The opinion of the court was delivered by: William K. Sessions III District Judge
MEMORANDUM OPINION and ORDER
In this insurance coverage dispute, Plaintiff Government Employees Insurance Company ("GEICO") seeks a ruling that it is not obligated to defend or indemnify its insured Defendant Timothy Dowd in connection with any claim brought by the estate of Kathryn Borneman ("Estate") stemming from injuries Borneman suffered as a result of a motor vehicle collision. Defendant Estate has counterclaimed for a declaration of coverage, for breach of contract and breach of the implied covenant of good faith and fair dealing. GEICO has moved for summary judgment; the motion, ECF No. 43, is denied.
On the evening of December 26, 2010, Timothy Dowd drove recklessly while attempting to elude the City of Burlington police. In the course of this escape attempt he ran a red light and collided with a vehicle driven by Kathryn Borneman, who was killed on impact. Dowd was driving a 2000 Jeep Grand Cherokee that did not belong to him.
For several months before the collision, Dowd had an intimate relationship with Sarah Yandow. He described the relationship as primarily sexual, but that they were also friends. They ran errands together and did favors for one another. They were frequent passengers in each others' vehicles. Yandow drove Dowd's car on at least one occasion, but before December 26 Dowd had never driven the Jeep.
Yandow referred to the Jeep as her car and told Dowd that she was the owner. She testified at a deposition that she bought it. She kept a considerable amount of her personal belongings in the car, and had discussions with Dowd about its need for repairs. At one point she told him that her father had helped her get a new starter for the car. Dowd believed that Yandow owned the car, and Yandow admitted that he had reason to believe that she was the owner. In fact the jeep was owned by Jeremy Martin, Yandow's live-in boyfriend, whom Dowd did not know.
On the evening of December 26, Dowd and Yandow had made plans to spend time together. Yandow came to Dowd's home for dinner, but before they sat down to eat Yandow announced that she had to run an important errand to drop something off. She suggested Dowd accompany her. He understood that they would be back shortly, and left without his cell phone. It was a cold night, and he was not dressed for an outing, although he did put on a jacket. They drove from Hinesburg, Vermont, to Burlington, Vermont, and Dowd came to realize that it would not be a short trip. When they reached Yandow's destination, a place unfamiliar to Dowd, Yandow did not park in front of her friend's house, but on another street. She said that she'd be back in five minutes. She expected him to wait, and Dowd waited in the car with the engine running. Dowd did not know which house belonged to Yandow's friend, and he did not notice which house she entered.
Inside, Yandow obtained a Percocet from one of her friends, took it and socialized with her friends. After waiting nearly forty minutes, Dowd became annoyed, and decided to drive back to Hinesburg and wait for Yandow to call him. Although he struggled with the decision to leave because he did not want to seem rude, he believed that he had permission to drive her car. He stated that he would not have driven it had he thought he was doing it without her permission. Dowd thought that had their positions been reversed, Yandow would have been justified in taking his vehicle. He believed that she would know that he had gone home, and she would have been able to get in touch with him.
Yandow admits that she is not very good at estimating time, frequently changes plans without warning and is usually late.
When Yandow found her car gone she was shocked. She thought she had been inside only twenty-five minutes, and she couldn't understand why he hadn't waited. Had it been forty minutes she felt he would have gotten annoyed and left her there. She did not call the police because she thought he had simply gone home mad. She started calling Dowd at his home after she thought he'd had time to get there because she knew that he didn't have his cell phone with him. She called Jeremy Martin that night, but she did not say that her car had been taken without her permission. She did not tell the friend with whom she stayed that night or anyone else that her car had been taken without her permission. She intended to have a friend drive her to Hinesburg in the morning so that she could retrieve her car.
During Dowd's attempt to drive back to Hinesburg he struck and killed Kathryn Borneman.
The automobile insurance policy issued to Dowd by GEICO provides for liability coverage to Dowd while operating a "non-owned auto" "with the permission, or reasonably believed to be with the permission of the owner and within the scope of that permission." GEICO Policy No. 4202940575 ("Policy") at 4, ECF No. 43-8.
Summary judgment is appropriate where the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The record evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences drawn in his or her favor. E.g., Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A dispute concerning "a material fact is genuine 'if ...