Trevor Taft v. Jumbo Foods, Inc. , 155 Idaho 511 ( 2013 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 39364
TREVOR TAFT, a minor, and DAVID and )
WENDY TAFT, husband and wife, )
)
Plaintiffs-Appellants, )
)
v. )
) Pocatello, August 2013 Term
JUMBO FOODS, INC., )
) 2013 Opinion No. 121
Defendant-Respondent, )
) Filed: November 26, 2013
and )
) Stephen W. Kenyon, Clerk
DEREK B. GUMMERSALL, a minor, CLAY )
and JULIE GUMMERSALL, husband and )
wife, )
)
Defendants. )
______________________________________ )
Appeal from the District Court of the Sixth Judicial District of the State of Idaho,
Oneida County. Hon. Robert C. Naftz, District Judge.
The judgment of the district court is affirmed, in part, and vacated, in part, and the
case is remanded.
May, Rammell & Thomas, Chtd., Pocatello, for appellants. Bron Rammell
argued.
Cooper & Larsen, Pocatello, for respondent. Gary L. Cooper argued.
_____________________
J. JONES, Justice.
This appeal arises from litigation involving a motor vehicle accident in Oneida County.
Passenger Trevor Taft was injured when driver Derek Gummersall, the son of Clay Gummersall,
lost control of a 1988 Ford Ranger. At the time of the accident, Clay was an employee of Jumbo
Foods, Inc., in whose name the vehicle was titled. David, Wendy, and Trevor Taft (“the Tafts”)
sued Jumbo Foods under theories of negligent entrustment and imputed negligence, arguing that
Jumbo Foods owned the Ranger, and thus had a right to control it. Jumbo Foods countered that it
sold the Ranger to Clay Gummersall before the accident occurred, and thus could not be held
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liable. The district court granted summary judgment in favor of Jumbo Foods and the Tafts
timely appealed. We affirm in part, vacate in part, and remand.
I.
FACTUAL AND PROCEDURAL HISTORY
On July 6, 2008, Derek Gummersall, the minor son of Clay and Julie Gummersall, lost
control of the vehicle he was driving, a 1998 Ford Ranger pickup truck, while traveling through
Oneida County, Idaho. Derek’s passenger, Appellant Trevor Taft, was severely injured as a
result. Trevor and his parents commenced this lawsuit to recover damages from Derek, Clay, and
Julie Gummersall, as well as from Clay’s employer, Jumbo Foods. The Ranger had been used by
Clay as a company vehicle for his employment as a sales person for Jumbo Foods.
Sometime in June 2008, Clay began having discussions with Don Hartzell, the operations
manager of Jumbo Foods, about purchasing the Ranger. Clay testified that on July 1, 2008, he
prepared a handwritten agreement, which indicated that Jumbo Foods was “selling” him the
Ranger for $5,000. Hartzell stated that he authorized Clay to sign the document on his behalf.
Clay used this document to obtain insurance on the vehicle. Jenifer Wiscombe, an agent for
American Family Mutual Insurance Company, testified that Clay applied for insurance on the
Ranger “as of July 1, 2008.” The application for insurance indicates that the application was
taken on July 7, 2008—the day after the accident—but shows the “effective date” to be July 1,
2008.
On July 18, 2008, twelve days after the accident, Jumbo Foods transferred title to the
Ranger to Clay. In a bill of sale, also dated July 18, 2008, Jumbo Foods sold the Ranger to Clay
for $1,000. Hartzell said that “[t]he rest of the paperwork finalizing the sales transaction which
had been agreed upon on July 1, 2008 was finalized on July 18, 2008.” A cashier’s check in the
amount of $1,000 was prepared on July 8, 2008, but Jumbo Foods did not receive it until July 18,
2008. The State of Washington, where the Ranger was titled, was notified of the sale by Jumbo
Foods that same day.
