Farmers Insurance Exchange v. Janzer

NO. 84-347
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985

FARMERS INSURANCE EXCHANGE, a reciprocal
of interinsurance exchange,
Plaintiff and Respondent,

REDMOND JANZER; LUCILLE JANZER FITZWATER,
JEFFREY JANZER, PHILLIP CLUTTS, et al.
Defendants and Appellants.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Dzivi, Conklin & Nybo, Great Falls, Montana

For Respondent:
Smith, Baillie & Walsh, Great Falls, Montana

Submitted on Briefs: Jan. 31, 1985
Decided: March 20, 1985

,, , 4'
3s
Filed:

Clerk
Mr. Justice John C. Harrison delivered the Opinion of the
Court.

Appellants, Phillip Clutts and All Nation Insurance
Company appeel from a summary judgment entered by the
District Court of the Eighth Judicial District of the State
of Montana, in and for the County of Ca.scade, ruling that no
material fact was in dispute and that Jeffrey Janzer was not
entitled to insurance coverage under his parents' automobile
policy.
Farmers Insurance Exchange (hereinafter referred to as
Farmers) insured a 1965 Dodge Dart automobile owned by
Redmond Janzer. Redmond Janzer and his wife, Lucille Janzer
resided with their fourteen year old son, Jeffrey in Cascade
County, Montana at the time of the accident.
On March 8, 1978, Jeffrey Janzer, Phillip Clutts and
Warner Dalton decided to run away from home in the Janzers'
Dodge Dart. No express permission to use the Dodge Dart to
run away wa.s given to Jeffrey Janzer by his parents. While
Jeffrey was driving, the vehicle left the highway and struck
an abutment in the vicinity of Spanish Fork, Utah. Phillip
Clutts, a passenger in the Janzer vehicle, was seriously
injured .
Farmers Insurance Exchange filed the present action
under the Uniform Declaratory Judgments Act seeking a
declaration that defendant Jeffrey Janzer was not entitled to
liability insurance coverage under his parents' automobile
policy for any liability he may have incurred in the accident
occurring March 8, 1978.
A hearing on plaintiff's motion for summary jud.gment
was held. The District Court considered the following
documents of record, including: the plaintiff's motion for
summary judgment, the oral arguments of counsel, the briefs
in support and opposition thereto, the pleadings, the
defendant's answers to plaintiff's written interrogatories
and the depositions of Redmond Janzer, Jeffrey Janzer and
Phillip Cl.utts. The District Court granted the motion for
summary judgment ruling Jeffrey had neither express nor
implied permission to use the car when he went to Utah.
Further, the District Court ruled that Jeffrey Janzer was not
entitled to insurance coverage under his parents1 policy, nor
was Farmers under a duty to defens against any claim arising
against Jeffrey Janzer, Redmond Janzer or Lucille Janzer.
The following issues are raised on appeal:
(1) Whether there is a genuine issue as to any material
fact which would preclude summary judgment.
(2) Whether the District Court erred in granting
summary judgment that there was no liability insurance
coverage for the insured's minor son under the parents1
policy.
(3) Whether the District Court erred j n determining
.
that Farmers Insurance Exchange had no duty to defend under
the policy.
Appellants argue the District Court erred in granting
Farmers1 motion for summary judgment because there existed
genuine issues of material fact, namely, whether Jeffrey
Janzer had the implied permission of either of his parents to
use the vehicle at the time of the accident.
Respondent contends the summary judgment was proper.
Respondent further contends the facts before the District
Court were clear and undisputed that there was no express or
implied permission to use the vehicle at the time of the
accident.
 Rule 56 (c), M.R.Civ. P., provides that summary judgment
is proper if: ". . . the pleadings, depositions, answers to
interrogatories, and admisssions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law."
This Court has on many occasions commented upon the
nature of the burden of proof imposed on the moving party
under Rule 56. This Court has consistently held that the
party moving for summary judgment has the burden of showing
the complete absence of any genuine issue as to all facts
which are deemed material in light of those substantive
principles which entitled him to a judgment as a matter of
law. Bonawitz v. Bourke (1977), 173 Mont. 179, 567 P.2d 32;
Harland v. Anderson (1976), 169 Mont. 447, 548 ~ . 2 d613. The
rule imposes a strict standard upon the movant and in Rober
and Kyriss v. Stewart & Billings Deaconess Hosp. (1966), 148
Nont. 117, 417 P.2d 476, this Court quoting from 6 Moore's
Federal Practice 2nd S56.15 [ 3 ] , held: " . . . to satisfy his
burden the movant must make a showing that is quite clear
what the truth is, and that excludes any real doubt as to the
existence of any genuine issue of material fact."
The initial burden of proof must attach to the movant,
however, that burden shifts where the record discloses no
genuine issue of material fact. Harland v. Anderson, supra.
The party opposing the motion must come forward with
substantial evidence raising the issue. Rickard v. Pardis
(1975), 167 Mont. 450, 539 P.2d 718; Roope v. The Anaconda
Company (1972), 159 Kont. 28, 494 P.2d 922; Flansberg v.
Montana Power Company (1969), 154 Mont. 53, 460 P.2d 263.
 The testimony presented must be reviewed in a Light
most favorable to the party opposing the summary judgment.
The right of the opposing party to present the merits of his
case to the fact finder must be preserved. Mally v.
Asanovich (1967), 149 Mont. 99, 423 P.2d 294; Johnson ~ r . St.
patrick's Hasp. (1967), 148 Mont. 125, 417 P-2d 469. In

