Loffler v. Boston Insurance Co., 1716.

• Decision Date: 17 February 1956
• Docket Number: No. 1716.,1716.
• Citation: 120 A.2d 691
• Parties: Andreas Lain LOFFLER, as Administrator of the Estate of Cynthia Ann Loftier, Deceased, Appellant, v. BOSTON INSURANCE CO., Inc., a Corporation, Appellee.
• Court: D.C. Court of Appeals

Page 691

120 A.2d 691

Andreas Lain LOFFLER, as Administrator of the Estate of Cynthia Ann Loftier, Deceased, Appellant, v. BOSTON INSURANCE CO., Inc., a Corporation, Appellee.

No. 1716.

Municipal Court of Appeals for the District of Columbia.

Argued January 23, 1956.

Decided February 17, 1956.

Rehearing Denied March 12, 1956.

Sidney M. Goldstein, Washington, D. C., with whom Joseph D. Bulman and Arthur S. Feld, Washington, D. C., were on the brief, for appellant. Samuel Z. Goldman, Washington, D. C., also entered an appearance for appellant.

Richard W. Galiher, Washington, D. C., with whom William E. Stewart, Jr., and Julian H. Reis, Washington, D. C., were on the brief, for appellee.

Before CAYTON, Chief judge, and HOOD and QUINN, Associate judges.

CAYTON, Chief Judge.

Cynthia Loftier was killed in an accident while driving an automobile owned by Ralph Boernstein. At the time Cynthia was "on a date" with Mr. Boernstein's son, Robert, who had his father's permission to use the car for that purpose. Contrary to his father's express instructions that he was not to allow anyone else to drive, Robert permitted Cynthia, an unlicensed operator, to drive while he rode with her in the car. It was while Cynthia was at the wheel that the fatal accident occurred.

This action was brought by Miss Loflier's administrator (her father) to recover the cost of her funeral expenses under a liability policy issued by defendant-insurer to Ralph Boernstein. The insurance company resisted the claim on the ground that since the car was being driven in violation of their policy-holder's express intructions, it was not "being used" with his permission, so as to bring the deceased within the coverage of the policy. The trial court entered judgment for defendant and plaintiff asks us to reverse that decision.

The question presented is whether the automobile was "being used" within the meaning of the "medical payments" provisions of the policy under which the insurer agreed to: "pay all reasonable expenses incurred * * * for * * * funeral services, to * * * each person who sustains bodily injury * * * caused by accident, while in * * * the automobile if the automobile is being used by the named insured or with his permission." [Emphasis supplied.]

Both parties agree that if the car was being used with the insured's permission, plaintiff is entitled to recover. Plaintiff contends the trial court erroneously construed the word "used" to be synonymous with "operated"; and that the word "used" has a much broader meaning and should not have been given such a limited construction.

While there is some conflict among the courts, we think the better rule is that so long as the use as distinguished from the operation is with the permission of the insured, the insurer is liable.

This distinction was carefully noted in Persellin v. State Automobile Ins. Ass'n, 75 N.D. 716, 32 N.W.2d 644, 647, where the court in construing language similar to that here involved said: "In addition to the named insured, it [the policy] makes both persons using the automobile and persons responsible for the use thereof insured persons, if but one condition be met. That condition is that the actual use of the automobile be with the permission of the named insured. There is no condition that the driving or operation of the car must be with the permission of the named insured, and no condition that a person, other than the user, * * * must have the permission of the named insured." [Emphasis supplied.]

Again in Glens Falls Indemnity Co. v. Zurn, 87 F.2d 988, 989, the Seventh Circuit, speaking through Lindley, J., and referring to the status of the borrower of an automobile held that though he was not driving at the time of the accident, he had permission to "direct the enterprise". The court quoted as follows from Arcara v. Moresse, 258 N.Y. 211, 179 N.E. 389: "* * * [the borrower] "did not abandon the car or its use when he surrendered to another the guidance of the wheel"; he was "still the director of the enterprise, still the custodian of the...