State Farm Mutual v. Palmer, D. ( 2021 )

J-S28034-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STATE FARM MUTUAL AUTOMOBILE : IN THE SUPERIOR COURT OF
INSURANCE COMPANY : PENNSYLVANIA
:
:
v. :
:
:
DYLAN PALMER, CORNELIUS :
ROBINSON, CHERON HERNDON, : No. 398 EDA 2021
ROBERT PALMER, CITY OF :
PHILADELPHIA, TRENT GERBER, :
CIERRA FREEMAN, ZAIDA ELLIS, A :
MINOR, BEATRICE CONNOR, AND :
RAHSAAN MCBRIDE, :
:
:
APPEAL OF: CIERRA FREEMAN :
Appeal from the Order Entered January 11, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 191103332
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 18, 2021
Cierra Freeman (Freeman) appeals from the order of the Court of
Common Pleas of Philadelphia County (trial court) granting summary
judgment for State Farm Mutual Automobile Insurance Company (State Farm)
in this declaratory judgment action. After review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
J-S28034-21
I.
On May 11, 2019, Dylan Palmer was driving his father’s Jeep in
Philadelphia when he wrecked into multiple cars; Freeman was one of the
persons injured in the accident. Robert Palmer, Dylan Palmer’s father, had an
automobile liability policy with State Farm. Under the policy, Robert Palmer
was the only named insured. As a result, for Dylan Palmer to fall under the
policy’s definition of an “insured,” he had to be either (1) a “resident relative,”
meaning he lived with his father, or (2) using the car with his father’s consent.
On November 25, 2019, State Farm filed an action for declaratory
judgment against Dylan Palmer and Robert Palmer; the City of Philadelphia;
and those injured in the accident, including Freeman.1 It sought a declaration
that it owed no obligation of defense or indemnity to Dylan Palmer, alleging
that Dylan Palmer neither lived with his father nor had permission to use the
Jeep at the time of the accident. In support, State Farm claimed that both
Dylan Palmer and Robert Palmer gave statements in July 2019 confirming the
same. Neither Dylan Palmer nor Robert Palmer, however, answered the
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1 Before State Farm filed its action, two of the other injured persons (Cornelius
Robinson and Cheron Herndon) filed an action on July 31, 2019, raising claims
of negligence against Dylan Palmer and the City of Philadelphia, and negligent
entrustment against Robert Palmer. A year later, on July 28, 2020, another
injured person (Beatrice Connor) sued the Palmers and the City of
Philadelphia. Finally, on February 17, 2021, Freeman sued both Palmers, the
City of the Philadelphia, and two Philadelphia police officers. All three actions
were consolidated and remain pending.
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complaint. As a result, the trial court entered default judgments against each
of them.
After summary judgment against the other defendants was denied as
premature, State Farm served requests for admission (RFAs) on Dylan Palmer
asking him to admit that he did not live with his father at the time of the
accident. Additionally, State Farm asked him to admit that he gave State
Farm a statement admitting that he took the keys to his father’s Jeep off the
hook that his father kept them on and then drove the Jeep without his
permission. When Dylan Palmer did not respond, the trial court deemed the
RFAs admitted.
Robert Palmer, meanwhile, had the default judgment entered against
him opened and answered the complaint and RFAs. In his answer to the
complaint, he admitted that his son did not live with him at the time of the
accident, and that he gave the July 2019 statement to State Farm that his son
did not have permission to use his Jeep. Likewise, Robert Palmer answered
the RFAs, admitting that his son did not live with him at the time of accident.
Moreover, Robert Palmer admitted that his son did not have permission or
consent to use the Jeep on the day of the accident.
State Farm then moved for summary judgment. In arguing there were
no issues of material fact, State Farm relied on the facts found admitted by
Dylan Palmer’s failure to respond to the complaint and the RFAs, as well as
Robert Palmer’s admissions. State Farm argued that these were binding
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judicial admissions establishing that Dylan Palmer was not a “resident relative”
under the policy and did not have permission to use his father’s Jeep. As a
result, according to State Farm, Dylan Palmer could not fall within the policy’s
definition of an “insured.” Freeman filed an answer opposing summary
judgment, arguing that the Palmers’ admissions are not binding on the parties
injured in the accident.
