(THE SUPREME COURT ACCEPTED REVIEW OF THIS CASE AND AFFIRMED)

The question here is whether the family purpose doctrine applies when the use of the family car is contrary to restrictions placed on the driver.

Jason Beck wasn’t allowed to carry passengers, a restriction his parents had instituted after he was in an accident. But that’s what he was doing – having told his mother that he would just drive over to a friend’s house to spend the night – when he caused another accident. Plaintiff made a family-purpose claim against the parents. They argued that since the doctrine applies only if the car was used with their express or implied consent, and since they didn’t consent to what Jason was doing at the time of the accident, they can’t be liable. On cross-motions for summary judgment the trial court ruled for Plaintiff. The parties made a deal on damages in order to appeal liability. This opinion affirms.

It starts off well. The first paragraph does what every opinion should: it tells you immediately what kind of case it is, what the issues are, and what the holding is. But then things go downhill. A boilerplate standard-of-review paragraph signals that the court is reverting to business as usual. Next, it decides to treat family purpose as a strange and unusual legal beast requiring careful and minute inspection. And so we get, completely uselessly, an extended quotation of the trial court’s minute entry and the detailed facts of the 1919 case in which our Supreme Court adopted the doctrine.

After meandering awhile longer through the history and purpose of the doctrine, and cycling back through the facts and arguments once or twice, the court announces that “to ascertain whether the Becks gave implied consent, we must determine if Jason drove the car for a family purpose.” That should cause your logic bone to twinge a bit but the court is apparently reacting to a Beck argument that the family purpose doctrine is based on agency. A quick look at the books will tell you, if you didn’t know already, that that is wrong, which the court takes a couple of long paragraphs to sort of say. Jason used the family car for the convenience of the family. That’s a family purpose. He had permission to do so. His parents are therefore liable.

Having reached this conclusion, the opinion won’t stop, rambling on about how it must be right because other jurisdictions think so, too.

Some opinions seem like a schoolteacher pretending familiarity with the subject when in fact she just read the chapter the night before to keep ahead of the class. You get that impression here even before the court gets mixed up. It justifies the Becks’ liability by pointing out that “both parents were fully aware that Jason previously disregarded driving restrictions they had imposed on him.” But that’s a negligent-entrustment fact, not family purpose. Next, having already specifically said that family purpose doesn’t depend on course-and-scope agency stuff, the court says “we find it unnecessary in this case to attempt to draw any specific boundaries as to when violation of a driving restriction may constitute such a gross deviation by the child as to preclude parental liability under the family purpose doctrine.” This in connection with a case in which the son stole the car from the garage. But “gross deviation” is an agency notion. The point of this opinion is that if there is family-purpose permission, deviation is not an issue.

The Becks also questioned whether family purpose is needed now that its not 1919 anymore.  This was their only good argument. Is that why the court shoves it to a few pages at the end of an 18-page opinion, preferring to write a treatise on a slam-dunk issue of plain-vanilla tort law?  Perhaps not, since its not clear that the court understands the analysis. Having announced that family purpose is a matter of policy, it now treats it like a statute, cites in support of it statutes that actually weaken it, and mentions at least one principle of statutory construction that has absolutely no application here. Reading between the lines, its possible to conclude that the Becks argued the issue a little bass-ackwardly, though we hate to keep making that excuse for courts at the risk of abusing fine attorneys. In any event, the court ends up saying the only thing it should have said, which is that this is an issue for the Supreme Court.

This fairly simple insurance coverage case is written to make the insurer’s argument sound pretty stupid (or maybe that’s how it really sounded) and has odd notions of evidence and procedure.

Giant Electric Corporation is a big name for a Benson electrician who obtained his company’s auto coverage by calling Progressive’s 800 number. He explained that his existing policy had liability/UM/UIM limits of one million dollars apiece. The Progressive agent told him that if he wanted to he could save money by reducing the UM and UIM limits to $100,000. He did. Then a passenger in one of his utility vans was killed by an uninsured motorist. Progressive filed this DJ action to confirm its UM/UIM limits

The statute, 20-259.01, requires written notice to the insured offering UM/UIM limits equal to the liability limits. Progressive didn’t do a written notice but the phone conversation was recorded. Progressive argued that that should be good enough. The trial court disagreed, as did the Court of Appeals.

