COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69448 and 69452 VERA M. KIRKENDOLL, ADMRX., : ET AL. : : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION STATE FARM INSURANCE CO., ET AL.: : Defendant-appellees : : DATE OF ANNOUNCEMENT : MAY 16, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-264752 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellees: DAVID J. ELK, ESQ. HENRY A. HENTEMANN, ESQ. Elk & Elk Meyers, Hentemann, Schneider & 6110 Parkland Blvd. Rea Mayfield Heights, OH 44124 2100 Superior Bldg. 815 Superior Avenue, N.E. LEONARD EHRENREICH, ESQ. Cleveland, OH 44114 JOHN M. GUNDY, JR., ESQ. 1130 Leader Bldg. Cleveland, OH 44114 - 2 - PATTON, J. Plaintiff-appellants Vera Kirkendoll (the administratrix of the estate of Lisa Kirkendoll) and Katrina Harris brought this declaratory judgment action seeking a declaration of the terms of an automobile insurance policy issued by defendant-appellee State Farm Mutual Automobile Insurance Company to its insured, defendant- appellee Frank Stehr. The trial court found no liability under the policy terms and granted defendants' motion for summary judgment. The sole assigned error challenges the summary judgment. Decedent Lisa Kirkendoll died from injuries she sustained after being struck by a car owned by defendant Frank Stehr and, which through a series of circumstances, happened to be driven by Steven Robertson. The uncontradicted facts show Stehr originally loaned his wife's car to his son Christopher, specifically telling him not to allow any other persons to drive the car. Later that evening, the son attended a party and permitted a person named Omar Ward to use the car. Omar Ward then permitted his brother, Kenneth Ward, to use the car. Kenneth Ward, in turn, gave the car keys to Steven Robertson. The intoxicated Robertson left the party and at about 2:30 a.m., while driving without headlights, struck the vehicle driven by decedent Lisa Kirkendoll. Stehr did not know Robertson and did not give him direct permission to drive the vehicle. Kirkendoll's estate filed this declaratory judgment action asking the court to determine whether it could collect under the - 3 - liability coverage of Stehr's automobile insurance policy on grounds the policy insured Robertson as one driving the vehicle with the owner's consent. State Farm (assuming the defense for Stehr), argued against coverage and submitted Stehr's deposition testimony to the effect he told his son not to loan the car to anybody else. The trial court granted summary judgment without opinion. I The estate argues the trial court erred granting summary judgment because Frank Stehr's testimony on the issue of permissive use is an issue for the jury. It maintains Stehr's testimony is so compelling, it must be considered self-serving and not worthy of credibility. The estate claims Stehr's deposition testimony that he spoke to his insurance agent prior to loaning the car to his son "seems extremely convenient" under the circumstances and creates an issue of credibility for the jury. Civ.R. 56 provides that summary judgment shall be rendered if the evidence permits reasonable minds to come to one conclusion, and that conclusion is adverse to the party against whom summary judgment is made. The syllabus to West v. McNamara (1953), 159 Ohio St. 187, states: "An automobile liability insurance policy covering not only the named insured but also any person while actually using the automobile with the permission of the named insured does not cover the permittee of a permittee of a permittee of the named insured, where the last - 4 - permittee drives the car without the presence of the named insured or the first or second permittee or not in the interest of or for a purpose mutual to such driver and the named insured or his permittee, and where neither the named insured not the first permittee permits, either directly or by implication, the last permittee to drive such car." See, also, Security Mut. Cas. Co. v. Hoff (1978), 54 Ohio St.2d 426, 428-429; Cincinnati Ins. Co. v. Kramer (1993), 91 Ohio App.3d 528; Jackman v. Cincinnati Ins. Co. (1987), 41 Ohio App.3d 149. The applicable provisions of the insurance policy at issue define as "insured" as: 3. the relatives of the first person named in the declarations; 4. any other person while using such a car if its use is within the scope of consent of you or your spouse." The uncontradicted facts show Stehr told his son, "you're the only one allowed to drive this car, you cannot give this car to anybody else to drive ***." The estate presented no evidentiary material contradict Stehr's deposition testimony, but claims that testimony is so attuned to the law set forth in West, supra, as to be self-serving and ultimately lacking in credibility. Presumably, all evidence presented by a party supporting or opposing summary judgment is self-serving in the sense it is intended to aid, rather than damage the party's case. But labeling evidence as "self-serving" is not the same thing as implying that same evidence lacks credibility simply because it benefits the party's position. The trial court cannot weigh credibility when - 5 - considering evidentiary material presented in favor of, or in opposition to, a motion for summary judgment. Killilea v. Sears, Roebuck & Co. (1985), 27 Ohio App.3d 163, 167-168. In the absence of a finding of bad faith pursuant to Civ.R. 56(G), the evidence must be considered truthful for summary judgment review. See Aglinsky v. Cleveland Builders Supply Co. (1990), 68 Ohio App.3d 810, 816. In this case, the estate made no attempt to contradict Stehr's deposition testimony. "A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus. Absent evidence sufficient to create an issue of material fact on the permissive use issue, the trial court did not err by granting summary judgment. II The estate next argues the trial court erred by granting summary judgment because a question of fact exists on the question whether Stehr's son negligently entrusted Stehr's car to Omar Ward. The estate did not raise negligent entrustment of the vehicle as grounds for declaratory relief, nor for that matter did it name Stehr's son as a party to its complaint. The law is settled that a party may not raise new matters on appeal. Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 220; Kalish v. Trans World Airlines (1977), 50 Ohio St.2d 73. - 6 - III The estate's final argument is a vehicle owner's ability to restrict permission offends public policy. He argues the public policy of this state favors insurance coverage to protect motorists, and permitting an automobile owner to claim a subsequent driver did not have permission to drive the vehicle, essentially renders the vehicle uninsured, when it is in fact insured. Although conceding the trial court followed the letter of the law in granting summary judgment, the estate claims the court did not follow the spirit of the law. A non-permissive use provision of an automobile insurance policy does not violate public policy. See Cincinnati Ins. Co. v. Kramer, 91 Ohio App.3d at 533. Accordingly, we find the trial court did not err by granting summary judgment. The assigned error is overruled. Judgment affirmed. - 7 - It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, P.J. DYKE, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .