AIG Hawaii Ins. Co., Inc. v. Vicente

891 P.2d 1041, 78 Haw. 249, 1995 Haw. LEXIS 20

• Court: Hawaii Supreme Court
• Decided: March 30, 1995
• Docket: 16114
• Status: Published

Opinions

MOON, Chief Justice.

In this action for declaratory relief, plaintiff-appellant AIG Hawaii Insurance Co., Inc. (AIG) sought a judicial determination of its duty to defend and indemnify defendant Billy Bateman under an automobile liability insurance policy issued by AIG to third-party defendant Flor Corpuz for the claims asserted against Bateman by defendant/third-party plaintiff-appellee Pat Vicente. The dispute arose out of an automobile accident that occurred on November 1, 1989 involving vehicles operated by Bateman and Vicente.

AIG appeals from an order granting Vicente’s motion for summary judgment, entered on June 14, 1991, and an order granting in part and denying in part Vicente’s motion for summary judgment, filed on April 14, 1992. On appeal, AIG argues that the trial court erred in concluding that Bateman was a permissive user of the insured vehicle and was therefore a “covered person” under the AIG policy issued to Corpuz.

For the reasons discussed below, we hold that Bateman was not a permissive user of the insured vehicle and was therefore not a “covered person” under the insurance contract. Consequently, AIG does not owe a duty to defend or indemnify Bateman for the claims asserted against him by Vicente. We therefore vacate the circuit court’s order granting summary judgment in favor of Vicente and remand the case with instructions to enter summary judgment in favor of AIG and against Vicente.

I. BACKGROUND

The underlying facts are not in dispute. On November 1, 1989, Corpuz was the registered owner of a 1990 Mazda 323 sedan insured by AIG, as well as the named insured on the AIG policy, which provided, inter alia, bodily injury liability coverage. Although Corpuz made the down payment for the insured vehicle and paid all of the automobile loan payments until the date of the accident, the principal user of the insured vehicle was Corpuz’s seventeen-year-old daughter, third-party defendant Aida Corpuz (Aida).

Corpuz had explicitly instructed Aida not to allow anyone else to drive the insured vehicle. However, Aida had allowed Bate-man, her boyfriend, to drive the vehicle on several occasions without Corpuz’s knowledge. In his deposition testimony, Corpuz stated that he did not know Bateman even existed, let alone that Bateman was dating Aida or driving the insured vehicle.

On November 1, 1989, Bateman was driving Aida home from work in the insured vehicle when they were involved in a collision with a vehicle driven by Vicente. On December 21, 1989, AIG brought this action for declaratory relief, seeking a judicial determination that it had no duty to defend and/or indemnify Bateman against the bodily injury claims made by Vicente. AIG maintained that Bateman was not a “covered person” under the policy because Bateman was not using the insured vehicle with Corpuz’s permission.

On April 2, 1991, AIG filed a motion for summary judgment. Vicente also filed a motion for summary judgment on May 23,1991. By order filed on May 9, 1991, the circuit court denied AIG’s motion and, by order filed on June 14, 1991, granted Vicente’s motion. AIG filed a notice of appeal on July 12,1991. This court dismissed the appeal on December 3,1991 because the judgment was not final as to all claims and parties insofar as the cross-claim brought by Vicente against Bateman was still pending.

On February 18, 1992, Vicente filed a second motion for summary judgment; the motion was granted in part and denied in part by order filed on April 14, 1992. On April 28, 1992, Vicente dismissed her erossclaim against Bateman without prejudice, and this appeal followed.

