GEICO General Insurance Co. v. Michael Berguiristain, et al

Filing

Opinion issued by court as to Appellant GEICO General Insurance Company. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 09/08/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11010
Non-Argument Calendar
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D.C. Docket No. 5:15-cv-00045-JSM-PRL
GEICO GENERAL INSURANCE COMPANY,
Plaintiff-Appellant,
versus
MICHAEL BERGUIRISTAIN,
NICOLE MELISSA GALINDO,
FRANK GALLETTI,
MARIA GALLETTI,
ANN MARIE MAGRI, et al,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 8, 2017)
Before WILLIAM PRYOR, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Geico General Insurance Company appeals the judgment in favor of Ann
Marie Magri and against an amended complaint for a declaratory judgment that an
automobile insurance policy Geico issued to Frank Galletti provided no coverage
for his automobile accident. Magri sued Galletti for serious injuries that she
incurred while a passenger in a vehicle being driven by, but not owned by, Galletti.
Geico sought a declaratory judgment that Galletti’s accident was not covered
because he did not receive or reasonably believe he had permission to drive the
vehicle, but at trial, a jury made a contrary finding. Geico challenges the denial of
its renewed motion for a judgment as a matter of law. We affirm.
I. BACKGROUND
We divide the background in three parts. First, we discuss the events that led
to Galletti’s automobile accident and Magri’s lawsuit. Second, we discuss Magri’s
lawsuit, Galletti’s automobile insurance policy, and the complaint that Geico filed
for a declaratory judgment. Third, we discuss the trial.
A. Galletti’s Automobile Accident
On Friday, May 24, 2013, Galletti, his wife, and some of his clients traveled
from Miami to Clermont, Florida to participate in an obstacle course race. The
clients included Michael Berguiristain, Nicole Galindo, Andy Romero, and
Jeanette Pardo, and they were accompanied by Jeanette’s husband and son, and
Romero’s girlfriend, Magri. Before the trip, the group discussed going “off road”
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and shooting firearms in Clermont on property where Galletti’s uncle, Charles
Galletti, worked. The property was owned by Galletti’s childhood friend, Justin
Tirri, and his parents. On their arrival in Clermont, the group gathered at the home
of Galletti’s uncle, who everyone called “Uncle Charlie,” and his long-time
girlfriend, Jean Tirri.
As the group walked outside to depart for the race, they saw a pickup truck
parked in front of Uncle Charlie’s house and took photographs with the truck. The
truck was yellow and had a logo advertising a business called “Off Road Hummer
Experience.” Justin Tirri owned the business, but had yet to open it to the public.
On Sunday, May 26, 2013, Galletti used his minivan to transport his wife
and some of their weekend guests from his uncle’s house to the Tirris’ property,
and the other guests followed in another vehicle. The entrance to the property had a
large sign advertising Off Road and, from that vantage point, the guests could see
two hangars, several Hummer vehicles, and a dune buggy. Magri, Galletti’s wife,
Berguiristain, Galindo, Romero, Magri, and the Pardo family were examining and
photographing the vehicles when Galletti drove up in a Hummer vehicle with an
Off Road logo. Everyone climbed into the vehicle and rode to an open area where
they discharged firearms, after which they took turns driving the Hummer and a
dune buggy parked nearby. After several hours, the group piled back into the
Hummer to return to the hangar. On the return trip, Galletti made a sharp left turn
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that caused the vehicle to roll side over side. Several of the group incurred injuries,
including Magri, who had to be airlifted to a nearby hospital and treated for head
trauma.
B. Magri’s Lawsuit, Galletti’s Policy, and the Geico Action
for a Declaratory Judgment
Magri filed in a Florida court a personal injury action against Galletti, Off
Road, and the Tirris. Galletti and his wife, who were the named insureds in an
automobile insurance policy issued by Geico, notified their insurer of the lawsuit.
Geico provided Galletti a defense under a reservation of rights.
