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Ortiz v. State Farm Fire & Casualty Co.6/30/2003
MEMORANDUM DECISION
Not for Publication Rule 28, Rules of Civil Appellate Procedure
AFFIRMED
Plaintiffs Yolanda and Andrew Ortiz (the Ortizes) appeal from the trial court's grant of summary judgment in favor of State Farm Fire & Casualty Company (State Farm), in which the court found State Farm not liable for a default judgment entered in favor of the Ortizes in the prior action they had filed against the owner and an employee of an automobile repair business for the wrongful death of Oscar Ortiz, Yolanda's son and Andrew's father. For the reasons set forth below, we affirm.
Facts and Procedural History
On appeal from summary judgment, we view the facts and inferences therefrom in the light most favorable to the nonmoving party, the Ortizes. Angus Med. Co. v. Digital Equip. Corp., 173 Ariz. 159, 840 P.2d 1024 (App. 1992). So viewed, the evidence shows that, in early August 1996, Edwin Parsil brought his mother's 1975 Plymouth Valiant automobile to Donald Whitwell's automobile repair garage for air conditioning repairs. Donald's brother, Herbert Whitwell, lived on the garage's premises and was the night watchman. Herbert had access to the keys to all of the automobiles that had been brought to the garage for repairs. On the morning of August 5, approximately ten miles from the garage, the Plymouth struck Oscar, a pedestrian on the side of the highway.
In the Ortizes' wrongful death action against Edwin, his mother, Donald, and Herbert, State Farm provided a defense for the parties it insured -- Edwin and his mother Ruth, but not for the Whitwells. The court awarded judgment by default in favor of the Ortizes against Donald and Herbert for Oscar's wrongful death. The Ortizes sued State Farm, seeking a declaratory judgment that the terms of the Parsils' insurance policy obligate State Farm to pay the full amount of the judgment the Ortizes obtained against Donald and Herbert. Both parties filed motions for summary judgment. Finding that the use of the Plymouth by the person who was driving it when Oscar was killed had exceeded the scope of the Parsils' consent, the trial court granted State Farm's motion. The court denied the Ortizes' subsequent motion for a rehearing, and this appeal followed.
Standard of Review
Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(c)(1), 16 A.R.S., Pt. 2. Summary judgment should be granted "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). We determine de novo whether any genuine issues of material fact exist and whether the trial court erred in applying the law. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 965 P.2d 47 (App. 1998).
Discussion
In their motion for summary judgment, the Ortizes argued that "Donald is clearly covered as a 'permissive user' for his negligent entrustment [of the vehicle to Herbert]." They also contended that "there was implied permission for Herbert [under the] 'Hell or High Water' rule," first discussed in Arizona in Universal Underwriters Insurance Company v. State Automobile and Casualty Underwriters, 108 Ariz. 113, 493 P.2d 495 (1972). In its opposition and motion for summary judgment, State Farm maintained there was no evidence that a permissive user had operated the Plymouth within the Parsils' scope of consent. State Farm additionally
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