Lead Opinion
This сase brings questions of whether an employee acted within the permissive use authorized by his employer, Goodyear Tires, when he fell asleep at the wheel of a
I
Goodyear Tire and Rubber Company hired Corte Adams in April 1998 as a service technician to change tires and fix flats in its Houston, Texas shop. In September 1998, Adams transferred to the Bryan, Texas shop, which specializes as a commercial truck tire сenter; he was trained and promoted to the position of truck alignment specialist. After the transfer, Adams continued to live in Houston and commuted four hours each day to and from Bryan.
Though Adams owned a car, Goodyear allowed him to use a company-owned one-ton GMC pickup truck in his travel between Houston and Bryan. Goodyear did not hire Adams as a driver. Nevertheless, once or twice a week Adams dropped off or picked up tires at the Houston shop on his way home from Bryan in the evenings or on the way back to Bryan the nеxt morning. When he had a delivery or a pick-up, Adams was “on the clock” for Goodyear until he dropped the tires off at the Houston shop in the evening or after he arrived at the Houston shop in the morning to pick up tires. When making a delivery or a pick-up, Adams was paid for the driving time. In addition, Goodyear required Adams to carry a pager at all times. Adams often used the company truck, with his boss’s knowledge, during working hours to run small personal errands such as picking up lunch.
On Friday February 26, 1999, Adams left Bryan in the late afternoon, approximately 5:30 p.m. After he delivered the tires to the Houston shop at approximately 7:00 p.m., Adams stopped for Chinese take-out and drove to his father’s house, where he arrived by approximately 8:30 p.m. There, Adams ate supper, consumed four or five beers, and slept for approximately four hours. Sometime between 1:00 and 2:00 a.m., Adams awoke and drove the Goodyear truck to a convenience store in order to purchase cigarettes for his father.
After Mayes sued Adams and Goodyear, Goodyear’s insurer, Appellees Travelers
II
Adams argues that the District Court erred by not relying upon his untimely response in opposition to Travelers’s filing for summary judgment, by not granting an extension under Rule 6(b)(2),
Rule 56(f) authorizes a district court to “order a continuance to permit affidavits to be taken or depositions to be taken or discovery to be had,” if the non-movant files affidavits showing that he or she “cannot for reasons stated present by affidavit facts necessary to justify the party’s opposition.”
Ill
Adams attempts to imbue the instant case with the result reached by the Texas appellate court in Mayes v. Goodyear,
Mayes does not benefit Adams. As an intermediate appellate decision pending appeal to the Texas Supreme Court, it does not control and cannot be relied upon as binding state authority or as preclusive given the divergent records.
IV
We review de novo a district court’s grant of summary judgment, applying the same standard as below.
Once the moving party meets this burden, the nonmoving party must “go beyond the pleadings” and designate “specific facts” in the record “showing that there is a genuine issue for trial.”
V
In defending the District Court’s grant of summary judgment, Travelers contends that Adams does not qualify as an insured. The policy defines an insured as, inter alia: “Anyone else while using with your permission a covered auto you own, hire, or borrow ...” (emphasis added).
A. Nature of permission
In Texas, permission is “consent to use the vehicle at the time and place in question and in a manner authorized by the owner, either express or implied.”
While express permission must be affirmatively stated, implied permission may be inferred from a course of conduct or relationship between the parties in which there is mutual acquiescence or lack of objection signifying consent. It is usually shown by usage and practice*165 of the parties over a period of time preceding the occasion on which the automobile was being used.33
Therefore, permission, sufficient to support coverage under an omnibus clause of an insurance policy, may be either express or implied.
1. Express permission
Adams contended at the hearing on summary judgment and now argues on appeal that he had express authority to use the Goodyear truck for personal use, inclusive of the contested time period during which the accident occurred. Adams relies on language in a company handbook detailing the operating standards for using company vehicles, referred to as the Commercial Tire and Service Center’s Associate’s Expectation (“CT & SC”). It reads: “Personal use of company vehicles is to be kept to a minimum. Company vehicles are not to be used for vacation travel.” The CT & SC was not, however, properly before the District Court since it was filed on June 9, 2004, one day after the expiration of Adams’s final extension.
