UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60145
NATIONWIDE MUTUAL INSURANCE COMPANY,
Plaintiff-Appellant,
VERSUS
JOE G. DUNNING, JR.; CYNTHIA S. DUNNING,
Defendants-Appellants,
VERSUS
JENNIFER B. MORRIS; COURTNEY R. LUTZ; CRAIG PORTIS; THE ESTATE OF
PAUL HOLLOWAY,
Defendants-Appellees,
VERSUS
PROGRESSIVE GULF INSURANCE COMPANY,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of Mississippi
May 22, 2001
Before STEWART, PARKER, Circuit Judges, and GOLDBERG, Judge.*
ROBERT M. PARKER, Circuit Judge:
Appellants seek review of the district court’s determination
*
Judge of the Court of International Trade, sitting by
designation.
1
of insurance coverage for bodily injuries and death resulting from
a car accident in 1997. We must determine whether Paul Holloway
qualifies as an insured under the policy issued by Progressive Gulf
Insurance Company (“Progressive”) and whether Jennifer Morris,
Courtney Lutz, and Craig Portis are insureds under the terms of the
policy issued by Nationwide Insurance Company and the provisions of
the Mississippi Uninsured Motorist Statute. See MISS. CODE ANN. §
83-11-101 (1980).
I. Facts
Early in the morning of November 27, 1997, Virginia Dunning,
Paul Holloway, Courtney Lutz, Jennifer Morris, and Craig Portis
were involved in an automobile accident, which killed Virginia
Dunning and Paul Holloway and seriously injured the other
passengers. While on their way to Jennifer Morris’s house,
Holloway lost control of the 1991 Mitsubishi Eclipse and struck a
light pole near the Mississippi-Tennessee border. Unbeknownst to
the children’s parents, the group had driven to a dance club in
downtown Memphis where, despite their age, they were admitted and
served alcohol. Alcohol was the primary cause of the accident.
The Eclipse belonged to Joe Dunning, Virginia’s father. Mr.
Dunning helped finance the car for his daughter so that she would
have transportation to and from school, cheerleading practice, and
work. Virginia had a set of keys to the car and personally paid
the car note. Virginia was the primary driver of the car and
2
usually paid for fuel, but Mr. Dunning took responsibility for
maintenance and repairs.
Mr. Dunning generally allowed Virginia to use the car for
social purposes. However, he specifically instructed Virginia that
she should not let others drive the car and that she should not
drive around with groups of other teenagers. In addition to these
specific instructions pertaining to the car, Mr. Dunning, like any
responsible parent, required Virginia to seek his permission before
going out in the evening. Mr. and Mrs. Dunning would usually
require Virginia to remain close to their Mississippi home on the
outskirts of Memphis. They had never given her permission to drive
to the downtown Memphis area while out with her friends. Virginia
had a curfew between 11:30 p.m. and 12:00 a.m.
On the evening before the accident, Virginia asked her parents
if she could spend the night at Jennifer Morris’s home. She told
her parents that she and Jennifer planned to rent a movie. Her
parents agreed. Virginia, Jennifer Morris, and Courtney Lutz met
Paul Holloway and Craig Portis later that evening. Virginia
allowed Holloway, her boyfriend, to drive the group to Memphis.
Mr. Dunning did not give either his daughter or Paul Holloway
express permission to take the car to Memphis the evening of the
accident.
Joe Dunning had an automobile insurance policy with Nationwide
that covered the Eclipse and three other automobiles. The policy
included liability and uninsured motorist coverage limits of
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$50,000 for each person and $100,000 for each accident. Nationwide
filed this declaratory judgment action seeking a determination of
the rights of the claimants to the proceeds of the policy. Paul
Holloway’s insurance provider, Progressive, filed a cross-claim.
Progressive’s policy provided liability coverage with limits of
$25,000 per person and $50,000 per accident. Both insurance
companies argued that Holloway, Morris, Lutz, and Portis did not
qualify as insureds as that term is defined in each policy and
under Mississippi law.
On August 9, 1999, the district court granted summary judgment
denying coverage under the Progressive policy and denied summary
judgment in favor of coverage under the Nationwide policy. The
court concluded that Holloway was not insured under the Progressive
policy because he did not have implied permission to drive the car.
As to coverage under Nationwide’s policy, the court concluded that
Virginia Dunning had broad and unfettered domination over the
vehicle and that Paul Holloway therefore had Joe Dunning’s implied
permission to drive the car. On October 28, 1999, the district
court set aside its order granting summary judgment in favor of
Progressive and scheduled a nonjury trial.