The Tafts commenced their lawsuit on August 6, 2010, more than two years after the
accident. The claims against the Gummersalls settled, and Jumbo Foods was left as the only
defendant. On May 2, 2011, Jumbo Foods moved for summary judgment. In support of its
motion, Jumbo Foods provided the affidavits of Clay, Hartzell, and Wiscombe. The Tafts moved
to strike portions of the affidavits of Clay, Hartzell, and Wiscombe. The district court entered a
memorandum decision on September 27, 2011, denying the Tafts’ motions to strike, holding that
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Jumbo Foods is not liable under the theories of imputed liability and negligent entrustment and
that the independent claims of David and Wendy Taft were barred by the two-year statute of
limitations. The Tafts timely appealed.
II.
ISSUES ON APPEAL
I. Did the district court abuse its discretion in denying the motions to strike?
II. Did the district court err in granting summary judgment on the issue of imputed
liability under I.C. § 49-2417?
III. Did the district court err in granting summary judgment on the issue of negligent
entrustment?
IV. Did the district court err in applying the statute of limitations?
V. Are the Tafts entitled to attorney fees under I.C. § 12-121?
III.
DISCUSSION
A. Standard of Review.
“Appellate review of a district court’s ruling on a motion for summary judgment is the
same as that required of the district judge when ruling on the motion.” Steele v. Spokesman-
Review, 138 Idaho 249, 251, 61 P.3d 606, 608 (2002). Under I.R.C.P. 56(c), summary judgment
is appropriate when “the pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” I.R.C.P. 56(c). This Court must “liberally
construe . . . the record in favor of the party opposing the motion and draw . . . all reasonable
inferences and conclusions in that party’s favor.” Steele, 138 Idaho at 251, 61 P.3d at 608.
Summary judgment is not appropriate “[i]f the evidence is conflicting on material issues, or if
reasonable minds could reach different conclusions.” Peterson v. Romine, 131 Idaho 537, 540,
960 P.2d 1266, 1269 (1998).
“This Court applies an abuse of discretion standard when reviewing a trial court’s
determination of the admissibility of testimony offered in connection with a motion for summary
judgment.” J-U-B Engineers, Inc. v. Security Ins. Co. of Hartford, 146 Idaho 311, 315, 193 P.3d
858, 862 (2008). “To determine whether a trial court abused its discretion, this Court inquires
whether the trial court: (1) correctly perceived the issue as discretionary; (2) acted within the
boundaries of its discretion; and (3) acted consistently with applicable legal standards and
reached its decision by an exercise of reason.” Id.
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B. The district court did not abuse its discretion in denying the Tafts’ motions to strike
portions of the affidavits of Clay, Hartzell, and Wiscombe.
In denying the Tafts’ motions to strike portions of Jumbo Foods’ affidavits, the district
court found that they were based on personal knowledge and that references to “ownership” and
“control” did not amount to legal conclusions. The Tafts contend that the affidavits are
“conclusory, self-serving statements that involve mere legal conclusions,” and that “the decision
of the District Court not to strike these statements amounts to an abuse of discretion.” Jumbo
Foods counters that the trial court acted within the bounds of its discretion when it “determined
that words like possession, control and ownership are expressions that ordinary people use in
everyday conversations when describing their business affairs.” Additionally, Jumbo Foods
contends that the district court properly exercised its discretion in finding Wiscombe’s affidavit
admissible because Wiscombe testified from personal knowledge. Because the district court
reached its decision by an exercise of reason, it did not abuse its discretion in denying the Tafts’
motions to strike.
“When considering evidence presented in support of or opposition to a motion for
summary judgment, a court can only consider material which would be admissible at trial.” Gem
State Ins. Co. v. Hutchison, 145 Idaho 10, 14, 175 P.3d 172, 176 (2007). As a rule, “[s]upporting
and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to
the matters stated therein.” I.R.C.P. 56(e). Thus, an affidavit that is conclusory, based on
hearsay, or not supported by personal knowledge does not satisfy the requirements of I.R.C.P.
56(e). State v. Shama Resources Ltd. P’ship, 127 Idaho 267, 271, 899 P.2d 977, 981 (1995).
