* J udge of the Court of International Trade, sitting by

designation.

1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-60145

NATIONWIDE MUTUAL INSURANCE COMPANY,

Plaintiff-Appellant,

VERSUS

JOE G. DUNNING, JR.; CYNTHIA S. DUNNING,

Defendants-Appellants,

VERSUS

JENNIFER B. MORRIS; COURTNEY R. LUTZ; CRAIG PORTIS; THE ESTATE OF

PAUL HOLLOWAY,

Defendants-Appellees,

VERSUS

PROGRESSIVE GULF INSURANCE COMPANY,

Defendant-Appellant.

Appeals from the United States District Court

for the Northern District of Mississippi

May 22, 2001

Before STEWART, PARKER, Circuit Judges, and GOLDBERG, Judge. *

ROBERT M. PARKER, Circuit Judge:

Appellants seek review of the district court’s determination2

of insurance coverage for bodily injuries and death resulting from

a car accident in 1997. We must determine whether Paul Holloway

qualifies as an insured under the policy issued by Progressive Gulf

Insurance Company (“Progressive”) and whether Jennifer Morris,

Courtney Lutz, and Craig Portis are insureds under the terms of the

policy issued by Nationwide Insurance Company and the provisions of

the Mississippi Uninsured Motorist Statute. S ee M ISS

. C ODE A NN

. §

83-11-101 (1980).

I. Facts

Early in the morning of November 27, 1997, Virginia Dunning,

Paul Holloway, Courtney Lutz, Jennifer Morris, and Craig Portis

were involved in an automobile accident, which killed Virginia

Dunning and Paul Holloway and seriously injured the other

passengers. While on their way to Jennifer Morris’s house,

Holloway lost control of the 1991 Mitsubishi Eclipse and struck a

light pole near the Mississippi-Tennessee border. Unbeknownst to

the childr en’s parents, the group had driven to a dance club in

downtown Memphis where, despite their age, they were admitted and

served alcohol. Alcohol was the primary cause of the accident.

The Eclipse belonged to Joe Dunning, Virginia’s father. Mr.

Dunning helped finance the car for his daughter so that she would

have transportation to and from school, cheerleading practice, and

work. Virginia had a set of keys to the car and personally paid

the car note. Virginia was the primary driver of the car and3

usually paid for fuel, but Mr. Dunning took responsibility for

maintenance and repairs.

Mr. Dunning generally allowed Virginia to use the car for

social purposes. However, he specifically instructed Virginia that

she should not let others drive the car and that she should not

drive around with groups of other teenagers. In addition to these

specific instructions pertaining to the car, Mr. Dunning, like any

responsible parent, required Virginia to seek his permission before

going out in the evenin g. Mr. and Mrs. Dunning would usually

require Virginia to remain close to their Mississippi home on the

outskirts of Memphis. They had never given her permission to drive

to the downtown Memphis area while out with her friends. Virginia

had a curfew between 11:30 p.m. and 12:00 a.m.

On the evening before the accident, Virginia asked her parents

if she could spend the night at Jennifer Morris’s home. She told

her parents that she and Jennifer planned to rent a movie. Her

parents agreed. Virginia, Jennifer Morris, and Courtney Lutz met

Paul Holloway and Craig Portis later that evening. Virginia

allowed Holloway, her boyfr iend, to drive the group to Memphis.

Mr. Dunning did not give either his daughter or Paul Holloway

express permission to take the car to Memphis the evening of the

accident.

Joe Dunning had an automobile insurance policy with Nationwide

that covered the Eclipse and three other automobiles. The policy

inc luded liability and uninsured motorist coverage limits of4

$50,000 for each person and $100,000 for each accident. Nationwide

filed this declaratory judgment action seeking a determination of

the rights of the c laimants to the proceeds of the policy. Paul

Holloway’s insurance provider, Progressive, filed a cross-claim.

Progressive’s policy provided liability coverage with l imits of

$25,000 per person and $50,00 0 per accident. Both insurance

companies argued that Holloway, Morris, Lutz, and Portis di d not

qualify as insure ds as that term is defined in each policy and

under Mississippi law.

On August 9, 1999, the district court granted summary judgment

denying coverage under the Progress ive policy and denied summary

judgment in favor of coverage under the Nationwide policy. The

court concluded that Holloway was not insured under the Progressive

policy because he did not have implied permission to drive the car.

