Safeco Ins. Co. of Ill. v. S. Farm Bureau Cas. Ins. Co.

2013 Ark. App. 552

• Court: Court of Appeals of Arkansas
• Decided: October 2, 2013
• Docket: CV-13-67
• Status: Published

Opinion

Cite as 2013 Ark. App. 552

ARKANSAS COURT OF APPEALS DIVISION I No. CV-13-67

Opinion Delivered October 2, 2013

SAFECO INSURANCE COMPANY OF APPEAL FROM THE CRAIGHEAD ILLINOIS and BARNEY TRAVIS, as COUNTY CIRCUIT COURT, parent and natural guardian of DYLAN WESTERN DISTRICT TRAVIS, a minor [No. CV-08-953] APPELLANTS HONORABLE DAVID N. LASER, V. JUDGE

SOUTHERN FARM BUREAU REMANDED TO SUPPLEMENT THE CASUALTY INSURANCE COMPANY RECORD AND ADDENDUM; APPELLEE REBRIEFING ORDERED

LARRY D. VAUGHT, Judge

Appellants Safeco Insurance Company of Illinois (Safeco) and Barney Travis (Barney),

as parent and natural guardian of Dylan Travis (Dylan) (collectively appellants), appeal the

September 28, 2012 order entered by the Circuit Court of Craighead County, denying their

motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial. Due

to a deficiency in the record and in appellants’ addendum, we remand for supplementation of

the record and addendum and order rebriefing.

Dylan’s grandmother, Virginia Hodges (Hodges), was the owner of a 2002 Ford

Explorer. The vehicle was insured under a policy of automobile insurance by appellee Southern

Farm Bureau Casualty Insurance Company (Farm Bureau). On February 3, 2008, Dylan (then

sixteen years old) went to Hodges’s house, found her asleep, and took her vehicle to the movies

to pick up five friends. After leaving the theater, Dylan decided to “jump a hill.” During the Cite as 2013 Ark. App. 552

approach to the jump, he applied his brakes, lost control of the vehicle, and collided with a tree.

Two of the five passengers alleged that they sustained injuries as a result of the accident and filed

a complaint against Dylan for damages.

Safeco had issued a policy of automobile liability insurance to Dylan’s father, Barney, on

which Dylan was listed as an additional insured. Safeco provided a defense to the Travises and

made demand on Farm Bureau to assume coverage, arguing that Dylan had implied permission

to drive Hodges’s vehicle. In response, Farm Bureau filed a complaint for declaratory judgment

against appellants, and others, seeking a declaration that Dylan was not a “covered person” as

defined by the Farm Bureau policy because he did not have implied permission to operate

Hodges’s vehicle. Farm Bureau also argued that Dylan’s conduct was excluded from coverage

based on the intentional-acts exclusion. After appellants filed an answer to the declaratory-

judgment complaint, Farm Bureau moved for summary judgment. The trial court granted Farm

Bureau’s summary-judgment motion, finding the facts undisputed that there was no implied

permission from Hodges to Dylan regarding the use of the vehicle. Accordingly, the trial court

found that Farm Bureau owed no duty to defend or indemnify Dylan. Appellants timely

appealed the order, and our court, in Travis v. Southern Farm Bureau Casualty Insurance Co., 2010

Ark. App. 848, at 9, 378 S.W.3d 786, 790, reversed and remanded, holding that the evidence

raised questions of fact as to whether Dylan had implied permission to drive Hodges’s vehicle.

On remand, the case proceeded to a jury trial. On August 21, 2012, the trial court entered

a judgment, in accordance with the jury verdict, in favor of Farm Bureau, finding that it owed

no duty to defend or indemnify Dylan. Thereafter, appellants filed a motion for judgment

2 Cite as 2013 Ark. App. 552

notwithstanding the verdict or, in the alternative, motion for new trial. On September 28, 2012,

the trial court entered an order denying the motions.

Appellants’ current appeal challenges the sufficiency of the evidence supporting the jury’s

verdict on the issue of the intentional-act exclusion and alleges jury misconduct involving this

exclusion. However, we are unable to reach the merits of these arguments because of a

deficiency in appellants’ addendum. Arkansas Supreme Court Rule 4-2(a)(8) (2012) requires that

an appellant’s brief include an addendum consisting of all documents essential to the appellate

court’s resolution of the issues on appeal. In addition, pursuant to Rule 4-2(a)(8)(A)(i), in a case

where there was a jury trial, the jury verdict forms must be included in the addendum.

In the case at bar, appellants have not included the jury verdict forms (Interrogatories

No. 1 and 2) in their addendum.1 Further, the two jury interrogatories are not included in the

record.2 Therefore, we order appellants to correct this deficiency by supplementing the record

within thirty days. Ark. R. App. P.–Civ. 6(e) (2012). Thereafter, pursuant to Ark. Sup. Ct. R. 4-

2(b)(3) (2012), we order appellants to file a supplemental addendum curing any deficiencies and

rebriefing within fifteen calendar days from the date on which the supplemental record is filed.

Remanded to supplement the record and addendum; rebriefing ordered.

PITTMAN and WALMSLEY, JJ., agree.

Anderson, Murphy & Hopkins, L.L.P., by: Michael P. Vanderford and Mark D. Wankum, for

appellants.

David A. Hodges, for appellee.

1 Blank copies of Interrogatory No. 1 and 2 are included in the addendum. 2 Blank copies of Interrogatory No. 1 and 2 are included in the record.