Curtis v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 17 January 1979
• Docket Number: No. 76-1964,76-1964
• Citation: 591 F.2d 572
• Parties: Helen CURTIS, By and Through her father and next friend, L. E. Curtis, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 572

591 F.2d 572

Helen CURTIS, By and Through her father and next friend, L E. Curtis, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Defendant-Appellant.

No. 76-1964.

United States Court of Appeals, Tenth Circuit.

Argued Jan. 24, 1978.

Decided Jan. 17, 1979.

Alfred M. Pence, Laramie, Wyo. (Pence, Millett & MacMillan, Laramie, Wyo., on the brief), for defendant-appellant.

Paul B. Godfrey, Cheyenne, Wyo. (Godfrey & Sundahl, Cheyenne, Wyo., on the brief), for plaintiff-appellee.

Before HOLLOWAY, DOYLE and McKAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant State Farm Mutual Automobile Insurance Company appeals from a declaratory judgment, entered on a jury verdict, declaring that a liability insurance policy issued by State Farm to Robert E. Ahrens and JoAnn Ahrens extended coverage to one Joseph Wallace, the driver of the Ahrens vehicle at the time of the accident involved herein. Jurisdiction is founded upon diversity. The primary question before us is whether Wallace comes within the definition of "insured" contained in the policy's omnibus clause, as "any . . . Person while using the Owned motor vehicle, PROVIDED THE OPERATION AND THE ACTUAL USE OF SUCH VEHICLE ARE WITH THE PERMISSION OF THE NAMED INSURED . . . AND ARE WITHIN THE SCOPE OF SUCH PERMISSION . . . ." ¹

The Ahrens family had three cars an Oldsmobile, a Volkswagen owned by Mr and Mrs. Ahrens, and a pickup. The older Ahrens girls, Beth and Shawnna, mainly used the Oldsmobile and Volkswagen, and Mr. Ahrens used the pickup to drive to work.

The accident in question occurred in the early morning of July 5, 1973, outside of Cheyenne, Wyoming. During the previous afternoon, Deborah Ahrens, the 14-year-old daughter of Robert and JoAnn Ahrens, had made arrangements with her friend Helen Curtis and with Brian Tottenhoff and Joseph Wallace to meet at the local ballpark between 1:00 and 2:00 a. m. to shoot off some fireworks. (II R. 40). Helen was spending the night of July 4 with Deborah at her home. Sometime between 1:30 and 2:00 a. m., Deborah and Helen left the Ahrens home after Deborah's parents had gone to bed and proceeded to drive the family Volkswagen to the chosen meeting place.

Deborah was not licensed to drive. She had taken the car keys from their customary location on top of the television set without her parents' knowledge. (Id. 33, 45-46, 141). On their way out of the Ahrens' neighborhood, the girls encountered Deborah's older sister, Beth, driving home in the family Oldsmobile. The two sisters stopped and talked for five or ten minutes, but Deborah's use of the Volkswagen was never discussed. (Id. 47). Before she left home, Deborah had also told Shawnna what they were going to do that night; Shawnna knew the girls were going out and made no comment either to forbid or consent to their going. However, Deborah did not tell Beth or Shawnna that she and Helen were going to pick up the boys. (Id. 48-49, 52-53, 54).

Deborah and Helen picked up the boys and went to shoot off the fireworks. The four then started home around 3:30 a. m. Deborah had been driving all along, but at this point Joe Wallace asked if he could drive, and she agreed. (Id. 49). Wallace, like Deborah, was unlicensed. According to Deborah, the accident occurred about five minutes after Wallace took the wheel: "He was going too fast, and he went airbound with the car, and it went over on to the embankment." (Id. 51).

Helen Curtis suffered extensive injuries in the accident, and her father incurred about $15,000 in medical expenses for her treatment. When State Farm disclaimed coverage as to Wallace, Helen's father brought this suit on her behalf for a determination that the defendant State Farm was obligated to defend and indemnify Wallace under the company's policy issued to Mr. and Mrs. Ahrens. As noted, a verdict and declaratory judgment adverse to the company resulted. This appeal followed.

I

The company's primary contention on appeal is that the evidence is clear that Wallace did not have permission to drive the vehicle under the terms of the omnibus clause of the policy, so that coverage did not extend to him. The company says that the district court therefore erred in its denial of a motion for a directed verdict made at the conclusion of plaintiff's case and again at the end of defendant's case, as well as in its denial of a motion for judgment n. o. v.