As to coverage under Nationwide’s policy, the court concluded that

Virginia Dunning had broad and unfettered domination over the

vehicle and that Paul Holloway therefore had Joe Dunning’s implied

permission to drive the car. On October 28, 1999, the district

court set aside its order granting summary judgment in favor of

Progressive and scheduled a nonjury trial.

At trial, the parties stated that they did not intend to offer

any more evidence than they included in their motions for summary

judgment. The parties also indicated that the remaining issues

conce rning the apportionment of the policy limits to the injured

parties would be resolved in mediation. Having already reviewed1 The Dun nings argue on appeal that the district court did not

have evidence to support a finding that the vehicle was an

“uninsured motor vehicle” under Mississippi statute. S ee M ISS

. C ODE

A NN

. § 83-11-103(c)(iii); Wickline v. U.S.F. & G.

, 530 So.2 d 708

(Miss. 1988). The Dunnings claim that without evidence of the

injured passen gers’ own uninsured motorist coverage there is no

basis for determining whet her the vehicle was underinsured as to

each passenger. We agree. However, “the stacking of policies for

purp oses of determining whether a vehicle [is] underinsured [is]

different from the stacking of policies for the purposes of

recovering damages.” State Farm Mut. Ins. Co. v. Davis , 613 So.2d

1179, 1183 (Miss. 1992). Neither the district court nor the

parties raised an issue concerning whether the Eclipse qualified as

an uninsured motor vehicle as to each of the injured passengers.

Presumably the parties sought to determine the extent to which each

injured passenger is entitled to compensati on at mediation. We

therefore do not address the Dunnings’ argument.

5 the summary judgment evidence, the district court entered a final

judgment holding that Holloway was insure d under the Progressive

policy and that Hol loway, Morris, Lutz, and Portis were insureds

for purposes of uninsured motorist coverage under the Nationwide

policy. The district court adopted the policy limits to which the

parties agreed at trial. The policy limits are not contested on

appeal. 1

II. Standard of Review

The parties contest whether we should review the evidence as

if the district court granted summary judgment or whether we should

review the record as an appeal from a nonjury civil trial. At the

beginning of the scheduled nonjury trial, Nationwide and

Progressive stated that they would not present any additional

evidence than that already submit ted in their summary judgment

motions. The district court declined to hear the same evidence a6

second time and instead adopted its reasoning in its August 9, 1999

summary judgment Memorandum Opinion.

The district court was free to make any factual and

credibility determinations from the documentary and testimonial

evidence already in the re cord. It was not necessary for the

parties to resubmit evidence that was already in the record at the

nonjury trial. We therefore employ the standard of review

applicable to any other nonjury civil case. We review conclusions

of law de novo and findings of fact for clear error. See Switzer v.

Wal-Mart Stores, Inc. , 52 F.3d 1294, 1298 (5th Cir. 1995). “When

reviewing mixed questions of law and fact, [we]

. . . reverse only

if the findings are based on a misunderstanding of the law or a

clearly erroneous view of the facts.” T okyo Marine & Fire Ins. Co.

v. FLORA MV , 235 F.3d 963, 966 (5th Cir. 2001).

III. The Progressive Policy

Progressive contends that the injuries caused by Paul

Hol loway’s negligence are not covered under its policy because

Holloway was not a permis sive user of Mr. Dunning’s car. The

Progressive policy provides coverage for bodily injury “for which

an insured person beco mes legally responsible because of an

accident arising out of the ownership, maintenance, or use of a

vehicle.” The policy’s omnibus clause defines an “insured person”

as

(4) you with respect to an accident arising out of the

maintenance or use of any vehicle with the express or7

implied permission of the owner of the vehicle.

“Owner of the vehicle” means a person who “holds legal title to the

vehicle.” Therefore, if Paul Holloway had the express or implied

permi ssion of Joe Dunning, the vehicle’s owner, then the

Progressi ve policy will cover bodily injuries arising from the

accident. Since Mr. Dunning did not expressly permit Holloway to

use the car on the night of the accident, we address only whether

Mr. Dunning’s permission should be implied.

A. Mississippi Law Governing Permissive Use

Permissive use of automobiles is divided into two categories

under Mississippi law. S ee Vaughn v. State Farm Mutual Auto. Ins.

Co.

, 359 So.2d 339, 341-42 (Miss. 1978), overruled on other

grounds

, State Farm Mutual Auto. Ins. Co. v. Mettetal

, 534 So.2d

189 (Miss. 1988). First, permission may arise if a vehicle owner

gives restricted permission to a permittee, and the use of the

vehicle is within the boundaries of the owner’s restrictions. An

insured’s policy will cover injuries resulting from the use of a

vehicle so long as the use is “within the time, geographic and

purpo se limitations of the permission granted, and [constitutes]

only a minor deviation from the permission granted .” Id. at 342

(citing Travelers Indemnity Co. v. Watkins , 209 So.2d 630 (Miss.