The trial court granted summary judgment and entered a final decree
that State Farm owes no obligation of defense or indemnity to Dylan Palmer
for any claims asserted against him. After Freeman timely appealed, the trial
court explained its reasoning in its Pa.R.A.P. 1925(a) opinion. The trial court
distinguished between judicial and evidentiary admissions, the former being
conclusive and beyond dispute while the latter may be contradicted. See Trial
Court Opinion (TCO), 5/26/21, at 6-7. Finding that Dylan Palmer’s failure to
respond to the RFAs qualified as judicial admissions, the trial court explained:
State Farm’s [RFAs] were deemed admitted after Dylan
Palmer failed to answer, pursuant to Pa.R.C.P. 4014. Dylan
Palmer did not seek to withdraw or amend his admissions. The
judicial admissions established that on May 11, 2019, Dylan
Palmer did not reside with Robert Palmer, and that he took the
keys to the 2006 Jeep without permission. Without Robert
Palmer’s permission to use the 2006 Jeep, Dylan Palmer was not
covered under the State Farm Policy. Based on the deemed
Admissions, State Farm owed no obligation of defense or
indemnity to Dylan Palmer.
Id. at 8 (record citations omitted).
The trial court found the same for Dylan Palmer’s failure to respond to
State Farm’s complaint:
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Dylan Palmer’s failure to respond to State Farm’s Complaint
resulted in the entry of default judgment, which constitutes an
admission to State Farm’s averments. The default judgment
established that Dylan Palmer was not listed on the State Farm
Policy, and that he did not reside with the policy holder. The
default judgment also established that Robert Palmer and Dylan
Palmer admitted to State Farm that Dylan Palmer did not seek or
receive permission to use the 2006 Jeep on May 11, 2019.
Id. at 8-9 (record citations omitted).
Finally, the trial court found that Robert Palmer’s answers to the
complaint and RFAs were judicial admissions that established that his son did
not live with him or have permission to use the Jeep. The trial court explained:
On October 1, 2020, Robert Palmer, filed an Answer to State
Farm’s Complaint. In his Answer, Robert Palmer admitted that he
was the sole named insured on the State Farm Policy for the 2006
Jeep Commander and that Dylan Palmer was not listed on the
Policy; that Dylan Palmer was not an owner and had not been
given permission to use the Jeep at the time of the accident; and
that Dylan Palmer did not reside with Robert Palmer.
Robert Palmer’s Answer to State Farm’s Complaint offered
no evidence to suggest that Dylan Palmer had permission to use
his father’s Jeep on May 11, 2019, and therefore no genuine issue
of material fact remains.
Id. at 9.
Freeman filed this timely appeal to challenge the trial court’s grant of
summary judgment in favor of State Farm.2
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2 Our standard of review for a trial court’s grant or denial of summary
judgment is as follows:
A reviewing court may disturb the order of the trial court only
where it is established that the court committed an error of law or
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II.
On appeal, Freeman contends that the trial court erred in relying on
Dylan Palmer’s failure to answer the complaint or RFAs and Robert Palmer’s
answers to the complaint and RFAs to bind all of the other defendants to
evidence in the self-serving documents. In Freeman’s view, the trial court
erred in concluding that these admissions foreclosed the injured parties of
their right to dispute that Dylan Palmer did not have permission to use his
father’s Jeep. Freeman also contends that State Farm improperly used the
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abused its discretion. As with all questions of law, our review is
plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
may be entered. Where the non-moving party bears the burden
of proof on an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Failure of a non-
moving party to adduce sufficient evidence on an issue essential
to his case and on which it bears the burden of proof establishes
the entitlement of the moving party to judgment as a matter of
law. Lastly, we will view the record in the light most favorable to
the non-moving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party.
Kornfeind v. New Werner Holding Co., Inc., 241 A.3d 1212, 1216-17 (Pa.
Super. 2020) (citation omitted). In actions for declaratory judgment, just as
in civil actions generally, summary judgment is available and is governed by
the above standard. See Hydropress Envtl. Servs., Inc. v. Twp. of U.
Mount Bethel, Cty. Of Northampton, 836 A.2d 912, 918 (Pa. 2003)
(citation omitted).
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Declaratory Judgments Act in joining all the defendants so that the admissions
would be binding against each of them.
A.
Initially, Freeman contends that State Farm improperly brought the
declaratory judgment action, not only against the Palmers, but also everyone
injured in the accident so that it could rely on Dylan Palmer’s admissions by
default thereby avoiding the burden of proving that Dylan Palmer did not have
permission to use Robert Palmer’s Jeep.
First, filing a declaratory judgment action is a proper vehicle to resolve
questions of insurance coverage. As we have explained:
The proper construction of a policy of insurance is resolved as a
matter of law in a declaratory judgment action. The Declaratory
Judgments Act may be invoked to interpret the obligations of the
parties under an insurance contract, including the question of
whether an insurer has a duty to defend and/or a duty to
indemnify a party making a claim under the policy. Both the duty
to defend and the duty to indemnify may be resolved in a
declaratory judgment action.