The Tafts allege that portions of the affidavits of both Clay and Hartzell should be
stricken because they contain “conclusory, self-serving statements that involve mere legal
conclusions.” In particular, the Tafts take issue with Hartzell’s statement that Clay “had
possession and total control over the use of the [Ranger].” The disputed portion of Hartzell’s
affidavit reads: “Once the agreement was signed on July 1, 2008, Clay Gummersall had
possession and total control over the use of the vehicle. It was Mr. Gummersall’s vehicle from
that point forward.” Similarly, the Tafts argue that Clay’s affidavit is impermissibly conclusory
where he states: “[B]ased on the verbal agreement in mid June 2008 I considered myself the
owner of the vehicle and I had exclusive possession and complete control over the use of the
vehicle from the time of the verbal agreement forward.”
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The district court found that both affidavits were based on personal knowledge because
“[b]oth Mr. Gummersall and Mr. Hartzell can testify about who had possession of the vehicle at
specific times and who had control over the vehicle at specific times.” The district court
determined that “[t]he references to ownership, possession, and control contained within the
affidavits do not amount to legal conclusions, but are expressions an ordinary person would use
in everyday conversation and in describing his or her business affairs.”
The Tafts assert that paragraph 2 of Wiscombe’s affidavit contains an impermissible
conclusion unsupported by the facts and that Wiscombe failed to demonstrate she had any
personal knowledge of the information contained in her affidavit. Paragraph 2 of Wiscombe’s
affidavit reads: “On July 1, 2008, Clay Gummersall advised that he had acquired a new vehicle,
a 1998 Ford Ranger . . . and applied for insurance on said vehicle as of July 1, 2008.” Wiscombe
was not the agent who spoke with Clay on this occasion. Jumbo Foods counters that Wiscombe
did in fact testify from personal knowledge because, while Wiscombe was “not the
Gummersall’s agent in July 2008, Wiscombe was an agent of American Family Insurance in the
same office with control of the pertinent records from which she could testify by personal
knowledge.”
The district court determined that Wiscombe’s affidavit was based on personal
knowledge because:
Even though Ms. Wiscombe was not the agent of record, that fact does not
support the Plaintiffs’ contention that she had no knowledge of the matters stated
in her affidavit. As an agent of American Family Insurance, Ms. Wiscombe has
control of the pertinent records and made her affidavit from personal knowledge.
In addition, the fact that the written application was not signed until after the
accident does not lead to the conclusion that the vehicle was not actually acquired
until after the accident since coverage for the Ford Ranger was unequivocally
effective as of July 1, 2008. This Court cannot reasonably infer that the insurance
company bound its coverage of the truck retroactively after the accident had
occurred.
The district court properly exercised its discretion with regard to all three affidavits in
ruling on the Tafts’ motions to strike. First, the district court specifically observed that an abuse
of discretion standard applies when determining the admissibility of the affidavit testimony.
Second, the district court acted consistently with I.R.C.P. 56 and I.R.E. 602, which provides that
“[e]vidence to prove personal knowledge may, but need not, consist of the testimony of the
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witness.” 1 Third, the district court reached its conclusion by an exercise of reason—it determined
that “possession” and “control” were not conclusory terms, but rather words ordinarily used in
“everyday conversation.” And, it reasoned that Wiscombe had personal knowledge because she
was an American Family Insurance agent and had access to all the relevant insurance files.
Therefore, the district court did not abuse its discretion when it denied the Tafts’ motions to
strike portions of the affidavits of Clay, Hartzell, and Wiscombe. 2
C. The district court erred when it granted summary judgment on the issue of imputed
liability under I.C. § 49-2417.
The district court found that Jumbo Foods could not be liable under I.C. § 49-2417
because Jumbo Foods “clearly did not have possession or control of the Ranger at the time of the
accident.” The Tafts contend that Jumbo Foods was the owner of the Ranger until July 18 and,
therefore, had a right to control it. Conversely, Jumbo Foods argues that, although it had title to
the Ranger at the time of the accident, that fact is not controlling.
Pursuant to I.C. § 49-2417(1), “[e]very owner of a motor vehicle is liable and responsible
for the death of or injury to a person . . . resulting from negligence in the operation of his motor
vehicle . . . by any person using or operating the vehicle with the permission, expressed or
implied, of the owner.” An “owner” is someone “having the property in or title to a vehicle.” I.C.
