Insurance Co. of North America v. State Farm Mut. Ins. Co.

• Decision Date: 18 May 1979
• Citation: 266 Pa.Super. 197,403 A.2d 611
• Parties: INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY, Brenda Sexton, Judy N. Boccelli and Jackuerian (Jacalyn) Bruno.
• Court: Pennsylvania Superior Court

403 A.2d 611

266 Pa.Super. 197

INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY, Brenda Sexton, Judy N.

Boccelli and Jackuerian (Jacalyn) Bruno.

Superior Court of Pennsylvania.

May 18, 1979

Argued March 21, 1979.

Edward J. Marcantonio, Philadelphia, for appellant.

Paul F. Lantieri, Philadelphia, for appellee State Farm Mut. Ins Company.

No appearance entered nor brief filed for all other appellees.

Before VAN der VOORT, HESTER and MONTGOMERY, JJ.

PER CURIAM:

On September 4, 1976, an automobile owned by Robert A. Feehery, who was insured by State Farm Mutual Automobile Insurance Company (one of appellees) (State Farm) was involved in an accident as a result of which Judy N. Boccelli and Jackuerian (Jacalyn) Bruno were injured. The automobile was being driven at the time of the accident by Brenda Sexton, who had been granted permission to use the automobile by Virginia Feehery the nineteen year old daughter of the owner of the automobile.

The issue in the case is whether Virginia had the implied permission of her father to permit Brenda to use the automobile, it being conceded that she did not have his (or her mother's) express permission to do so.

This action was initiated under the Uniform Declaratory Judgments Act 1923 June 18, P.L. 840, 12 P.S. 837 by Insurance Company of North America (INA), which was the insurer of Brenda's father, to have it declared that State Farm should defend any legal actions instituted by the victims against Brenda and pay any awards of damages that might be rendered in their favor against her to the limits of its policy. In its reply State Farm, by way of cross-petition, sought a judgment declaring that INA provided the only coverage of Brenda. Following the taking of depositions and the filing of motions for summary judgment, the lower court granted the motion of State Farm and declared that it owed no coverage or duty to defend Brenda Sexton for any claim arising from the aforesaid accident. Plaintiff, INA, appealed.

The basis for the lower court's ruling was that it failed to find in the depositions any connection between the named insured in State Farm's policy, Robert A. Feehery, and Brenda Sexton from which permission to use the automobile by Brenda could be implied. This is the crucial factor in such cases. Belas v. Melanovich, 247 Pa.Super. 313, 372 A.2d 478 (1977). At page 484 in that opinion, we find the following: "From these decisions it will be seen that the critical question will always be whether the named insured said or did something that warranted the belief that the ensuing use was with his consent. There must be 'a connection made' with the named insured's own conduct; proof of 'acts circumstances and facts such as the continued use of the car', will be...