Erie Ins. Exchange v. Lobenthal, 114 A.3d 832, 836 (Pa. Super. 2015)
(internal citations omitted).
Second, State Farm did not name Freeman in its declaratory judgment
action to avoid its burden of proving that Dylan Palmer did not have
permission to use the Jeep; it did so because under the Declaratory Judgments
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Act,3 it was required to name Freeman in the action. See 42 Pa.C.S.
§ 7540(a) (“When declaratory relief is sought, all persons shall be made
parties who have or claim any interest which would be affected by the
declaration, and no declaration shall prejudice the rights of persons not parties
to the proceeding.”). Accordingly, Freeman’s initial claim has no merit.
B.
Freeman’s main contention is that the trial court erred by treating Dylan
Palmer’s failure to answer the complaint and RFAs as binding judicial
admissions that conclusively established that Dylan Palmer did not have
permission to use his father’s Jeep. As noted, the trial court emphasized the
distinction between judicial and evidentiary admissions in finding that there
was no issue of material fact as to Dylan Palmer’s lack of permission to use
the Jeep. See TCO at 5-7.
[T]here are two types of admissions: evidentiary and judicial.
Leonard Packel and Anne Poulin, Pennsylvania Evidence, § 805.5
(1987). Evidentiary admissions generally refer to statements
made by a party of “certain facts.” Sherman v. Franklin
Regional Medical Center, 443 Pa. Super. 112, 660 A.2d 1370(1995), allo. denied, 543 Pa. 695, 670 A.2d 142 (1995), quoting
Durkin v. Equine Clinics, Inc., 376 Pa. Super. 557, 569, 546
A.2d 665, 670 (1988). Judicial admissions are formal admissions
which have the effect of withdrawing a fact from issue and
dispensing it without the need for proof of the fact. Durkin.
Judicial admissions are conclusive, whereas evidentiary
admissions may always be contradicted or explained.
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3 42 Pa.C.S. §§ 9731-9741.
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Gibbs v. Herman, 714 A.2d 432, 437 (Pa. Super. 1998) (citation omitted).
“Statements of fact by one party in pleadings, stipulations, testimony,
and the like, made for that party's benefit, are termed judicial admissions and
are binding on the party.” Coleman v. Wyeth Pharmaceuticals, Inc.,
6 A.3d 502, 524 (Pa. Super. 2010) (citation omitted). Judicial admissions are
automatically considered “true and cannot be contradicted by the admitting
party.” Cogley v. Duncan, 32 A.3d 1288, 1292 (Pa. Super. 2011). Besides
pleadings, we have stated that judicial admissions include “a party’s failure to
respond as required by the pleading rules” and “a party’s responses or failure
to respond to requests for admissions.” Durkin, supra at 567.
With this in mind, we agree that Freeman was not bound by Dylan
Palmer’s failure to answer the complaint and RFAs. As we have stated, judicial
admissions are binding only on the party that makes them. See Coleman,
supra. A judicial admission by one party, however, does not bind another
party in a multiparty matter, and no one in this case has cited any case law
to the contrary. One party cannot bind another party to a judicial admission
that it did not make. See Antoniotti v. Eckels, 840 A.2d 1013, 1017-18
(Pa. Super. 2003) (holding that admissions by default to a joinder complaint
filed against an additional defendant were not binding against plaintiff
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passengers).4 Thus, Freeman was not bound by Dylan Palmer’s failure to
answer State Farm’s complaint or RFAs, even though they could be deemed
judicial admissions.
Even though not bound by those admissions, however, Freeman’s
argument focuses almost entirely on Dylan Palmer and ignores that the trial
court’s decision was also based on Robert Palmer’s admissions. As discussed,
Robert Palmer answered the RFAs and admitted that he never gave Dylan
Palmer permission to use the Jeep the day of the accident. See Defendant
Robert Palmer’s Answers to Plaintiff’s RFAs, 9/23/20, at Paragraph 5 (Exhibit
F to State Farm’s Motion for Summary Judgment filed on November 30, 2020).
Thus, while Robert Palmer’s admissions are not binding on Freeman,
these admissions were still record evidence that State Farm could assert in its
motion for summary judgment that there was no genuine issue as to whether
Dylan Palmer had permission. Indeed, for purposes of ruling on a summary
judgment motion, the record consists of the pleadings, depositions, answers
to interrogatories, admissions, affidavits and reports of expert witnesses. See
Pa.R.C.P. 1035.1.
