Declaratory-judgment action arising out of an all-terrain vehicle (ATV) accident; “Insured person” & “permission”; Implied permission; Credibility; Franks v Franks; Distinguishing Price v Austin

The court held that the trial court did not err by granting defendant-insurer summary disposition of plaintiff’s action seeking a declaratory judgment related to an ATV accident. Plaintiff was injured while riding as a passenger on an ATV driven by his friend (S) and owned by S’s stepdad (D). He subsequently filed a complaint seeking a declaratory judgment that defendant was obligated to defend S in any lawsuit related to the accident and provide liability coverage under a policy held by D and his wife (A). The trial court granted summary disposition for defendant, finding there was no genuine issue of material fact that S did not have permission to use the ATV. On appeal, the court rejected plaintiff’s argument that the trial court erred because “there were issues of fact whether plaintiff had implied permission to use the ATV and there were credibility issues with” the testimony of D and A. The evidence showed D was aware S “had used the ATV in a limited manner in the past after asking permission.” Plaintiff claimed that A had given S “implied permission to use the ATV because she assumed that he had been driving [it] on the family property when she found out about the accident. This argument mischaracterizes [A’s] deposition testimony, however, as she stated she assumed the accident had occurred near the cabin because the ATV did not have a license plate or off-road tags.” After the accident, S informed A “that he had been using the ATV at the time of the accident.” However, there was “nothing in the record that supports plaintiff’s contention that [S] had implied permission to use the ATV. [A] and [D] testified that they did not know [S] had been using” it, and S, A, and D all agreed S needed to ask D “for permission before he could use the ATV. There was also no dispute that there was a complete prohibition on use of the ATV while intoxicated. As nothing in the record supports that [S] had express or implied permission to use the ATV, reasonable minds could not differ as to this issue, and the trial court did not err when it granted summary disposition in favor of defendant on the basis that plaintiff was not an insured under the meaning of the relevant policies.” The court also rejected plaintiff’s claim that the testimony of D and A “was not credible because they have an incentive to 'shield themselves from liability,' and” they have animus toward plaintiff’s family, noting “nothing in the record would support such an assertion, as the testimony of” S, D, and A “was consistent on the issue of permission, as all three testified that [S] did not have permission, and [S] admitted he used the ATV without permission.” Unlike in Price, “the testimony was consistent among all witnesses that [S] was not permitted to use the ATV without permission or while intoxicated.” Affirmed.