 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any                       May 30 2013, 8:37 am
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEES:

SHEILA M. SULLIVAN                                 JOSEPH M. DIETZ
Flynn & Sullivan PC                                ANDREW M. SUMERFORD
Indianapolis, Indiana                              Meils Thompson Dietz & Berish
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

UNITED FARM FAMILY MUTUAL                          )
INSURANCE CO.,                                     )
                                                   )
       Appellant-Plaintiff,                        )
                                                   )
               vs.                                 )     No. 49A02-1211-PL-914
                                                   )
INDIANA INSURANCE CO. and                          )
ROYAL CROWN BOTTLING CORP.,                        )
                                                   )
       Appellees-Defendants.                       )
                                                   )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable S. K. Reid, Special Judge
                           Cause No. 49D06-1111-PL-042852


                                          May 30, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                     Case Summary

       United Farm Family Mutual Insurance Company (“Farm Bureau”) appeals the trial

court’s grant of summary judgment in favor of Indiana Insurance Company and Royal

Crown Bottling Corporation (“RC”). Farm Bureau contends that the spouse of a RC

employee was a permissive user of a company car, so RC’s auto insurance provided

through Indiana Insurance should cover the damage from an accident the spouse was

involved in. Finding that there is no genuine issue of material fact that the spouse was

not a permissive user because RC’s employee handbook expressly prohibited personal

use of the company car without management approval, we affirm.

                             Facts and Procedural History

       Richard Johnson began working for RC on January 6, 2003, and his supervisor

was Don Basham. When he was hired, Johnson received the employee handbook and

signed a form indicating that he had read it. The handbook contained the following

language regarding company cars: “Company vehicles may be used only for Company

business. Personal use of Company vehicles is not permitted without express approval of

management.” Appellee’s App. p. 56 (emphasis added).

       About a year after he was hired, Johnson received a company car that he could

take home after work hours. Basham gave Johnson the authorization to take the car home

and did not give any explicit limitations on its use. However, Basham stated in his

affidavit that it was standard practice to give permission to only the RC employee to use a

company car. Id. at 30. Indiana Insurance insured the company car, and Farm Bureau

insured the personal cars of Johnson and his wife, Kristi. Johnson let Kristi drive the

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company car to her job two or three days a week, but he never informed anyone at RC

about it, nor did Kristi ever receive express approval to drive the company car.

       In 2009, Basham retired and Randy Privette became Johnson’s supervisor.

Privette did not know that Kristi was using the company car, nor was he aware of any

corporate culture at RC that allowed spouses to use company cars whenever they saw fit.

Id. at 72-73. On July 29, 2009, Kristi was driving the company car when she was

involved in an accident. Johnson was not present during the accident, but when he called

Privette to report the accident, he initially told Privette that he was the one who was

driving.   Johnson even listed himself as the driver on the original accident report.

However, Johnson eventually told Privette that Kristi was the one who was driving, and

he corrected the accident report so that it accurately reflected that Kristi was the driver.

       After the accident, Privette had a “verbal counseling session” with Johnson about

not letting Kristi drive the car because she did not have permission to do so. Id. at 69.

RC’s safety manager also reprimanded Johnson, telling him that he should not have let

his wife drive the company car.

       The other parties involved in the accident filed a tort action in Vigo Superior Court

for damages. The Johnsons’ insurer, Farm Bureau, filed a complaint for declaratory

judgment, seeking a declaration that Indiana Insurance owed primary coverage for the

accident since Kristi was driving a car owned by RC. Indiana Insurance filed a third-

party complaint against Kristi and Johnson. Indiana Insurance also moved for summary

judgment against Farm Bureau’s complaint for declaratory judgment, arguing that there

was no coverage under RC’s policy for Kristi’s accident.             The trial court entered

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summary judgment on the complaint for declaratory judgment in favor of Indiana

Insurance.

       Farm Bureau now appeals.

                                Discussion and Decision

       When reviewing the entry or denial of summary judgment, our standard of review

is the same as that of the trial court: summary judgment is appropriate only where there is

no genuine issue of material fact and the moving party is entitled to a judgment as a

matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904

N.E.2d 1267, 1269 (Ind. 2009). All facts established by the designated evidence, and all

reasonable inferences from them, are to be construed in favor of the nonmoving

party. Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind. 2007).

       Farm Bureau contends that there is an issue of material fact as to whether Kristi

was a permissive user of the company car and therefore insured under RC’s insurance

policy, making summary judgment in favor of Indiana Insurance erroneous. We disagree.

