Opinion
C.A. No. 00C-05-012
Date Submitted: March 31, 2002
April 18, 2002
David C. Malatesta, Jr, Esquire, Kent McBride, P.C., Wilmington, DE.
H. Clay Davis, III, Esquire, Henry Clay Davis, III, P.A., Georgetown, DE.
Dear Counsel:
This lawsuit arose out of a motor vehicle accident that occurred on March 8, 2000. Charles and Mary Jewell ("Plaintiffs") were the parents of William H. Jewell ("Jewell"), who died from injuries sustained in the accident. Plaintiffs brought suit on behalf of Jewell's estate against four defendants: State Farm Mutual Insurance Co. ("State Farm"), Plaintiffs' insurer, Leroy Absher ("Absher"), the driver of the vehicle involved in the accident, Gary Jefferson ("Jefferson"), the vehicle's owner, and Progressive Casualty Insurance Company ("Progressive"), Jefferson's insurer. State Farm settled with the Plaintiffs for the uninsured benefits and was dismissed from the case. Plaintiffs obtained a default judgment against Absher.
This is the Court's decision on the motions for summary judgment filed by the remaining defendants, Jefferson and Progressive. For the reasons explained below, the Defendants' motions for summary judgment are granted.
FACTS
On March 8, 2000, Absher was driving a Ford Explorer owned by Jefferson without Jefferson's permission. Jewell was a front seat passenger in the vehicle. At the time, Absher was under the influence of alcohol and/or drugs. He drove through a stop sign and collided with another vehicle. Jewell suffered massive head injuries, from which he later died.
The vehicle Absher was driving at the time of the accident was taken from Jefferson's car lot. Absher, Jefferson's friend, performed odd jobs at the car lot. The keys to the vehicles on the lot were stored on a keyboard located in the garage. Absher was aware of the keyboard's location in the garage. Apparently, Absher made it a habit to "borrow" cars from the car lot for his personal use. He admitted to taking a car on at least three different occasions over a three-year period. During the latest occasion, Absher admitted he had the vehicle in his possession for about two and one-half weeks prior to the accident. Absher eventually pled guilty to felony theft of Jefferson's vehicle.
Progressive insured the vehicle Absher stole from Jefferson's lot. Under the insurance policy terms, Progressive is not required to cover any accidents resulting from the non-permissive use of the vehicle by another person. Jefferson claimed that he never gave Absher permission to use the vehicle and was unaware of Absher's penchant for taking vehicles from the car lot. Defendants argue that because the vehicle was stolen, they cannot be held liable for the Plaintiffs' loss.
DISCUSSION
Summary judgment may be granted only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970). Once the moving party meets its burden, the burden shifts to the non-moving party to establish the existence of material issues of fact. Id. at 681. Where the moving party produces an affidavit or other evidence sufficient under Super.Ct.Civ.R. 56 in support of its motion and the burden shifts, then the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. Super Ct. Civ.R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of his or her case, then summary judgment must be granted. Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. den., 112 S.Ct. 1946 (1992); Celotex Corp. v. Catrett, supra. If, however, material issues of fact exist or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is inappropriate. Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962). This Court will now determine if summary judgment is appropriate in this case.
A. Progressive Casualty Insurance Company
Jefferson's insurance policy, issued by Progressive, contained an exclusion that denied coverage to non-permissive users of the insured vehicle. Progressive bases its motion on this exclusion. Progressive argues that Absher was a non-permissive user of the vehicle involved in the accident. Progressive notes that Jefferson neither gave Absher permission to use the vehicle nor did Jefferson know of Absher's past use of his vehicles. Progressive also points to the fact that Absher pled guilty to a number of offenses related to the accident, including felony theft. All of these facts are undisputed in the record.
The Plaintiffs argue that permission to use the vehicle may be implied by the relationship and conduct of the parties. Plaintiffs point out that Jefferson and Absher were long-time friends and that Absher worked at Jefferson's car lot. Plaintiffs believe that a jury could find that Absher admitted to stealing the vehicle involved only because of his friendship with Jefferson. In other words, Plaintiffs argue that Absher and Jefferson are not to be believed in their assertion that Absher stole the vehicle involved.