At trial, the parties stated that they did not intend to offer
any more evidence than they included in their motions for summary
judgment. The parties also indicated that the remaining issues
concerning the apportionment of the policy limits to the injured
parties would be resolved in mediation. Having already reviewed
4
the summary judgment evidence, the district court entered a final
judgment holding that Holloway was insured under the Progressive
policy and that Holloway, Morris, Lutz, and Portis were insureds
for purposes of uninsured motorist coverage under the Nationwide
policy. The district court adopted the policy limits to which the
parties agreed at trial. The policy limits are not contested on
appeal.1
II. Standard of Review
The parties contest whether we should review the evidence as
if the district court granted summary judgment or whether we should
review the record as an appeal from a nonjury civil trial. At the
beginning of the scheduled nonjury trial, Nationwide and
Progressive stated that they would not present any additional
evidence than that already submitted in their summary judgment
motions. The district court declined to hear the same evidence a
1
The Dunnings argue on appeal that the district court did not
have evidence to support a finding that the vehicle was an
“uninsured motor vehicle” under Mississippi statute. See MISS. CODE
ANN. § 83-11-103(c)(iii); Wickline v. U.S.F. & G., 530 So.2d 708
(Miss. 1988). The Dunnings claim that without evidence of the
injured passengers’ own uninsured motorist coverage there is no
basis for determining whether the vehicle was underinsured as to
each passenger. We agree. However, “the stacking of policies for
purposes of determining whether a vehicle [is] underinsured [is]
different from the stacking of policies for the purposes of
recovering damages.” State Farm Mut. Ins. Co. v. Davis, 613 So.2d
1179, 1183 (Miss. 1992). Neither the district court nor the
parties raised an issue concerning whether the Eclipse qualified as
an uninsured motor vehicle as to each of the injured passengers.
Presumably the parties sought to determine the extent to which each
injured passenger is entitled to compensation at mediation. We
therefore do not address the Dunnings’ argument.
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second time and instead adopted its reasoning in its August 9, 1999
summary judgment Memorandum Opinion.
The district court was free to make any factual and
credibility determinations from the documentary and testimonial
evidence already in the record. It was not necessary for the
parties to resubmit evidence that was already in the record at the
nonjury trial. We therefore employ the standard of review
applicable to any other nonjury civil case. We review conclusions
of law de novo and findings of fact for clear error. See Switzer v.
Wal-Mart Stores, Inc., 52 F.3d 1294, 1298 (5th Cir. 1995). “When
reviewing mixed questions of law and fact, [we] . . . reverse only
if the findings are based on a misunderstanding of the law or a
clearly erroneous view of the facts.” Tokyo Marine & Fire Ins. Co.
v. FLORA MV, 235 F.3d 963, 966 (5th Cir. 2001).
III. The Progressive Policy
Progressive contends that the injuries caused by Paul
Holloway’s negligence are not covered under its policy because
Holloway was not a permissive user of Mr. Dunning’s car. The
Progressive policy provides coverage for bodily injury “for which
an insured person becomes legally responsible because of an
accident arising out of the ownership, maintenance, or use of a
vehicle.” The policy’s omnibus clause defines an “insured person”
as
(4) you with respect to an accident arising out of the
maintenance or use of any vehicle with the express or
6
implied permission of the owner of the vehicle.
“Owner of the vehicle” means a person who “holds legal title to the
vehicle.” Therefore, if Paul Holloway had the express or implied
permission of Joe Dunning, the vehicle’s owner, then the
Progressive policy will cover bodily injuries arising from the
accident. Since Mr. Dunning did not expressly permit Holloway to
use the car on the night of the accident, we address only whether
Mr. Dunning’s permission should be implied.
A. Mississippi Law Governing Permissive Use
Permissive use of automobiles is divided into two categories
under Mississippi law. See Vaughn v. State Farm Mutual Auto. Ins.
Co., 359 So.2d 339, 341-42 (Miss. 1978), overruled on other
grounds, State Farm Mutual Auto. Ins. Co. v. Mettetal, 534 So.2d
189 (Miss. 1988). First, permission may arise if a vehicle owner
gives restricted permission to a permittee, and the use of the
vehicle is within the boundaries of the owner’s restrictions. An
insured’s policy will cover injuries resulting from the use of a
vehicle so long as the use is “within the time, geographic and
purpose limitations of the permission granted, and [constitutes]
only a minor deviation from the permission granted.” Id. at 342
(citing Travelers Indemnity Co. v. Watkins, 209 So.2d 630 (Miss.
