Panzico v. Price

658 So. 2d 1310, 1995 WL 271707
CourtLouisiana Court of Appeal
DecidedMay 10, 1995
Docket26232-CA
StatusPublished
Cited by3 cases

This text of 658 So. 2d 1310 (Panzico v. Price) 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
Panzico v. Price, 658 So. 2d 1310, 1995 WL 271707 (La. Ct. App. 1995).

Opinion

658 So.2d 1310 (1995)

Carolyn Sue PANZICO, as Natural Tutrix of the Minor Child, Jennifer Powell, Plaintiff-Appellant,
v.
Dianne PRICE, et al., Defendants-Appellees.

No. 26232-CA.

Court of Appeal of Louisiana, Second Circuit.

May 10, 1995.
Writ Denied September 29, 1995.

*1311 M. Randall Donald, Monroe, for appellant.

Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for appellee.

Before MARVIN, LINDSAY, BROWN, WILLIAMS and STEWART, JJ.

BROWN, Judge, On Rehearing.

We granted rehearing in this matter to revisit the issue of whether Danny Knight was covered by the automobile liability insurance policy issued to the parents of Shane Acree. Shane Acree was 16 years old and was allowed to use his step-mother's vehicle on the night of the accident pursuant to a "hopeful admonition" against allowing others to drive. Danny Knight, also 16 years old, was given permission by Shane to use the car to run an errand. The accident arose out of Knight's use of the vehicle. We reverse and render.

DISCUSSION

Insurance Coverage

In Rogillio v. Cazedessus, 241 La. 186, 127 So.2d 734 (1961), the Louisiana Supreme Court enunciated the rule regarding second permittees. The policy issued to the owner of the vehicle in Rogillio provided omnibus coverage to "any other person using such automobile, provided the actual use thereof is within the permission of the named insured." The court found that permission of the minor son was insufficient to extend coverage as an omnibus insured to the operator of the vehicle. Permission, either express or implied, had to be given to the operator by the named insured.

The supreme court set forth the standard regarding implied permission in American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969). The court held that if it was reasonably foreseeable that the first permittee would allow others to operate the vehicle, then permission would be implied and omnibus coverage would apply.

American Home Assurance Co., supra, was factually distinguished by the court in Hughes v. Southeastern Fidelity Insurance Co., 340 So.2d 293 (La.1976). In Hughes, the court found coverage under the omnibus clause where the named insured had given his friend unrestricted use of his vehicle. Thus, noted the court, the possibility that the friend would allow another person to drive the vehicle was clearly foreseeable.

In his concurrence in Hughes, Justice Tate wrote that an omnibus clause should be construed as providing coverage whenever initial permission is found. If the named insured has given initial permission, then the actual *1312 operation of the vehicle is within this permission, whether by the first permittee or by a second permittee to whom the first permittee entrusted the use of the vehicle. Hughes, 340 So.2d at 295 (Tate, J., concurring) (Emphasis added).

Justice Tate opined that the court in Rogillio and American Home Assurance Co. erred in limiting the initial permission doctrine by requiring a showing of express or implied permission by the insured to the first permittee for use of the vehicle by a second permittee.

After-the-accident reconstruction of the terms of the initial permission should not deprive of the protection of the policy a person injured by the vehicle or one operating it with the consent of a first permittee empowered with the apparent authority (through its owner-permitted custody) to entrust its operation to this second permittee.

Hughes, supra at 296.

In subsequent second permittee cases, reasonable foreseeability was the test for determining whether there was implied permission and thus omnibus coverage. See Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977); Malmay v. Sizemore, 493 So.2d 620 (La.1986); King v. Louisiana Farm Bureau Insurance Co., 549 So.2d 367 (La.App. 2d Cir.1989), writ denied, 552 So.2d 387 (La.1989); Solice v. State Farm Mutual Automobile Insurance Co., 488 So.2d 1159 (La.App. 2d Cir.1986).

In Perkins v. McDow, 615 So.2d 312 (La. 1993), there was a move toward a broader view of what is reasonably foreseeable. In Perkins, though the named insured had expressly prohibited his adult son from letting others use the car, the court found that it was reasonably foreseeable that the initial permittee would lend the car to another driver. The following is excerpted from the supreme court's opinion in Perkins:

Coverage is extended under the omnibus clause so long as the operator of the vehicle had the named insured's permission to use the vehicle, regardless of whether its use at the time of the accident was within the contemplation of the named insured at the time permission was granted, and even when a deviation is in violation of the specific instructions of the [named] insured.... This liberal initial permission rule was motivated by a desire to not only protect the operator of the automobile from liability but also to protect persons injured by the operator.

Id. at 315. (Emphasis added).

Justice Watson concurred, writing that because of the myriad of problems associated with the permissive use clause, it should be found contrary to public policy. Perkins, 615 So.2d at 317 (Watson, J., concurring).

The Louisiana Supreme Court rendered Norton v. Lewis, 623 So.2d 874 (La.1993), only six months after Perkins, supra. In Norton, the court noted that the word "permission" in an omnibus clause of a liability policy should be construed in its broadest possible sense and that permission, once established, was to be given a wide and liberal meaning in determining coverage. The court then explained:

[T]he narrower "minor deviation" and "conversion" rules followed by some jurisdictions, which make coverage turn on scope of the permission given in the first instance, render coverage uncertain, foster unnecessary litigation, and do not comport with our state's legislative policy of assuring an available fund for the innocent victims of automobile accidents.

Norton, 623 So.2d at 875.

Shane had been given permission to use the vehicle to go on a date. The date, however, was broken and Shane picked up Danny Knight. They "cruised" and eventually met some girls. Knight, who had driven the vehicle in the past, used the car to run an errand.

A parent of a teenager commonly grants the use of a car to the teenager from time to time. As the teenager gains experience, the frequency of use increases. A general *1313 admonition not to let anyone else drive is not, by itself, determinative of omnibus permission coverage. In this instance, the parental instructions given initially warned against allowing someone else to drive, and drinking and imposed a curfew. These instructions were not given each time the car was used. Clearly, discretion was expected and implied.

Applying the principles set forth by the supreme court in Perkins and Norton, we find that Danny Knight was an omnibus insured under the State Farm automobile liability policy issued to the Acrees.

Damages

Based upon our conclusion that Danny Knight was an omnibus insured under the Acree's automobile policy, we must therefore determine the damages sustained by plaintiff, Jennifer Powell.

We initially note that plaintiff settled her claim against Danny Knight, his father and State Farm Fire and Casualty Company, Mr.

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Bluebook (online)
658 So. 2d 1310, 1995 WL 271707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/panzico-v-price-lactapp-1995.