The court made a big point of saying that “written” means “written.”

It dealt with the other, better argument in a footnote. Commercial statutes treat recorded calls as writings. Even if those applied here, the court says, the recording wasn’t provided to the insured. But the statute says “made available” to the insured. Presumably that wasn’t done, either, or at least the insured wasn’t informed of its availability; with appropriate facts, though, the distinction should make a difference.

Why deal with the best argument in a footnote? This tends to happen when oral argument focuses on something the court didn’t in the draft opinion. It can also happen when somebody wants more attention paid to the easy part than to the hard part, but those tend to be the usual suspects and we’re not really dealing with one of them here.

This opinion contains another example of a phenomenon we noted once before, when we made what we thought was just a smart-alec comment about something we didn’t really expect to see again. This court wanted to point out that if the Legislature had meant to include tape recordings then it could have said so. But somebody decided that that required evidence that recording had been invented as long ago as 1981. So somebody – we’d guess the same somebody – looked that up on the internet and cited it: “http://home.intekom.com/restore/History_Recording.html (last accessed May 4, 2010).”

This should be an embarrassment. But we’re charitable folk, so we assume that the somebody was an eager and well-intentioned twenty-something whose grasp of what happened in the dark times before he or she graced the planet is as good as that of most Political Science majors. This is why we occasionally recommend adult supervision. First, there was no need. Phone calls have been recordable for a long time; that should have gone without saying or could at least have been the subject of judicial notice. Second, do this and Batty mean that the courts really have decided that they can supplement the record by surfing the web? Where do the rules say that? What happens when they get it wrong? What happens when a different web page says something different? Can we cite the web back at them?

We do get a kick out of that “(last accessed May 4, 2010),” though. What in the world does somebody think that adds to the cite? Does frequency of accession make it more accurate? We get accessed every day; does that mean we must be right? Should we add to our case citations “(last cited by my friend Joe just last month in the Smith case)?”

We’re sure that our appellate-court judges, like all judges, work hard and put much effort into their work. Yes. But sometimes you do read an opinion that seems to have been churned out for the sake of churning it out.

Ward was Taser’s marketing VP. Before resigning he started working on an invention, the sort of thing Taser sells to law enforcement; after resigning he started marketing it. Taser sued, among other things, for breach of fiduciary duty and breach of the “duty of loyalty.” Taser moved for summary judgment on them; the trial court granted it. How that’s Rule 54(b) when the other causes of action, based on the same facts, are misappropriation of trade secrets, tortious interference with contract, breach of contract, conversion, and unjust enrichment isn’t clear, nor is it clear that anybody paid any attention.

An employee may not compete with his employer. Ward argued that he didn’t actively compete with Taser until he left it. Before then, he was merely preparing to do so – developing  a business plan, hiring attorneys, researching patents, and doing preliminary investigation of another invention that turned out to have been patented already so Ward had to start developing a slightly different one. The Court of Appeals agreed. These, the court says, are “qualitatively different” from competition. How so? Your guess is as good as ours. Since the opinion doesn’t attempt to define “competition,” it’s hard to figure that one out. But the court says there was a question of fact about the extent to which Ward had been working, pre-resignation, with the company that later manufactured his product. That, it seems, is qualitatively the same as competition.

Taser argued that Ward had emailed his lawyers on company time. But the times of the emails weren’t in the record. Well, actually, they were but the document was a summary of a log sheet and the judges of the appellate court “decline . . . to consider it.” Why? They don’t say. Did the trial court consider it? They don’t say. If so, why was that wrong? They don’t say.

Taser argued that Ward had deprived it of a business opportunity by selling something it would have – and later did – develop. The court says that business opportunity means a “concrete opportunity to purchase goods, services, or property, or to enter into some contract or other business transaction” and that, besides, Taser did eventually sell a similar product, which “belies its argument.” This must all be original stuff, since no authority is cited.

There’s more of the same. The opinion is fact-heavy and law-light. Its organization apparently follows that of the briefs. That can work when the briefs are well done but not when they’re mediocre. We haven’t read them but we have to hope, for the sake of those hard-working judges, that they’re at least part of the excuse.

The opinion does in passing make one interesting point that we mentioned a few weeks ago: summary judgment can be granted for either side.