Johnson v. United States Fidelity & Guaranty Co.

601 P.2d 260, 1979 Alas. LEXIS 578
CourtAlaska Supreme Court
DecidedOctober 19, 1979
Docket4020
StatusPublished
Cited by2 cases

This text of 601 P.2d 260 (Johnson v. United States Fidelity & Guaranty Co.) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. United States Fidelity & Guaranty Co., 601 P.2d 260, 1979 Alas. LEXIS 578 (Ala. 1979).

Opinions

DIMOND, Senior Justice.

Tom Stacy, age 16 years, was driving Bradford Kallerson’s car. He ran into the rear of a car being driven by Clyde Johnson, glanced off that car, and then struck an oncoming vehicle being driven by John Greenway. Green way and Johnson were both injured, and commenced personal injury actions against Stacy.

Kallerson’s car was covered by a liability insurance policy issued by appellee, the United States Fidelity & Guaranty Company, which was called upon to defend Green-way’s and Johnson’s personal injury actions. USF&G then brought a separate declaratory judgment action, which is in issue here, in order to determine whether the scope of its insurance coverage on the Kallerson vehicle extended to an accident in which Stacy was the driver.

At issue in this action is the following provision of the insurance policy which is referred to generally as an omnibus clause:

Persons Insured
The following are Insureds under Part I:
(a) with respect to the owned automobile,
(1) the Named Insured and any resident of the same household,
(2) any other person using such automobile with the permission of the Named Insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and
(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an Insured under (a)(1) or (2) above . .

USF&G’s contention is that at the time of the accident Stacy was not an insured within the meaning of the omnibus clause, because he was using the automobile without the permission of Kallerson, the named insured, and thus was not covered by the policy. The superior court rendered a summary judgment in favor of USF&G’ and discharged it from all liability to the appellants, Johnson and Greenway. They have appealed.

Kallerson lived in Ketchikan. When he left there for a pipeline job on the North Slope, he placed his car in storage in a [262]*262warehouse located at the docks. He told his father, John Mott, and a close family friend, Russell Duvall, that they could use his car whenever needed. Kallerson explained in his deposition the broad authority of the two men to use his vehicle:

Q. You did give permission for your father and Russ to use the car?
A. Yes I did.
Q. And what did you tell them with regards to the car?
A. I just told them that if they needed to use the car they could use it.
Q. Did you limit their use of the car in any way?
A. No way. I mean I just told them that if they needed to use the car for something they could use it.

Kallerson later explained the broad discretion he invested in Duvall concerning another person driving the vehicle:

Q. Your testimony is that if Russ or your dad needed the car they could use it?
A. Yeah.
Q. If Russ needed the car in terms of wanting it out at Knudsen Cove would that need encompass him getting someone else to drive the car out there?
A. Well if he thought so I imagine it would, yeah.
Q. For whatever he felt he needed the car for he had the right to use?
A. Yeah. If that was referring to letting Tom Stacy drive the car out there why that’s — I would much rather have him drive the car out then [sic] I would the boat, (laughter).

Duvall recognized his unlimited discretion to use the automobile:

Q. Did you ever discuss with Mr. Kaller-son the possibility of someone else driving the car?
A. No.
Q. Did he give you any specific instructions either limiting your authority to use the vehicle in any way or prohibiting anybody for its use?
A. No.
Q. Did you pretty much feel that you had the discretion to do with the vehicle as you saw fit and proper?
A. Well as I saw proper, yes.

During the time Duvall used Kallerson’s vehicle, he allowed Tom Stacy, a family friend of both Duvall and Kallerson, to operate the car on approximately twelve occasions. The first time Stacy drove the car was prior to receiving his driver’s license, accompanied by Duvall. He later drove the car to and from the repair shop, not always accompanied by Duvall. On several occasions, Stacy drove the car to Knudsen Cove, a small boat harbor, to pick up Duvall who had been fishing. The day of the accident, which was the day prior to Kallerson’s return to Ketchikan, Stacy drove Duvall in the car to Kallerson’s house in order to clean the car. It was evening by the time the car was cleaned and the two had finished socializing by eating and playing pool. Duvall then gave Stacy the keys and Stacy drove Kallerson’s car to Stacy’s house and parked it there. Later that evening, he was driving the car with some young friends as passengers. The accident, which is the subject of this action, occurred while Stacy was driving out the North Ton-gass Highway on the way to a friend’s house.

In this appeal we are concerned with the correct interpretation to be given the omnibus clause which we have referred to earlier in this opinion. There is no problem as to insurance coverage under such a clause where the named insured is driving the automobile involved in an accident. Nor is there often any problem as to coverage of one to whom the insured has given permission to use the insured’s automobile. The problem that does frequently arise, and which has spawned much litigation, is the situation where an accident was caused by a third person who was driving the insured vehicle with the consent or permission of one to whom the named insured had given permission to use the car. That is the situation we have here. Duvall had express permission from Kallerson to use the latter’s car. Duvall permitted Stacy to use the car on various occasions. The question is whether Stacy’s use of the car at the time [263]*263of the accident was “with the permission,” express or implied, of Kallerson, the named insured, and was “within the scope of such permission,” within the meaning of the omnibus clause in the insurance policy.

The superior court held that, under the circumstances, Stacy’s use of Kaller-son’s car, as permitted by Duvall, would ordinarily be covered by the omnibus clause, so long as such use was for the benefit of Kallerson or Duvall. However, the court found that at the time of the accident Stacy’s use of the automobile was not only without express permission from Duvall, but was contrary to at least an implied permission, and in fact, was a prohibited use. Consequently, the superior court held that Stacy was not covered under the omnibus clause, and therefore that USF&G was not responsible for the injuries caused by Stacy’s accident.

From the deposition testimony of Kaller-son and Duvall, it is clear that Duvall had explicit permission to use Kallerson’s car without any restrictions as to such use.

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Related

Progressive Insurance Co. v. Simmons
953 P.2d 510 (Alaska Supreme Court, 1998)
Johnson v. United States Fidelity & Guaranty Co.
601 P.2d 260 (Alaska Supreme Court, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
601 P.2d 260, 1979 Alas. LEXIS 578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-united-states-fidelity-guaranty-co-alaska-1979.