This is a declaratory judgment action to determine coverage under the “omnibus clause”
*fn1 of a commercial auto liability policy that insured an employer and “anyone else while using with your [that is, the employer's] permission a covered auto”. The principal issue is whether an employee had implied permission to use a company truck at the time of an accident so as to be covered by the policy. The trial court held as a matter of law that the employee was covered, but the court of appeals reversed and remanded for a resolution of subsisting fact issues.
*fn2 We hold that the employee, as a matter of law, materially deviated from any use he was permitted to make of the truck and therefore was not covered by the company policy.
In early 1999, Michael Renfrow worked for CD Consulting & Operating Co., an oil field services business located in Bridgeport, Texas, a town of about 4,000 at that time, northwest of Fort Worth. One Friday evening about 7 p.m., Renfrow returned from working at a well site near Justin, some thirty miles west of Bridgeport, finished his paperwork, and left CD Consulting’s office for the day. Although Renfrow’s personal truck was parked at the office, Bobby Campbell, CD Consulting’s owner, let Renfrow take a company truck home, which was about half a mile away. Campbell would later testify that this was because Renfrow was due back at the well site at 6:00 a.m. the next day, and it was company policy to let an employee take a company truck home overnight when he had to be at a well site early the next morning. It is not entirely clear whether Renfrow knew of any such policy, and that Friday night he and Campbell did not specifically discuss what he could or could not do with the company truck. But Renfrow freely admits that he knew as a rule employees were not allowed to use company vehicles for personal business, this despite the fact that he was in the habit of driving a company truck to the home of his foreman, Jimmy Joe Stinnett, several nights a week to drink beer. Stinnett also lived in Bridgeport, not far from Renfrow.
Renfrow often drove a company truck to visit Mili Jo Roberts, too, and that is where he went when he left the office on the Friday night in question. Roberts lived in Bridgeport about a mile from CD Consulting’s office. Sometime during the evening, Renfrow and Roberts decided to go to Saginaw, a suburb of Fort Worth, about forty miles away. Renfrow would later testify repeatedly and consistently that he knew he did not have permission to take the company truck to Roberts’ home, let alone to Saginaw. Renfrow and Roberts were returning about 12:45 a.m. when the truck left the highway and hit an embankment. Roberts was killed and Renfrow was injured. Renfrow was later indicted by a Wise County grand jury for intoxication manslaughter.*fn3
