American Fire & Cas. Co. v. Blanton
| Decision Date | 25 January 1966 |
| Docket Number | No. G-504,G-504 |
| Court | Florida District Court of Appeals |
| Parties | AMERICAN FIRE & CASUALTY COMPANY, a stock insurance company, Appellant, v. Ronnie Leon BLANTON, a minor, by and through his father and next friend, Leon M. Blanton, Appellee. |
Chandler, O'Neal, Carlisle, Avera & Gray, Gainesville, for appellant.
Richard J. Wilson, and Barton T. Douglas, Gainesville, for appellee.
Appellant insurer, defendant below, appeals from a summary final judgment for plaintiff, a minor, whose claim is based on the Medical Payments Provision of a liability insurance policy issued by defendant to Wayne Presnell whereby defendant agreed:
'To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance hospital, professional nursing and funeral services:
'Division 1. * * *
'(a) the owned automobile, while being used by the named insured, by any resident of the same household or by any other person with the permission of the named insured; * * *'
Defendant-appellant's answer denied coverage under the quoted provision and its primary contention here is that the judgment is erroneous because the policy expressly limits payment of medical expenses to persons occupying the owned automobile 'with the permission of the named insured,' whereas the uncontradicted proofs reveal that no such permission was given to the plaintiff whose medical expenses were incurred in the course of his unauthorized operation of said automobile. We do not so construe the contractual obligation.
The uncontested proofs reveal that the insured owned a poultry farm located several miles from his home and customarily allowed his 13-year-old son, Lee Presnell, to drive the insured automobile from his home to the farm for the purpose of working; under instructions, however, not to allow anyone else to ride with him and to drive it only directly to and from the farm. On the day plaintiff was injured Lee Presnell while at school arranged with some of his friends, including the plaintiff, to meet him at a filling station and ride with him from there out to the farm. He thereafter went alone to his home and after informing his mother that he was going to the farm drove the automobile to the filling station, picked up his friends, and from there drove past the farm to an area where there were some dirt roads. Lee then allowed a boy named Stewart Westmoreland, who had a motor scooter, to drive the automobile in return for the privilege of driving the motor scooter, and later granted the request of Ronnie Leon Blanton, the plaintiff, to drive the automobile. While so engaged Ronnie ran the automobile into a ditch bank and injured his arm, resulting in the expenditure of more than $500.00 for medical expenses. The proofs permit the reasonable inference that Ronnie knew that Lee's mother, who was at home when Lee picked up the automobile, would not have allowed it to be driven off if he and his companions had all gone to the Presnell home, that he had a feeling that Lee was not supposed to let anyone else drive it, and that he knew his companions were under age for legal driving of an automobile.
Appellant accepts the proposition that an omnibus clause as here considered embraces implied as well as express permission (Alabama Farm Bureau Mutual Cas. Ins. Co. v. Robinson, 269 Ala. 346, 113 So.2d 140 [1959]), but argues that vicarious liability under the dangerous instrumentality doctrine peculiar to this jurisdiction does not under the facts of this case extend to the contract provision relied on by plaintiff; otherwise stated, that implied permission cannot be imposed as a matter of law in order to attach contract liability under the subject policy provision where, as in this case, the uncontradicted proofs on the motion for summary judgment show that the insured owner specifically withheld permission for plaintiff to operate the insured vehicle.
The trial judge, relying on Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla.1959), held that the term implied permission 'has come to have a fixed, definite meaning in this jurisdiction'...
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