Ward v. Universal Underwriters Insurance Co

548 So. 2d 150, 1989 Ala. LEXIS 497, 1989 WL 100157
CourtSupreme Court of Alabama
DecidedJune 30, 1989
Docket87-201, 87-202
StatusPublished

This text of 548 So. 2d 150 (Ward v. Universal Underwriters Insurance Co) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ward v. Universal Underwriters Insurance Co, 548 So. 2d 150, 1989 Ala. LEXIS 497, 1989 WL 100157 (Ala. 1989).

Opinion

ON APPLICATION FOR REHEARING

ADAMS, Justice.

On application for rehearing the original opinion is withdrawn and the following opinion is substituted.

The defendants, Mary Ward and James Michael Morris, appeal from a summary judgment for the defendant, Universal Underwriters Insurance Company (“Universal”). The trial court held that Michael Morris, a former employee of the insured, Madison Square Chrysler Plymouth (“Madison Square”), had acted outside the scope of his duties and was, therefore, not covered by Universal’s insurance policy when he was involved in an automobile accident that killed Bobbie Ward. We affirm.

Thomas C. Younger, trial judge in the Circuit Court for Madison County, Alabama, entered the following findings of fact:

“In December, 1985, Morris was hired as a salesman by Madison Square, which is a new and used car dealership in Huntsville, Alabama. He was hired by Bill Vandiver ..., the sales manager. At that time, Morris had no valid Alabama driver’s license because of a suspension for driving under the influence of intoxicating beverages. Because of this, Morris was specifically forbidden to operate any automobile owned by Madison Square. On January 1, 1986, Morris, while operating a vehicle not owned by Madison Square, was arrested for and subsequently entered a plea of guilty of driving under the influence. Consequently, the prohibition against him operating any automobile owned by Madison Square continued.
[152]*152“On February 13, 1986, Morris negotiated with Vandiver to purchase a 1967 Chevrolet Impala automobile owned by Madison Square. An agreement was reached whereby Morris would buy the automobile for the sum of $400.00 plus tax of $13.00. Such sum was to be paid out of an expected income tax refund due to Morris or from future wage payments which he would earn as a salesman at Madison Square. Until the total of $413.00 was paid by Morris, the Chevrolet was to remain parked on the back lot at Madison Square and Morris understood that he was not to drive the automobile until the price was paid. No money was ever paid by Morris to Madison Square. The Chevrolet was not driven by Morris after that date and prior to March 8, 1986. Morris continued in the employ of Madison Square through March 8, 1986, following which he never returned to work.
“On March 8, 1986, Morris was to pick up his son in Decatur for a weekend visit. He attempted to arrange transportation for that purpose throughout the day. Being unsuccessful in his effort, at approximately 6:00 to 6:30 P.M., closing time at Madison Square being at 6:00 P.M., Morris states that he walked by Vandiver’s office, where he saw Vandi-ver talking to two or three salesmen. Morris says that he shook the keys to the Chevrolet and that as he did so Vandiver looked up, but made no acknowledgement of Morris or his actions. Vandiver states that he never saw Morris make this gesture and never changed his earlier prohibition of Morris driving Madison Square automobiles, including the Chevrolet. Morris did not ask for nor receive permission to operate the Chevrolet from any employee of Madison Square. Morris then drove the Chevrolet off the Madison Square lot, to Decatur where he picked up his son and later, back to Huntsville.
“On Sunday, March 9, 1986, Morris spent the day with his son and a friend doing personal things. He performed no duly for Madison Square that day. Madison Square was open for business. During the day, Morris consumed alcoholic beverages. Late on the afternoon of March 9, 1986, while operating the Chevrolet westbound on Bob Wallace Avenue in Huntsville, Alabama, Morris was involved in an automobile accident resulting in the death of Bobbie Lane Ward. The administratrix filed suit against Morris, Madison Square and fictitious parties in the Circuit Court of Madison County, Alabama_”

The following issues are raised on appeal:

1. Whether the trial court erred in granting summary judgment on the claim that Morris had neither express nor implied permission to drive the automobile and was thereby not covered under the “Auto Hazard” portion of Madison Square’s insurance policy.

2. Whether the trial court erred in granting summary judgment on the claim that Morris was not covered under the “umbrella” portion of Madison Square’s insurance policy.

This appeal involves two separate parts of an insurance agreement. Judge Younger characterized the relevant sections thusty:

“Form 500 (Garage Insurance) provides basic primary insurance to Madison Square and to certain others who fit within the definition of an insured for limited hazards. Pertinent here is only the ‘AUTO HAZARD.’ Form 980 (Umbrella) provides excess insurance for certain described hazards under certain circumstances.
“The first inquiry under Form 500 is whether Morris fits within the definition of an insured. To be an insured under that coverage of the policy, Morris must have been an employee of Madison Square and must have been operating the vehicle owned by Madison Square (the 1967 Chevrolet) within the scope of permission granted to him by Madison Square.”

The trial court held that Morris was not covered under Form 500 because he did not have permission to operate the vehicle.

[153]*153Ward argues that genuine issues of material fact exist on the question of whether Morris had either express or implied permission to drive the automobile. Ward cites a number of cases for that proposition. We agree that where “permission” is required, it may be either express or implied. See Alabama Farm Bureau Mut. Cas. Ins. Co. v. Robinson, 269 Ala. 346, 113 So.2d 140 (1959); Harrison v. Densmore, 279 Ala. 190, 183 So.2d 787 (1966); Royal Indemnity Co. v. Pearson, 287 Ala. 1, 246 So.2d 652 (1971). The facts of the instant case do not support any need for our indulgence of an argument that Morris had express permission to drive the automobile. The record indicates unequivocally that Morris had no express permission, but, rather, that he was forbidden to drive any of Madison Square’s automobiles. Portions of Morris’s deposition reveal the following:

“Q. I think you said that the conversation was or instructions were as a result of your divulging that information that you had a previous DUI that you were not to drive the cars as long as your license were [sic] suspended or revoked, is that correct?
“A. That’s correct.
[[Image here]]
“Q. At any time before March the 8th, 1986, did you ask Billy Vandiver to allow you to drive the ’67 Impala?
[[Image here]]
“A. I don’t think so.
“Q. As a matter of fact, you were specifically prohibited from driving that car, is that correct?
“A. Yes.
“Q. Did you understand that the ’67 Impala was included in the condition of your employment of not driving a Madison Square car?
“A. Yes.
“Q. My question is this. Could you take a new car, for instance, and use that new car for any purpose? Was the agreement between you and Mr. Vandi-ver that you could not drive, not just the Impala, but any other car?
“A. Right.

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Related

Royal Indemnity Company v. Pearson
246 So. 2d 652 (Supreme Court of Alabama, 1971)
Super X Drugs of Alabama, Inc. v. Martz
286 So. 2d 47 (Court of Civil Appeals of Alabama, 1973)
Alabama Farm Bureau Mutual Casualty Insurance v. Robinson
113 So. 2d 140 (Supreme Court of Alabama, 1959)
Harrison v. Densmore
183 So. 2d 787 (Supreme Court of Alabama, 1966)
Salter v. Amsouth Bank, N.A.
487 So. 2d 927 (Court of Civil Appeals of Alabama, 1985)
Alabama Farm Bureau Mutual Casualty Insurance v. Billups
366 So. 2d 1109 (Supreme Court of Alabama, 1979)

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Bluebook (online)
548 So. 2d 150, 1989 Ala. LEXIS 497, 1989 WL 100157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ward-v-universal-underwriters-insurance-co-ala-1989.