2. Implied permission
Adams also argues that a pattern of tolerated personal use creates implied permission.
B. Scope of permission
The question remains whether Adams necessarily exceeded the scope of his implied permission. The District Court held that Adams exceeded the sum of his permission — vitiating any express or implied permission as a matter of law.
As the District Court noted, Texas courts apply the minor deviation rule when determining whether an individual qualifies as an insured under a policy that covers permitted drivers.
Both the District Court and the defendants rely on cases, Coronado and Ren-frow, that apply the minor deviation rule to situations involving express prohibitions against any personal use of company vehicles. No such express prohibition against personal use exists in the instant case. In Minter, explaining the existing Texas precedent, we recently applied the minor deviation rule to a situation in which the driver had permission to drive the truck to and from work and to park it overnight at his apartment.
Reversing the District Court’s grant of summary judgment in favor of the insurer, we found a genuine issue of material fact as to whether the employee had express permission to drive the company truck to his sister’s home, as testimony suggested that his boss had consented to the trip. We went on to say that a fact question also existed as to whether the driver had implied permission because the driver would presumably need to secure return transportation — arguably imparting implied permission to do so. Importantly, we noted that the driver’s errand to his sister’s home was not purely personal, as it related to the delivery of the truck in the morning.
After analyzing the nature of the permission, we applied the minor deviation rule, stating that the driver’s intoxication did not, as a matter of law, necessarily cause him to exceed the scope of his permission to use the company truck, for the purposes of insurance coverage under a similar omnibus clause.
Thus, we consider the purpose of the errand, assess the distance and time involved, and weigh the additional factor of
Travelers heavily relies upon the time of day when the accident occurred to place the event outside the policy requirement of permissive use. Admittedly, Adams stands on shaky ground, here.
VI
Adams also alleges non-contractual claims depending on the yet unresolved coverage question.
REVERSED AND REMANDED.
Notes
. Adams’s home, his father's house, and the convenience store are all within a ten minute drive of one another.
. Mayes sued Goodyear in state court under the theory of respondeat superior, contending that Adams was within the course and scope of his employment when the accident happened. The court granted summary judgment in favor of Goodyear. In an opinion released June 10, 2004, the state court of appeals reversed, finding that the proof of workers' compensation payments and the following facts created a gеnuine issue of material fact regarding whether Adams "was acting within the course and scope of his employment,” despite being on a personal errand:
that Adams (1) was driving a Goodyear truck filled with Goodyear tires he had undertaken to deliver after leaving Bryan the previous evening and before returning the next morning, and was "on the clock” when he was making deliveries; (2) had a delivery to make that morning because he had been unable to deliver the tires the night before; (3) was available via pager 24 hours a day; and (4) was not restricted in any way from using the truсk for personal business.
Mayes v. Goodyear Tire and Rubber Company,
. As the District Court concluded, Goodyear is not a proper party to this suit; it is not an insurance provider and the fraud allegation stems from representations purportedly made by Travelers.
. See Fed.R.Civ.P. 6(b)(2):
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion ... upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect ....
. Fed.R.Civ.P. 56(f):
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or make such other order as is just.
. See Bernhardt v. Richardson-Merrell, Inc.,
. Adams's attorney cited personal and financial reasons related to his divorce and an emergency room visit in October 2003 for the habitual tardiness. See Spears v. City of Indianapolis,
. Relevant factors to the excusable neglect inquiry include: "the danger of prejudice to the [non-movant], the length of the delay and
. [S]uch delays are a particularly abhorrent feature of today’s trial practice. They increase the cost of litigation, to the detriment of the parties enmeshed in it; they are one factor causing disrespect for lawyers and the judicial process; and they fuel the increasing resort to means of non-judicial dispute resolution. Adherence to reasonable deadlines is critical to restoring integrity in court proceedings.
