Opinion
No. 3-108 / 01-1043.
Filed June 25, 2003.
Appeal from the District Court for Washington County, Dan F. Morrison, Judge.
Defendants appeal from the district court's order granting summary judgment in favor of the plaintiff on its action seeking declaratory judgment. REVERSED AND REMANDED.
Mark E. Liabo of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellant Gerot.
John N. Moreland and Timothy J. McKay of Harrison, McKay, Moreland Webber, P.C., Ottumwa, for appellant Mapel.
Craig A. Levien and Jean Dickson Feeney of Betty, Neuman McMahon, L.L.P., Davenport, for appellants Thoman and Grinnell Mutual.
Kevin H. Collins and Nancy J. Penner of Shuttleworth Ingersoll, P.L.C., Cedar Rapids, for appellees Federated Mutual and Wilkinson.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Defendants Holly Gerot and Shannon Mapel appeal from the district court's order granting summary judgment in favor of Plaintiff Federated Mutual Insurance Co. (Federated) on its action seeking declaratory judgment. Defendants contend the district court erred in concluding Mapel did not have permission to drive the vehicle of Federated's insured, Harriet Wilkinson, and therefore Federated did not owe liability insurance coverage to Mapel. We reverse and remand.
I. Background Facts. Harriet Wilkinson owned a 1992 Pontiac Grand Am insured by Federated. The insurance policy covers the Wilkinson family business, Wilkinson Pre-Cast, and anyone else using the Grand Am with her permission. Harriet's daughter, Lindsey, worked for Wilkinson Pre-Cast and was allowed use of the car.
On January 16, 1998, Lindsey and her friends Shannon Mapel, Katie Thomann, and Holly Gerot went to the Hard Luck Café in Kalona. The women had each consumed alcoholic beverages at various times that evening. Upon leaving the Hard Luck Café, Mapel stated she would drive the Wilkinson Grand Am. The other women believed Mapel was acting as a designated driver. Lindsey agreed to allow Mapel to drive the car. The vehicle was struck head-on by an oncoming car on a two-lane snow covered road.
Harriet Wilkinson claims she gave Lindsey strict instruction to never allow anyone other than a family member drive the Grand Am. Lindsey and her sister acknowledge they were aware of the "family member only" rule. However, Lindsey allowed non-family members to drive the Grand Am on several occasions. Mapel claims she drove the vehicle at least fifty times in the year prior to the crash. Lindsey's father observed Mapel driving the Grand Am on one occasion and chastised Lindsey for allowing Mapel to drive the car. Mapel does not recall this incident and claims she was never told she could not drive the vehicle.
Following the crash, Harriet Wilkinson told Mapel's mother, Cindy Mapel, that Shannon always had permission to drive the car. Harriet also told a police officer Shannon Mapel had permission to drive the Grand Am. However, Harriet claims she made these statements to ease Cindy Mapel's mind and to keep Shannon Mapel from getting into more legal trouble.
II. Analysis. Gerot and Mapel contend the district court erred in granting summary judgment by concluding Mapel did not have permission to drive the Wilkinson vehicle. We review the district court's ruling for errors at law. Iowa R.App.P. 6.4.
When ownership of a vehicle is admitted, a rebuttable presumption is created that the vehicle was operated with the owner's consent. Farm City Ins. Co. v. Gilmore, 539 N.W.2d 154, 159 (Iowa 2002). An owner's consent to use a vehicle may be limited to the extent a permittee may allow a second permittee to use the vehicle. Id. In situations where the vehicle is driven by someone other than the consent driver, our supreme court has stated that the inference of consent may be overcome by the owner's showing that the first permittee was not given express or implied authority to delegate permission for the vehicle's use. Benson v. Webster, 593 N.W.2d 126, 131-32 (Iowa 1999). The inference may be overcome and the matter of consent determined as a matter of law when the undisputed and uncontroverted evidence conclusively establishes the facts. Id.
An owner's consent to use a vehicle may be either express or implied from the circumstances. Farm City Ins. Co., 539 N.W.2d at 159.
The owner's consent to the use of an automobile by a second permittee, if not expressly provided, may be shown by the circumstances surrounding the original grant of permission, or by a course of conduct on the part of the owner consistent with the first permittee's grant of authority. If the owner denies that the second permittee operated the vehicle with his or her consent, consent may still be established by the owner's course of conduct inconsistent with this denial. Ultimately, the issue of consent turns on the particular facts and circumstances of each case.
Moritz v. Maack, 437 N.W.2d 898, 901 (Iowa 1989) (citations omitted) (emphasis added).
The district court concluded Lindsey had been told time and again that only family members were allowed to drive the Grand Am. The court held that Harriet Wilkinson's statements after the crash that Mapel had permission to drive the car were not relevant to deciding whether Mapel in fact had permission. The court found the only pertinent inquiry is whether there was consent at the time of the accident.
Gerot and Mapel argue Harriet's statements after the crash are relevant in determining the credibility of her testimony regarding what she told Lindsey before the crash. Issues of witness credibility are to be resolved by the trier of fact. Wemett v. Schueller, 545 N.W.2d 1, 3 (Iowa Ct.App. 1995). The defendants argue the district court, in discounting Harriet's statements after the crash, made a determination as to their reliability and impermissibly weighed the evidence. Maple further postulates Harriet's statements at the hospital establish a course of conduct inconsistent with her denial of consent.
In considering the defendants' claims, we are mindful of the rules governing the grant of a motion for summary judgment. Summary judgment is appropriate where the moving party shows there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Falada v. Trinity Indus., Inc., 642 N.W.2d 247, 250 (Iowa 2002). In determining whether the moving party has met this burden, we view the record in the light most favorable to the party opposing the motion for summary judgment. Id. The nonmoving party is entitled to every legitimate inference that can be reasonably deduced from the record. Id.
Although there is ample evidence to support Federated's contention Mapel did not have permission to operate the Grand Am, Harriet's statements at the hospital contradict this position. This conduct, inconsistent with denial of consent, may establish consent pursuant to Moritz v. Maack, 437 N.W.2d 898, 901 (Iowa 1989). At the least, it casts some doubt on the credibility of the Wilkinsons' claims of nonconsent at the time of the crash. As our court has previously noted, the defense of nonconsent is one which can be easily made, with little probability it can be met with direct refutation. De Bolt v. Daggett, 416 N.W.2d 102, 105 (Iowa Ct.App. 1987). Accordingly,
[i]t is not necessary [Gerot and Maple] adduce direct testimony. The owners' testimony, though positive and direct, is not necessarily conclusive. It may be weakened or rebutted by facts and circumstances, or by its own inherent weakness or unreasonable character. The weight of the testimony and credibility of the witnesses depend upon facts and conditions as shown by the record in each case. This particular issue, as it comes before the courts, is one which the average jury is peculiarly well fitted to pass upon and arrive at a correct conclusion.
Id. Viewing the evidence in the light most favorable to Gerot and Mapel, we conclude there is a factual dispute as to whether Mapel had permission to drive the Grand Am. Accordingly, we conclude the district court erred in granting summary judgment in favor of Federated.