Galletti’s insurance policy covered “damages which [he] bec[ame] legally
obligated to pay because of[] [b]odily injury, sustained by a person, . . . arising out
of the ownership, maintenance or use of the owned vehicle or a non-owned auto.”
The policy defined a non-owned auto as “a private passenger, farm, or utility auto
or trailer not owned by, furnished or available for regular use of either you or your
relative . . . .” For the policy to apply, Galletti had to be “driving the non-owned
auto” and its “use [had to] be with the permission, or reasonably believed to be
with the permission, of the owner and to the extent of that permission.”
Geico filed a complaint against the Gallettis, Magri, and other passengers in
the Hummer requesting a declaratory judgment that Galletti’s accident was not
covered. Geico moved for summary judgment on the ground that Galletti had not

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been given permission to drive the Hummer vehicle. The district court denied the
insurer’s motion.
C. Trial Proceedings
Galletti testified that he “basically stole” the Hummer vehicle “on the fly” so
the group could “all ride together in one car.” He “found [a Hummer vehicle with]
a soft top that was easy to get into,” “unzip[ped] the back[, reached in] and
unlock[ed] the rear driver’s door,” and then “pretty much just hot-wired and rigged
the ignition” using skills he had acquired as the fleet manager for the Aventura
Police Department. Galletti acknowledged that Justin Tirri and his parents owned
the Off Road property; that Tirri owned the Off Road business; that he had never
discussed the accident with Tirri; and that Tirri had not pursued criminal charges or
requested reimbursement for the damaged Hummer vehicle. Galletti stated that he
had been childhood friends with Tirri, but they had not been in contact since high
school. Galletti acknowledged that his uncle shared a home with Tirri’s aunt and
that there was a truck with an Off Road logo sitting in the driveway of his uncle’s
house on the morning of the race.
Discrepancies existed between Galletti’s testimony and photographs taken
before the accident. Galletti denied that his uncle was on the property before the
accident, yet Magri photographed his uncle on the property before the group left in
the Hummer vehicle. Galletti said that the vehicle “did not break down,” but there
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was a photograph of one passenger holding a battery charger. When asked about a
photograph depicting the opened hood of the Hummer, Galletti answered that he
raised the hood “to cool the engine.”
Geico introduced deposition testimony from Galletti’s wife, Maria, that
Galletti told her sometime after the accident that he hot-wired the Hummer. She
disavowed any knowledge about who owned Off Road or the property, yet she saw
the truck with the Off Road logo in front of Uncle Charlie’s house and stated that
she had visited the Tirris’ property previously to shoot firearms. Maria stated there
was “nothing that looked like there was off road stuff” and there was “no off road
experience,” yet she acknowledged there were Hummer vehicles and dune buggies
on the property.
Geico also introduced a video recording of Romero’s deposition. Romero
testified that, after the race, he talked to Galletti and his uncle about Off Road and
then they watched “some kind of video . . . of the off-roading experience” on a
“Facebook page.” The three men discussed “putting together” the video, which had
photographs of Hummer vehicles and “GoPro kind of footage . . . [of a vehicle]
going through a trail” and of “a vehicle that was almost completely submerged in
water.” Romero had an “understanding [that Off Road] was [Galletti’s] family’s
business,” and Romero offered to help produce another video. Romero identified
the yellow truck in the driveway of Uncle Charlie’s house as “the truck that we
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rode to the race in.” Romero recalled traveling to the property, where he observed
“several vehicles” in the hangars and “some people . . . around” who looked like
“workers” because they were “moving stuff around and picking stuff up.” He also
noticed that “[s]everal of the hoods [of the vehicles] were open like they were
being worked on.”