1968)).

The second category pertains to a permittee’s unrestricted use

of an insured automobile. S ee id. I f a permittee has unrestricted8

use, then injuries arising from the operation of the vehicle by a

third party will be covered as long as the third party uses the

vehicle to serve some purpose of the permittee. S ee id. (citing

International Serv. Ins. Co. v. Ballard

, 216 So.2d 535 (Miss.

1968)). Even if an owner places restrictions on the vehicle’s use,

courts may nonetheles s find that the owner’s permission is

unrestricted when a permittee has “broad and unfettered domination”

over the insured automobile. U nited States Fidelity & Guarantee

Co. v. Stafford

, 253 So.2d 388, 392 (Miss. 1971), overruled on

other grounds

, State Farm Mutual Auto. Ins. Co. v. Mettetal

, 534

So.2d 189 (Miss. 1988). If the permittee has broad and unfettered

domination, then the owner’s permission may, in certain

circumstances, be implie d. See id . Mississippi courts have

expressed these guidelines in the following manner:

The “general rule” that a permittee may not allow a

third party to “use” the named insured’s car has

generally been held not to preclude r ecovery under the

omnibus clause where (1) the original permittee is riding

in the car with the second permittee at the time of the

accident, or (2) the second permittee, in using the

vehicle, is serving some purpose of the original

permittee. The courts generally reason that under such

circumstances the second permittee is “operating” the car

for the “use of the first permittee” and that such “use”9

is within the coverage of the omnibus clause.

Stafford

, 253 So.2d at 392 (quoting 7 A M

. J UR

. Automobile Insurance

§ 117 (1963)). The court continued:

It is recognized that as a general rule the use of

an automobile by a third person is not protected where

the owner has expressly forbi dden it. Where, however,

the first permittee has “broad and unfettered domination”

over the insured automobile, under certain circumstances

permission of the insured may be implied. In particular,

this is true where the operation by the second permittee

serves some purpose of the first permittee.

Id. (quoting National Farmers Union Prop. & Cas. Co. v. State Farm

Mut. Auto Ins. Co. , 227 F. Supp. 542 (Mont. 1967)).

The Mississippi Supreme Court applied these guidelines in the

f ollowing three cases. In S tafford

, supra

, Wayne Plunke t t

permitted his friend, C.B. Thompson, Jr., to race a 1962 Chevrolet

Impala owned by Wayne’s father, Roy Plunkett. S ee id. at 389.

During the race, Thompson struck and killed a bystander. See id

.

Wayne was a passenger in the car at the time of the accident. S ee

id

.

The evidence demonstrated that Way ne had full authority and

control over the automobile. S ee id. at 392. Mr. Plunkett allowed

his son to use the vehicle to travel to and from school, work, and

social events. S ee id

. Wayne made payments on the car and kept10

his own set of keys. S ee id. Although Roy Plunkett insisted that

he prohibited third parties from driving the car, the testimony

revealed that his son allowed his friends to use the vehicle in Mr.

Plunkett’s presence. S ee id

. Based on these facts, the court

concluded that there was sufficient evidence for the jury to

conclude that Mr. Plunkett impliedly permitted his son’s friend to

use the car. See id

.

In State Farm Mutual Automobile Insurance Com pany v. Moore

,

289 So.2d 909 (Miss. 1974), overruled on other grounds

, State Farm

Mutual Auto. Ins. Co. v. Mettetal

, 534 So.2d 189 (Miss. 1988),

James Arnold purchased a 1963 Chevrolet Corvair for his son, Jim

Arnold, but retained title to the car in his name. S ee id

. at 910.

Jim had the only set of keys to the car. See id . at 912. Jim’s

father testified that neither he nor his wife ever drove the car

and that he specifically instructed Jim not to permit others to use

it. S ee id

. at 910. He also insisted that he was unaware that any

of Jim’s friends had ever driven the car. S ee id

. On the night of

the accident, Jim allowed his friend, Jack Millican, to drive Jim

and a group of teenagers home. S ee id

. Millican overturned the

car on the way home, injuring a passenger. S ee id

. The court held

that there was sufficient evidence to support the trial court’s

conclusion that Jim had broad and unfettered domination o ver the

vehicle and that his friend had the implied consent of Jim’s

father. See id. at 912.2 We limit our review of the facts to whether Virginia had

unrestricted use of her father’s vehicle. S ee Vaughn

, 359 So.2d at

342. Under the law pertaining to restricted use, the Progressive

policy would not cover the injuries resulting f rom the accident.

