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STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. JIMMY W. METTETAL

NOVEMBER 09, 1988

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
v.
JIMMY W. METTETAL, JERRY METTETAL, LARRY TIDWELL, SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, AND MISSISSIPPI FARM BUREAU MUTUAL COMPANY



EN BANC

ZUCCARO, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

In a declaratory judgment action brought by the appellant State Farm, the Chancery Court of Panola County denied appellant's motion for summary judgment and granted appellees' cross-motion for summary judgment. This appeal from the chancellor's order involves a single issue: Does 63-15-43 of Mississippi's Motor Vehicle Safety Responsibility Law, codified as Mississippi Code Annotated Section 63-15-1 et

 seq. (1972 and Supp. 1987), apply to all automobile liability insurance policies issued in the State, or only to those certified as proof of financial responsibility?

 FACTS

 When this cause of action arose, Jimmy Mettetal was a named insured of State Farm Mutual Automobile Insurance Company under Policy No. 134-7262-B19-24B. Mettetal's son Jerry, a minor, was also an insured, because of the policy's provision which covered family members living in the household of the named insured. The policy provided that State Farm would indemnify Jimmy Mettetal up to the amount of $25,000 per and $50,000 per occurrence for bodily injury, and up to $25,000 per occurrence for property damage, should a judgment be rendered against him as a result of his or a family member's negligent operation of a motor vehicle. The policy extended liability coverage to the use by an insured of a non-owned vehicle. However, it contained a" permissive use "exclusion limiting by definition a non-owned vehicle to one used only" within the scope of consent of the owner or person in lawful possession of it. "

 On April 7, 1984, Jerry Mettetal took, without permission, a 1980 Chevrolet Malibu owned by Larry Tidwell and insured by Southern Farm Bureau. Attempting to retrieve his automobile, Tidwell pursued Mettetal in another vehicle owned by Tidwell, a 1978 Chevrolet pickup insured by Mississippi Farm Bureau. As a proximate result of Jerry Mettetal's negligence, the two vehicles collided and both were damaged extensively.

 The fair market value of Tidwell's Malibu was $4,500.00; reasonable wrecker and storage charges totalled $93.28. After Southern Farm Bureau paid these amounts to Tidwell and received $720.00 in salvage for the wrecked Malibu, the insurer's net expenditure was $3,873.28. The reasonable repair charges for the Chevrolet pickup were $3,436.30, which amount Mississippi Farm Bureau paid to Tidwell in accordance with their insurance contract.

 Pursuant to a subrogation clause in their insurance policies with Tidwell, both Southern Farm Bureau and Mississippi Farm Bureau demanded of Jimmy Mettetal that he pay for the damages negligently caused by his son's operation of Tidwell's vehicle. The total amount of this demand was $7,309.58. Thereupon Jimmy Mettetal requested that State Farm indemnify and/or defend him and his son against the claims of Tidwell, Southern Farm Bureau, and Mississippi Farm Bureau.

 State Farm then brought a declaratory judgment action to determine whether or not the Mettetals were covered under the terms of their policy for the accident resulting from Jerry Mettetal's unauthorized use of Tidwell's car. Named as defendants in the action were Jimmy Mettetal, Jerry Mettetal, Larry Tidwell, Southern Farm Bureau, and Mississippi Farm Bureau. Based upon the parties' stipulation to the facts, State Farm filed a motion for summary judgment, seeking an adjudication that it was not liable under its policy to defend or indemnify the Mettetals because the policy excluded coverage of a non-owned vehicle used without its owner's consent. In response, the defendants Larry Tidwell, Southern Farm Bureau, and Mississippi Farm Bureau filed a cross-motion for summary judgment, seeking an adjudication that the provisions of the Mississippi Motor Vehicle Safety Responsibility Law applied to the policy issued by State Farm to Jimmy Mettetal, and that the" permissive use "exclusion relied on by State Farm was therefore void because it conflicted with one of the provisions required of a policy subject to Section 63-15-43 of the Safety Responsibility Law. The provision at issue is found in Subsection (3) of Section 63-15-43 of the Mississippi Code (Supp. 1987). It states:

 Such operator's policy of liability insurance shall pay on behalf of the insured named therein all sums which the insured shall become legally obligated to pay as damages arising out of the use by him of [any motor vehicle not owned by him,] * within the same territorial limits and subject to the same limits of liability as are set forth above with respect to an owner's policy of liability insurance.

 (Emphasis added).

 State Farm responded, claiming that the provisions of Section 63-15-43 did not apply to the Mettetal policy because the policy was procured voluntarily by Jimmy Mettetal prior to any accident which would subject him or his son to the statute's requirements. Furthermore, because the Mettetal policy was not certified by State Farm prior to the Tidwell incident as constituting proof of Jimmy or Jerry Mettetal's financial responsibility, State Farm contended that the policy did not meet the Section 63-15-43(1) definition of a" motor vehicle liability policy "subject to the Safety Responsibility Law. That definition is as follows:

 A" motor vehicle liability policy "as said term is used in this chapter shall mean an owner's or an operator's policy of ...


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