II. STANDARD OF REVIEW

It is well settled that

[o]n appeal, an award of summary judgment is reviewed under the same standard applied by the trial courts. Under Hawai'i Rules of Civil Procedure Rule 56(c), summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Dawes v. First Ins. Co. of Hawai'i, Ltd., 77 Hawai'i 117, 121, 883 P.2d 38, 42, reconsideration denied, 77 Hawai'i 489, 889 P.2d 66 (1994) (quoting Sol v. AIG Hawai'i Ins. Co., 76 Hawai'i 304, 306, 875 P.2d 921, 923, reconsideration denied, 76 Hawai'i 353, 877 P.2d 890 (1994)) (internal citations omitted); see also Sentinel Ins. Co. v. First Ins. Co. of Hawai'i, 76 Hawai'i 277, 287, 875 P.2d 894, 904, reconsideration granted, 76 Hawai'i 453, 879 P.2d 558 (1994).

III. DISCUSSION

The dispositive issue before us is whether Bateman qualifies as a “covered person” under the AIG policy issued to Corpuz. Pursuant to the “omnibus” clause of the policy, the definition of “covered person” includes “any person using [the named insured’s] covered auto with [the named insured’s] permission.” The policy does not otherwise define “permission.”

We have often noted that “insurance policies are governed by statutory requirements in force and effect at the time such policies are written.... Such provisions are read into each policy issued thereunder, and become a part of the contract with full binding effect upon each party.” AIG Hawai'i Ins. Co. v. Caraang, 74 Haw. 620, 633, 851 P.2d 321, 328 (1993) (quoting National Union Fire Ins. Co. v. Ferreira, 71 Haw. 341, 344, 790 P.2d 910, 912 (1990)) (internal quotation marks omitted). Hawai'i Revised Statutes (HRS) § 431:10C-301(a)(2) (1987 Spec.Pamphlet) provides in pertinent part:

Required motor vehicle policy coverage. (a) In order to meet the requirements of a no-fault policy as provided in this article, an insurance policy covering a motor vehicle shall provide:

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(2) Insurance to pay on behalf of the owner or any operator of the insured motor vehicle using the motor vehicle with the express or implied permission of the named insured, sums which the owner or operator may legally be obligated to pay for injury, death, or damage to property of others ... which arise out of the ownership, operation, maintenance, or use of the motor vehicle[.]

(Emphasis added.) Similarly, HRS § 287-25(2) (1985) provides in pertinent part:

Owner’s policy requirements. An owner’s policy of liability insurance:

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(2) Shall insure the person named therein and any other person, as insured, using any such motor vehicle ... with the express or implied permission of the named insured, against loss from the lability imposed by law for damages arising out of the ownership, maintenance, or use of the motor vehicle[.]

(Emphasis added.)

Pursuant to the language of the above statutes, as read into the policy in issue, Bateman is a “covered person,” if he was using the insured vehicle with either the express or implied permission of Corpuz. See also 12 G. Couch, Cyclopedia of Insurance Law § 45:350 at 692 (2d ed.1981) [hereinafter, Couch] (“The permission required to bring an additional insured within the protection of an omnibus clause may, as a general proposition, be express or implied, and the omnibus clause may specifically provide, or be required by statute to provide, that the permission of the named insured may be express or implied.”).

There is no dispute that Corpuz did not give Bateman express permission to use the insured vehicle. Indeed, Corpuz did not even know of Bateman’s existence prior to the accident. The question is therefore narrowed to whether Bateman was operating the insured vehicle with Corpuz’s implied permission.

A. Basic Principles of Implied Permission

Couch notes that “[i]mplied permission may arise as a product of the present or past conduct of the insured, and the relationship between the parties, including the lack of any objection to the use by the permittee, which signifies acquiescence or consent of the insured[.]” Couch, supra, § 45:352 at 696-97. Implied permission “is usually shown by such usage and practice of the parties over a sufficient period of time prior to the day on which the insured car was being used, as would indicate to a reasonable mind that the permittee had the right to assume permission under the particular circumstances.” Id. at 697-99.

Decisions from other jurisdictions have also held that implied permission may be proven from circumstantial evidence. For example, in Subscribers at the Automobile Club Inter-Insurance Exchange v. McClanahan, 607 S.W.2d 718 (Mo.App.1980), the Missouri Court of Appeals noted that “[pjermission may be proven by circumstantial evidence, but the circumstances must be such that the necessary fact may be inferred therefrom and must reasonably follow, so that the conclusion so reached is not the result of guesswork, conjecture or speculation.” Id. at 721 (quoting United States Fidelity and Guar. Co. v. Safeco Ins. Co. of America, 522 S.W.2d 809, 816 (Mo.1975)).

B. The Scope of the Permission

It is undisputed that Aida expressly allowed Bateman to drive the insured vehicle. It is also undisputed that: (1) Corpuz did not know Bateman was driving the insured vehicle; (2) there is no evidence of any relationship between Corpuz and Bateman; and (3) there is no evidence of any conduct on the part of Corpuz indicating consent or acquiescence to anyone’s use of the insured vehicle other than Aida.

In the absence of any affirmative evidence indicating Corpuz impliedly permitted Bate-man to drive the insured vehicle, we examine whether, as a matter of law, the scope of permission conferred upon Aida by Corpuz included the ability to permit others to drive the insured vehicle; or in other words, whether Corpuz impliedly permitted Bate-man to drive the vehicle through the scope of permission Corpuz conferred upon Aida. The outcome-dispositive issue, therefore, rests on the effect of Corpuz’s express limitation of Aida’s ability to allow others to drive the insured vehicle.

In Columbia Casualty Co. v. Hoohuli, 50 Haw. 212, 437 P.2d 99 (1968), this court had occasion to analyze a similar situation involving an omnibus clause and the scope of permission between a named insured, a first permittee, and a second permittee. In Hoo-huli, Wallace Yamamoto owned a dump truck insured by appellant United States Fidelity & Guaranty Company (USF & G). Yama-moto leased the truck to Mid-Pacific Trucking, Inc. (Mid-Pac). The policy insuring the truck contained an omnibus clause that extended coverage to “any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the Named Insured or such spouse or with the permission of either.” Id. at 212-13, 437 P.2d at 101.

On the date of the accident, appellee Hoo-huli, an employee of Mid-Pac, was instructed to drive the truck from a Mid-Pac work site back to the Mid-Pac truck yard. On the way back to the-yard, he saw some of his friends who were going to the beach. Hoohuli parked the truck on a side street, joined his ftiends in their car, and went to the beach. They remained at the beach until after sundown, when Hoohuli’s friends drove Hoohuli back to the truck at approximately 8:00 p.m. Hoohuli then started to return the truck to the Mid-Pac yard; but after driving two or three blocks, he noticed that the braking system was losing air pressure and stopped to call a repairman. After Hoohuli got out of the truck, the truck began rolling down a hill. He jumped back into the truck and attempted to get the truck under control. However, the brakes failed, and Hoohuli could not prevent the truck from rolling onto the sidewalk and into a house. Several people, who were in the house, were injured and brought suit against Hoohuli and Mid-Pac.

Noting that USF & G could be held hable only if Hoohuli was driving the truck at the time of the accident with Yamamoto’s express or implied permission, the Hoohuli court set out three rules as developed by the ease law addressing the issue at the time, namely: (1) the “strict” or “conversion” rule, which required that the scope of permission include the precise use to which the permit-tee is putting the automobile at the time of the accident for the permittee to be operating with the named insured’s permission; (2) the “liberal” or “initial permission” rule, where if a permittee is given permission to use the car, regardless of express or implied restrictions on his or her operation, the per-mittee is covered for any subsequent use short of theft or the like; and (3) the “moderate” or “minor deviation” rule, where a per-mittee is covered, if the use at the time of the accident is no more than a slight deviation from the scope of permission actually given. Id. at 216, 437 P.2d at 103.

In its analysis of the rules available, the Hoohuli court sought to adopt or craft a rule consistent with Hawaii’s statutory scheme and was mindful of the principle that interpretation of a statutorily mandated omnibus clause requires a balancing of competing interests. The Hoohuli court noted:

By extending coverage, the omnibus clause protects the named insured, the permittee who may be uninsured otherwise, and the innocent party injured by an otherwise uninsured permittee. Clearly these interests would support the broadest possible construction, the initial permission rule or even complete coverage for anyone driving the car. On the other hand, the legislatively required omnibus clause infringes on the insurer’s right to select its risks. The clause shifts to the named insured the right to' select additional insureds which the insurer might have declined to cover. Moreover, in selecting the additional insured, the named insured may be unconcerned with the additional insured’s “insur-ability.” These reasons would support a relatively narrow construction.

Id. at 217-18, 437 P.2d at 104.

Seeking a rule that would permit a high degree of predictability, the Hoohuli court first rejected both the “strict” and “initial permission” rules, noting that “[t]he alleged high degree of certainty which accompanies the strict and initial permission rules turns out to be illusory because of the exceptions which seem to evolve.” Id. at 218, 437 P.2d at 105. Instead, seeking to strike a balance between “expansive interpretation” of the omnibus clause “within a limit of reasonableness,” id. at 218-19, 437 P.2d at 105, the Hoohuli court ultimately rejected all three rules, adopting instead the test announced by the Supreme Court of Vermont, providing that:

with a showing that the vehicle was placed in the hands of the operator by consent, a presumption arises that the particular use to which the vehicle was being put was within the scope of that consent as measured by the law. The overcoming of this presumption requires evidence establishing that consent had been expressly withdrawn prior to the actual use, or that the actual use was so far afield from the purpose of the loan of the vehicle as to amount to, at best, a temporary tortious conversion.

Id. at 219, 437 P.2d at 105 (quoting American Fidelity Co. v. North Brit. & Merc. Ins. Co., 124 Vt. 271, 275, 204 A.2d 110, 113 (1964)).

The Hoohuli court therefore held that, under this approach, Hoohuli was driving the truck with the named insured’s implied permission, specifically noting that the named insured did not place any limitation on the use of the truck when leasing the truck to Mid-Pac. The court noted that, because the case arose out of a commercial context and the named insured conceivably could not have expected the corporation to drive the truck when he leased it to Mid-Pac, the named insured surely must have contemplated that a Mid-Pac employee would drive the truck. It was to the employee that the named insured gave permission. Hoohuli, 50 Haw. at 219, 437 P.2d at 105. The court therefore treated Hoohuli as a “first” permit-tee. Id.1

Most importantly, however, for purposes of the present case, the Hoohuli court held that, although Hoohuli could have been considered to be a “first” permittee, the result would be the same if Hoohuli was considered a “second” permittee, because

Yamamoto [the named insured] gave Mid-Pac [the first permittee] complete dominion over the truck.... Normally a second permittee is limited not only by the scope of permission from the named insured to the first permittee, but also may be limited by a narrower scope of permission from the first permittee to him. In this case, Mid-Pac chose to narrow the scope of permission it received from Yamamoto by prohibiting Hoohuli from using the truck for pleasure.

Id. at 220, 437 P.2d at 105 (emphasis added). Three principles are immediately apparent from the above-quoted language: (1) the Vermont rule establishing a presumption in favor of coverage for a first permittee, as adopted in Hoohuli, applies to a second per-mittee where the named insured places “complete dominion” over the insured vehicle in the hands of the first permittee; (2) the second permittee is limited by the scope of permission from the named insured to the first permittee; and (3) limitations expressed verbally between the named insured and the first permittee and between permittees will be respected and given effect provided such verbal limitations are supported by sufficient evidence.

We believe these principles adopted and enunciated in Hoohuli control the disposition of the present case. We adhere to the position announced in Hoohuli that where a named insured places “complete dominion” over the insured vehicle in the hands of a first permittee and does not otherwise limit the scope of permission granted, a rebuttable presumption arises that the scope of the permission granted to the first permittee includes the ability to allow others to drive the insured vehicle. As we noted in Hoohuli, “[t]he party who would limit the scope of permission must discharge a heavy burden and therefore in most cases coverage will be clear.” 50 Haw. at 219, 437 P.2d at 105.

Applying the Hoohuli principles to the present case, it is undisputed that, when Corpuz granted Aida permission to drive the insured vehicle, he explicitly instructed her not to allow others to drive the vehicle. Cor-puz, therefore, did not place “complete dominion” over the insured vehicle in Aida. The scope of Corpuz’s permission to Aida, the first permittee, was limited, and inasmuch as a “second permittee is limited ... by the scope of permission from the named insured to the first permittee,” id. at 220, 437 P.2d at 105, the scope of permission allegedly accorded Bateman, the purported second permittee, by Aida, the first permittee, was correspondingly limited; thus, Bateman could not have driven the insured vehicle with the implied permission of Corpuz. In other words, on the record before us, Bate-man cannot possibly be a permissive user and cannot possibly be a “covered person” entitled to coverage under the AIG policy-issued to Corpuz.

The dissent relies heavily upon the decision in Gillen v. Globe Indemnity Co., 377 F.2d 328, 333 (8th Cir.1967), and by doing so, ostensibly advocates the adoption of a position expressly rejected in Hoohuli. In Gil-len, the United States Court of Appeals for the Eighth Circuit reviewed a decision of the United States District Court for the Eastern District of Arkansas, which had diversity jurisdiction and was faced with a question of first impression under Arkansas law. In Gil-len, Carl Garrison was the owner of a 1961 Chevrolet automobile and the named insured on an automobile insurance policy issued by Globe Indemnity, which included coverage for the Chevrolet. It was clear that Garrison purchased the ear primarily for the use of his seventeen-year-old daughter, Suzy, who lived at home and used the car primarily to drive to and from school. The Globe Indemnity policy included an omnibus clause that provided coverage for “any other person using such automobile with the permission of the named insured.” Garrison had explicitly instructed Suzy not to allow anyone else to drive the ear. Suzy, however, allowed her boyfriend, Larry Gillen, to drive the car on one occasion, and Gillen was involved in an accident.

Despite what appeared to be relevant Arkansas precedent to the contrary,² see, e.g., Dodson v. Sisco, 134 F.Supp. 313, 317 (W.D. Ark.1955) (“[t]he original permittee who has been given permission to use the automobile but had been expressly forbidden to delegate this authority cannot do so, and the use of the car by the second permittee in violation of the named insured’s express order is not within the protection of the policy”); Allstate Ins. Co. v. Mathis, 232 Ark. 484, 339 S.W.2d 132 (1960) (approving a jury instruction that would deny omnibus coverage if the jury found that the named insured forbade the first permittee to allow the second permittee to drive the insured car), the Gillen court advocated ³ the application of the “liberal” or “initial permission” rule and cited to cases so holding, including Matits v. Nationwide Mutual Insurance Co., 33 N.J. 488, 166 A.2d 345 (1960), the very case cited by the Hoohuli court as exemplifying the “initial permission” rule. See Gillen, 377 F.2d at 332; see, e.g., Allstate Ins. Co. v. Fidelity & Casualty Co. of New York, 73 N.J.Super. 407, 418, 180 A.2d 168, 174 (1962) (‘“We think that the “initial permission” rule best effectuates the legislative policy of providing certain and maximum coverage, and is consistent with the language of the standard omnibus clause in automobile liability policies. Accordingly, we hold that if a person is given permission to use a motor vehicle in the first instance, any subsequent use short of theft or the like while it remains in his possession, though not within the contemplation of the parties, is a permissive use within the terms of a standard omnibus clause in an automobile liability insurance policy.’ ” (citing Matits, 38 N.J. at 496-97, 166 A.2d at 349 (emphasis added))); Brooks v. Delta Fire & Cas. Co., 82 So.2d 55 (La.App.1955) (“The initial permission given by the named assured to an original permittee includes, according to the better view, the use of the automobile by a second permittee where in doing so the second permittee serves some purpose, benefit, or advantage of the first permittee.” (citing Longwell v. Massachusetts Bonding & Ins. Co., 63 So.2d 440, 443 (La.App.1953))).

However, as noted above, this court expressly rejected the “initial permission” rule in Hoohuli:

We conclude that the benefits from extended coverage justifies an expansive interpretation of the omnibus clause. We believe, however, that the requirement of consent places a limit of reasonableness on this court. Therefore, while we will construe the scope of permission more broadly than under the minor deviation rule, we will not go so far as to construe it so broadly as to adopt the initial permission rule.

50 Haw. at 218, 437 P.2d at 105 (emphasis added).

The dissent further makes much of the fact that the Hoohuli court mentioned that, at the time the appeal before it was decided, the legislature had not yet enacted a mandatory insurance scheme. The Hoohuli court noted that “[a] more extreme rule [than the Vermont rule adopted in Hoohuli ] might be justified if the legislature were to enact a mandatory insurance law.” 50 Haw. at 219 n. 4, 437 P.2d at 105 n. 4. The legislature has since enacted a mandatory insurance law, see HRS ch. 431:10C (1987 Spec. Pamphlet, Supp.1992 & Comp.1993 & 1994); but, it would be imprudent to interpret the passage of such a statutory scheme alone as authorizing the adoption of the “liberal” or “initial permission” rule. The primary objectives of the implementation of the mandatory insurance scheme were to:

(1) institute insurance reform in order to (a) expedite the settling of all claims, (b) create a system of reparations for injuries and loss arising from motor vehicle accidents, (c) compensate these damages without regard to fault, and (d) modify tort liability for these accidents; and (2) to reduce the cost of motor vehicle insurance by establishing a uniform system of motor vehicle insurance.

Methven-Abreu v. Hawaiian Ins. & Guar. Co., 73 Haw. 385, 393, 834 P.2d 279, 284 (1992) (emphasis added) (quoting Hawaiian Ins. & Guar. Co. v. Financial Sec. Ins. Co., 72 Haw. 80, 91, 807 P.2d 1256, 1261, reconsideration denied, 72 Haw. 616, 841 P.2d 1074 (1991)), reconsideration denied, 73 Haw. 625, 838 P.2d 860 (1992). It is apparent from the above-quoted passage that the mandatory insurance scheme was implemented to provide for both wide compensation and cost reduction. Thus, the enactment of HRS ch. 431:10C benefits persons injured as a result of motor vehicle accidents, named insureds, and the automobile liability insurance' industry. In our view, this does not demonstrate any legislative intent to expand the Hoohuli principles to encompass the “liberal” or “initial permission” rule.

As the principles announced in Hoohuli control the present case, it is unnecessary to look to case law from other jurisdictions cited by the parties and the dissent. We must note, however, that because decisions in this area are extremely fact-sensitive, the presence or absence of one additional factor may change the result.⁴

IV. CONCLUSION

For the reasons stated above, we vacate the circuit court’s order granting summary judgment in favor of Vicente and remand this case with instructions to enter summary judgment in favor of AIG and against Vicente.

1 . The Vermont case relied upon by the Hoohuli court, American Fidelity Co. v. North British & Mercantile Insurance Co., Ltd., 124 Vt. 271, 204 A.2d 110 (1964), was also a "first permittee” case. In American Fidelity, Mr. Blanchard, test driving a car owned by Mr. Fredette, a car dealer, struck and injured plaintiffs in the underlying tort suit, who were sitting in their parked car. At the time of the accident, Blanchard was using the car to take two six-year-old children to get ice cream. Blanchard became liable to pay a $6,000 judgment in favor of the injured parties, and Blanchard's insurer brought a declaratory judgment action against Fredette's insurer for contribution. Analyzing the three prevailing rules gleaned from existing precedent in other jurisdictions, the American Fidelity court rejected them all, much as we did in Hoohuli, and formulated its own rule.