§ 49-116(3). The owner of a vehicle is not automatically liable for the negligence of just any
person driving it. Idaho Code § 49-2417(1) 3 “imputes a driver’s negligence to the owner of an
automobile only when a ‘person using or operating the same with the permission, expressed or
implied, of such owner,’ is driving.” Colborn v. Freeman, 98 Idaho 427, 428, 566 P.2d 376, 377
(1977). Thus, an owner’s liability is dependent upon a finding that the negligent driver was
operating with permission of the owner. “[I]mplied permission is a question of fact for the jury,
unless the evidence is subject to only one reasonable conclusion that may be deduced from the
evidence.” Allied Group Ins. Co. v. Allstate Ins. Co., 123 Idaho 733, 738, 852 P.2d 485, 490
1
Paragraph 1 of Wiscombe’s affidavit reads: “I am an insurance agent for American Family Mutual Insurance
Company and make this affidavit of my own personal knowledge and information.”
2
Perhaps a better objection by the Tafts would have been based on hearsay. However, while a trial court has the
discretion to decide whether an affidavit offered in conjunction with a motion for summary judgment is admissible if
neither party raises the issue, this Court has “not required the trial court to rule on the admissibility of the affidavit
when there is no objection to it.” Esser Elec. v. Lost River Ballistics Tech. Inc., 145 Idaho 912, 917, 188 P.3d 854,
859 (2008). In fact, “[i]f there is no timely objection, the trial court can grant summary judgment based upon an
affidavit that does not comply with Rule 56(e).” Id. Thus, because the Tafts did not object on hearsay grounds, the
district court could properly consider those portions of the affidavits based upon hearsay.
3
The Colborn Court cited former I.C. § 49-1404, which is the predecessor of the current I.C. § 49-2417(1).
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(1993). However, “[n]o meaningful permission can be given by one without the right to control,
or in possession of, the vehicle.” Lopez v. Langer, 114 Idaho 873, 876–77, 761 P.2d 1225, 1228–
29 (1988) (emphasis added).
In granting summary judgment, the district court stated that “based on the clear and
undisputed facts, and in considering those facts in the light most favorable to the Plaintiffs, this
Court finds that Jumbo Foods is not liable to the Plaintiffs under the theories of imputed statutory
liability or negligent entrustment because Jumbo Foods did not have possession or control of the
Ford Ranger pickup truck on the date of the accident.” The district court cited the following facts
in support of its determination: (1) the Ranger had been moved from the Jumbo Foods’ lot to the
Gummersall residence; (2) Clay had the keys to the Ranger and gave his son permission to drive
it; (3) Clay sought to insure the vehicle as his own; (4) the Ranger was no longer being used in
Jumbo Foods’ business; and (5) Clay and Hartzell both alleged that they subjectively believed
Clay had exclusive possession and control of the Ranger by at least July 1, 2008. The district
court stated that “[b]ecause title and registration are not necessary to control a vehicle, title alone
is not sufficient to overcome the direct evidence of possession and control.”
The Tafts assert that the district court erred by failing to draw all reasonable inferences in
their favor. They claim the record supports an inference that Jumbo Foods still had the right to
control the Ranger at the time of the accident. They say that the July 1 agreement was
unenforceable because there was “no meeting of the minds before the time of the accident,”
pointing out that the $5,000 price in the handwritten July 1 agreement was substantially less than
the $1,000 price in the July 18 bill of sale. Thus, because there was no meeting of the minds on
the sale terms, Jumbo Foods “did not give up ownership or control until after the crash.” They
also contend that Jumbo Foods had a right to control the Ranger because it retained title until 12
days after the accident, it had neither been paid for the vehicle nor relinquished title until July 18,
it still carried insurance on the Ranger at the time of the accident, Clay did not apply for
insurance on the Ranger until after the accident, and Jumbo Foods’ license plates were still on
the Ranger at the time of the accident.
It is clear from the record that Jumbo Foods was the owner of the Ranger at the time of
the accident on July 6, 2008. It is likewise clear that Clay had possession of the vehicle on that
date. Clay asserts that on July 5, 2008, he gave Derek permission to drive the Ranger and the
Tafts do not dispute this assertion. The parties did not offer evidence as to whether or not Jumbo
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Foods, the owner of the vehicle, gave Derek permission to operate the vehicle and, therefore, the
issue of permission vis-à-vis Jumbo Foods was not at issue on summary judgment. The record
reflects that Clay had actual physical control of the Ranger after the July 1 agreement with
Jumbo Foods. However, the question left unanswered by the district court is whether Jumbo
Foods had “the right to control” the Ranger on July 6, 2008.