Wallace was not covered by the policy unless his operation and actual use of the Volkswagen were with the permission of a named insured. ² The district court instructed the jury that Robert Ahrens and his wife JoAnn were the named insureds under the policy and that neither named insured gave Wallace actual permission to drive the car. (II R. 166). Thus, the controlling question is whether Wallace had implied permission for use of the car so as to bring him within the coverage of the policy.

In United Services Automobile Association v. Preferred Accident Insurance Co., 190 F.2d 404, 406 (10th Cir.), we stated that:

The necessary permission may be in the form of implied affirmative consent. It may result by implication from the relationship of the parties and their course of conduct in which they mutually acquiesced. And it may arise from a course of conduct pursued with knowledge of the facts for such time and in such manner as to signify clearly and convincingly an understanding consent which amounts in law to a grant of the privilege involved.

The question of implied permission is thus one of fact. Phoenix Assurance Co. v. Latta, 373 P.2d 146, 149 (Wyo.). Plaintiff points to much in the record which, it is said, supports the jury's implicit finding of implied permission. In view of such evidence, plaintiff argues that it would have been improper for the trial court to direct a verdict or grant judgment n. o. v. for defendant, because the evidence did not point "all one way" in favor of the moving party. Bertot v. School District No. 1, 522 F.2d 1171, 1178 (10th Cir.).

The foundation for a finding of implied permission, plaintiff argues, is the fact that JoAnn Ahrens, Deborah's mother and one of the named insureds, has been blind due to the effects of diabetes since before 1973. Because of this tragic fact, Mrs. Ahrens has had to rely on her three daughters to "take care of everything" around the house. (II R. 14). In July 1973, the two older daughters, Beth (then age 17) and Shawnna (age 16), were licensed drivers and had free use of the family cars, both for carrying out family-related responsibilities such as grocery shopping and for going to and from their part-time jobs. (Id. 16, 26). As noted, the family custom was to keep the car keys on top of the television set; anyone who had used the car would lay the keys down on the set and anyone who wanted to use the car would take the keys off the set. (Id. 19).

Around that time Beth also often took one of the cars out of town on recreational trips to Steamboat Springs and similar places, staying two or three days. Mrs. Ahrens knew that on such trips friends of Beth's went with her and drove the car. There was testimony that Beth's friends McCue and Fleming would sometimes drive the car on such trips and that, while neither JoAnn nor Robert Ahrens gave express permission to them to drive, both parents knew about such driving and neither objected to it. (Id. 20, 29, 143, 145). Also, Shawnna was allowed to take the family cars around town frequently and drove one of the cars to work sometimes. (Id. 18).

Thus, Beth and Shawnna were allowed to drive the cars "as they needed or liked" (id. 26) except when their father was using them. They bought gas "when they had money and they were out and they needed it" though customarily their father would maintain the automobiles in working condition. (Id. 35-36). And with Beth at least, there was precedent for allowing other persons to drive the family automobiles without express permission from either parent.

With respect to Deborah, there was testimony that Mr. Ahrens had signed a statement that he had never given Deborah any restrictions as to her use of the car and that there had been no express prohibition to its use. The statement also said, however, that "Debbie was not supposed to drive this vehicle." (Id. 80-82). Mr. Ahrens testified that he thought his wife had been asked during the taking of earlier statements whether the parents had ever specifically told Deborah she could not take the car, that he had said they never specified she could not take it, but that it was "understood on down the line, that I think it probably started with Beth and then Shawnna and then Debbie." (Id. 146). Both Mr. and Mrs. Ahrens testified that they had not given Deborah permission to use the car on the night of the accident and did not know that she had taken the car until they were notified about the accident. (Id. 26-27, 34, 140, 142).

Deborah testified that one time she had driven a family car with her father to a friends' house. She also said that once about a month before the accident she had driven the car without her father. (Id. 38-39). However, her parents both testified they had not known that Deborah had taken the Volkswagen out on any occasion before the accident. (Id. 23, 140).

Plaintiff argues that because of the unusual circumstances relating to the blindness of Mrs. Ahrens, the mother and father had permitted the two older daughters to operate the family vehicles as if they had actually been owners, and that when the older daughters were aware of Deborah's going for the ride in the Volkswagen on the night of July 4, they had unqualified permission to allow Deborah to operate the car. (Brief of Appellee, 4). From Beth and Shawnna's implied consent that Deborah drive the car, and from Deborah's actual consent for Wallace to drive, plaintiff says there was implied consent by Mr. and Mrs. Ahrens that Wallace drive the Volkswagen at the time of the...