reviewing Farmers' motion for surnma.ry judgment, the foregoing
rules and principles will control.
Jeffrey Janzer testified by deposition to the
conditions under which he was allowed to use the Dodge Dart:
"Q And can you tell me who taught you
to drive?
"A My father did.
"Q Can you give me some idea as to when
that learning process started?
"A About three years before the
accident.

"Q And did you drive the car when your
father was present during those three
years?
"A Yes.
"Q Can you tell me what kind of
places -- where you drove it?
"A I drove it when my father was
present on the highway. There is a time,
I believe when I was 13, we had a
110-acre farm out at Fairfield, and I
drove quite often by myself out there
during irrigating.
"Q Did you drive on the county roads
out there?
"A No; that was just on the farm
itself.
"8 And when you lived in Utah, did you
live on a farm?
"A hTo, it was just another five-acre
place like this one.
"9 On the outskirts of some town?
"A Yes.
"Q Did you drive in Utah?
"A Yes, Idid.
"Q What kind of places there?
"A Mainly with my parents on the
highway.

"Q ... after your parents came back
in the fall, up until the time of this
accident, would you say that you
regularly drove the car when your parents
were present? When you took a trip or
something?
"A When I took a trip, yes, it was
pretty common occurrence.
"Q Now, when you say take a trip, you
mean you drove on the highway?
"A Right.
"Q How about driving to and from town?
Did you regularly drive when your folks
and you were coming to and from t.own to
Manchester?
"A That was the time period that I
learned city driving, right there. So I
was driving fairly regularly then too.
If my parents didn't have anything
important to do in town.
"Q So if the family was coming to town
or you were coming along, you generally
drove?
"A Yes.
"Q A z would you say that most of the
id
time?
"A No, not most of the time; maybe 50
percent of the time.
"Q Now, did your mother know that vour
father taught you to drive as early as he
did?
"A Yes.
"Q How many vehicles of various kinds
did your folks own?
"A They owned?
"Q I'm talking about March of '78.
"A They owned a Dodge Club Cab pickup,
4-wheel drive; a Thunderbird, '77
Thunderbird; and that '65 Dodge Dart.

"Q Did you drive all those cars?
"A Yes.
"Q Can you tell me any times before
March of '78 that you were allowed to
drive the car without your parents
present?
"A I worked about a mile at a family's
house -- was kind of a. hand. It was
about a mile away from our place.
"Q Out at Manchester?
"A Yes. I drove to and from there.
"Q And your parents knew that?
"A Yes.
"Q You did that alone?

"A Right.
"Q I J w was that on a county road or
Io,
the highway?
"A County road.
"Q How often? Was this from the fall
when you started school and finished out
at your uncle's place?
"A It was from late December till --
"Q Up to the time of the accident and
past, probably?
"A Right.
"& How often during the week would you
make that trip?
"A Every day.
"Q And when you worked up at your
uncle's farm that prior summer, tha.t
would be the summer of '77?
"A Right.
"Q Did you drive without an adult
present in those vehicles?
"A Yes.
"Q Did you d.rive any of those vehicles
on the highway alone?
"A No.
"Q ~ust
county roads?
"A Right.
"Q I take it that you drove them with
the knowledge and permission of your
uncle?
"A Yes.
"Q A.nd did they know that you were
driving them without anybody being
present?
"A Yes.
"Q Did you ever have a limited driver's
license from the State of Montana-
"A No.

