58 So. 3d 522
La. Ct. App.2011Background
- Ellen and Ralph Van sue Steven Ferrell and Safeway Insurance for injuries from a collision when April Canada, driving Ferrell's truck with alleged permission issues, failed to stop at a stop-controlled intersection.
- Safeway asserts nonpermissive use (no permission) as its defense and moves for summary judgment after discovery.
- Depositions of April, Tracy Canada Ferrell, and Ferrell are inconsistent on whether April had permission to drive the truck.
- Trial court grants Safeway summary judgment, holding no genuine issue of material fact on permission.
- Vans appeal, contending there is a material fact question about implied permission and that credibility determinations were improperly made in a summary judgment.
- Louisiana omnibus clause extends coverage to permissive users; implied permission arises from acquiescence or non- objection by the insured.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper on permission to use the vehicle | Van: there is a genuine issue about permission that precludes summary judgment. | Safeway: no genuine issue because permission (express or implied) is not supported by the record. | Issue for trial; summary judgment reversed. |
| Whether April had implied permission to drive Ferrell's truck to work | Implied permission exists if insured acquiesces; evidence is inconsistent but creates a dispute of material fact. | No clear implied permission; inconsistent testimony supports no finding of permission. | Implied-permission question remains genuine issue; not resolvable on summary judgment. |
| Whether credibility determinations were appropriate at the summary judgment stage | Demeanor and credibility should be weighed by trier of fact, not at summary judgment. | Credibility not properly weighed; record supports granting summary judgment. | Credibility determinations were improper on summary judgment; trial needed. |
| Whether the omnibus clause and permission framework require reversal and remand | Omnibus clause covers permissive users; factual dispute defeats ruling. | Under existing facts, no permissive use established; liability should be resolved | Remand for further proceedings; not resolved at this stage. |
Key Cases Cited
- Samaha v. Rau, 977 So. 2d 880 (La. 2008) (summary judgment de novo standard)
- Hill v. Shelter Mut. Ins. Co., 935 So. 2d 691 (La. 2006) (summary judgment proper if no genuine issue)
- Henry v. South Louisiana Sugars Co-op. Inc., 957 So. 2d 1275 (La. 2007) (interpretation of insurance contract on summary judgment)
- Walker ex rel. Walker v. State Farm Mut. Auto. Ins. Co., 954 So. 2d 847 (La. App. 2 Cir. 2007) (insurance contract interpretation and coverage issues)
- Manzella v. Doe, 664 So. 2d 398 (La. 1995) (permissive-use and implied permission principles)
- Wells v. Kemper Cas. Ins. Co., 803 So. 2d 450 (La. App. 2 Cir. 2002) (deviation from permissive use and coverage denial)
- Harris v. Dunn, 48 So. 3d 367 (La. App. 2 Cir. 2010) (credibility issues not suited for resolution on summary judgment)
- Property Ins. Ass'n of Louisiana v. Theriot, 31 So. 3d 1012 (La. 2010) (dispute resolution and trial on merits when material facts are involved)
- Khan v. Richey, 927 So. 2d 1267 (La. App. 2 Cir. 2006) (permissive-use considerations)