Magri introduced excerpts from depositions taken of Eddy Pardo, Michael
Berguiristain, and Nicole Galindo. Pardo remembered that “they mentioned Off
Road” when planning the trip, and Berguiristain also remembered the group
planning ahead of time “to go shooting” on Sunday on “a stretch of land” that
“[Galletti] [had] told us that his uncle had.” Berguiristain and Galindo assumed
that Galletti’s family owned the yellow truck sitting in his uncle’s driveway and
the Hummer vehicle in which the accident occurred. Pardo “s[aw] one guy” on the
property who he “th[ought] . . . may have been working on a car or looking at a car
or something.” Berguiristain and Galindo testified they did not see anyone on site
before the accident, including Galletti’s uncle, but Berguiristain was uncertain
whether someone came to help when the engine of the Hummer quit working or if
Galletti retrieved a battery charger from the vehicle. Pardo did not remember
having any mechanical problems with the Hummer and said that one of Galletti’s
clients was just “clowning around” in a photograph in which he was holding
battery cables.
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Magri testified that she did not participate in the race and instead served as
“the picture taker” for the weekend. Magri authenticated several of her
photographs, including images of the group posing with the yellow truck and with
the Hummer vehicles on the property, of Galletti’s uncle at the property before the
accident, and of the raised hood of the Hummer and the battery charger in the open
field. Magri described seeing the sign for Off Road as they approached the
property, being greeted by and escorted to the bathroom by Galletti’s uncle, and
seeing workers on the property who “were dirty like mechanics.” Magri also
described how, after everyone climbed into the Hummer, Galletti’s uncle
approached the vehicle and warned Galletti to “be safe.” Magri testified that the
battery of the Hummer “died” while the group was out shooting and that Galletti’s
uncle brought them a battery charger and bottles of water. Magri also testified that
Galletti’s clients were a close group that she believed were wary to testify against
Galletti.
The district court instructed the jury about direct and circumstantial
evidence, evaluating the credibility of witnesses, and factors to consider in
determining whether Galletti possessed a subjective belief that he had permission
to operate the vehicle that was objectively reasonable. One hour after the jury
retired to deliberate, it returned a verdict finding that “Galletti was driving the

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Hummer with the permission of, or with the reasonable belief that he had the
permission of Justin Tirri, at the time of the accident.”
II. STANDARD OF REVIEW
We review de novo the denial of a motion for judgment as a matter of law.
McGriff v. Minnesota Mut. Life Ins. Co., 127 F.3d 1410, 1413 (11th Cir. 1997).
III. DISCUSSION
A party is entitled to judgment as a matter of law only when “a reasonable
jury would not have a legally sufficient evidentiary basis to find for the party on
that issue.” Fed. R. Civ. P. 50(a)(1). In other words, “we will not second-guess the
jury or substitute our judgment for its judgment if its verdict is supported by
sufficient evidence.” Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d
1183, 1186 (11th Cir. 2001) (brackets omitted) (quoting Gupta v. Florida Bd. of
Regents, 212 F.3d 571, 582 (11th Cir. 2000)). We view the evidence and draw all
reasonable inferences from that evidence in the light most favorable to the
nonmoving party. McGriff, 127 F.3d at 1413–14.
The parties agree that, under Florida law, the jury could consider several
factors in determining whether Galletti’s subjective belief that he had Tirri’s
permission to drive a vehicle was objectively reasonable. Those factors included,
in relevant part, whether Galletti received express permission to use the vehicle;
whether his use of the vehicle exceeded the permission granted; and whether he
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shared a relationship with the owner of the vehicle or someone permitted to act on
behalf of the owner that would have caused Galletti to believe he was entitled to
drive the vehicle. See Garcia v. Geico Gen. Ins. Co., 712 F. Supp. 2d 1316, 1320
(S.D. Fla. 2010). Before the jury could evaluate those factors, it had “as the
traditional finder of the facts, . . . to weigh conflicting evidence and inferences, and
determine the credibility of witnesses.” Lipphardt, 267 F.3d at 1186 (quoting Watts
v. Great Atl. & Pac. Tea Co., 842 F.2d 307, 309–10 (11th Cir. 1988)).
