STATE FARM MUT. AUTO. INS. CO. v. EAKINS

WALLER, JUSTICE, FOR THE COURT:

¶ 1. The motion for rehearing is granted. The prior opinions in this case are withdrawn, and this opinion is substituted therefor.

¶ 2. This Court granted certiorari to address two questions: 1) whether Mississippi law encompasses a presumption of permissive use relating to a claim for personal injury arising out of an automobile accident, and 2) whether the Court of Appeals has the authority to impose the 15% appeal damages penalty allowed under Miss. Code Ann. § 11-3-23 (1972). Finding that no presumption of permissive use exists under Mississippi law, we reverse the judgment of the Court of Appeals. However, since we have never directly addressed the issue before now, we remand this case for another hearing consistent with this opinion to allow the Plaintiffs/Appellees the opportunity to present evidence of permissive use in their garnishment proceedings. While we reverse and remand the judgment of the Court of Appeals, we take this opportunity to clarify that the Court of Appeals does have the authority to impose the 15% appeal damages penalty allowed under Miss. Code Ann. § 11-3-23 (1972).

¶ 3. Plaintiffs Bridget Eakins, Doris Winters, and Duane Quarles were injured when a vehicle, driven by Christopher Jobe, struck their vehicle. Plaintiffs obtained a judgment against Jobe after a trial by jury and then instituted a garnishment action in the Circuit Court of Holmes County, Mississippi, against Appellant State Farm Mutual Automobile Insurance Company, which carried a policy of liability insurance on the vehicle driven by Jobe. In its responsive pleading to the suggestion of garnishment, State Farm denied any indebtedness to Jobe, alleging that Jobe had stolen the vehicle from an automobile repair shop at Holmes Community College and was thus operating the vehicle without the consent, permission or authority of the insured owner.

¶ 4. At the garnishment trial, Plaintiffs asserted that they were entitled to a presumption of permissive use by the owner, thereby shifting the burden to the owner/insurer to prove there was no permissive use. State Farm, on the other hand, maintained that the burden was on the Plaintiffs to prove that the driver of the vehicle had permission to use the vehicle of the owner/insured. The trial judge found that State Farm failed to assert non-permission in the personal injury action defended under reservation of rights, and were now estopped from doing so in the post-judgment garnishment proceeding.

¶ 5. The Court of Appeals correctly determined that State Farm could not have asserted a defense of non-permission in the original action against Jobe, as State Farm was not a party to that action, and the permissive or non-permissive use of the vehicle was not relevant to the tort claim against Jobe. Therefore, the proper question in this appeal of the judgment on writ of garnishment is whether there is a presumption that the use of the insured vehicle by Jobe was permissive.

¶ 6. Generally, in a garnishment proceeding, the burden is on the garnishor to prove that the garnishee is liable to the judgment creditor. Grenada Bank v. Seligman , 164 Miss. 168, 173, 143 So. 474, 475 (1932). The answer of the garnishee is taken as conclusive unless contested by the garnishor. Id. Therefore, in the case at hand, the response of the garnishee, State Farm, is taken as conclusive unless contested by the Plaintiffs. The burden of proof, therefore, lies on the Plaintiffs to prove that the garnishee, State Farm, is liable to the judgment creditors, the Plaintiffs.

¶ 7. Plaintiffs did not offer any testimony or other evidence to prove that State Farm was indebted to Jobe, the judgment debtor. Instead, Plaintiffs contended that there was a presumption that State Farm was indebted to Jobe because Jobe was driving a vehicle insured by State Farm. While Plaintiffs acknowledged that Jobe would have to be a permissive user to be covered under the insurance policy (which was issued to the owner of the vehicle, Ronald Chester), they claimed that they were entitled to an inference, or presumption, that the use was permissive, thereby shifting the burden to State Farm to prove that the use was not permissive. State Farm denied this presumption and maintained that the burden was on the Plaintiffs. Thus, the hearing was concluded without either party offering any evidence on the issue.

¶ 8. Plaintiffs erroneously relied on a presumption of permissive use, as there is no such presumption under Mississippi law. Although the issue of presumptive permissive use of a vehicle has been squarely addressed neither by this Court nor by the legislature of the State of Mississippi, in one other insurance-related context, the burden of proof of showing permissive use rested with the plaintiff. See State Farm Fire Cas. Co. v. Wightwick , 320 So.2d 373, 375 (Miss. 1975) (plaintiff seeking to recover under uninsured motorist clause of automobile liability insurance policy bore burden of proving that she was member of named insured's household and that her use was permissive).

¶ 9. Some jurisdictions have a statutory presumption that operation of a motor vehicle is by permission of the owner of the vehicle. See, e.g., Tenn. Code Ann. § 55-10-311 (1998); Jones v. Halun , 296 F.2d 597, 598 (D.C. Cir. 1961) ("The statute creates a rebuttable presumption that the driver of a car involved in an accident had the owner's consent to drive."); Buckingham v. Rapid Rental, Inc. , 3 F. Supp.2d 479, 480 (S.D.N.Y. 1998) ("There is a presumption that the vehicle is being operated with the owner's permission and this presumption continues unless it is rebutted by `substantial evidence' to the contrary.") (citation omitted); Royal Indem. Co. v. Wingate , 353 F. Supp. 1002, 1004-05 (D. Md.), aff'd mem., 487 F.2d 1398 (4th Cir. 1973). Likewise, some states have judicially created a presumption of permissive use. See, e.g., McKirchy v. Ness , 256 Iowa 744, 128 N.W.2d 910, 911 (Iowa 1964); Fout v. Dietz , 258 N.W.2d 53, 54 (Mich. 1977).

¶ 10. Other states have specifically found that there is no presumption of permissive use and have placed the burden on the plaintiff to prove permissive use. See Marquez v. Enterprise Rent-A-Car , 61 Cal.Rptr.2d 557, 558 (Cal. Ct. App. 1997) ("The question of permission cannot be left to speculation or assumed. Appellant must affirmatively show that the vehicle's owner permitted the driver to use the vehicle.") (citation omitted); Washington v. State Farm Mut. Auto. Ins. Co. , 709 So.2d 360, 362 (La. App. 4th Cir. 1998) ("The plaintiff has the burden of proving the fact of initial use with the express or implied permission of the insured to make coverage effective under the omnibus clause; and the fact of initial permission must be proved by a preponderance of the evidence without the aid of any presumptions.").

¶ 11. Based on the latter authority, which we find persuasive and reasonable, we find no reason to shift the burden of proof from the plaintiff to prove permissive use of the vehicle. There is no compelling reason to create a presumption of permissive use, especially when such proof is usually relatively simple. In addition, the plaintiff normally bears the burden of proving his or her case, and permissive use is just one of the elements of the plaintiff's case which must be proved. Finally, there is simply no reason to create an unnecessary exception to the usual burden of proof to further complicate trials. Therefore, we find that a plaintiff seeking to establish indebtedness by a third-party insurer must prove by a preponderance of the evidence that the culpable party, if different from the owner/insured, was using the vehicle with the permission and consent of the owner. It should also be noted that the general principle requiring the plaintiff to bear the burden of proof is even more appropriate in the case sub judice because State Farm filed an answer to the suggestion of garnishment alleging that Jobe's use of the vehicle was non-permissive. Under the principles announced in Grenada Bank v. Seligman , the answer of the garnishee is taken as conclusive unless contested by the garnishor. 164 Miss. at 173, 143 So. at 475. Therefore, Plaintiffs had the burden to contest the answer of State Farm and to prove that the allegations contained therein were untrue. Even if there were a presumption, which we now say there is not, State Farm had clearly placed the burden of proving permissive use on the Plaintiffs by filing a responsive pleading to the suggestion for writ of garnishment.

¶ 12. Miss. Code Ann. § 11-3-23 (1972) provides in pertinent part:

In case the judgment or decree of the court below be affirmed, or the appellant fails to prosecute his appeal to effect, the supreme court shall render judgment against the appellant for damages, at the rate of fifteen percent (15%). . . .

Miss. Code Ann. § 11-3-23 (1972). Plaintiffs assert that they should not have been assessed a 15% penalty because the statute specifies that only the "supreme court" has the authority to do so. That assertion is without merit. When the Legislature created the Court of Appeals in 1993, it did so intending that Court to be a court of final review, very similar in authority to the Supreme Court. By statute, "[d]ecisions of the Court of Appeals are final and are not subject to review by the Supreme Court, except by writ of certiorari." Miss. Code Ann. § 9-4-3 (Supp. 1999). The Supreme Court assigns cases to the Court of Appeals which "shall have the power to determine or otherwise dispose of any appeal or other proceeding assigned to it by the Supreme Court." Id . As a result, the Court of Appeals is vested with the authority to impose the 15% statutory penalty provided in § 11-3-23. To hold otherwise would require this Court to grant certiorari in every case where that penalty is appropriate in order to effectuate the legislative intent. Not only would that be expensive and time consuming, it would be contrary to the letter and the spirit of the legislation which created the Court of Appeals. When there is a technical conflict between two statutes, this Court will attempt to give meaning to both, in keeping with the legislative intent and purpose for which they were written. See Richardson v. Canton Farm Equip., Inc. , 608 So.2d 1240, 1250 (Miss. 1992). It is inconceivable that the Legislature meant to deny successful appellees their right to a statutory penalty by creating the Court of Appeals. Therefore, the Court of Appeals must necessarily have the same and all of the power and authority of the Supreme Court in deciding cases, with the exception of those which the Constitution or the Legislature have designated to be exclusively within the province of the Supreme Court.

¶ 13. Plaintiffs have not yet met their burden of proving permissive use by Jobe of the vehicle insured by State Farm. However, because this is our first definitive opinion on the subject, we remand this case for another hearing to give Plaintiffs an opportunity to meet their burden of proof. See Grenada Bank v. Seligman , 164 Miss. at 174, 143 So. at 475. For these reasons, we reverse the judgment of the Court of Appeals and the judgment of the Holmes County Circuit Court, and we remand this case to the Holmes County Circuit Court for further proceedings consistent with this opinion.

¶ 14. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.