"Q When you took these trips back an6
forth to this job, to the neighbor's
house, out at Manchester, what vehicle
did you usually drive?
"A The Dart.
"Q The Dodge Dart?
"A Yes.
"Q When you took the Dart on those
trips back and forth to your job, did you
ask your mother or your father for
permission to drive the car each time?
"A Not each time, no. They knew I was
doing it.
"Q They generally gave you permission
to do that?
"A Yes.
"Q Where were the keys to the Dodge
Dart generally kept?
 "A Upstairs in the kitchen.
"Q Whereabouts in the kitchen?
"A On the counter.
"Q Was there a set place for them?
'A
I No; there was no set place.
"Q They were usually in the kitchen?
"A Yes.
"Q What about keys for other vehicles?
Were they kept in the same place,
generally?
"A No. My mother usually carried them
or Dad carried them, depending on who was
driving the car."
Redmond Janzer, Jeffrey's father, testified that Jeffrey's
testimony was essentially accurate. However, Redmond Janzer
did testify that whenever he was around, Jeffrey was required
to ask for permission each time he wished to use the Dodge
Dart and that he d.id not ask for such permission on the day
of the accident. Phillip Clutts testified that he saw
Jeffrey Janzer on two occasions with the Dodge Dart at
school. Once, he saw Jeffrey Janzer drive the vehicle.
Phillip Clutts also testified that Jeffrey Janzer had told
him that the Dodge Dart was his car to use any time he wanted
to use it.
Even though the testimony of the witnesses revealed no
express permission to run away from home and use the Dodge
Dart in the process, implied consent remains a genuine issue
of material fact.
Viewing the facts in a manner most favorable to the
defendant, the following facts suggest implied permission:
(1) at the age of 10, Jeffrey Janzer had been taught to drive
by his father; (2) his parents permitted him to drive,
unsupervised, over public county roads to and from work on
the farm daily for an entire summer; (3) Mr. Janzer
acknowledged that during the six months before the accident
Jeffrey drove frequently in his presence on trips into town
and on the highway; (4) the keys to the Dodge Dart were kept
on the kitchen counter fully available to Jeffrey Janzer at
all times, when at the same time, the keys to the other
vehicles were carried by his parents. We find the inferences
which might reasonably be drawn from these factors compel the
conclusion that Jeffrey's permission to use the vehicle "did
not stop at the corral gate," that a genuine issue of
material fact, that of implied permission, remains to be
resolved by a jury.
Many cases are cited and discussed in the briefs and in
turn distinguished factually by counsel. A line of cases
have addressed the significance of family relationships in
resolving issues of implied permission. In a California
Appeals Court decision, the court found that the insured's
daughter was operating the automobile with implied permission
at the time of the accident where the daughter knew the

location of the keys to the automobile even though she h l
at
not been given permission to drive. The court stated that
where parties are related by blood, or marriage, or where
relationship between owner and operator is that of principal
and agent, weaker evidence will support a finding of
permissive use than where parties are only acquaintances or
strangers. Elkinton v. California State Auto Ass'n Inc. Ins.
Bur. (Calif. 1959), 343 P.2d 396. In another California
decision, a finding of implied permission was sustained
despite the fact that the mother had persistently forbidden
her son to drive her automobile. Casey v. Fortune (Calif.
1947), 179 P.2d 99. The Wisconsin Supreme Court has also
recognized the significance of the parent/child relationship
in finding implied permission. Derusha v. Iowa National
Mutual (Wisc. 1970), 181 N F . d
.J2 481. Also see Eckles v.
Johnson (Idaho 1974) , 526 P. 2d 11.00, in which the court held
that the relationship of father and son between the owner and
the driver, reasonably supported an inference that the driver
was operating the vehicle with the owner's consent.
In the present matter, a family relationship exists,
that of parent and child. While more than the relationship
of parent and child is required to establish permissive use,
it supports this Court's finding that a genuine issue of
material fact precludes the disposition of this case by
summary judgment.
The foregoing facts and circumstances establish a
genuine issue of material fact as to the existence of implied
permission. We have long recognized that summary judgment is
never to be used as a substitute for trial if a factual
controversy exists. Kronen v. Richter (Mont. 19841, 683 P.2d
1315, 41 St.F?ep. 1312; Reaves v. Reinbold (Mont. 1980), 615
P.2d 896, 37 St.Rep. 1500. This issue must properlv he
placed before a jury. It was therefore, error for the
District Court to grant the defendant's motion for summary
judgment.
Accordingly, because the District Court erred in
granting respondent's motion for summary judgment, the
District Court's ruling that there was no liability insurance
coverage for the insured's minor son under the parents'
policy nor a duty for respondent to defend any claim against
the insured must likewise fail.
Respondent argues that the insurance policy confines
the definition of insured to:
 "Any other person while using such
automobile and any other person or
organization legally responsible for its
use provided the actual use of such
automobile is by the named insured or
with his permission."
Respondent urges because Jeffrey Janzer had neither implied
nor express permission, the policy coverage does not extend
to him.
Section 61-6-103, MCA, is Montana's legislative
enactment for omnibus coverage. The term insured includes:

" (2) Such owner's policy of liability
insura.nce shall:

"(b) insure the person named therein and
any other person, as insured, using any
such motor vehicle or motor vehicles with
the express or implied permission of such
named insured, against loss from the
liability imposed by law for damages
arising out of the ownership,
maintenance, or use of such motor vehicle
. . . 11
Section 61-6-103 (2)(b), MCA.
Appellants contend that this Court has adopted a liberal
interpretation of such a clause. Appellant's contention is
correct. In Cascade Insurance Co. v. Glacier General
Insurance Co. (1971), 156 Mont. 236, 479 P . 2 d 259, a case of
first impression regarding the interpretation of the omnibus
law, we recognized that provisions for omnibus coverage in an
automobile liability insurance policy reflects legislative
policy to protect the public when a motor vehicle is operated
by one other than the insured owner with his consent. In
National Farmers Union v. State Farm Mutual (D.Mont. 1967),
277 F.Supp. 542, the Federal. District Court adopted the
circuit court rule which required liberal interpretation,
pa.rticularly in cases involving the use of automobiles as
"family cars." State Farm Mutual Automobile Ins. Co. v.

Williamson (9th Cir. 1964), 331 F.2d 517. If the jury
concludes that Jeffrey Janzer had his parent's implied
permission to drive the vehicle, then the legislative policy
to extend. coverage to this accident should be adopted.
Recently, this Court considered a case nearly on point.
In Mountain West Farm Bureau Mutual Insurance Company v.
Farmers Insurance Exchange Company (Mont. 1984) , 680 P. 2d
330, 41 St.Rep. 829, Justice Morrison recognized a rule which
Farmers argues should be applied to the case at bar.
"A complete and unreasonable departure
from the intended use, or an
intentionally dangerous and wrongful
operation could support a ruling that-the
- -
use was outside of the scope of permitted
use as a matter of law. . " Mountain.
West, 41 St.Rep. at 831.
We declined to apply this rule to the facts in Mountain West.
Similarly, the rule is not controlling here. Mountain West
involved a question regarding the degree of permission
granted. There, the insured granted permission to a high
school classmate to drive on previous occasions. On the
night of the accident, another friend asked the insured for
the keys to the insured's car so he could listen to the
ra-dio. The insured gave the keys to him with the abonishment d

that they were only to listen to the radio. When a police
officer approached the two, the boys drove off, running over
the police officer in the pxocess. The jury found that the
defendant was using the car with the insured's implied
permission. This court affirmed the lower court's ruling
that Mountain West was the insurer of the defendant for the
defense of the action and the payment of any damages arising
out of the incident. The instant case, likewise, presents a
question involving scope of "permission." In both cases the
insured granted another permission to drive the vehicle on
separate occasions prior to the accident. In both cases, the
drivers exercised the permission beyond the scope of
permission granted to them. In Mountain West, the driver was
explicitly instructed not to drive the car, only to listen to
the radio. In the present matter, the driver was given no
permission to run away from home. In fact, a question as to
whether the son was required to ask for permission each time
he used the vehicle is in dispute. We hold, should the jury
make a finding of implied permission, the District Court must
accordingly enter judgment in accordance with Mountain West,
and decree respondent to be the insurer of Jeffrey Janzer and
his parents for the defense of the action and payment of any
damages.
The summary judgment is vacated. Because t.he District
Court's decision was confined to the question of summary
judgment, the negligent entrustment claim will not be
reviewed. on appeal. This cause is remanded for further
proceedings consistent with the view expressed herein.

We concur-

/-\
Mr. Justice L. C. Gulbrandson, dissenting.

I respectfully dissent.
The facts set forth in the majority opinion would be
relevant if the issue to be decided was "negligent
entrustment of a vehicle." In my view, the record discloses
other facts which I believe were utilized by the trial judge
in granting the plaintiff's motion for summary judgment on
the issue of express or implied permission to operate the
insured vehicle.
Jeff testified that, prior to taking the vehicle, he
got on the school bus as he normally did, that he later left
the bus and walked back to the barn at the family residence
where he hid for approximately four hours until both his
parents had left the residence. He then entered the
residence, obtained the car keys, and left with the vehicle
for Utah, with the intention of not returning. Jeff further
testified that he was not allowed to operate a motor vehicle
without express permission of his parents and that at least
one of his parents had to be with him when on the highway or
in town.
Jeff's father testified that Jeff was never to take the
car without asking either of the parents first, and that he
could not drive a car in town or on the highway without one
of the parents being with him.
Jeff's father also testified that he reported the car
as "stolen" to the local sheriff's office and to the Montana
Highway Patrol, even though he believed the car had been
taken by his son Jeff.
It is my opinion, based on the entire record, that the
trial judge correctly ruled that, as a matter of law, there
was no express or implied permission given by the parents to
their son Jeff to operate the insured vehicle at the time of
the accident. I would affirm.
Mr. C h i e f J u s t i c e J. A. T u r n a g e s p e c i a l l y c o n c u r r i n g :
I respectful-ly concur i n t h e dissent of Mr. Justice

Gulbrandson.

Chief J u s t i c e