Davey v. Hedden

959 P.2d 920, 25 Kan. App. 2d 147, 1998 Kan. App. LEXIS 54
CourtCourt of Appeals of Kansas
DecidedMay 22, 1998
DocketNo. 77,843
StatusPublished

This text of 959 P.2d 920 (Davey v. Hedden) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davey v. Hedden, 959 P.2d 920, 25 Kan. App. 2d 147, 1998 Kan. App. LEXIS 54 (kanctapp 1998).

Opinion

Prager, J.:

Jason A. Davey appeals the district court’s decision denying his request for a garnishment against Farmers Alliance Mutual Insurance Company (Farmers) to satisfy a judgment in his favor against Catherine A. Farnsworth for $277,137.43.

In October 1990, while on vacation, Richard Hedden and his wife, Jennifer, left two vehicles, a minivan and a Mercedes-Benz convertible, at home. The Heddens and CKW, Inc., were the owners and named insureds of the Mercedes-Benz, which was insured by Farmers.

The Heddens gave their two sons, Jeff and Jon, permission to drive the vehiclés, but prohibited them from allowing anyone else to use them. Jeff and Jon, who were both 14 years old at the time, had restricted drivers’ licenses.

On October 26, 1990, Jon drove the Mercedes-Benz to a party. At the party, 15-year-old Jason Davey talked Jon into allowing him to drive the Mercedes-Benz to a nearby gas station with a friend, Farnsworth, who was also 15 years old. Jon expected Davey to return the car within 15 minutes.

On the way to the gas station, Davey allowed Farnsworth to drive. Jon had not given Farnsworth permission to drive the car. When Farnsworth and Davey arrived át the gas station, Davey purchased $2 or $3 worth of gasoline. On the return trip from the gas station, Farnsworth lost control of the car and hit a tree. Davey was thrown into the windshield, suffering severe facial lacerations.

Davey sued Farnsworth, the Heddens, and Farmers. Davey reached a settlement agreement with Farnsworth, which was incorporated into a consent judgment. As a part of the settlement, Davey agreed not to execute the judgment against Farnsworth. The journal entry of judgment found Farnsworth to be comparatively at fault, holding her liable for $277,137.43.

The district court granted summary judgment in favor of the other defendants. Davey appealed, and the decision was affirmed [149]*149in Davey v. Hedden, 260 Kan. 413, 920 P.2d 420 (1996). The Kansas Supreme Court held that the acts of Davey and Farnsworth constituted an efficient and independent intervening cause and that any entrustment on the part of the Heddens was not the efficient cause of Davey s injuries. 260 Kan. at 428.

Davey then filed a request for garnishment against Farmers, seeking payment of the judgment against Farnsworth under the omnibus clause of the Heddens’ automobile insurance policy. A bench trial was held, and the district court concluded, as a matter of law, that the Heddens had the authority to limit the use of their automobile; that Farnsworth was not a permittee of the Heddens and, therefore, was not entitled to protection under the omnibus clause of the insurance policy; and that none of the common-law exceptions to the general rule applied in this case. Judgment was entered in favor of Farmers. Davey timely appeals.

On appeal, Davey argues that the negligence of Farnsworth was covered by the omnibus clause of the Heddens’ automobile insurance policy and, therefore, he has the right to recover the amount of the judgment against Farnsworth from Farmers.

The omnibus clause of the insurance policy states, in pertinent part:

“SECTION II-LIABILITY COVERAGE
A. COVERAGE
1. Who is an insured
The following are ‘insureds’:
a. You for any covered ‘auto’.
b. Anyone else while using with your permission a covered ‘auto’ you own, hire or borrow . . . .”

This section of the automobile policy also contains certain exceptions which are not applicable in this case.

It is undisputed that Jon’s parents had given him permission to drive the Mercedes-Benz with the express prohibition that no one else drive the car and that Jon knew that he did not have permission to let anyone else drive the car.

In Gangel v. Benson, 215 Kan. 118, Syl. ¶ 2, 523 P.2d 330 (1974), the court held that “[a] family relationship existing between an [150]*150insured car owner and a person he permits to use the car is not sufficient, in and of itself, to imply consent or permission on the part of the insured that a second permittee, designated by the first, may also use the car.” The Gangel court also stated that “[i]t is the general rule that a second permittee using the car solely for his own purposes is not entitled to protection under the omnibus clause of an automobile insurance policy where the named insured has expressly prohibited the first permittee from allowing other persons to use or operate the car.” 215 Kan. 118, Syl. ¶ 3; see Farmers Ins. Co. v. Schiller, 226 Kan. 155, 160, 597 P.2d 238 (1979); Decker v. Avis Rent A Car System, Inc., 20 Kan. App. 2d 43, 46-47, 883 P.2d 781 (1994), rev. denied 256 Kan. 994 (1995).

Because of the potential harshness of the general rule, certain exceptions have been recognized. The exceptions, which were first set out in Gangel, 215 Kan. at 124-25, are as follows:

“Permission may be implied in some cases if and when:
(1) The first permittee is actually in the vehicle;
(2) The car is being used for the benefit of the first permittee or the named insured;
(3) The first permittee has equitable tide and unfettered control over the daily use of the car free of surveillance by the named insured;
(4) The named insured is aware of past violations of the restrictions but has continued to allow the permittee to have possession; or
(5) An emergency arises requiring such use.” Farmers, 226 Kan. at 160.

Davey argues that the district court erred in holding that the offer to buy gas was an inducement for Jon to breach the promise that he had made to his parents not to let anyone use the car and that the purchase of $2 or $3 worth of gasoline was not a material benefit to the Heddens.

The standard of review in this case is clear. The function of an appellate court is to determine whether the district court’s findings are supported by substantial competent evidence and whether the findings are sufficient to support the district court’s conclusions of law. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). This court’s review of conclusions of law is unlimited. See 250 Kan. at 129.

[151]*151We find that the district court applied the correct legal standard to this case. The facts fall squarely within the ambit of the general rule prohibiting unapproved permittees to claim the benefits of an automobile insurance policy. The district court examined the exceptions to the general rule and concluded that only the beneficial use exception could possibly have application in this case.

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Related

Gillespie v. Seymour
823 P.2d 782 (Supreme Court of Kansas, 1991)
Gangel v. Benson
523 P.2d 330 (Supreme Court of Kansas, 1974)
Farmers Insurance v. Schiller
597 P.2d 238 (Supreme Court of Kansas, 1979)
Davey v. Hedden
920 P.2d 420 (Supreme Court of Kansas, 1996)
Decker v. Avis Rent a Car System, Inc.
883 P.2d 781 (Court of Appeals of Kansas, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
959 P.2d 920, 25 Kan. App. 2d 147, 1998 Kan. App. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davey-v-hedden-kanctapp-1998.