The evidence, viewed in the light most favorable to Magri, was sufficient for
a reasonable jury to find that Galletti thought he was entitled to drive the Hummer.
The Galletti and Tirri families had longstanding relationships, which included
Galletti’s childhood friendship with Justin Tirri and the relationship between
Tirri’s aunt and Galletti’s uncle. Galletti appropriated the Hummer without
objection. Galletti’s uncle, who worked on the property, assented to Galletti’s use
of the Hummer. Galletti’s uncle gave the impression that he was involved in Tirri’s
company because he discussed the marketing of Off Road with Galletti and
Romero, he drove a company vehicle, and he welcomed Galletti and his guests to
company property. Galletti’s uncle warned Galletti to be careful driving the
Hummer, and no worker on the property attempted to stop Galletti. “[I]n a civil
case, a fact may be established by circumstantial evidence as effectively and as
conclusively as it may be proved by direct positive evidence,” Nielsen v. City of
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Sarasota, 117 So. 2d 731, 733 (Fla. 1960), and a jury could infer from the
relationships between the Tirri and Galletti families and between Galletti and his
uncle, that Galletti believed he had permission to use the vehicle and, even if he
was mistaken, his belief was reasonable.
Geico argues that the jury must have found that Galletti received “actual
permission to operate the Hummer” from his uncle by impermissibly drawing
multiple inferences from the fact that his uncle worked on the Off Road property.
See id. But the jury found that Galletti drove “the Hummer with the permission of,
or with the reasonable belief that he had the permission of Justin Tirri” to do so.
That finding is not necessarily dependent on the actual or perceived authority of
Galletti’s uncle. The jury could have inferred that Galletti thought he had
permission to use the Hummer based on his longstanding relationship with the
Tirri family and his previous use of Tirri’s property. See Liberty Mut. Ins. Co. v.
Falgoust, 386 F.2d 248, 252–53 (5th Cir. 1967) (“[T]his Court . . . must give [a]
party . . . against whom a motion . . . for judgment n.o.v. is directed the advantage
of every fair and reasonable inference which the evidence justifies.”). Galletti
organized the weekend to include a visit to the property to go off-road, which
necessarily required a vehicle other than the minivan he took on the trip. That
Galletti planned a trip that included an off-road excursion without securing an
appropriate vehicle beforehand suggests he thought he could use a vehicle on the
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property to entertain his guests. The jury could infer from several facts that Galletti
believed he had permission to drive the Hummer.
Geico also argues that Magri failed to prove that Galletti subjectively
believed he had permission to use the Hummer because he testified “just the
opposite,” but we disagree. The jury was entitled to discredit Galletti’s testimony,
and that finding was a reasonable one given the numerous conflicts between
Galletti’s account of the excursion and those given by Magri, Romero, Pardo, and
Berguiristain. See Lipphardt, 267 F.3d at 1186. As discussed above, the jury could
have found that Galletti subjectively believed he had permission to use the
Hummer based on his relationship with his uncle or with Tirri and then, after the
accident, voiced a contrary belief to protect his uncle and Tirri from liability. The
determination whether Galletti subjectively believed he had permission to use the
vehicle turned on his credibility, and that issue was for the jury to decide. See id.
Geico contends that Galletti could not have plausibly believed he could exonerate
Tirri, who had not, as required under Florida law, “voluntarily relinquished control
of the vehicle,” but whether Tirri could be held legally responsible is irrelevant to
determining if Galletti intended to protect Tirri.
The district court did not err by denying the motion of Geico for a judgment
as a matter of law. “The standard for reviewing a jury verdict is whether the state
of the proof is such that reasonable and impartial minds could reach the conclusion
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the jury expressed in its verdict.” Falgoust, 386 F.2d at 253. There is sufficient
evidence to support the jury’s findings that Galletti subjectively believed he had
permission to use the Hummer vehicle and that his belief was objectively
reasonable.
IV. CONCLUSION
We AFFIRM the judgment in favor of Magri.

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