State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., No. 12890

• Court: Supreme Court of West Virginia
• Writing for the Court: CAPLAN
• Citation: 154 W.Va. 448,175 S.E.2d 478
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, etc., et al. v. ALLSTATE INSURANCE COMPANY.
• Decision Date: 17 July 1970
• Docket Number: No. 12890

Page 478

175 S.E.2d 478 154 W.Va. 448 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, etc., et al.
v.
ALLSTATE INSURANCE COMPANY. No. 12890. Supreme Court of Appeals of West Virginia. Submitted May 26, 1970.
Decided July 17, 1970.

Syllabus by the Court

1. The purpose of an omnibus clause in an automobile liability insurance policy being to extend coverage, in proper circumstances, to any person using the insured vehicle, and to afford greater protection to the public generally, such clause should be given a liberal construction so as to afford coverage thereunder.

2. When the terms of an insurance policy are open to construction, the policy should be construed most strongly against the insurer and in favor of the insured.

3. The term 'actual use' as used in the omnibus clause of an automobile liability insurance policy is not synonymous with 'drive' or 'operate'.

4. Where the omnibus clause of an automobile insurance policy provides for additional coverage for 'any person with respect to the owned automobile, provided the actual use thereof is with the permission of the named insured', the driver of the insured vehicle, is an additional insured within the purview of the omnibus clause if the automobile is being used for the purpose for which permission was granted.

Page 479

Campbell, Woods, Bagley, McNeer & Herndon, C. F. Bagley, M. G. Taylor, Huntington, for appellants.

[154 W.Va. 449] Jenkins, Schaub & Fenstermaker, Norman K. Fenstermaker, Huntington, for appellee.

CAPLAN, Judge:

This is an appeal from a final judgment of the Circuit Court of Cabell County entered in an action for a declaratory judgment instituted by the plaintiffs, State Farm Mutual Automobile Insurance Company, sometimes referred to as State Farm, and George Diaz, against Allstate Insurance Company, sometimes referred to as Allstate. The purpose of the action was to establish whether George Diaz was an insured under a policy of insurance issued by Allstate to the owners of the automobile he was driving at the time of the hereinafter described accident. From a judgment holding that he was not afforded coverage under the Allstate policy the plaintiffs prosecute this appeal.

Donald Hodge and Daisy M. Hodge, his wife, were owners of a 1964 Ford convertible automobile. Their daughter, Donna Hodge, on May 22, 1968, received her junior driver's license, upon the receipt of which she was given a set of keys to the automobile for the reason, as expressed by her father, 'so that when she used the car she wouldn't have to be coming to her mother or to me for the keys.' It is acknowledged by the parties that after receiving her junior driver's license and prior to the date of the accident, Donna had driven her parents' automobile on many occasions including several for her own personal pleasure.

On June 11, 1968 Donna approached her mother for permission to use the car to go for a drive with some of her friends. She did not specify where they were going but simply told her mother 'we were going to drive around'. The only instruction by her mother related to the time at which she was to return home. Neither of her parents had ever instructed Donna that she was not to allow anyone else to drive the automobile. Donna, upon receiving permission to use the automobile, picked up her friend Cathy Henshaw and then drove to the home of George Diaz where he and Robert Lee Estep joined them in the car, George and Donna sitting in the front [154 W.Va. 450] seat and Robert and Cathy occupying the rear seat. Although George Diaz did not have an operator's license, he got into the driver's seat and, apparently with Donna's permission, drove the automobile. They decided to drive out on Route 52 to Dickinson Dam on Twelve Pole Creek so the boys could go swimming, but before reaching this destination the automobile, still being operated by George Diaz, ran off the road, severely injuring Robert Lee Estep in the mishap. Thereafter, Robert and his father, William R. Estep, instituted an action against Donald and Donna Hodge and George Diaz, wherein they sought to recover damages in the amount of $35,000.00 for injuries alleged to have been suffered by Robert in the accident.

At the time of the accident there was in full force and effect an insurance policy issued by Allstate to Donald and Daisy Hodge as owners of the subject automobile. Under Section 1 thereof, designated Liability Protection, the following persons, in addition to the named insured and residents of the named insured's household,...