Southern Farm Bureau Casualty Insurance Company v. Patton et al
ORDER granting 14 Motion for Summary Judgment; denying 18 Motion for Summary Judgment. Signed by Judge James M. Moody Jr. on 1/26/2015. (ks)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
SOUTHERN FARM BUREAU CASUALTY
NO. 2:13CV00077 JM
BELINDA PATTON AND
Pending are the parties’ cross motions for summary judgment. For the reasons set
forth herein, Plaintiff’s motion for summary judgment, docket # 14, is GRANTED.
Defendants’ motion for summary judgment, docket # 18, is DENIED.
Plaintiff, Southern Farm Bureau Casualty Insurance Company, (“Farm Bureau”)
filed its Complaint for Declaratory Judgment in this Court on June 13, 2013. Farm
Bureau seeks a judgment as a matter of law finding that it owes no coverage under policy
#MV00693913 and that the policy does not apply to any damages arising out of an
automobile accident which occurred on October 20, 2011 because the driver of the
insured vehicle was neither a named insured or a permissive user of the vehicle at the
time in question. Defendants filed counterclaims against Farm Bureau seeking a finding
by the Court that the subject Farm Bureau policy provided coverage to Raymond Gibson
as a permissive user of the vehicle when the accident occurred.
Raymond Gibson and Belinda Patton were injured in a single vehicle accident on
October 20, 2011, in Phillips County, Arkansas. At the time of the accident Mr. Gibson
was operating and Belinda Patton was occupying, a 2001 Chevrolet Silverado owned by
Tim Thomas and insured under Farm Bureau Motor Vehicle Policy #MV00693913. Mr.
Gibson was not a named insured under the policy in question. However, Defendants
argue that he was insured as a permissive user.
Raymond Gibson is a self-employed auto mechanic at Gibson’s Garage in Phillips
County, Arkansas. On October 20, 2011, Tim Thomas dropped his vehicle off at
Gibson’s Garage to have a window regulator repaired, he left the keys in the car. Gibson
had worked on the Thomases’ vehicles numerous times. Mr. Gibson testified that he
drove the vehicle to pick up a part. Mr. Gibson claims that it was his common practice to
drive his customer’s vehicles. Mr. and Mrs Thomas testified that they did not give Mr.
Gibson permission to drive the vehicle. Belinda Patton was at Gibson’s shop when he
drove the vehicle to pick up the part. Mr. Gibson took Patton with him so she would not
be at the shop alone. While in route to pick up the part in the Thomases’ vehicle, Gibson
and Patton were involved in a singe vehicle accident.
The subject policy provided personal bodily injury limits of $50,000 per person
and med-pay limits of $5,000 per person. As a result of the accident, Patton and Gibson
incurred medical bills and expenses in excess of $5,000 each and Gibson lost part of his
lower extremity. On or about April 4, 2013, Patton obtained a default judgment against
Gibson in the amount of $100,000 in Phillips County case number CV-12-96 styled,
Belinda Patton v. Raymond Gibson. Patton made a formal demand on Farm Bureau to
satisfy the default judgment. Farm Bureau failed to pay any portion of the default
judgment claiming that there is no coverage for the subject accident.
Standard for Summary Judgment
Summary judgment is appropriate only when there is no genuine issue of material
fact, so that the dispute may be decided solely on legal grounds. Holloway v. Lockhart,
813 F.2d 874 (8th Cir. 1987); Fed. R. Civ. P. 56. The Supreme Court has established
guidelines to assist trial courts in determining whether this standard has been met:
The inquiry performed is the threshold inquiry of determining
whether there is the need for a trial -- whether, in other words,
there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably
be resolved in favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The Eighth Circuit Court of Appeals has cautioned that summary judgment should
be invoked carefully so that no person will be improperly deprived of a trial of disputed
factual issues. Inland Oil & Transport Co. v. United States, 600 F.2d 725 (8th Cir. 1979),
cert. denied, 444 U.S. 991 (1979). The Eighth Circuit set out the burden of the parties in
connection with a summary judgment motion in Counts v. M.K. Ferguson Co., 862 F.2d
1338 (8th Cir. 1988):
[T]he burden on the moving party for summary judgment is
only to demonstrate, i.e., ‘[to] point out to the District Court,’
that the record does not disclose a genuine dispute on a
material fact. It is enough for the movant to bring up the fact
that the record does not contain such an issue and to identify
that part of the record which bears out his assertion. Once
this is done, his burden is discharged, and, if the record in fact
bears out the claim that no genuine dispute exists on any
material fact, it is then the respondent’s burden to set forth
affirmative evidence, specific facts, showing that there is a
genuine dispute on that issue. If the respondent fails to carry
that burden, summary judgment should be granted.