       The policy at issue in this case defined as “insureds:” “a. You for any covered

‘auto’. b. Anyone else while using with your permission a covered ‘auto’ you own, hire

or borrow . . . .” Appellee’s App. p. 103. This is known as an omnibus clause, and as is

required under Indiana law, the policy must at least insure the owner against liability

when others drive the insured car with the insured’s express or implied permission. See

Ind. Code § 27-1-13-7(a). In determining whether a driver is covered under the insured’s

policy, Indiana has adopted the “liberal rule,” which provides that:

       one who has permission of an insured owner to use his automobile
       continues as such a permittee while the car remains in his possession, even
                                             4
       though that use may later prove to be for a purpose not contemplated by the
       insured owner when he entrusted the automobile to the use of such
       permittee.

Briles v. Wausau Ins. Co., 858 N.E.2d 208, 213 (Ind. Ct. App. 2006) (citing Arnold v.

State Farm Mut. Auto Ins. Co., 260 F.2d 161, 165 (7th Cir. 1958)).              However,

“permissive use cannot be implied when an express restriction on the scope of permission

prohibits the use at issue.” Id. at 214.

       The evidence presented in support of Indiana Insurance’s motion for summary

judgment shows that RC placed an express restriction on the scope of permission given to

drive the company car at issue. The company handbook specifically stated that company

cars were not to be used for personal use “without express approval of management.”

Appellee’s App. p. 56 (emphasis added). Johnson was the only individual who was given

express permission to use this particular company car; Kristi never sought permission

from anyone at RC to drive the company car, and Basham testified that if Kristi had

asked him if she could have permission to drive the car, he would have said no. Id. at 30.

Testimony from Privette and Basham also specifically shows that RC did not allow

spouses of employees to drive company cars without special permission. Id. at 30, 71-73.

Additionally, Johnson testified to reading the company handbook before being hired and

being aware of the requirement of obtaining express permission before using the

company car for personal use. Id. at 14, 24.

       Farm Bureau also contends that RC “up-sold” the company car as a perk of

employment to Johnson, going so far as to say that he could do away with the costs of

having a second car and a second insurance policy, so Johnson believed that his wife

                                               5
could also use the company car at any time. Appellant’s App. p. 23. As a result, Farm

Bureau argues that Indiana Insurance is estopped from arguing that its employee

handbook prevented Kristi’s use of the company ar. The elements of promissory estoppel

are (1) a promise by the promisor; (2) made with the expectation that the promisee will

rely thereon; (3) which induces reasonable reliance by the promisee; (4) of a definite and

substantial nature; and (5) injustice can be avoided only by enforcement of the promise.

Brown v. Branch, 758 N.E.2d 48, 52 (Ind. 2001).

      However, we find that promissory estoppel does not apply here, as there has been

no evidence presented of any reasonable reliance by Johnson on a promise made by RC.

Johnson testified that RC management told him that he could do away with the expenses

of having a second car because of the company car. Appellant’s App. p. 23. However,

no evidence was presented that Johnson or Kristi actually got rid of any personal car,

cancelled insurance on any personal car, or acted in any other way that would indicate

reliance upon the promise made by RC management, negating Farm Bureau’s promissory

estoppel argument.

      Finally, Farm Bureau contends that RC acquiesced to Kristi’s use of the company

car through Basham’s actions. “[E]ven when an employer maintains a company policy

which prohibits the use of company vehicles for certain reasons, coverage will apply

under an omnibus clause where the employer acquiesces in an employee’s violation of

company policy by relaxing those prohibitions.” Briles, 858 N.E.2d at 214-15. Farm

Bureau argues that because Basham saw Kristi drive the company car to a company event

and made light of the fact that Johnson was not driving, he single-handedly relaxed the

                                            6
company’s policy on personal use of company cars. Appellant’s Br. p. 10. However, we

find that this one instance is not sufficient to hold that Basham relaxed RC’s company

policy. To do so would be to allow an individual employer to undermine a company’s

rules through a single action or inaction, which we do not believe is what was intended

by the holding in Briles.

       We therefore find that Farm Bureau has failed to show that the trial court erred by

entering summary judgment in favor of Indiana Insurance. There is no genuine issue of

material fact that Kristi was not a permissive user of the company car and therefore not

an insured under RC’s policy. We affirm the trial court.

       Affirmed.

KIRSCH, J., and PYLE, J., concur.




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