Government Employees Ins. Co. v. Kinyon

• Decision Date: 15 May 1981
• Citation: 119 Cal.App.3d 213,173 Cal.Rptr. 805
• Court: California Court of Appeals Court of Appeals
• Parties: GOVERNMENT EMPLOYEES INSURANCE COMPANY, Plaintiff and Respondent, v. Karla Dawn KINYON, a minor, Defendant and Appellant. Civ. 22494.

Page 805

173 Cal.Rptr. 805

119 Cal.App.3d 213

GOVERNMENT EMPLOYEES INSURANCE COMPANY, Plaintiff and Respondent, v. Karla Dawn KINYON, a minor, Defendant and Appellant.

Civ. 22494.

Court of Appeal, Fourth District, Division 1, California.

May 15, 1981.

As Modified on Denial of Rehearing June 9, 1981.

Thomas E. McDougall, Carlsbad, for defendant and appellant

Post, Kirby, Wideman & Noonan and David J. Noonan, San Diego, for plaintiff and respondent.

STANIFORTH, Associate Justice.

Mark S. Bunn, is a defendant in the underlying negligence action brought by Karla Dawn Kinyon to recover for personal injuries sustained by her in an automobile accident. At the time of the accident, Mark was driving and Karla was a passenger in a "non-owned automobile," a pickup truck belonging to Steven and Magda Perdiak.

This action for declaratory relief was brought by the Government Employees Insurance Company (GEICO) against the Bunns and Kinyon, seeking to determine the respective rights and duties of GEICO and its named insured, Charles E. Bunn (the father of Mark S. Bunn), under its "Family Automobile Policy." More particularly the issue tendered concerns GEICO's duty to provide a defense ¹ and indemnification "(b) with respect to a non-owned automobile,

in Kinyon's suit against Mark Bunn by virtue of the omnibus clause. The "non-owned automobile" clause of the policy provides coverage:

"(1) the named insured,

"(2) any relative, but only with respect to a private passenger automobile or trailer,

"provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission, and

"(3) any other person or organization not owning or hiring the automobile, but only with respect to his or its liability because of acts or omissions of an insured under (b)(1) or (2) above."

After a nonjury trial, the court determined the pickup truck to be a passenger automobile but conformable to GEICO's contentions found Mark Bunn did not have express or implied permission from the owners (Perdiaks) or the Perdiak grandson, John Mandoki, a permittee to drive the Dodge pickup; nor did Mark have a reasonable belief that he had permission from the owners to drive the vehicle. Based upon these factual findings, the court concluded GEICO had no obligation under its policy to defend or indemnify either the father, Charles E. Bunn, or the son, Mark, from any damage or loss sustained as a result of the underlying Kinyon damage suit. Kinyon appeals the judgment.

FACTS

In the late evening hours of March 14, 1977, nonlicensed 15-year-old Mark Bunn was involved in an accident while driving a Dodge pickup truck owned by Steven and Magda Perdiak. Karla Kinyon, Julie Mandoki and Janell Crehan were passengers in the pickup truck. Karla sustained personal injuries for which she filed the underlying action against the Bunns.

Mark obtained possession of, was driving the vehicle in the following circumstance. Passenger Julie Mandoki and her brother John are grandchildren of the Perdiaks and were residing in the Perdiak home in Oceanside at the time of the accident. Mark was a friend of both Julie and John. John was a licensed driver and Steven Perdiak allowed him to drive the pickup on occasions. Julie was not licensed to drive and was not permitted by her grandparents to do so. Steven Perdiak told John on several occasions he was not to allow anyone else to drive the pickup. The "rule of the house" was that John could not drive the pickup after the grandparents left in the evening for work. John had, to Mark's knowledge, allowed two other individuals to drive the pickup contrary to the grandparents' direction. Mark knew Steven Perdiak owned the pickup truck and did not want him driving it.

On the night of the accident, Mark was at the Perdiak house after the Perdiaks had departed for work. He received the keys to the pickup from Julie in this disputed fact context.

Julie testified (by way of deposition) she knew the grandfather did not let anyone else besides John drive the truck and John was prohibited from driving the truck "after dark" after the Perdiaks had gone to work. On the evening in question, John was asleep upstairs. Julie asked Mark if he knew how to drive the truck. He said yes; whereupon Julie went upstairs and said to John "Give me the keys to the truck, and we'll go pick up Chris" (John's girlfriend). John said "Okay" and "he (John) told me where the keys were and I got them. But I had his permission" and then "I showed him (the key) and told him that Mark was going to drive.". John said "Just bring Chris back to me" after being told Mark was to drive.