1968)).
The second category pertains to a permittee’s unrestricted use
of an insured automobile. See id. If a permittee has unrestricted
7
use, then injuries arising from the operation of the vehicle by a
third party will be covered as long as the third party uses the
vehicle to serve some purpose of the permittee. See id. (citing
International Serv. Ins. Co. v. Ballard, 216 So.2d 535 (Miss.
1968)). Even if an owner places restrictions on the vehicle’s use,
courts may nonetheless find that the owner’s permission is
unrestricted when a permittee has “broad and unfettered domination”
over the insured automobile. United States Fidelity & Guarantee
Co. v. Stafford, 253 So.2d 388, 392 (Miss. 1971), overruled on
other grounds, State Farm Mutual Auto. Ins. Co. v. Mettetal, 534
So.2d 189 (Miss. 1988). If the permittee has broad and unfettered
domination, then the owner’s permission may, in certain
circumstances, be implied. See id. Mississippi courts have
expressed these guidelines in the following manner:
The “general rule” that a permittee may not allow a
third party to “use” the named insured’s car has
generally been held not to preclude recovery under the
omnibus clause where (1) the original permittee is riding
in the car with the second permittee at the time of the
accident, or (2) the second permittee, in using the
vehicle, is serving some purpose of the original
permittee. The courts generally reason that under such
circumstances the second permittee is “operating” the car
for the “use of the first permittee” and that such “use”
8
is within the coverage of the omnibus clause.
Stafford, 253 So.2d at 392 (quoting 7 AM. JUR. Automobile Insurance
§ 117 (1963)). The court continued:
It is recognized that as a general rule the use of
an automobile by a third person is not protected where
the owner has expressly forbidden it. Where, however,
the first permittee has “broad and unfettered domination”
over the insured automobile, under certain circumstances
permission of the insured may be implied. In particular,
this is true where the operation by the second permittee
serves some purpose of the first permittee.
Id. (quoting National Farmers Union Prop. & Cas. Co. v. State Farm
Mut. Auto Ins. Co., 227 F. Supp. 542 (Mont. 1967)).
The Mississippi Supreme Court applied these guidelines in the
following three cases. In Stafford, supra, Wayne Plunkett
permitted his friend, C.B. Thompson, Jr., to race a 1962 Chevrolet
Impala owned by Wayne’s father, Roy Plunkett. See id. at 389.
During the race, Thompson struck and killed a bystander. See id.
Wayne was a passenger in the car at the time of the accident. See
id.
The evidence demonstrated that Wayne had full authority and
control over the automobile. See id. at 392. Mr. Plunkett allowed
his son to use the vehicle to travel to and from school, work, and
social events. See id. Wayne made payments on the car and kept
9
his own set of keys. See id. Although Roy Plunkett insisted that
he prohibited third parties from driving the car, the testimony
revealed that his son allowed his friends to use the vehicle in Mr.
Plunkett’s presence. See id. Based on these facts, the court
concluded that there was sufficient evidence for the jury to
conclude that Mr. Plunkett impliedly permitted his son’s friend to
use the car. See id.
In State Farm Mutual Automobile Insurance Company v. Moore,
289 So.2d 909 (Miss. 1974), overruled on other grounds, State Farm
Mutual Auto. Ins. Co. v. Mettetal, 534 So.2d 189 (Miss. 1988),
James Arnold purchased a 1963 Chevrolet Corvair for his son, Jim
Arnold, but retained title to the car in his name. See id. at 910.
Jim had the only set of keys to the car. See id. at 912. Jim’s
father testified that neither he nor his wife ever drove the car
and that he specifically instructed Jim not to permit others to use
it. See id. at 910. He also insisted that he was unaware that any
of Jim’s friends had ever driven the car. See id. On the night of
the accident, Jim allowed his friend, Jack Millican, to drive Jim
and a group of teenagers home. See id. Millican overturned the
car on the way home, injuring a passenger. See id. The court held
that there was sufficient evidence to support the trial court’s
conclusion that Jim had broad and unfettered domination over the
vehicle and that his friend had the implied consent of Jim’s
father. See id. at 912.
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In Vaughn, supra, E.H. McGarrh gave his ex-wife unrestricted
permission to use his vehicle for the benefit of their children.