Although the district court cited the right to control language from Lopez, it did not
directly consider the question of whether Jumbo Foods had the right to control the Ranger.
Rather, it appears to have equated “control” with “right to control” and based its decision on the
fact that Clay had physical possession of the Ranger. Had the district court drawn all inferences
in favor of the Tafts, as it was required to do on summary judgment, it would have concluded
that material issues of fact precluded summary judgment on whether Jumbo Foods had a right to
control the Ranger. For example, the district court inferred that Clay had control over the Ranger
because he possessed the vehicle and its keys. However, it was not because of the July 1
agreement that Clay had the keys and vehicle in his possession but because he had previously
used them in his employment with Jumbo Foods. And, while it is true that Clay sought to insure
the vehicle, it is by no means clear that he did so before July 7, the date he signed the application
for the insurance. It is not entirely clear whether he informed American Family that the Ranger
had been totaled the day before. At the time of the accident, Jumbo Foods still maintained the
vehicle on its insurance policy and its license plates were still on the vehicle.
More importantly, the July 1 agreement did not contain language of transfer, merely
reciting that Jumbo Foods was “selling” the Ranger to Clay. It called for a purchase price of
$5,000 but it is clear from the record that this sum was never paid. It isn’t entirely clear when or
why the parties reduced the purchase price to $1,000 but that must have occurred between July 1
and July 8 because the cashier’s check in the amount of $1,000 was issued on the latter date. The
bill of sale was not executed until July 18. It was then that Clay became the owner of the Ranger.
Until it was paid the agreed purchase price, Jumbo Foods appears to have had the right to
exercise control over the use of the Ranger. While it may not have had physical control of the
vehicle at the time of the accident, it could well be reasonably inferred that it had the right to
control the vehicle. We therefore vacate the judgment on the imputed liability issue and remand
for further proceedings.
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D. The district court did not err in granting summary judgment in favor of Jumbo
Foods on the issue of negligent entrustment.
The district court did not separately consider the issues of imputed liability and negligent
entrustment, but essentially lumped them together and decided them on the same basis. The court
determined that “Jumbo Foods clearly did not have possession or control of the Ford Ranger at
the time of the accident[,]” and thus could not be liable under the theory of negligent
entrustment.
Under the theory of negligent entrustment, “[a]n owner or other person in control of a
vehicle and responsible for its use may be held liable for damages resulting from use of the
vehicle by another . . . where such person knew or should have known that such use may create
an unreasonable risk of harm to others.” Lopez, 114 Idaho at 875, 761 P.2d at 1227. Generally, it
is the title owner who entrusts a vehicle to another. Id. However, this Court has recognized that
“[r]igid and formalistic conceptions of ownership based upon the issuance of certificates of title
are disfavored by the courts.” Id. Instead, the “paramount requirement for liability . . . is whether
or not the defendant had a right to control the vehicle.” Id.
Both parties cite to Lopez, where this Court provided a comprehensive analysis of the
control element required under the negligent entrustment theory. In Lopez, the Court found that a
father could not be held liable when his son struck and killed a pedestrian while driving a vehicle
that was registered in the father’s name. 114 Idaho at 877, 761 P.2d at 1229. There, the father
had purchased the vehicle with the son’s money, the vehicle was maintained and controlled
exclusively by the son, and the father had endorsed, or “signed-off” on, the title to the vehicle
and delivered it to his son’s residence prior to the death of the pedestrian. Id. at 875, 761 P.2d at
1227. Based on those facts, this Court found that the father’s role was one of “mere
accommodation” and that he “did not possess any right of possession or control over the
vehicle.” Id. at 876, 761 P.2d at 1228.
It follows that if there is no right to control, there can be no liability under the negligent
entrustment theory. However, whether a right to control exists is not the end of the inquiry. In
Ransom v. City of Garden City, this Court stated the following with regard to negligent
entrustment:
It is negligence to permit a third person to use a thing or engage in an activity
which is under the control of the actor, if the actor knows or should know that
such person intends or is likely to use the thing or to conduct himself in the
activity in such a manner as to create an unreasonable risk of harm to others.
