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Cowart v. GEICO Casualty Co.

Supreme Court of Alabama

October 25, 2019


         Appeal from Mobile Circuit Court (CV-16-902314).

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[Copyrighted Material Omitted]

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          R. Jeffrey Perloff, Mobile, for appellant.

          Steven P. Savarese, Jr., and Andrew W. Martin, Jr., of Holtsford Gilliland Higgins Hitson & Howard, P.C., Daphne, for appellee.

         MITCHELL, Justice.

         This insurance-coverage case stems from an accident in which Zachariah Cowart ("Zachariah") ran over his wife Misty Cowart ("Misty"). Misty was partially compensated for her injuries under one provision of her automobile-insurance policy ("the policy"), and she seeks to use the uninsured-motorist provision of the policy to make up the difference. The trial court entered a summary judgment in favor of the insurer and upheld its denial of uninsured-motorist benefits to Misty. That judgment, however, is not supported by the language of the policy. For that reason, and because there are key factual questions that are unresolved, we reverse the summary judgment and remand the case for further proceedings.

         Facts and Procedural History

         This case arises from an accident involving Misty and Zachariah. On November 8, 2014, after an argument broke out between the couple, Zachariah decided to leave the house by automobile, despite the fact that he was intoxicated. Zachariah was unable to locate the keys to the company car that he typically drove, so he instead took the keys to the 2013 Jeep Wrangler sport-utility vehicle ("the Jeep") typically driven by Misty. Despite Misty's protest, Zachariah started the Jeep and began to drive off. In doing so, he knocked Misty down with the vehicle and ran over her left leg, causing compound fractures to her leg and ankle. At the time of the accident, both Misty and Zachariah were named insureds under the policy, which was issued by GEICO Casualty Company ("GEICO") and covered the Jeep.

         On November 2, 2016, Misty sued Zachariah in the Mobile Circuit Court alleging negligence and wantonness. She subsequently accepted a settlement from GEICO for the limits of the bodily-injury-liability provision of the policy, even though that settlement did not fully compensate her for her injuries. On October 31, 2017, the trial court granted a joint stipulation for dismissal with prejudice as to Zachariah.

         Before Zachariah was dismissed from the case, Misty amended her complaint to name GEICO as a defendant and demand payment under a separate provision of the policy for uninsured-motorist coverage. On June 5, 2018, GEICO filed a motion for a summary judgment. GEICO argued that the policy specifically excluded uninsured-motorist coverage for injuries caused by the operator of an "insured auto" and that the policy definition of an "insured auto" included all vehicles listed on the declarations page, one of which was the Jeep. In support of its motion, GEICO attached a copy of the policy and an excerpt from Misty's deposition in which she described being injured by Zachariah while he was operating the Jeep.

         Misty opposed GEICO's motion for a summary judgment. In her brief, she pointed out that the policy definition of an "insured auto" excluded a vehicle being used without the permission of its owner, thus rendering such a vehicle an uninsured automobile that would be covered by the policy's uninsured-motorist provision. She submitted an affidavit stating that the Jeep had been purchased by Zachariah and given to her as a gift; that she had refinanced the Jeep, naming herself as a co-borrower; that she made the monthly loan payments for the vehicle after it was refinanced; that there was a clear understanding

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between her and Zachariah that the Jeep was her vehicle; that she was the sole and exclusive driver of the Jeep; and that Zachariah did not have a key to the Jeep. The affidavit also stated that Zachariah had taken the Jeep without her permission at the time of the accident. Misty submitted copies of the refinancing documents referred to in the affidavit, as well as excerpts from Zachariah's testimony in their March 5, 2015, divorce proceeding as evidence that she was the owner of the Jeep and that Zachariah was using it without her permission at the time of the accident. Because she allegedly owned the Jeep and because Zachariah had allegedly used the Jeep without her permission, she argued that the Jeep was an "uninsured auto" under the policy and that she was therefore entitled to compensation under the uninsured-motorist-coverage provision.

         In response to Misty's opposition, GEICO argued that because Misty was married to Zachariah when he purchased the Jeep and at the time of the accident, the Jeep was marital property. GEICO argued that because Zachariah had an ownership interest in the vehicle, he did not legally have to obtain Misty's permission before using the vehicle. Accordingly, GEICO argued, the Jeep did not fall within the unpermitted-use exception to the "insured auto" definition in the policy, making the Jeep an "insured auto" that was not covered under the uninsured-motorist provision.

         On July 24, 2018, the trial court granted GEICO's motion for a summary judgment on the ground that the Jeep fell within the definition of "insured auto" in the policy. Misty appealed.

         Standard of Review

         Misty seeks reversal of the summary judgment in favor of GEICO. We review a summary judgment under the following standard:

"[When a party] appeals from a summary judgment, our review is de novo. EBSCO Indus., Inc. v. Royal Ins. Co. of America, 775 So.2d 128 (Ala. 2000). We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Jefferson County Comm'n v. ECO Preservation Services, L.L.C., 788 So.2d 121 (Ala. 2000) (quoting Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala. 1988)). Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989). `Substantial evidence' is `evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). In reviewing a summary judgment, we view the evidence in the light ...

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