See Vaughn, 359 So.2d at 340. The ex-wife would in turn allow
their daughter, Deborah, to drive the car on certain occasions.
See id. Deborah had to request permission every time she used the
car. See id. On the evening of the accident, Deborah received her
mother’s express permission to drive the car to a local skating
rink. See id. At the skating rink, Deborah allowed Michael Vaughn
and James Creely to take the car on an errand. See id. Deborah
was not a passenger in the vehicle at the time of the accident.
See id. Applying the guidelines set forth in Stafford, the court
concluded that Vaughn and Creely did not have implied permission to
use the car. See id. at 343. The court noted that the vehicle was
not being used for Deborah’s benefit, let alone for the benefit of
the first permittee, Deborah’s mother. See id.
B. Implied Permissive Use in this Case
In order to establish coverage under the Progressive policy,
the evidence must show that Virginia had broad and unfettered
domination over the insured vehicle and that Holloway’s operation
of the vehicle served some purpose of Virginia. See Stafford, 253
So.2d at 392.2 Appellants do not dispute that Holloway’s operation
2
We limit our review of the facts to whether Virginia had
unrestricted use of her father’s vehicle. See Vaughn, 359 So.2d at
342. Under the law pertaining to restricted use, the Progressive
policy would not cover the injuries resulting from the accident.
11
of the vehicle served the purpose of driving Virginia to Jennifer
Morris’s home. Rather, Appellants argue that Virginia did not have
sufficient authority and control over the vehicle.
The evidence is undisputed that Mr. Dunning withheld title to
the car and took responsibility for repairs. He instructed
Virginia not to allow others to drive the car and forbade her from
simply driving around town with a group of teenagers. Although
testimony reveals that Virginia often let Holloway drive the car,
Mr. Dunning was not aware of the practice. In addition to his
restrictions specific to the car, Mr. Dunning required Virginia to
seek his permission before going out with friends. He also
implemented a midnight curfew and other standing rules governing
her social outings. Based on this evidence, appellants argue that
Virginia did not have broad and unfettered domination over the
vehicle.
The term “broad and unfettered domination” has little meaning
apart from the public policies for which the term was created to
address. “Unfettered,” in a literal sense, means free from
restraints or limitations. See WEBSTER’S THIRD INTERNATIONAL DICTIONARY
2495 (1981). In contrast to the literal definition, the
Mississippi Supreme Court adopted the term to address situations in
which a vehicle owner restricts third party use. See Stafford, 253
Virginia Dunning clearly deviated from her father’s restrictions by
allowing her boyfriend to drive the car to and from downtown
Memphis.
12
So.2d at 393 (stating that “broad and unfettered domination” is an
exception to the general rule that permission would not be implied
when a vehicle owner expressly prohibits use by a third party). As
an exception to a vehicle owner’s restrictions on third party use,
the court’s adoption of the “broad and unfettered domination”
language follows Mississippi public policy favoring protection of
individuals injured by careless drivers. See id. (citing
Traveler’s Indem. Co. v. Watkins, 209 So.2d 630 (Miss. 1968)).
“[T]he purpose of the omnibus clause is to protect the named
insured, the person within the omnibus clause, and the public
generally and its members injured by the negligent operation of the
insured automobile on a public highway.” Id. See also Thomas v.
Deviney Constr. Co., 458 So.2d 694, 697 (Miss. 1984). Any
limitation on coverage should be liberally construed in favor of
the insured. See Lewis v. Allstate Ins. Co., 730 So.2d 65, 68
(Miss. 1999). Guided by Mississippi public policy and the court’s
decisions in Stafford, Moore, and Vaughn, we find that Virginia had
broad and unfettered control over her father’s vehicle.
The undisputed evidence establishes that Virginia chose the
car at the dealership, made monthly car payments, and kept her own
set of keys. While Mr. Dunning occasionally used the car, Virginia
was the primary driver. She drove the car to school, after-school
activities, work, and social outings. Apart from her father’s
restrictions that she prohibit others from driving the car and his
13
instruction that she not drive around with other teenagers,
Virginia was free to use the car on a daily basis as she saw fit.
Even though she was required to ask permission before social
outings, she never was required to ask specific permission to use
the car. In effect, Mr. Dunning’s part in purchasing the car was
for Virginia’s benefit alone. Any restrictions concerning the
places she drove and the times she used the car were incidental to
her parent’s general rules governing her social life.
