The opinion of the court was delivered by: McRAE, Justice
ON PETITION FOR WRIT OF CERTIORARI
DATE OF JUDGMENT: 11/01/95
TRIAL JUDGE: HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED: HOLMES COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - INSURANCE
DISPOSITION: REVERSED AND REMANDED - 12/10/98
¶1. This case comes to us on Writ of Certiorari to the Court of Appeals. We affirm the judgment of the Court of Appeals as to the presumption of permissive use during the course of garnishment proceedings but we reverse and remand to the trial court for further proceedings to allow State Farm to rebut that presumption since the presumption was not present at the time of trial. Further, we are now allowing coverage questions to be resolved prior to trial and brought in the same lawsuit under Miss. R. Civ. P. 57 in furtherance of the goals of judicial economy. As to the 15% statutory damages rendered by the Court of Appeals pursuant to Miss. Code Ann. § 11-3-23, we find that the Court of Appeals has the power to levy such damages. Yet, the damages levied in this case are vacated, because we reverse and remand for proceedings consistent with this opinion.
¶2. On October 26, 1991, Bridget Eakins, Doris Winters, and Duane Quarles were injured while riding in an automobile struck by Christopher Jobe who was driving a vehicle owned and insured by Ronald Chester. The trio filed an action against Jobe whose defense was provided by Chester's insurer, State Farm. Under a reservation of rights, State Farm hired attorney David Norquist to defend Jobe. Plaintiffs were awarded a judgment against Jobe but State Farm declined to pay. Plaintiffs next sought a writ of garnishment against State Farm which filed an answer asserting that Jobe had used Chester's car without permission such that he was not covered by the policy. Following a bench trial, the trial court found that the defense of non-permissive use was not timely and therefore awarded a judgment against State Farm.
¶3. The Court of Appeals affirmed after finding that the trial court had reached the correct Conclusion although for the wrong reason. The appellate court held that the trial court erred in estopping State Farm from raising the defense of non-permissive use since it had not been a party to the original proceeding but had only provided counsel for Chester. The appeals court also held that Mississippi had not yet decided, either by case law or statute, whether permission was presumed or whether there was a burden to prove permissive use. Citing a split of statutory authority and case law among the states, the Court of Appeals held that it was better to follow the rule that "there exists a presumption that a person driving a motor vehicle does so with the permission of the insured owner." Finding that State Farm had not rebutted the presumption, the appellate court affirmed the judgment against State Farm and further awarded 15% damages pursuant to Miss. Code Ann. § 11-3-23.
¶4. It is a sound principle that when ownership of a motor vehicle is undisputed, a presumption is created that the vehicle was being operated with the owner's consent. The Iowa Supreme Court comprehended this many years ago. McKirchy v. Ness, 128 N.W.2d 910, 912 (Iowa 1964). Today, this Court acknowledges the wisdom of Iowa's rationale. Indeed the Court of Appeals was accurate in its statement "that there exists a presumption that a person driving a motor vehicle does so with the permission of the insured owner." It follows that such a burden may only be rebutted by a sufficient showing to the contrary by the insurance company. Once the ...