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4 Similarly, in Durkin, we held that a party could not bind another party to
admissions made by a third-party witness that it called at the first trial. See
Durkin, 546 A.2d at 670-72. In so holding, we stated that the statement of
a third party may be considered the admissions of a party only “if they are
bound to that party because of agency, joint or common interest, or having
vouched for their credibility and impliedly asserted that fact by calling the third
person as a witness.” Id. at 670.
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C.
To defeat summary judgment, Freeman needed to point to evidence in
the record controverting the evidence cited in support of State Farm’s motion.
See Pa.R.C.P. 1035.3(a)(1). “[A] non-moving party may not rely merely upon
controverted allegations in the pleadings. Rather, the non-moving party must
set forth specific facts by way of affidavit, or by some other way as provided
by [the Pennsylvania Rules of Civil Procedure], demonstrating that a genuine
issue of material fact exists.” Donegal Mut. Ins. Co. v. Fackler, 835 A.2d
712, 715 (Pa. Super. 2003).
The other way that Freeman attempts to say that there is a material
issue of material fact is that Pennsylvania law presumes that a driver of a
vehicle does so with the permission of the owner, meaning State Farm needed
to adduce evidence that Robert Palmer did not give his son permission to use
his Jeep.
Ignoring that Robert Palmer’s admission is evidence that he did not give
permission, there is no such presumption under Pennsylvania law. Whether
a driver is determined to be a permissive user is determined by the facts of a
particular case centering on the conduct of the named insured. As we have
explained:
Whether a user of an automobile has the permission necessary to
elevate that user to the status of an additional insured depends
upon the facts and circumstances of each case in light of the
underlying policy language. See e.g. Federal Kemper Ins. Co.
v. Neary, supra, 366 Pa. Super. at 139, 530 A.2d at 931. The
owner’s permission to use an automobile may either be expressed
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or implied. Id. “Implied permission may arise from the
relationship of the parties or by virtue of a course of conduct in
which the parties have mutually acquiesced.” Id. at 140–41, 530
A.2d at 931 (citing Brower v. Employers' Liability Assurance
Co. Ltd., supra, 318 Pa. at 444, 177 A. at 828; Esmond v.
Liscio, supra, 209 Pa. Super at 206, 224 A.2d at 796).
“However, ‘permission’ requires something more than mere
sufferance or tolerance without taking steps to prevent the use of
the automobile, and permission cannot be implied from
possession and use of the automobile without the knowledge of
the named insured.” St. Farm Mut. Ins. Co. v. Judge, supra,
405 Pa. Super. at 381, 592 A.2d at 714; Federal Kemper Ins.
Co. v. Neary, supra, 366 Pa. Super. at 140, 530 A.2d at 931
(quoting Blashfield, Automobile Law and Practice, § 315.10 at
608) (emphasis added).
Our focus, then, is not directed to the actions of the ultimate user
of the auto, but rather, “whether the named insured said or did
something that warranted the belief that the ensuing use was with
his consent. There must be ‘a connection made’ with the named
insured’s own conduct; [mere] proof of ‘acts, circumstances, and
facts, such as continued use of the car,’ will be insufficient ‘unless
they attach themselves in some way to the acts’ of the named
insured.” Id.; Belas v. Melanovich, 247 Pa. Super. 313, 324,
372 A.2d 478, 484 (1977) (quoting Beatty v. Hoff, 382 Pa. 173,
177, 114 A.2d 173, 174 (1955)) (emphasis added).
Nationwide Mutual Insurance Company v. Cummings, 652 A.2d 1338,
1344–45 (Pa. Super. 1994).
If there is not a presumption, Freeman argues that there was genuine
issue of material fact as to permission because Dylan Palmer operated the
Jeep with its keys and Robert Palmer never reported the Jeep stolen.
However, as summarized above, permissive use of a vehicle cannot be implied
merely from the driver’s possession and use of the automobile without the
knowledge of the named insured. Freeman has not set forth any facts
supported by affidavit or some other record evidence that Robert Palmer
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consented to his son driving the Jeep on the day of the accident. In the
absence of such, there was nothing to refute Robert Palmer’s admissions that
Dylan Palmer did not live with him or have permission to use the Jeep.
Accordingly, we hold that the trial court did not err in granting summary
judgment and finding that there was no genuine issue of material fact as to
Dylan Palmer not having permission to use his father’s Jeep and not be
covered under the State Farm automobile policy.
Order affirmed.
Judge Dubow joins the memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2021
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