Miller v. U.S.F. & G. Co.

28 Pa. D. & C.3d 389, 1983 Pa. Dist. & Cnty. Dec. LEXIS 219
CourtPennsylvania Court of Common Pleas, Adams County
DecidedDecember 13, 1983
Docketno. 83-S-81
StatusPublished
Cited by1 cases

This text of 28 Pa. D. & C.3d 389 (Miller v. U.S.F. & G. Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Adams County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. U.S.F. & G. Co., 28 Pa. D. & C.3d 389, 1983 Pa. Dist. & Cnty. Dec. LEXIS 219 (Pa. Super. Ct. 1983).

Opinion

SPICER, P.J.,

The court is called upon to determine which of three insurance carriers is required to provide coverage for injuries suffered by a pedestrian who was struck by an automobile. The automobile was driven by a borrower who had permission to use the vehicle from someone other than the named insured. We decide this case on the basis of depositions, requests for findings of fact and conclusions of law, and argument by the parties.

FINDINGS OF FACT

The court enters the following findings of fact:

1. Plaintiff is Kathy A. Miller, an individual.

2. Defendants are insurance carriers having possible duties of providing coverage as follows:

(a) United States Fidelity and Guaranty Com-[391]*391party (USF&G) as carrier for Barbara Moose, record owner of a 1971 Buick Skylark automobile.

(b) Selected Risks Insurance Company (Selected Risks) as carrier for the father of the borrower driver.

(c) Motorists Mutual Insurance Company (Motorists) as uninsured motorist carrier.

3. On June 13, 1978, plaintiff, Kathy A. Miller, while a pedestrian in McSherrystown, Adams County, Pa., was struck and injured by a vehicle operated by Charles P. Cullison.

4. The vehicle operated by Charles P. Cullison was a 1971 Buick Skylark titled in the name of Barbara A. Moose.

5. The 1971 Buick Skylark (Buick) was insured at that time by Barbara Moose with USF&G.

6. Barbara Moose owned another vehicle and used it exclusively for her own purposes.

7. The Buick was chosen for purchase by Eileen Moose, was paid for by Eileen Moose with her own money, and was operated by her to the exclusion of her mother. Eileen Moose was the beneficial owner of the Buick with full possession and control. The title and insurance arrangement with her mother was solely for convenience.

8. Eileen Moose and Charles P. Cullison were dating each other for several months prior to and including the date of the accident.

9. Charles P. Cullison reasonably believed that the Buick was owned by Eileen Moose and subject to her possession and control.

10. On several occasions prior to June 13, 1978, Eileen Moose permitted Charles P. Cullison to operate the Buick with her as a passenger.

11. On June 13, 1978, Eileen Moose gave Charles P. Cullison the keys to the Buick with her express permission to operate the Buick to go to [392]*392Cullison’s father’s trailer in Spring Grove, Pa. At the time, she was working at Dunkin Donuts and expected that Charles would return before her shift was completed.

12. After picking up the Buick from Eileen Moose, Charles P. Cullison drove to the home of his friend, Anthony Schroll.

13. Thereafter, Charles P. Cullison and Anthony Schroll, as passenger, rode around McSherrystown until they came upon the idea of throwing eggs at various females who were congregating on the porch of a house located on a corner of the intersection of Main and Sixth Streets in McSherrystown.

14. Pursuant to the plan, Charles and Anthony drove to a Handy Mart on Main Street and then proceeded on Main Street to the aforesaid intersection. When they arrived at Main and Sixth Streets, Charles turned right onto Sixth while at the same time he and Anthony each threw an egg at the girls on the porch.

15. At that time and place, the Buick crossed over into the oncoming lane of travel and struck Kathy Müler where she stood talking to the driver of a vehicle stopped on Sixth Street in his lane of travel at a stop sign.

16. On June 13, 1978, Charles P. Cullison was 16 years of age and had a learner’s permit.

17. On the same date, Anthony Schroll was 16 years old and had a junior license.

18. The USF&G policy excluded coverage for any person operating the vehicle without a reasonable belief that he was entitled to do so.

19. At the time of the accident, Charles P. Cullison reasonably believed that Eüeen Moose had authority to validly give consent for the use of the Buick.

20. On or before June 13, 1978, Charles P. [393]*393Cullison had never received any information that would have informed him that the owner of the Buick did not permit him to operate the Buick on June 13, 1978.

21. Prior to April of 1978, Charles L. Cullison, the father of Charles P. Cullison, separated from his wife and left the marital residence located in McSherrystown to reside in York County, Pa.

22. In April of 1978, Charles L. Cullison and his wife were divorced. By written agreement general custody of his two daughters and son (Charles P. Cullison) was with the mother while he enjoyed temporary custody rights.

23. In the school year 1977-78, Charles P. Cullison attended Delone Catholic High school in McSherrystown. He had completed his sophomore year and was on summer vacation as of June 13, 1978.

24. Prior to June 13, 1978, Charles P. Cullison and his parents intended that he move into his father’s home in York County during summer vacation and remain with his father for the 1978-79 school year.

25. Prior to June 13, 1978, Charles P. Cullison visited his father and occasionally stayed overnight. However, he did not primarily live there until after June 13, 1978.

26. On June 13, 1978, Charles L. Cullison was insured with Selected Risks Insurance Company which provided that any family member residing with him was also insured.

27. Suit was filed by Kathy A. Miller against Charles P. Cullison and others in the Court of Common Pleas of Adams County, Pa. No. 80-S-291.

28. Charles P. Cullison reasonably believed he had permission to drive the car to his father’s house but could not have reasonably believed he had per[394]*394mission to use the car as used at the time of the accident.

29. Charles P. Cullison was a member of the household of and resided with both his mother and his father at the time of the accident.

CONCLUSIONS OF LAW

The court enters the following conclusions of law:

1. The omnibus exclusion clause in the Moose USF&G policy relieves USF&G from the responsibility of providing coverage.

2. The clause in the Cullison’s Selected Risks policy extending coverage to members of the household residing with the named insured requires Selected Risks to provide coverage in this case.

3. Charles P. Cullison was not uninsured at the time of the accident and Motorist does not have a duty of providing coverage.

DISCUSSION

USF&G has argued that cases dealing with exclusion clauses requiring consent should be applied in this case. Specifically, it has contended that we must find a connection between the named insured and the borrower to find a reasonable belief that use was permissive.

This is not the first time that we have considered and rejected such an argument. Our discussion in Motorists Mutual Insurance v. State Farm Mutual Insurance Company, 24 Adams Co. L. J. 77 (1982) discussed the differences between tests applied to omnibus clauses requiring consent and those requiring a reasonable belief that one had consent.

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Bluebook (online)
28 Pa. D. & C.3d 389, 1983 Pa. Dist. & Cnty. Dec. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-usf-g-co-pactcompladams-1983.