|
Watercraft |
Driver with permission |
Phil
Brondes, Jr.(Brones) purchased a boat in 1979. He kept it in Toledo during the
summer and in Florida during the winter. During the winter of 1979-1980, he
experienced some mechanical difficulty while the boat was in Florida, and had
it shipped from Florida to Brenner Marine in Toledo for necessary repairs.
Brondes was
personally acquainted with Selz, the store manager and primary service manager
of Brenner Marine. He directed Selz to make the boat operational for the
upcoming summer season. The repairs were completed on June 15, 1980, and the
boat was placed in a berth at Brenner Marine, where it remained until June 25th
when Selz and some friends used Brondes'
boat.
Selz and his
passengers traveled about five or six miles from the marina, and then
water-skied for about an hour. The boat, driven by Selz, then collided with a
pontoon boat occupied by Norman Peiffer, Connie Peiffer, Walter L. Scott and Ida
M. Scott. Brondes' insurance carrier, Frankenmuth Mutual (Frankenmuth), denied
liability for injuries because Selz had not obtained Brondes permission to take
the boat.
Frankenmuth
filed for declaratory judgment to determine whether its policy covered the
accident, and named as defendants Selz, his homeowners' carrier, Brenner
Marine, and their carrier (Buckeye), the Scotts and the Peiffers.
The trial
court found that Selz had neither the express or implied permission of Brondes
to operate his boat at the time of the accident; therefore, Frankenmuth did not
cover the accident. The court further ruled that Selz was not operating the
boat within the scope of his employment so as to make Brenner Marine or Buckeye
liable. The court decided that only Selz's homeowners policy covered the
accident.
On appeal,
the higher court found that Selz and Brondes were close friends who had
waterskied many times together. In addition, Brondes had offered Selz the use
of the boat while Selz was on vacation in Florida, but Selz did not take
advantage of the offer. It was also shown that Selz had never before operated
the Brondes boat without him being present. Brondes testified that the
personnel at Brenner Marine had his permission to test-drive the boat, if they
believed it was necessary to make the boat operational but the court pointed
out that a test drive would have required approximately 20 to 30 minutes to
complete. In this case, the accident occurred more than an hour after Selz had
taken the boat out, while he and friends were water-skiing.
The judgment
of the lower court was affirmed.
Frankenmuth
Mutual Insurance Co. v. Selz et al__No.
82-1240__Supreme Court of Ohio-August 10, 1983-North Eastern Reporter (2d)
1203.