11 In Vaughn

, supra , E.H. McGarrh gave his ex-wife unrestricted

permission to use his vehicle for the benefit of their children.

See Vaughn

, 359 So.2d at 340. The ex-wife would in turn allow

their daughter, Deborah, to drive the car on certain occasions.

See id

. Deborah had to request permission every time she used the

car. S ee id

. On the evening of the accident, Deborah received her

mother’s express permission to drive the car to a local skating

rink. S ee id

. At the skating rink, Deborah allowed Michael Vaughn

and James Creely to take the car on an errand. See id . Deborah

was not a passenger in the vehicle at the time of the accident.

See id . Applying the guidelines set forth in Stafford , the court

concluded that Vaughn and Creely did not have implied permission to

use the car. S ee id

. at 343. The court noted that the vehicle was

not being used for Deborah’s benefit, let alone for the benefit of

the first permittee, Deborah’s mother. See id.

B. Implied Permissive Use in this Case

In order to establish coverage under the Progressive policy,

the evidence must show that Virginia had broad and unfe ttered

domination over the insured vehicle and that Holloway’s operation

of the vehicle served some purpose of Virginia. S ee Stafford

, 253

So.2d at 392. 2 Appellants do not dispute that Holloway’s operationVirginia Dunning clearly deviated from her father’s restrictions by

allowing her boyfriend to drive the car to and from downtown

Memphis.

12 of the vehicle served the purpose of driving Virginia to Jennifer

Morris’s home. Rather, Appellants argue that Virginia did not have

sufficient authority and control over the vehicle.

The evidence is undisputed that Mr. Dunning withheld title to

the car and took responsibility for repairs. He instructed

Virginia not to allow others to drive the car and forbade her from

simply driving around town with a group of teenagers. Although

testimony reveals that Virginia often let Holloway drive the car,

Mr. Dunning was not aware of the practice. In addition to his

restrictions specific to the car, Mr. Dunning required Virginia to

seek his permission before going out with friends. He also

implemented a midnight curfew and other standing rules governing

her social outings. Based on this evidence, appellants argue that

Virginia did not have broad and unfettered domination over the

vehicle.

The term “broad and unfettered domination” has little meaning

apart from the public policies for which the term was created to

address. “Unfettered,” in a literal sense, means free from

restraints or limitations. See W EBSTER ’ S T HIRD I NTERNATIONAL D ICTIONARY

2495 (1981). In contrast to the literal definition, the

Mississippi Supreme Court adopted the term to address situations in

which a vehicle owner restricts third party use. S ee Stafford

, 25313

So.2d at 393 (stating that “broad and unfettered domination” is an

exception to the general rule that permission would not be implied

when a vehicle owner expressly prohibits use by a third party). As

an exception to a vehicle owner’s restrictions on third party use,

the court’s adoption of the “broad and unfettered domination”

language follows Mississippi public policy favoring protection of

individuals injured by careless drivers. S ee id

. (citing

Traveler’s Indem. Co. v. Watkins

, 209 So.2d 630 (Miss. 1968)).

“[T]he purpose of the omnibus clause is to protect the named

insured, the person withi n the omnibus clause, and the public

generally and its members injured by the negligent operation of the

insured automobile on a public highway.” Id. See also Thomas v.

Deviney Constr. Co.

, 458 So.2d 694, 697 (Miss. 1984). Any

limitation on coverage should be liberally construed in favor of

the insured. S ee Lewis v. Allstate Ins. Co.

, 73 0 So.2d 65, 68

(Miss. 1999). Guided by Mississippi public policy and the court’s

decisions in Stafford

, Moore

, and Vaughn

, we find that Virginia had

broad and unfettered control over her father’s vehicle.

The undisputed evidence establishes that Virginia ch ose the

car at the dealership, made monthly car payments, and kept her own

set of keys. While Mr. Dunning occasionally used the car, Virginia

was the primary driver. She drove the car to school, after-school

activities, work, and social outings. Apart from her father’s

restrictions that she prohibit others from driving the car and his14

instruction that she not drive around with other teenagers,

Virginia was free to use the car on a daily basis as she saw fit.

