Langston v. Shirley

682 So. 2d 1281, 1996 La. App. LEXIS 2593, 1996 WL 628240
CourtLouisiana Court of Appeal
DecidedOctober 30, 1996
DocketNos. 28815-CA, 28816-CA
StatusPublished
Cited by4 cases

This text of 682 So. 2d 1281 (Langston v. Shirley) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Langston v. Shirley, 682 So. 2d 1281, 1996 La. App. LEXIS 2593, 1996 WL 628240 (La. Ct. App. 1996).

Opinions

I2PRICE, Judge Pro Tern:

The sole issue presented on this appeal by an automobile liability insurer is whether the driver who negligently caused an accident drove with the implied permission of the owner to provide coverage under the omnibus clause of the policy.

FACTS

The negligent driver in this situation was 20-year-old Kevin P. Miles, who was driving an Isuzu pickup truck belonging to Ronald Shirley and insured by Safeway Insurance Company. This vehicle was furnished by Shirley to his 21-year-old son, Darius Shirley, for his exclusive use. Darius Shirley and Kevin Miles were long-time friends and school mates and in the fall of 1992 they attended Northwestern State University together. As Ronald Shirley was a widower who resided in rural Winn Parish with only his 14-year-old son living with him, he invited Darius and Kevin to move into his residence so they could commute to school in Natchitoches. At this time, Kevin also had a truck and they used his vehicle part of the time until it became disabled. After approximately six months, they both left school and sought employment, but continued to reside in the home with Ronald Shirley. Kevin had [1283]*1283no operable vehicle at this time and relied entirely on Darius for transportation.

Ronald Shirley had given Darius instructions not to let anyone else drive the Isuzu truck which he furnished Darius and specifically told him not to let Kevin use the truck, as Shirley was under the impression that since 13Kevin was not a relative, he would not be covered under his insurance policy.

On April 13, 1993, Darius and Kevin drove into Winnfield to the recreation center to pick up Darius’ younger brother after a baseball game. While there, Darius decided that he and his brother would ride with Darius’ girl friend and Kevin would drive the Isuzu track to pick up an employment application on his way home.

While on this mission Kevin collided with the vehicle driven by one of the plaintiffs in these consolidated tort actions and in which the plaintiff in the other consolidated suit was a guest passenger. The trial court rendered judgment against Kevin Miles and Ronald Shirley’s liability insurer, Safeway Insurance Company, finding that Miles’ negligence was the sole cause of the accident and that he was an insured under Ronald Shirley’s insurance policy. The trial court’s finding of negligence on the part of Kevin Miles and the court’s awards of damages for plaintiffs in each suit are not before us on this appeal by Safeway Insurance Company.

DISCUSSION

Safeway contends that its policy did not afford coverage to Kevin Miles under the omnibus clause as the insured owner, Ronald Shirley, in giving permission to his son Darius to have full use of the insured vehicle, gave specific instructions for him not to allow Miles to drive the vehicle.

Safeway’s policy with Ronald Shirley provides:

Persons Insured. The following are insureds [ ]:
(a) With respect to the owned automobile, (1) the named insured,
14(2) any other person using such automobile to whom the named insured has given permission, provided the use is within the scope of such permission. ...

This clause is typically referred to as an “omnibus clause.” A plaintiff who seeks to establish coverage under the omnibus clause of an automobile liability policy must prove the vehicle was being used with the express or implied permission of the named insured. Perkins v. McDow, 615 So.2d 312, 315 (La.1993).

The “initial permission” rule applies to persons using a vehicle with the named insured’s permission. The initial permission rale provides that the operator (“first permittee”) of a motor vehicle is covered under the omnibus clause so long as the operator had the named insured’s permission to use the vehicle, regardless of whether the operator’s use of the vehicle was within the contemplation of the named insured at the time permission was granted, and even where the use is in violation of specific instructions of the named insured. Perkins, supra; Parks v. Hall, 189 La. 849, 859, 181 So. 191, 194 (1938). The party alleging coverage must establish the fact of initial use with permission by a preponderance of the evidence. Norton v. Lewis, 623 So.2d 874, 876 (La.1993).

This case presents a “second permit-tee” scenario, that is, the situation where the first permittee allows another to drive the automobile. In this situation the general rule still holds that the party alleging coverage must prove that a non-owner user operated the vehicle with the named insured’s express or implied permission. Francois v. Ybarzabal, 483 So.2d 602, 605 (La.1986). Courts may imply the named insured’s permission for the third Rparty to drive the automobile, depending on the facts and circumstances of the particular ease. Perkins, supra. Permission is implied where it is reasonably foreseeable that the first permit-tee would allow someone else to drive the vehicle. Perkins, supra; American Home Assur. Co. v. Czarniecki, 255 La. 251, 263, 230 So.2d 253, 257 (1969).

Where the first permittee is only granted use of a vehicle for a specific, limited purpose, and the named insured warns the first [1284]*1284permittee not to let another drive the vehicle, the courts have refused to find coverage, even where the second permittee is unaware of the restriction. See Malmay v. Sizemore, 493 So.2d 620, 624 (La.1986).

Where the first permittee is allowed to use the vehicle as his own, and the named insured does not prohibit the first permittee from allowing others to drive, the possibility that the first permittee might allow another to drive is clearly reasonably foreseeable. Perkins, supra; Hughes v. Southeastern Fidelity Ins. Co., 340 So.2d 293, 294 (La.1976). Still, there is no coverage where the third-party driver uses the vehicle without the first permittee’s express or implied consent. Francois, supra; Southern v. State Farm Mut. Auto. Ins. Co., 496 So.2d 1349, 1352 (La.App. 3d Cir.1986).

Where the first permittee is allowed to use the vehicle as his own, but the named insured instructs the first permittee not to allow others to drive, courts generally do not find implied permission. See Perkins, supra. However, an admonition by the named insured to a permittee not to let anyone else drive the car is not, by itself, determinative of whether the use of the ear by someone else is within the omnibus coverage of the policy, |gthat is, with the implied permission or consent of the named insured. Id.; Panzico v. Price, 26,232, p. 4 (La.App.2d Cir. 5/10/95), 658 So.2d 1310, 1312-13, writ denied, 95-1453 (La.9/29/95), 660 So.2d 853. The admonition must be viewed in the context in which it is given, particularly considering the relationship of the named insured with the initial permittee and the relationship of the permittee to the car. Perkins, supra. The central test remains whether it was reasonably foreseeable that the first permittee would allow another to drive. Id. Each ease is determined under its own facts and circumstances. Id.

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Bluebook (online)
682 So. 2d 1281, 1996 La. App. LEXIS 2593, 1996 WL 628240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/langston-v-shirley-lactapp-1996.