellen and her husband, Ralph, claim that the collision caused Ellen to suffer personal injuries, including injuries to her back and other parts of her body.

Ellen and Ralph filed suit against Ferrell and his insurer, Safeway Insurance Company of Louisiana (“Safeway”). Safeway answered the petition and asserted the affirmative defense of nonpermissive use by the driver, April. After a period of discovery in which the depositions of April, her mother Tracy Canada Ferrell, and Ferrell were taken, Safeway filed its motion for summary judgment, re-asserting its defense of nonpermissive use by April. After a hearing on the matter, a judgment was rendered in favor of Safeway. This appeal by the Vans ensued.

Discussion

On appeal, the Vans maintain that the trial court erred in granting Safeway's motion for summary judgment by finding an absence of any genuine issue of material fact sufficient to overcome a motion for summary judgment. The Vans submit that there exists a genuine issue of material fact over the issue of April's permission to drive Ferrell's truck, and the trial court incorrectly made a credibility determination as to whether she had permission to drive the truck. We agree.

[2 Cir. 3] A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief sought by a litigant. Samaha v. Rau, 2007–1726 (La.02/26/08), 977 So.2d 880. Appellate courts review summary judgments de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Hill v. Shelter Mut. Ins. Co., 2005–1783 (La.07/10/06), 935 So.2d 691. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. The interpretation of an insurance contract is usually a legal question that can be properly resolved by motion for summary judgment. Henry v. South Louisiana Sugars Co-op. Inc., 2006–2764 (La.05/22/07), 957 So.2d 1275; Walker ex rel. Walker v. State Farm Mut. Auto. Ins. Co., 42,051 (La.App.2d Cir.04/04/07), 954 So.2d 847.

A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 2004–0806 (La.06/25/04), 876 So.2d 764; Khan v. Richey, 40,805 (La.App.2d Cir.04/19/06), 927 So.2d 1267, writ denied, 2006–1425 (La.11/03/06), 940 So.2d 662. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

All motor vehicle liability insurance policies are required to include an omnibus clause which extends coverage to the person named therein and to any other person using such motor vehicle with the express or implied permission of the named insured. La. R.S. 32:900(B). Permission can be express or implied. Manzella v. Doe, 1994–2854 (La.12/08/95), 664 So.2d 398. Once permission, either express or implied, is granted by the insured to use the vehicle, any subsequent changes in the character of the use do not require additional specific consent of the insured. Thereafter, coverage will be denied only if the deviation from permissive use amounts to theft or other conduct displaying utter disregard for the return or safekeeping of the [2 Cir. 4] vehicle. Wells v. Kemper Cas. Ins. Co., 35,304 (La.App.2d Cir.12/28/01), 803 So.2d 450, writ denied, 2002–0271 (La.03/28/02), 812 So.2d 634.

Here, based on the consistent testimony of April, Tracy and Ferrell, it is apparent that April did not have express permission to drive his truck on the date in question. Thus, the question before us is whether there is a genuine issue of material fact that April had implied permission to drive the truck into Bastrop, where she was involved in the collision at issue. Implied permission arises when the named insured acquiesces in or does not object to the use of the vehicle. Manzella, supra.

In this particular case, summary judgment was inappropriate because of the inconsistent deposition testimony of the parties regarding the most material issue of fact in this litigation, i.e., whether April had permission...