Cutler v. Travelers Ins. Co., 236-78
| Decision Date | 05 February 1980 |
| Docket Number | No. 236-78,236-78 |
| Citation | 412 A.2d 284,138 Vt. 113 |
| Court | Vermont Supreme Court |
| Parties | Yolanda D. CUTLER and Franklin Cutler v. The TRAVELERS INSURANCE COMPANY and Eugene S. Graveline. |
Ryan & Ryan and John A. Burgess, Montpelier, for plaintiffs.
Fink & Birmingham, P. C., Ludlow, for Eugene S. Graveline.
Spencer R. Knapp of Dinse, Allen & Erdmann, Burlington, for defendants.
Before BARNEY, C. J., and DALEY, BILLINGS and HILL, JJ., and DIER, Superior Judge, Specially Assigned.
This appeal arises as a result of an accident on November 19, 1960, in Montpelier when a motor vehicle operated by the plaintiff-appellant, Yolanda Cutler, owned by her husband, plaintiff-appellant, Franklin Cutler, was in a collision with a motor vehicle operated by Alan Despault, owned by the defendant-appellee, Eugene S. Graveline and insured by defendant-appellee, The Travelers Insurance Company. In 1967 the plaintiffs sued Despault alone and recovered judgments. In November 1975 the plaintiffs brought suit on the judgments against the defendants claiming that defendant Graveline negligently entrusted the automobile and that Despault was "an additional insured" covered by defendant Travelers' policy of insurance on defendant Graveline's motor vehicle. On motion the trial court dismissed the action as to the defendant Graveline on the basis of the three-year statute of limitations. 12 V.S.A. § 512(4). After trial by court, the action was dismissed as to the defendant Travelers on the ground that Despault was not "an insured" under the policy, because he was not operating the motor vehicle with either the express or implied consent of the owner-defendant Graveline. Plaintiffs now appeal.
Under the omnibus provisions of the automobile liability insurance policy here applicable, an "insured" includes a person who operates the insured's motor vehicle with express or implied consent of the insured owner. Although the plaintiffs did not challenge the finding of the trial court or conclusion that Despault operated without either express or implied consent, plaintiffs urge that the fact that the keys were found either in the ignition of the motor vehicle or in the trunk lock implies consent. Plaintiffs assert this despite the findings that defendant Graveline did not know Despault either by sight or name, did not see him on the day in question, and, when he discovered the car was missing, first thought his father had moved it and then, fearing theft, notified the police. The trial court's...
To continue reading
Request your trial
-
GEICO Gen. Ins. Co. v. Dowd, Case No. 2:12-cv-40
...Permission or consent for another to use a vehicle may be express or implied. See Norman, 659 A.2d at 1124-25; Cutler v. Travelers Ins. Co., 412 A.2d 284, 285 (Vt. 1980); cf. Shulins v. New England Ins. Co. , 360 F.2d 781, 786 (2d Cir. 1966) (noting that "Vermont has adopted a reasonably br......
-
Alfa Mut. Ins. Co. v. Small
...disclaim liability and deny coverage, and the insurer therefore waived the defense of lack of permissive use); Cutler v. Travelers Ins. Co., 138 Vt. 113, 412 A.2d 284 (1980)(thief did not have the insured's express or implied consent to operate Alfa further argues that the law relating to b......