NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENT IAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

METROPOLITAN CASUALTY INSURANCE COMPANY
,

Plaintiff/Appell ee ,

v.

BRENDA CROOK, as the aunt of her minor niece, ALEXIS EVANS;

CAMEO CARROLL
, Defendant s /Appell ants

.
No. 1 CA

- CV 18

- 0363

Appeal from the Superior Court in Yavapai County

No. P1300 CV 201600094 The Honorable David L. Mackey
, Judge

AFFIRMED

COUNSEL

Peshkin & Kotalik, PC , Phoenix By E.J. Kotalik, Jr. Counsel for Plaintiff/Appell ee
Goldberg & Osborne LLP, Mesa By Ryan Lamb C ounsel for Defendant s

/Appell ants FILED 4-23-2019METROPOLITAN v. CROOK, et al. Decision of the Court

2 MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

J O N E S , Judge:

¶1 Appellant s challenge the trial court’s summary judgment ruling finding Cameo Carroll was not covered under an automobile policy issued to Laci Navarro by Metropolitan Casualty Insurance Company (Metropolitan)

. For the following re asons, w e affirm.

FACT S AND PROCEDURAL HISTORY

¶2 In July 2010, Navarro loaned a 2005 Toyota Corolla to her mother, Terri Martin, with specific instructions not to let anyone other than herself and her then

- husband drive it. Martin agreed to this condition.

¶3 After Martin damaged the Corolla , she had it towed to Carroll’s father’s repair shop. When the repairs were complete in September 2010 , Martin asked Carroll, her employee and friend , to deliver the Corolla to her. On the return trip, the Corolla was struck by another vehicle as Carroll pulled out of a gas station parking lot . Carroll’s three

year

- old daughter , A.E., was seriously injured in the collision

. ¶4 A.E. , through her aunt, Brenda Crook, sought compens ation for her injuries from an insurance policy (the Policy) issued by Metropolitan premised upon Carroll’s negligent operation of the Corolla . The Policy was issued to Navarro and James London II and designated only Navarro and London as named insured s

. In February 2016, Metropolitan filed a complaint seeking a declaration that Carroll was not an “insured” under the P olicy and therefore Metropolitan had no obligation to defend or indemnify any claims against Carroll arising out of the September 2010

ac cident

. ¶5 After considering t he parties ’ competing motions for summary judgment, the trial court entered judgment in Metropolitan’s favor. Appellants timely appealed the final judgment , and w e haveMETROPOLITAN v. CROOK, et al. Decision of the Court

3 jurisdiction pursuant to Arizona Revised Statutes (A.R.S. ) §§ 12

- 120.21(A)(1) 1 and

- 2101(A)(1)

.
DISCUSSION

¶6 Appellants challenge the trial court’s order granting summary judgment in Metropolitan’s favor on its complaint for declaratory relief. The interpretation of insurance contracts presents a question of law subject to de novo review. First Am. Title Ins. v. Johnson Bank , 239 Ariz. 348, 350, ¶ 8 (2016) ( quo ting First Am. Title Ins. v. Action Acquisitions, L.L.C. , 218 Ariz. 394, 397, ¶ 8 (2008)). We interpret such contracts in accordance with the plain and ordinary meaning of the words contained therein. Id. (citing Sparks v. Republic Nat ’l Life Ins. , 132 Ariz. 529, 534 (1982) )

. In the course of our review, “ we determine de novo whether any genui ne disputes of material fact exist and whether the trial court correctly applied the law, viewing the facts in the light most favorable to

. . . the non

- prevailing party. ” Robertson v. Alling , 237 Ariz. 345, 347, ¶ 8 (2015) (citing Ariz. R. Civ. P. 56(a), and BMO Harris Bank N.A. v. Wildwood Creek Ranch, L.L.C. , 236 Ariz. 363, 365, ¶ 7 (2015)).

¶7 The Policy ’s insuring clause states :

We will pay damages for bodily injury and property damage to others for which the law holds an insured responsible because of an accident which results from the ownership, maintenance or use of a covered automobile , a non - owned automobile or trailer while being used with a covered automobile or non - owned automobile

. We will defend the insured , at our expen se with attorneys of our choice, against any suit or claim seeking these damages

. We may investigate, negotiate o r settle any such suit or claim.

An “insured” under the Policy is defined to include : with respect to a covered automobile :

a. you ;

b. any relative ; or

1 Absent material changes from the relevant date, we cite the current version of rules and statutes.METROPOLITAN v. CROOK, et al. Decision of the Court

4 c. any other person using it within the scope of
your permission.
The Policy also define s “you ” as “ the person(s) named in the Declaration of this policy as named insured and the spouse of such person or persons if a resident of the same hous ehold.” The Policy ’s terms are consistent with Arizona’s omnibus statute, which requires that all motor vehicle liability policies issued in Arizona “insure the person named in the policy as the insured and any other person, as insured, using the motor vehicle or motor vehicles with the express or implied permission of the named insured .” A.R.S. § 28

- 4009(A)(2). We construe the om n ibus statute broadly in favor of providing coverage for permissive drivers. Hille v. Safeco Ins. Co. of Am
., 25 Ariz. App. 353, 354 (1975) . But it i s A ppellants ’ burden to present facts establishing that Carroll had the permission ne cessary to trigger coverage

. Home Ins. v. Keeley , 20 Ariz. App. 200, 202 (1973) (citing Hartford Accident & Indem. Co. v. Shaw , 273 F.2d 133 , 1 37 (8th Cir. 1959), and Allstate Ins. v. Smith
, 471 S.W.2d 620
, 624 (Tex. Civ. App. 1971))

. ¶8 Permission may be express or implied. Id. (citing Jurd v. Pac. Indem . Co. , 371 P.3d 569
, 572 (Cal. 1962)). However, b oth the Policy and the omnibus statute direct that such permission come from a named insured. See supra ¶ 7

. ¶9 Appellants do not contend that ei ther of the named insureds

— Navarro or London

— gave Carroll express permission to drive the Corolla , arguing instea d that “there were two grants of authority to use the [Corolla]”

— one from Navarro to Martin and a second from Martin to Carroll

. Even assuming permission could be granted in a two

- step manner, t he undisputed evidence indicates Navarro specifically instructed Martin not to let anyone other than herself or her husband drive the Corolla. Accordingly, Carroll did not have express permission from a named insured to drive the Corolla.

¶10 Appellants also contend that Carroll had implied permission to drive the Corolla. Permission to use a vehicle, without more, does not authorize the permittee to allow another to use it. State Farm Mut. Auto Ins. v. Williamson , 331 F.2d 517, 5 19 (9th Cir. 1964) (citation omitted). However:

I f an owner reasonably s hould anticipate that, in view of the scope and nature of the permission granted (even if less than unfettered dominion), and because of the permittee’s relationship to another, the permittee will allow that otherMETROPOLITAN v. CROOK, et al. Decision of the Court

5 [person] to use the car, the owner ’ s permission, without more, can be found to encompass permission for that use

.
Id. at 520. Thus “ ‘ [i]mplied permission’ may be inferred where there is a course of conduct or relationship between the parties indicative of mutual acquiescence or a lack of objection under circumstances signifying assent.” Keeley , 20 Ariz. App. at 202 (collecting cases).

¶11 No such course of conduct implying that Carroll received permission from the named insureds exists here

. Th ere is no evidence that Navarro or London knew w ho Carroll was before the accident, and Carroll did not know who owned or insured the Corolla. Nor is there any indication that Navarro or London knew or had reason to know that Martin had permitted or would permit other persons to drive the Corolla against Navarro’s instructions such that a fact question regarding implied permission would prevent summary judgment. See Williamson , 331 F.2d at 520 ( affirming the jury’s finding that the insureds’ twenty

- year

- old son had implied permission to allow his friends to operate the insured vehicle where evidence showed the son frequently disregarded the insureds’ rules limiting his use of the vehicle without significant consequence). Therefore, Carroll did not have implied permission to drive the Corolla.

¶12 Fina lly, Appellants argue Martin had apparent authority to grant Carroll permission to drive the Corolla. Apparent authority arises when a principal induces third persons to believe that a person was h er agent, even if s he conveyed no actual or express author ity to that person

. See Escareno v. Kindred Nursing Ctrs. W., L.L.C. , 239 Ariz. 126, 130, ¶ 8 (App. 2016) (quoting Reed v. Gershweir , 160 Ariz. 203, 205 (App. 1989))

. Again, there is no evidence that Navarro or London
, the p erson s capable of extending the benefits of the Policy , ever knew of or communicated with Carroll prior to the accident

. There is no apparent authority.

¶13 Because the undisputed evidence establishes that Carroll was not a named insured, was not a relative of a named insured, and did not have express or implied permission from a named insured to drive the Corolla, the trial court did not err in concluding as a matter of law that she was not an “insured” under the Policy

. 2

2 Because we conclude Carroll was not an “insured” covered by the Policy, we need not and do not address whether her decision to drive the Corolla to a gas station before returning it to Martin removed her from coverage.METROPOLITAN v. CROOK, et al. Decision of the Court

6 CONCLUSION

¶14 The trial court’s order is affirmed.

¶15 Both Appellants and Metropolitan request an award of attorneys’ fees and costs incurred on appeal pursuant to A.R.S. § 12

- 341.01 (A) . Appellants are not successful parties, and their request is denied. As the successful party to a claim arising out of contract, Metropoli tan is awarded its reasonable attorneys’ fees and costs incurred on appeal upon compliance with ARCAP 21(b). See Nationwide Mut. Ins. v. Granillo , 117 Ariz. 389, 395 (App. 1977) (awarding attorneys ’ fees under A.R.S. § 12

- 341.01 (A) to the successful party in an action seeking a declaratory judgment interpreting an insurance contract).