Geiserman v. MacDonald,
. Wichita Falls Office Assoc. v. Banc One Corp.,
. Beattie v. Madison County School Dist.,
. See Brown v. Mississippi Valley State Univ.,
. Karaha Bоdas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara,
. "[T]he non-movant must diligently pursue relevant discovery — the trial court need not aid non-movants who have occasioned their own predicament through sloth.” Wichita Falls Office Assoc.,
. Mayes,
. "Collateral estoppel applies when, in the initial litigation, (1) the issue at stake in the pending litigation is the same, (2) the issue was actually litigated, and (3) the determination of the issue in the initial litigation was a necessary part of the judgment.” Harvey Specialty & Supply, Inc. v. Anson Flowline Equip., Inc.,
. Erie R.R. v. Tompkins,
. See Fed.R.Civ.P. 60(b). This motion was filed 14 days after the District Court entered final judgment.
. McCorvey v. Hill,
. Since Adams failed to timely file a response, the record is not identical to that relied upon by the state court. See supra n. 2 (describing the pertinent facts in the record of the state case). For example, the record in the instant case does not contain evidence regarding workers compensation or unrestricted personal use of the vehicle.
. Ford Motor Co. v. Tex. Dep’t of Transp.,
. Fed.R.Civ.P. 56(c).
. Celotex Corp. v. Catrett,
. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
. Celotex,
. Anderson v. Liberty Lobby, Inc.,
. Ragas v. Tennessee Gas Pipeline Co.,
. Saunders v. Michelin Tire Corp.,
. See Fed.R.Civ P. 56(e).
. This permissive-user clause is commonly referred to as an "omnibus clause.” See Black’s Law Dictionary 1121 (8th ed.2004) (defining "omnibus clause" as a provision in an automobile insurance policy that extends coverage to all drivers operating the insured vehicle with the owner's permission). Adams unpersuasively argues that the clause is an exclusion rather than an affirmative prerequisite to coverage, thereby shifting the burden of proof to Travelers. See Marshall,
. An insured bears the burden of proving coverage. See Royal Indemnity Co. v. Marshall,
. Minter,
.
. See supra II.
. ”[M]utual acquiescence or lack of objection signifying assent may be evidence of implied permission.” Coronado v. Employers’ Nat’l Ins. Co.,
. See Old. Am. County Mut. Fire Ins. Co. v. Renfrow,
. See Coronado,
. Tull v. Chubb Group of Ins. Cos.,
. Renfrow,
. Id.
. Minter,
. Coronado,
. Minter,
. Id. at 466.
. Id. at 462.
. Id.
. Id.
. Id. at 469.
. Minter,
. Id. at 468.
. In Royal Indemnity, affirming the denial of coverage, the court did not rely on the fact that the driver had consumed several alcoholic beverages immediately prior to driving. Minter,
. Travelers entered the driver’s handbook into the record; it is distinct from the CT & SC. See supra V(A)(1).
. See Coronado,
. Minter,
. Provident Am. Ins. Co. v. Castaneda,
. See Johnson & Higgins v. Kenneco Energy,
Dissenting Opinion
dissenting:
I respectfully dissеnt, because the panel majority errs in holding that there is a genuine issue of material fact as to whether Adams had implied permission to use the truck in the manner that he did at the time of the accident. Adams only had implied permission to use the truck for personal purposes or errands during “lunch hour,” not during the drive between Bryan and Houston or after he arrived home in Houston (i.e., not after hours or before work).
There is no evidence whatsoever of implied permission to use the truck for personal errands after hours; the only permission to use it аfter hours was the express permission to drive home, which was not a permission to run errands on the way home or once Adams arrived home. Adams admitted that his supervisors were unaware that he was using the company vehicle after hours for the purpose of shopping; he testified that no one at Goodyear knew he had been driving the truck to his father’s house or had authorized him to do so.
The opinion also hinges on “the minimal distances involved,” but that is not a significant fact here, where, as the majority admits, the timing and the purpose of the trip suggest thаt the deviation is not minor. Although Old Am. County Mut. Fire Ins. Co. v. Renfrow,
For instance, in Coronado v. Employers’ Nat’l Ins. Co.,
Although the majority devotes significant consideration to Minter,
In contrast, here the late-night errand was a purely personal trip, as the majority acknowledges; Adams no longer had any tires in his possession. Because the majority acknowledges that the purpose and time of the deviation were unrelated to the objectives for which Adams was granted the use of the vehicle, and given that the same distance is involved as in Coronado, I do not see how that case can be distinguished: The test for a material deviation is precisely based on these three elements: