Black v. American General Fire & Casualty Co. , 36 Ark. App. 164 ( 1991 )

Judith Rogers, Judge.

Elsie M. Black and George Black, Sr., have appealed from the Union County Circuit Court’s order granting summary judgment to appellee, American General Fire and Casualty Company, and ruling the appellants were not entitled to insurance coverage under their policy with appellee. We find it was not error to grant the summary judgment and affirm.

In December 1987, appellants were injured in an automobile accident. The driver of the other vehicle was uninsured, and appellants made a claim with appellee for coverage under the uninsured motorist provisions of their automobile policy. Appel-lee denied coverage, contending appellants were not in a “covered auto,” as that term is defined in the policy, because the car they were driving at the time of the accident was owned by the appellants but was not disclosed to the insurance company and listed for coverage.

Appellants filed suit, seeking coverage under their insurance policy and contending that they did not own the 1974 Toyota pickup. Appellee moved for summary judgment, alleging appellants had owned the vehicle in question for several months but had never notified appellee and, therefore, it was not a covered automobile under the policy.

The statements contained in the deposition of Elsie Black as well as affidavits filed on behalf of appellants indicate that, although appellants stated that they considered the car as being owned by their sons, they were in possession of it at the time the policy in question was obtained; that they purchased it from a relative for $600.00 and received title which was signed in blank almost twenty months prior to the accident; that it needed brake work but the motor was in good shape; that appellant Elsie Black intended to register the car but never did; that the vehicle sat on their property and was not used often except when their sons drove it to the woods to hunt and when George Black, Sr., drove it to the garden and the lake; that it was inoperable some of the time but was repaired a few days before the accident because the automobile which was listed on their insurance policy had broken down; that they drove it on the day of the accident because it was necessary to take Mr. Black to receive his daily medical treatment at a nearby town; that Elsie Black put her license plate on the car the day of the accident; and that they had not mentioned the vehicle to the insurance company because they did not consider themselves to be the owners. We note that another reason given by Elsie Black for not mentioning the vehicle was that she and her husband did not want to register it and be subject to additional taxes and insurance costs.

The Toyota had once belonged to Mr. and Mrs. Emmett Lum, who were related to the Blacks. Emmett Lum died in 1979. The record is silent as to whether title was transferred to Emmett’s son Jack Lum through probate proceedings or in another manner, but a certificate of title introduced into evidence reflects that, in 1984, Jack Lum was the registered owner of the Toyota. Mrs. Black testified that, in 1986, Mrs. Lum indicated the car was for sale and that she would like to keep it in the family. Mrs. Black stated she purchased it for $600.00 and received title to the car. The certificate of title was signed in blank by Jack Lum on April 8, 1986, and was given to Mrs. Black.

Appellee contended that the appellants did own the vehicle in question at the time they applied for coverage with appellee yet intentionally failed to disclose their ownership and that appellants failed to notify appellee at any time thereafter. Appellee also points out that, in the deposition of appellant Elsie M. Black, she admitted she did not register the vehicle but merely held onto the certificate of title, which was signed in blank, because she could not afford taxes and insurance on two vehicles. The circuit judge found that the 1974 pickup was owned by the appellants; that appellants had failed to so notify appellee; and that the vehicle was not a “covered auto” under the terms of the policy. The trial judge, therefore, ruled that the appellants were not entitled to coverage, and granted appellee’s motion for summary judgment.

Rule 56(e) of the Arkansas Rules of Civil Procedure provides that, when a motion for summary judgment is made and supported by affidavits and other documents, the adverse party may not rest upon mere allegations or denials of the pleadings but his response, by affidavits or as otherwise provided in the rule, must set forth specific facts showing there is a genuine issue for trial. Lubin v. Crittenden Hospital Ass’n, 295 Ark. 429, 432, 748 S.W.2d 663, 665 (1988); Mathews v. Garner, 25 Ark. App. 27, 31, 751 S.W.2d 359, 361 (1988). Appellants wholly failed to satisfy this burden. Appellants do not dispute the evidence offered by appellee, that the appellants had purchased the car and received title twenty months before and that they had not registered it because they could not afford insurance and taxes on two vehicles. In response, appellants merely state their position that they did not own the car in question. Based on the pleadings, deposition, and affidavits which were presented to the trial court, we believe the court could conclude as a matter of law that the appellants owned the vehicle. Hinkle v. Perry, 296 Ark. 114, 118-19, 752 S.W.2d 267, 268-69 (1988). In Hinkle, the supreme court affirmed the granting of summary judgment on facts similar to the case at bar. The court determined that the appellant there owned the vehicle based on facts showing that he purchased the vehicle, it was titled in the name of his business, and he was in possession of the certificate of title. The court noted that possession of personal property is prima facie evidence of ownership, which would, however, yield to actual title. The court concluded that he had possession and title and that Hinkle had not shown sufficient evidence to overcome the prima facie showing of ownership made by appellee.

Once the moving party makes a prima facie showing of entitlement to summary judgment, however, the party opposing summary judgment must meet proof with proof by showing a genuine issue of material fact. Neel v. Citizens First State Bank, 28 Ark. App. 116, 119-20, 771 S.W.2d 303, 305 (1989). Appellants wholly failed to satisfy this burden, and we therefore find summary judgment appropriately granted.

Affirmed.

Mayfield and Cooper, JJ., dissent.