At this stage, the Court does not make determinations of witness credibility. Merrill v. Crothall American, Inc., 606 A.2d 96, 99 (Del. 1992). When contemplating a motion for summary judgment, this Court must accept as established all undisputed factual assertions, made by either party, and accept the non-movant's version of any disputed facts. Id. at 99. In order to survive summary judgment, Plaintiffs must present something more substantial than a suspicion to rebut the Defendants' assertions. Because the Plaintiffs have not provided any factual evidence to rebut the Defendants' assertions, this Court must assume that Absher was a non-permissive user of the vehicle involved. Any claims arising out of that non-permissive use are excluded under Progressive's policy. Therefore, Progressive's Motion for Summary Judgment is granted.
B. Gary Jefferson
Continuing the assumption that Absher was a non-permissive user, this Court now turns to the issue of Jefferson's liability. Jefferson argues that Absher's non-permissive use of the vehicle amounted to theft, which breaks the causal chain between Jefferson and the Plaintiffs. Traditionally, relief has been denied to the injured plaintiff either by finding that the owner owes no duty to a victim injured by a thief, or that vehicle theft constitutes an unforeseeable intervening criminal act which breaks the causal chain between the vehicle owner's negligence and the plaintiff's injuries. Vadala v. Henkels McCoy, Inc., 397 A.2d 1381, 1383 (Del.Super. 1979) ("Vadala"). However, the investigating officer's report noted that the keys had been left in the vehicle's ignition before the theft. The Plaintiffs argue that such a situation, created by Jefferson, enhanced the foreseeability of the accident and imposed a duty on him.
Although Absher claim s that he obtained the vehicle's key from the keyboard located in the Defendant's garage, this Court must view the evidence in the light most favorable to the non-moving party. Merrill v. Crothall-American, Inc., 606 A.2d at 99 (Del. 1992).
Vadala is the leading Delaware case concerning the liability of an owner who unwittingly assists in the theft of his vehicle by failing to remove the keys from the ignition. In Vadala, an employee of the defendant stole a dump truck, which had keys in the ignition, from the defendant's storage yard. While driving the truck, the employee collided with the plaintiff's vehicle, injuring the plaintiff. The plaintiff brought suit against the defendant as the owner of the vehicle. The Superior Court recognized the traditional approach, but noted a developing exception:
[I]n light of recent empirical data indicating the risk to others involved in leaving ignition keys in unattended vehicles, several jurisdictions have held that a legal duty may exist under circumstances where the defendant should reasonably have anticipated that its conduct would create an unreasonably enhanced danger to one in the position of the injured plaintiff.
Vadala at 1383. The "circumstances" of which the Court speaks constitute more than the everyday, common carelessness some drivers exhibit, such as leaving one's doors unlocked or leaving the keys in the ignition on one's private property. The Court noted several factors that may lead a fact finder to impose a legal duty, including whether the vehicle is one that may attract intermeddlers who lacked the skill and knowledge to operate it safely, whether the vehicle is one that would inflict more injury and damage than an ordinary vehicle, and whether prior occurrences should have indicated that additional security measures were required to prevent theft. Vadala at 1383. This list is not exhaustive, but it does indicate that unusual circumstances, beyond simply leaving one's keys in the ignition, are required to impose a legal duty on owners of stolen vehicles.
Plaintiffs have argued negligence per se based on 21 Del. C. § 4182, which forbids owners from leaving the keys in an unattended vehicle. But § 4182 only applies to vehicles on the "highways" as required under 21 Del. C. § 4101. "Highway" is defined as "the entire width between boundary lines of every way or place of whatever nature open to the use of the public as a matter of right for purposes of vehicular travel, but does not include a road or driveway upon grounds owned by private persons, colleges, universities or other institutions." 21 Del. C. § 101(12). Because the vehicle involved in this case was parked on a back lot of Jefferson's private property, § 4182 does not apply.
Unfortunately for Plaintiffs, they cannot offer any evidence of unusual circumstances surrounding the theft of Jefferson's vehicle. The vehicle in question was an ordinary sport utility vehicle. It was not a vehicle that attracted intermeddlers who lacked the skill to drive it safely, nor was it a vehicle that would inflict more injury and damage than other ordinary vehicles. Jefferson's statement that he was unaware that Absher borrowed cars from the lot for personal use is undisputed. There is nothing in the record, beyond the fact that the keys were left in the ignition, that would increase the likelihood of the vehicle being taken and causing injury. As this Court has already stated, simply leaving one's keys in the ignition of a vehicle sitting on private property is not enough to impose a duty on the owner. Because no genuine issues of material fact exist, Jefferson's Motion for Summary Judgment is granted.
CONCLUSION
As there are no genuine issues of material fact to be litigated, the Court grants Defendants' Motions for Summary Judgment.
IT IS SO ORDERED.