410_C147
WAS
UNLICENSED DRIVER A PERMISSIVE OPERATOR?
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Automobile |
Unlicensed Driver |
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Permissive Driver |
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David Pearlman
held an automobile insurance policy with Commerce Insurance Company insuring
his Toyota Avalon. On March 23, 1997, David let his teenage daughter, Samantha, use his car to go on an outing with friends. After
meeting at a restaurant, Samantha and several of her friends decided to travel
to a common destination, taking two cars. Samantha gave her friend, Timothy
Thomas, permission to drive her car, although she knew that Thomas only had a
learner's permit, had not taken a driver's education course, and had previously
driven her car only two or three times. The other car, a Toyota Corolla, was
driven by Jeffrey Smith. There were three passengers in the Corolla in addition
to Smith.
The two cars were driving
on a two-lane highway, Smith following Thomas, when Smith lost control of the
Corolla and crashed into several trees. Two of the passengers were killed, and
one severely injured. There was evidence that Smith had been trying to pass
Thomas just before he lost control of the car.
The accident resulted in
lawsuits filed by the mothers of the injured passenger and one of the
passengers who was killed. The lawsuits included
several claims against Thomas. Commerce filed a declaratory judgment action
seeking a ruling that it had no duty to defend or indemnify Thomas. The cases
were eventually consolidated in Superior Court. The judge granted Commerce's
motion for summary judgment as well as those of the defendants. The mothers
appealed.
On the issue of whether
Commerce was required to defend or indemnify Thomas, the appeals court agreed
with the lower court. The relevant language of the policy (a sixth edition
standard
"We will pay only
if you or someone else using your auto with your consent is legally responsible
for the accident."
For optional bodily injury
to others, the language provided:
"We will also pay
damages if someone else using your auto with your consent is legally
responsible for the accident…Also, like the Compulsory Part, this Part does not
pay for the benefit of anyone using an auto without the consent of the
owner."
The court construed this
language to mean that the insurer's obligation under the policy extended only
to persons who were driving the vehicle with the consent of the policyholder.
The evidence showed that David Pearlman was the
policyholder. Samantha was listed as an operator, but she did not have her
father's permission to allow Thomas or anyone else to operate the vehicle
except in an emergency. This was not a
case where Samantha had unfettered permission to operate the car. Because David
Pearlman, the policyholder, did not give consent to
Thomas' operation of the car, Commerce was under no obligation to defend or
indemnify Thomas.
In the action brought by
Commerce for declaratory judgment, the judgment of the lower court was
affirmed.
It should be noted,
however, that, based on evidence that there may have been racing between the
two cars or that Smith was responding to a challenge posed by Thomas, the
appeals court did reverse the lower court judgment dismissing complaints
against Timothy Thomas and Samantha Pearlman.
Picard v. Thomas-No. 01-P-1716-Appeals Court of