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113 Idaho 202, 206, 743 P.2d 70, 74 (1987) (quoting Rest. (Second) of Torts, § 308 (1965)).
The Ransom Court explained further that the above standard “is most frequently applied
‘where the person is a member of a class which is notoriously likely to misuse the thing which
the actor permits him to use’ [and] may also apply ‘if the third person’s known character or the
peculiar circumstances of the case are such as to give the actor good reason to believe that the
third person may misuse it.’” Id. at 206–07, 743 P.2d at 74–75. Common examples of negligent
entrustment include “where a loaded firearm is entrusted to a minor or where an automobile is
entrusted to an obviously intoxicated person.” Id. at 207, 743 P.2d at 75.
Here, the district court did not err in granting summary judgment in favor of Jumbo
Foods on the issue of negligent entrustment because, even if Jumbo Foods had a right to control
the Ranger, no showing was made that Derek, a licensed driver, was “notoriously likely to
misuse” the vehicle. Both parties focused exclusively on the issue of whether Jumbo Foods had a
right to control the Ranger. But even assuming that Jumbo Foods did have a right to control, the
Tafts’ argument under this theory of recovery fails. This is because the record is entirely devoid
of any evidence alleging that Jumbo Foods knew or should have known that Derek was likely to
use the Ranger in a way that would create an unreasonable risk of harm to others. Even when
liberally construing the record in favor of the Tafts, and drawing all reasonable inferences and
conclusions in their favor, the result is the same: the Tafts made no showing that Jumbo Foods
knew or should have known that Derek was an unreasonably risky driver. Though a minor,
Derek was nonetheless a licensed driver, and nothing in Idaho case law suggests that minors are
notoriously likely to misuse motor vehicles. We therefore affirm the district court’s decision to
grant summary judgment in favor of Jumbo Foods on the negligent entrustment theory.
E. The district court did not err in applying the statute of limitations.
Having determined that none of the Tafts had viable claims against Jumbo Foods and
dismissing the complaint, the district court had no need to consider issues raised by the parties
regarding the application of the statutes of limitation. Nevertheless, the court held that “the
independent claims of Plaintiffs David and Wendy Taft are barred by the two-year statute of
limitations.” Since the statute of limitations issues will be revisited on remand, we will address
the issue to provide guidance to the district court.
There was some confusion below regarding the types of claims being pursued by the
Tafts and how the statute of limitations might apply to each type. The Tafts contended that David
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and Wendy had both derivative claims and independent or direct claims. They described their
derivative claims as seeking recovery for Trevor’s past and future medical care, his loss of
income, and the loss of his “services, society and companionship.” They did not describe what
their independent or direct claims encompassed. They acknowledged that the two-year statute of
limitations in I.C. § 5-219 barred their independent or direct claims because the accident
occurred on July 6, 2008, and suit was not instituted until August 6, 2010. The district court
correctly held that their independent or direct claims, whatever they consisted of, were barred by
the statute of limitations.
The Tafts contend that the statute of limitations in I.C. § 5-230, which tolls the statute of
limitations for minors who are entitled to bring an action, also acts to toll the statute of
limitations for their derivative claims. That is, since Trevor need not have brought suit to recover
damages for his injuries until August 8, 2012 (when he reached age 20), they were also entitled
to tolling for their derivative claims.
The flaw with the Tafts’ argument is that, whether you characterize their various claims
as independent, direct, or derivative, they were seeking recovery in their own right. They were
not subject to a disability like their son, a minor. There does not appear to be any reason why
they need not have filed their action within the two-year statute of limitations. They argue it
would be more convenient if they were able to have their suit coincide with Trevor’s suit to
recover in his own right upon attaining the age of majority, but neither I.C. § 5-219 nor I.C. § 5-
230 provide for tolling a statute of limitations for actions wherein adults seek damages.