Appellants cite Federated Mut. Ins. Co. v. Davis, 919 F. Supp.
1001 (S.D. Miss. 1995), as persuasive authority for their position.
Indeed, the facts in Davis closely resemble the facts in this case.
Christi Anthony’s father bought a car as an extra family vehicle
for Christi to use as transportation to school and school
functions. Her father required specific permission to use the car
for any other purpose, including social outings. The district
court concluded that Christi Anthony did not have broad and
unfettered domination over the car as a matter of law.
The district court’s conclusion in Davis could potentially be
construed as holding that a teenage driver cannot, as a matter of
law, have broad and unfettered domination over his or her parents’
vehicle as long as the parents place general limitations on the
car’s use. We are not persuaded that general parental restrictions
over the use of a vehicle will preclude coverage for the negligence
of a third party driver in every case. Barring coverage whenever
14
a parent places the slightest restrictions on the use of a car
undermines Mississippi’s public policy favoring coverage for
injured persons. Instead, courts must review the particular facts
of each case to determine whether the permittee exercised
sufficient authority and control over the owner’s vehicle. See
Moore, 289 So.2d at 912.
In this case, the district court did not err by finding that
Virginia had broad and unfettered domination over the use of the
automobile. Accordingly, we find that Paul Holloway had Mr.
Dunning’s implied permission to use the vehicle on the night of the
accident. The Progressive policy therefore covers bodily injuries
resulting from the accident to the extent of the policy limits.
IV. Coverage Under the Nationwide Policy
Nationwide contends that Jennifer Morris, Courtney Lutz, and
Craig Portis were not insured as that term is defined in the
uninsured motorist provisions of its policy and the Mississippi
Uninsured Motorist Act.3 “In order to recover the UM benefits
provided by an insurance policy, the claimant must first prove that
he/she is an ‘insured’ under either the insurance policy and/or the
UM statute.” Davis, 613 So.2d at 1180. Mississippi’s uninsured
motorist statute provides the following definition of an “insured”:
3
We cannot review the terms of the Nationwide endorsement
pertaining to uninsured motorist coverage for bodily injury. The
copies of the endorsement in the record are incomplete. Page two
of the endorsement, which presumably states the relevant terms of
uninsured motorist coverage, is missing.
15
(b) The term “insured” shall mean the named insured
and, while resident of the same household, the spouse of
any such named insured and relatives of either, while in
a motor vehicle or otherwise, and any person who uses,
with the consent, express or implied, of the named
insured, the motor vehicle to which the policy applies,
and a guest in such motor vehicle to which the policy
applies, or the personal representative of any of the
above. The definition of the term “insured” in this
section shall apply only to the uninsured motorist
portion of the policy.
MISS. CODE ANN. § 83-11-103(b).
Nationwide argues that the injured passengers are not insureds
because Paul Holloway did not have implied permission to use the
vehicle. In order to qualify as a guest in an uninsured motor
vehicle, Nationwide contends that the vehicle must be used with the
consent, express or implied, of the owner.4 Mississippi courts
have not addressed this issue and, since we have already concluded
that Paul Holloway had implied permission to use the vehicle, there
is no need to resolve the issue on appeal. As guests in the
4
See, e.g, Nationwide Mut. Ins. Co. v. Harleysville Mut. Cas.
Co., 125 S.E.2d 840, 843 (Va. App. 1962) (holding that a guest in
“a motor vehicle to which the policy applies” means a guest in a
vehicle that is being used with the express or implied permission
of the owner). But see Unisun Ins. Co. v. Schmidt, 529 S.E.2d 280,
282 (S.C. 2000) (declining to adopt such a strict interpretation of
a “motor vehicle to which the policy applies”).
16
vehicle driven by Paul Holloway with Joe Dunnning, Jr.’s implied
consent, Jennifer Morris, Courtney Lutz, and Craig Portis were
insureds for purposes of Nationwide’s uninsured motorist coverage.
V. Conclusion
We affirm the district court’s finding that Paul Holloway had
implied permission to use the vehicle for purposes of coverage
under the Progressive policy. We also affirm the district court’s
determination that the injured passengers were “insureds” for
purposes of coverage under Mississippi’s uninsured motorist
statute.
AFFIRMED.
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Nationwide Mutual Insurance v. Dunning
Court: Court of Appeals for the Fifth Circuit
Date filed: 2001-05-22
Citations: 252 F.3d 712
Copy CitationsCombined Opinion