The American Fidelity court held that, with a showing that the vehicle was placed in the hands of the operator by consent, a presumption arises that the particular use to which the vehicle was being put was within the scope of that consent as measured by the law. Because the record revealed that both Blanchard and Fredette agreed that there had been no conversation between them relative to any restrictions on the use by Blanchard of any Fredette vehicle turned over to him, the court concluded that there was insufficient evidence to overcome the presumption that Blanchard's use was within the scope of Fre-dette's consent. The court thereby rejected the trial court’s conclusion that testimony by both Blanchard and Fredette, indicating an intention on the part of Fredette and a realization on the part of Blanchard that the car was in Blanchard’s possession for the purposes of demonstration and sale, was sufficient to allow the court to conclude that the vehicle was in Blanchard’s possession without permission.

2 . The Gillen court noted:

Though we have no assurance that the case before us would be approached by the Arkansas courts in a manner similar to our approach herein, certainly there is nothing to indicate that Arkansas courts would follow a rule other than the apparently unanimous position on this point announced by Dodson v. Sisco.

377 F.2d at 333.

3 . The Gillen court readily acknowledged that, because Arkansas law controlled the disposition of the case and, having characterized the issue before it as one of first impression in Arkansas, its disposition of the case would have no binding effect on Arkansas law, and therefore that its pronouncement of the law was purely conjectural:

To apply coverage in the case before us we would have to take an additional step and say that relinquishing control of an insured vehicle to one that could reasonably be foreseen to loan the car to a third person, contrary to instructions, implies permission by the named insured to the third party use. We know of no court that has gone this far, and the Arkansas courts have given no indication that they would place themselves in a minority position by adopting such a rule.

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Furthermore, we do not propose to establish the law of Arkansas on this matter. An attempt has been made under the necessity of our dual system of jurisprudence to anticipate what the law of Arkansas might be, but this is little more than a fiction. The questions of risks and insurance protection are questions perhaps as strongly influenced by a state's own notion of public welfare and social policy as by decisions of sister jurisdictions. We deplore the role of having to decide cases that may be precedent in the establishment of purely local law and policy. It would have been preferable for this action to have been brought in the state courts in order that a definitive state ruling might have been obtained. For when presented with this or a like question, the Arkansas courts may wish to take an entirely different approach, and rightfully so.... At any rate, the presently undeclared law of Arkansas on this issue might, and should be free to develop in an entirely different manner if and when the Arkansas courts are given the opportunity to rule on these questions.

4 . The dissent expresses much concern over the effect of the holding in the present case on a "variation of the facts of this case.” See Dissenting opinion at 1052-1053. We acknowledge the panoply of factual situations that may arise in permissive use law and recognize that different cases may merit different results. Nevertheless, we decline to compromise the just disposition of the present case in any way in favor of a general rule capable of purportedly wider prospective application. Ironically, the dissent’s criticisms ignore the closing admonitions of the Gillen opinion:

With this ruling, however, we must add a word of caution. The decision in this area often appear to be delicately balanced on the peculiar facts of the individual cases. The change of a few facts might be enough to imply consent in the named insured.... The addition or subtraction of any one of the many factors present could easily have changed the holding herein.

377 F.2d at 328 (emphasis added). Similarly, the dissent’s view that the “only real virtue” of the rule we announce today is the "certainty of its application,” Dissenting opinion at 1047 n. 3, highlights the dissent's preoccupation with factual situations that are not before us for disposition. As we noted in Hoohuli:

None of the approaches previously described provides absolute certainty. The alleged high degree of certainty which accompanies the strict and initial permission rules turns out to be illusory because of the exceptions which seem to evolve. Nor do we believe it proper to exalt predictability, even if absolutely attainable, over other considerations. In the absence of an absolute rule that the omnibus clause extends coverage to every person driving the insured automobile, doubt will exist.