Even though she was required to ask permission before social

outings, she never was required to ask specific permission to use

the car. In effect, Mr. Dunning’s part in purchasing the car was

for Virginia’s benefit alone. Any restrictions concerning the

places she drove and the times she used the car were incidental to

her parent’s general rules governing her social life.

Appellants cite Federated Mut. Ins. Co. v. Davis

, 919 F. Supp.

1001 (S.D. Miss. 1995), as persuasive authority for their position.

Indeed, the facts in Davis closely resemble the facts in this case.

Christi Anthony’s father bought a car as an extra family vehicle

for Christi to use as transportation to sc hool and school

functions. Her father required specific permission to use the car

for any other purpose, including social outings. The district

court concluded that Christi Anthony did not have broad and

unfettered domination over the car as a matter of law.

The district court’s conclusion in Davis could potentially be

construed as holding that a teenage driver cannot, as a matter of

law, have broad and unfettered domination over his or her parents’

vehicle as long as the parents place general limitations on the

car’s use. We are not persuaded that general parental restrictions

over the use of a vehicle will preclude coverage for the negligence

of a third party driver in every case. Barring coverage whenever3 We can n ot review the terms of the Nationwide endorsement

pertaining to uninsured motorist coverage for bodily injury. The

copies of the endorsement in the record are incomplete. Page two

of the endorsement, which presumably states the relevant terms of

uninsured motorist coverage, is missing.

15 a parent places the slightest restrictions on the use of a car

undermines Mississippi’s public policy favoring coverage for

injured persons. Instead, courts must review the particular facts

of each case to determine whether the permittee exercised

sufficient authority and control over the owner’s vehicle. See

Moore , 289 So.2d at 912.

In this case, the district court did not err by finding that

Virginia had broad and unfettered domination over the use of the

automobile. Accordingly, we find that Paul Holloway had Mr.

Dunning’s implied permission to use the vehicle on the night of the

accident. The Progressive policy therefore covers bodily injuries

resulting from the accident to the extent of the policy limits.

IV. Coverage Under the Nationwide Policy

Nationwide contends that Jennifer Morris, Courtney Lutz, and

Craig Portis were not insured as th at term is defined in the

uninsured motorist provisions of its policy and the Mississippi

Uninsured Motorist Act. 3 “In order to recover the UM benefits

provided by an insurance policy, the claimant must first prove that

he/she is an ‘insured’ under either the insurance policy and/or the

UM statute.” D avis

, 613 So.2d at 1180. Mississippi’s uninsured

motorist statute provides the following definition of an “insured”:4 See, e.g

, Nationwide Mut. Ins. Co. v. Harleysville M ut. Cas.

Co. , 125 S.E.2d 840, 843 (Va. App. 1962) (holding that a guest in

“a motor vehicle to whic h the policy applies” means a guest in a

vehicle that is being used with the express or implied permission

of the owner). B ut see Unisun Ins. Co. v. Schmidt

, 529 S.E.2d 280,

282 (S.C. 2000) (declining to adopt such a strict interpretation of

a “motor vehicle to which the policy applies”).

16 (b) The term “insured” shall mean the named insured

and, while resident of the same household, the spouse of

any such named insured and relatives of either, while in

a motor vehicle or otherwis e, and any person who uses,

with the cons ent, express or implied, of the named

insured, the motor vehicle to which the policy applies,

and a guest in such motor vehicle to which the policy

applies, or the personal representative of any of the

above. The definition of the term “insured” in this

section shall apply only to the uninsured m otorist

portion of the policy.

M ISS

. C ODE A NN . § 83-11-103(b).

Nationwide argues that the injured passengers are not insureds

because Paul Holloway did not have implied permission to use the

vehicle. In order to qualify as a guest in an uninsured motor

vehicle, Nationwide contends that the vehicle must be used with the

consent, express or implied, of the owner. 4 Mississippi courts

have not addressed this issue and, since we have already concluded

that Paul Holloway had implied permission to use the vehicle, there

is no need to resolve the issue on appeal. As guests in the17

vehicle driven by Paul Holloway with Joe Dunnning, Jr.’s implied

c onsent, Jennifer Morris, Courtney Lutz, and Craig Portis were

insureds for purposes of Nationwide’s uninsured motorist coverage.

V. Conclusion

We affirm the district court’s finding that Paul Holloway had

implied permission to use the vehicle for purposes of coverage

under the Progressive policy. We also affirm the district court’s

determination that the injured passenge r s were “insureds” for

purposes of coverage under Mississippi’s uninsured motorist

statute.

AFFIRMED.