Id. at 1339. (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273274 (8th Cir. 1988) (citations omitted)(brackets in original)). Only disputes over facts
that may affect the outcome of the suit under governing law will properly preclude the
entry of summary judgment. Anderson, 477 U.S. at 248.
The motor vehicle policy in question contains the following provisions:
5. “Covered Person” means or refers to the persons and
organizations specifically indicated as entitled to protection under
the coverage being described.
20. “You” and “your” means the policyholder first named in
the current policy Declaration. Unless specifically stated otherwise in the
policy, you and your includes the policyholder’s spouse if a resident of the
We will pay damages for bodily injury … caused by an
accident, and arising out of the ownership maintenance and use of
your auto. For the purposes of this coverage, the words “covered
person(s)” include any members of your household and any
person legally responsible for the use of your auto with your
The parties agree that the sole issue for the Court to determine is whether Gibson
was a permissive user of the vehicle at the time of the accident. Farm Bureau argues that
there is no coverage for the automobile accident because Gibson was neither a named
insured or a permissive user of the insured vehicle when the accident occurred. Mr. and
Mrs. Thomas testified that they did not give Mr. Gibson permission to drive the vehicle.
Defendants argue that Gibson was a permissive user of the vehicle at the time of the
accident because Thomas left the vehicle at Gibson’s shop with the keys in the car and
Gibson and Thomas had a custom and history of Thomas leaving his vehicles for Gibson
to repair and Gibson would drive the vehicles he was working on for reasons related to
repairs of the vehicles.
“[I]n order to create coverage under a liability policy, the necessary permission
from an insured to another person to drive a vehicle may be express or implied.” Travis
v. Southern Farm Bureau Cas. Ins. Co., 2010 Ark. App, 848, 4, 378 S.W.3d 786, 788
(2010), citing Ison v. Southern Farm Bureau Cas. Co., 93 Ark. App 502, 221 S.W.3d 373
(2006). When considering whether implied permission exists, “courts must consider the
relationship between the owner and the borrower.” Id., citations omitted.
An implied permission ... is not confined to affirmative action, but means an
inferential permission, in which a presumption is raised from a course of
conduct or relationship between the parties in which there is a mutual
acquiescence or lack of objection signifying consent.
But implied permission is not limited to such situations, and will be
evaluated in light of all facts and circumstances surrounding the parties.
Implied permission may be proved by circumstantial evidence.
Circumstances such as usage, practice, or friendship may be used to show
implied permission. It may be found that the insured has given implied
permission where the named insured has knowledge of a violation of
instructions and fails to make significant protest.
Id., citing Collins v. Morgan, 92 Ark.App. 95, 103, 211 S.W.3d 14, 20–21(2005).
Gibson did not have express permission to drive the Thomases’ vehicle. Although
Gibson testified that it is his common practice to drive his customer’s vehicles to pick up
parts or to confirm its working condition, there is no evidence that the Thomases were
aware of this practice. Further, the evidence demonstrates that the Thomases brought the
vehicle to Gibson approximately one month prior to the date on which the accident
occurred to diagnose the problem with the window and so he could order the necessary
part. (ECF 18-1, p. 10-11). At that time, Gibson determined that the window regulator
was faulty and presumably ordered the necessary replacement part. The Thomases
brought the vehicle back for the repairs about one month later. Id. Gibson admitted that
there was no need to drive the vehicle to determine the cause of the window problem.
(Id. at p. 19-20). Because Gibson had already determined the cause of the window
problem and ordered the replacement part, there was no reason for the Thomases to
anticipate that Gibson would use the vehicle to pick up a part. The mere fact that Gibson
had access to the vehicle’s keys is insufficient to create a question of fact. See, Ison,
supra. Further, because initial permission was never given, the “Hell or High Water” rule
does not come into play. Id. Considering all the facts and circumstances, the Court finds
that there is no evidence that the Thomases gave actual or implied permission for Gibson
to drive the vehicle. Accordingly, there is no coverage under the subject policy for the
automobile accident because Gibson was neither a named insured or a permissive user of
the insured vehicle when the accident occurred
For these reasons, Plaintiff’s motion for summary judgment, docket # 14 is
GRANTED and Defendants’ motion for summary judgment, docket # 18 is DENIED.
IT IS SO ORDERED this 26th day of January, 2015.
James M. Moody Jr.
United States District Judge
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