Kitchens v. Houston General Insurance

896 P.2d 479, 119 N.M. 799
CourtNew Mexico Supreme Court
DecidedApril 27, 1995
Docket22227
StatusPublished

This text of 896 P.2d 479 (Kitchens v. Houston General Insurance) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kitchens v. Houston General Insurance, 896 P.2d 479, 119 N.M. 799 (N.M. 1995).

Opinion

OPINION

BACA, Chief Justice.

George Kitchens and James Thomas, individually and as father, next friend, and guardian of Adam Thomas (collectively “Appellants”), appeal from an order by the district court in favor of Appellees Houston General Insurance Company (Houston) denying Appellants declaratory relief. We address one issue on appeal: Whether an individual working in a business of servicing vehicles, having been given initial permission to use a covered vehicle, is subject to an exclusion for persons using covered vehicles while in the business of servicing vehicles if an accident occurs while the individual is using the vehicle solely for personal reasons. We note jurisdiction under SCRA 1986, 12-102(A)(1) (Repl.Pamp.1992), and reverse.

I.

On April 24, 1991, Raymond Guzman worked at Quality Auto Detailing (Quality), an automobile detailing shop owned by his brother, Benjamin Guzman. The shop is located on the automobile sales lot of Bob Turner’s Ford Country, Inc., (Turner) in Albuquerque at the corner of Interstate 25 and Lomas Boulevard (the Lomas shop). Benjamin operates another detailing shop in Albuquerque on Wyoming Boulevard (the Wyoming shop) approximately ten miles east of the Lomas shop. At both locations, Quality provides detailing services for used cars sold by Turner. Turner managers accepted the practice of Quality employees driving Turner vehicles to the Wyoming shop as being within ordinary business.

On April 24, 1991, Robert Scott, a Turner manager, gave Raymond the keys to a 1987 Ford with instructions to detail it. Raymond drove the vehicle to the Wyoming shop for detailing. Raymond testified that Scott was aware that he drove the car to the Wyoming shop. Scott, on the other hand, testified that he instructed Raymond to detail the vehicle at the Lomas shop. Instead of detailing the vehicle at the Wyoming shop that day, Raymond decided to detail it the following day. He locked the Wyoming shop and drove the vehicle to his brother’s home where he and a fellow employee consumed one and one-half quarts of beer. Afterwards, Raymond dropped off the fellow employee. On the way home Raymond collided with another vehicle occupied by Appellants. Appellants all were injured in the accident.

On January 14, 1992, Appellant Kitchens filed suit against Raymond and Turner, alleging that at the time of the accident, Raymond was an employee of Turner acting within the course and scope of his employment. On May 11, 1992, Turner filed a motion for summary judgment, arguing Raymond was not an employee of Turner or acting within the course and scope of employment. On August 4, 1992, the trial court granted summary judgment in favor of Turner. On October 15, 1992, Appellant Kitchens filed a motion to amend the complaint and add Benjamin as a defendant. On November 3, 1992, Houston was given leave to file a complaint in intervention. On January 12,1993, Appellants Thomases filed a complaint in intervention against Raymond and Benjamin. On December 22, 1993, the trial court set aside the summary judgment granted in favor of Turner. On February 14, 1994, the trial court again granted summary judgment in favor of Turner and against Appellants, concluding that Raymond was not an employee of Turner and was not in the course and scope of employment with Turner at the time of the accident. On April 11, 1994, the trial court granted judgment for declaratory relief in favor of Houston, concluding inter alia that because Raymond was not covered by the Houston policy, Houston was not obligated to provide defense and indemnity to Raymond for Appellants’ claims. Appellants appeal from the judgment for declaratory relief.

II.

We address whether the trial court erred in concluding that Raymond is not covered by Houston’s garage policy. Houston argues the trial court was correct to conclude that under an exclusion provision in the policy, Raymond was not insured. The provision defines “insured" as:

(1) You [named insured] for any covered “auto.”
(2) Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
(c) Someone using a covered “auto” while he or she is working in a business of selling, servicing, repairing, parking or storing “autos” unless that business is your “garage business.” (Emphasis added).

Houston argues that “detailing”, is within the meaning of “servicing.” Therefore, Houston argues, Raymond is excluded as an insured because he was using the vehicle while working in a business of servicing autos at the time of the accident. We disagree and hold that the exclusion provision is inapplicable and, that under Allstate Ins. Co. v. Jensen, 109 N.M. 584, 788 P.2d 340 (1990), Raymond is covered under Houston’s insurance policy.

Contrary to Houston’s assertion, the exclusion provision does not apply here. The plain language of the exclusion provision is clear to exclude from coverage those persons who use the vehicle while working in the business of “servicing” vehicles. At the time the accident occurred, however, Raymond was not using Turner’s vehicle while working in the business of “servicing” autos. Instead, the accident occurred while Raymond was using the vehicle on a lark. Although Raymond had driven the vehicle to the Wyoming shop for detailing, he decided to not do the job until the next day. Instead, he locked the shop and quit for the day. From the time Raymond locked the Wyoming shop for the day, he was no longer working. It follows then that Raymond was not “servicing” autos after he arrived at his brother’s home where he drank beer and socialized. Certainly, Raymond cannot be said to be “servicing” autos while on his way home after he left his brother’s home and when the accident occurred. The exclusion provision of Houston’s policy does not apply. 1

The question remains, however, of whether Raymond is covered under Houston’s policy for an accident that occurred while he was using Turner’s vehicle outside the scope of Turner’s (Scott’s) permission. We believe Jensen is dispositive. In Jensen, we addressed whether a driver, although given permission by the owner to drive a vehicle, was excluded from coverage by an insurance policy which limited coverage to use of the vehicle within the scope of permission. In doing so, we first recognized that an insurance policy could not be more restrictive than NMSA 1978, Section 66-5-221(A)(2) (Repl.Pamp.1994), of the Mandatory Financial Responsibility Act, NMSA 1978, §§ 66-5-201 to -239 (Repl.Pamp.1994) (MFRA). Jensen, 109 N.M. at 586, 788 P.2d at 342. Section 66-5-221(A)(2) requires an owner’s certified motor vehicle liability policy to “insure the person named in the policy and any other person, as insured, using any such motor vehicle with the express or implied permission of the named insured.” We also recognized that the express purpose of the MFRA is to

require and encourage residents of the state of New Mexico who own and operate motor vehicles upon the highways of the state to have the ability to respond in damages to accidents arising out of the use and operation of a motor vehicle.

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Related

Allstate Insurance v. Jensen
788 P.2d 340 (New Mexico Supreme Court, 1990)
Estep v. State Farm Mutual Automobile Insurance
703 P.2d 882 (New Mexico Supreme Court, 1985)

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Bluebook (online)
896 P.2d 479, 119 N.M. 799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kitchens-v-houston-general-insurance-nm-1995.