Mark testified Julie came downstairs and tossed the keys in his lap and said "Come on let's go." Mark then asked Julie "Is it all right? Is it okay if we take the truck?" She said "Yeah. Sure." Mark testified to his own knowledge of persons (minors) other John's testimony obliquely contradicts his sister's (Julie) testimony concerning his giving the key to her after being told Mark would drive. John states he was asleep knew nothing about a trip to pick up Chris and bring her to him. He learned of the whole affair when awakened by the police at 3 a. m. with news of the accident. Karla Kinyon's testimony depicts an awake John giving the key (and gas key) to Julie. While the circumstances surrounding Mark's obtaining the key are sharply in conflict, yet the conceded fact stands: Mark drove the pickup without the permission of the known "owner," Steven Perdiak, that evening.

than John who had driven the truck with John's permission but he admits that "(Mr. Perdiak) wouldn't let (him) drive the truck" but he "didn't know John wouldn't let (him) drive the truck."

DISCUSSION

I

The explicit language of the GEICO-Bunn policy "non-owned" automobile clause grants coverage in (b)(2) to "any relative" provided his actual operation or use of the nonowned vehicle (the Perdiak pickup truck) was "with the permission, or reasonably believed to be with the permission of the owner ...."

It is Kinyon's position that when Steven Perdiak gave permittee John authority to drive the vehicle, then permission could be given by the permittee to a subpermittee (Mark) even though the owner had directed John not to allow another to drive the vehicle, citing Peterson v. Grieger, Inc., 57 Cal.2d 43, 17 Cal.Rptr. 828, 367 P.2d 420. The Supreme Court there stated that "for purposes of (former Veh.Code) section 402 liability (now § 17150), 'if the owner entrusts his car to another, he invests him with the same authority to select an operator which the owner has in the first instance.' (Citations.)" (Id., at p. 54, 17 Cal.Rptr. 828, 367 P.2d 420.)

If we assume the authority is in point, yet factually this court is foreclosed from applying such principles. The trial court expressly found, based upon sharply conflicting evidence, that "John Mandoki did not give permission to either Julie Mandoki or Mark S. BUNN to drive the ... vehicle ...."

That finding of the trial court is supported by substantial evidence albeit conflicting. This court is bound by the established rule of appellate review "all factual matters will be viewed most favorably to the prevailing party (citations) and in support of the judgment (citations)." (Nestle v. City of Santa Monica, 6 Cal.3d 920, 925, 101 Cal.Rptr. 568, 496 P.2d 480.) The power of this court begins and ends with a determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the findings and the judgment. (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782, 784, 59 Cal.Rptr. 141, 427 P.2d 805.)

II

The findings of absence of actual or implied permission obtained from either John or his grandfather is but prologue to the problem presented by this further language granting coverage where use of a nonowned vehicle is "reasonably believed (by such relative) to be with the permission, of the owner and is within the scope of such permission ...."

No California authority has been cited ² interpreting this precise language.

One California authority observed in passing that beginning in the 1963 Family Automobile Liability Policy the requirement of "permission" from the owner of the nonowned vehicle was relaxed by extending coverage if the relative (as distinguished from the named insured) "reasonably believed" the use "to be with the permission of the owner." (Anderson v. State Farm Mut. Auto Ins. Co., 270 Cal.App.2d 346, 350, 75 Cal.Rptr. 739. The proviso, however, has been examined, interpreted in depth by several courts of sister jurisdictions. The more persuasive, weight of authority views are as follows:

If the policy language grants coverage where the insured "reasonably believed" he has permission to use the nonowned vehicle, the scope of the coverage has been held to be significantly broader than a policy which is limited by its terms to actual (or implied) permission. (State Farm Mutual Auto Ins. Co. v. Zurich Amer. Ins. Co. (1972) 118 N.J.Super. 84, 286 A.2d 517, affirmed in part 62 N.J. 155, 299 A.2d 704; Western States Mutual Insurance Co. v. Verucchi, 38 Ill.App.3d 266, 347 N.E.2d 63, 67; Maryland Casualty Co. v. Iowa National Mut. Ins. Co., 54 Ill.2d 333, 297 N.E.2d 163; American Motorists Insurance Co. v. LaCourse (Me.1974) 314 A.2d 813; Carlsson v. Pennsylvania General Insurance Co., 214 Pa.Super. 479, 257 A.2d 861, 866, affirmed, 438 Pa. 553, 265 A.2d 520; Selected Risk Ins. Co. v. Zullo, 48 N.J. 362, 225 A.2d 570; Farmers Insurance Co. of Washington v. USF&G Co., 13 Wash.App. 836, 537 P.2d 839, 842, and authorities cited; Employers Commercial Union Ins. Co. v. Bertrand (La.App.1975) 306 So.2d 426, 429-430; United States Fidelity & G. Co. v. Safeco Ins. Co. of Am. (Mo.1975) 522 S.W.2d 809, 817; Nationwide Mutual Insurance Company v. Vaughn (D.C.W...