Thus, on remand the only damage claim to be considered will be that of Trevor, the
claims of his parents being barred by the statute of limitations. The complaint clearly alleges that
Trevor is seeking recovery of damages. It states in part “Trevor has incurred and will further
suffer damages for pain, suffering, mental and emotional distress, loss of income, loss of earning
capacity and costs for medical care, all as a direct and proximate result of the collision and the
Defendants’ negligence.” A question that will need to be considered and determined on remand
is whether Trevor may recover medical expenses incurred during his minority. That issue was
argued at the hearing on the motion for summary judgment but, because of the determination of
the imputed liability and negligent entrustment issues, was not determined on summary
judgment.
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The Tafts’ argument at the summary judgment hearing was not particularly enlightening
on this issue. Counsel initially addressed the need to toll the Taft parents’ derivative claims but
then switched to asserting that those claims, particularly for medical expenses, had been waived
in favor of Trevor, who was the only plaintiff entitled to seek recovery of the same. Counsel for
Jumbo Foods argued that any waiver had occurred after the two-year limitations period and
therefore was ineffective.
Both parties cited to Lasselle v. Special Products Co., 106 Idaho 170, 677 P.2d 483
(1983), where this Court dealt with the waiver issue. We said:
On cross-appeal Lasselle argues the trial court erred in ruling that an
unemancipated minor has no cause of action to recover for medical expenses
incurred in treating him during his minority. The general rule, recognized by the
trial court, is that the parents have the primary right of action for expenses
incurred by the child in connection with the injury. However, parents may waive
or relinquish their rights in favor of the child so as to entitle the child to recover
the full amount of damages. This waiver may be formal or implied from the
party’s conduct such as failing to object to the bringing of an action by the child
in which the child claims damages properly belonging to the parent, or when he
testifies in the child’s action in regard to such damages.
The trial court cited I.C. § 32-1003 for the proposition that the parents have the
exclusive cause of action for recovery of medical expenses for treatment of their
minor child. I.C. § 32-1003 provides that if a parent neglects to provide articles
necessary for a child according to the parent’s ability, then a third person may
supply the necessaries and recover the reasonable value from the parent. We agree
with Lasselle that this statute does not purport to limit a child’s right to recover
his medical expenses. Allowing the child to recover if the parents waive their
primary right of recovery does not require the defendant to pay the minor’s
medical expenses twice. The parents’ waiver adequately protects the defendant.
Id. at 173−74, 677 P.2d at 486−87 (internal citations omitted). Based on our holding in Lasselle,
we conclude that Trevor may seek to recover his medical expenses incurred from the date of the
accident in the proceedings on remand. It goes without saying, however, that he must establish
liability on the part of Jumbo Foods under I.C. § 49-2417.
F. The Tafts are not entitled to attorney fees on appeal under I.C. § 12-121.
The Tafts argue that they are entitled to attorney fees on appeal, pursuant to I.C. §12-121
and I.A.R. 41. Their argument, in its entirety, states as follows: “Appellants . . . request attorney
fees on appeal on the bases of [I.A.R.] 41 and [I.C.] § 12-121. The basis for Appellant’s request
for attorney fees on appeal is that, should Appellant be the prevailing party on this appeal, [I.C.]
§ 12-121 makes discretionary the allowance of reasonable attorney fees.”
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I.A.R. 41 “sets forth the procedure for awarding attorney fees in appeals before this
Court, but does not provide authority to award attorney fees.” Swanson v. Kraft, Inc., 116 Idaho
315, 322, 775 P.2d 629, 636 (1989). This Court has repeatedly held that “[a] citation to statutes
and rules authorizing fees, without more, is insufficient.” Carroll v. MBNA America Bank, 148
Idaho 261, 270, 220 P.3d 1080, 1089 (2009). Because the Tafts have failed to put forth any
argument as to why fees should be awarded under I.C. §12-121, we decline to award attorney
fees to the Tafts on appeal.
IV.
CONCLUSION
We affirm the district court’s judgment dismissing the Tafts’ claim for negligent
entrustment. We vacate the judgment dismissing the claim for imputed liability under I.C. § 49-
2417 and remand the case for further proceedings consistent with this opinion. Costs on appeal to
the Tafts.
Chief Justice BURDICK, and Justices EISMANN, W. JONES and HORTON CONCUR.
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