Travelers Insurance v. Harleysville Insurance

3 Pa. D. & C.3d 414, 1977 Pa. Dist. & Cnty. Dec. LEXIS 286
CourtPennsylvania Court of Common Pleas, Delaware County
DecidedNovember 1, 1977
Docketno. 76-2895
StatusPublished

This text of 3 Pa. D. & C.3d 414 (Travelers Insurance v. Harleysville Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Travelers Insurance v. Harleysville Insurance, 3 Pa. D. & C.3d 414, 1977 Pa. Dist. & Cnty. Dec. LEXIS 286 (Pa. Super. Ct. 1977).

Opinion

BLOOM, J.,

Plaintiff filed a petition for declaratory judgment under the provisions of the Act of June 18, 1923, P. L. 840, 12 P. S. § 831. It seeks an order of this court declaring [415]*415that the public liability insurance coverage and property damage insurance coverage of defendant Harleysville Insurance Company is primary with respect to claims arising out of a certain automobile accident.

From the record, it appears that an accident occurred on the Atlantic City Expressway on June 15, 1975, causing a plethora of severe injuries and at least two deaths. Several law suits have already been instituted, naming as defendants, inter alia, Karen Kelly, Mitchell G. Daher and Mitchell V. Daher.

The accident occurred when an automobile owned by Mitchell G. Daher, father, but given by him to the complete custody and control of his son, Mitchell V. Daher, and then and there operated by Karen Kelly, crossed from the westbound to the eastbound lanes, resulting in a collision with two eastbound vehicles.

Kelly was operating the vehicle with the express permission of Daher-son, who was sitting next to her at all times.

In addition to the above facts, the record fairly indicates that Daher-father was the named insured on the Harleysville policy; that the car, while titled in Daher-father’s name, was intended by him as a gift to Daher-son, over which Daher-son had complete control; that in spite of this latter fact, Daher-father attempted to restrict use of the vehicle to Daher-son alone; that Kelly was operating the vehicle for her own benefit and that of Daher-son; that Harleysville has denied coverage to Kelly; and that should Harleysville’s position be upheld, Travelers would have to provide coverage to Kelly.

[416]*416In considering a petition for declaratory judgment, the following three general principles must be taken into account:

1. Declaratory judgments are not obtainable as a matter of right, but the granting of same are matters for the sound discretion of the court: Keystone Ins. Co. v. Warehousing and Equipment Corp., 402 Pa. 318, 165 A.2d 608 (1960); Seeley v. State Farm Mutual Auto Ins. Co., 65 Lack. L. J. 14 (1964); Johnson Estate, 403 Pa. 476, 171 A.2d 518 (1961).

2. The presence of antagonistic claims indicating, imminent and inevitable litigation coupled with a clear manifestation that the declaration sought will be a practical help in ending the controversy is essential to the granting of relief by way of declaratory judgment: Liberty Mutual Ins. Co. v. S.G.S. Company, 456 Pa. 94, 318 A.2d 906 (1974); Lifter’s Estate, 377 Pa. 227, 103 A.2d 670 (1954).

3. Declaratory judgments must not be employed for determination of rights in anticipation of events which may never occur, or in consideration of moot cases, or as a medium for rendition of advisory opinions: Johnson Estate, supra; Philadelphia v. Phila. Transportation Co., 404 Pa. 282, 171 A.2d 768 (1961).

Harleysville did not file preliminary objections to Traveler’s petition, and nowhere in any of defendant’s pleadings or trial memorandums is there any serious questioning as to whether the above three criteria are present here. Moreover, the court, by its own review of the facts and issues of this case, determines that the issue presented here is one [417]*417that is ripe for judicial determination, by way of declaratory judgment.

The narrow question presented for the court’s resolution is whether Kelly was operating the vehicle in question with the permission, either express or implied, of owner Daher-father. If she was, then Harleysville would have to provide coverage to her under the terms of its policy with Daher-father.

“Part I — Liability — Persons Insured.

“The following are insureds under Part I (Liability):

“(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, then only with respect to his or her or its liability because of acts or omissions of the insured under (a) (1) or (2) above.”

Defendant Harleysville has presented a line of cases holding that a named insured’s restriction as to use of his automobile by the first permittee only is sufficient to relieve the named insured’s carrier from the obligation of coverage if an accident occurs while the vehicle is being operated by someone other than the first permittee, even though the driver had permission from the first permittee: Aetna Casualty & Surety Co. v. De Maison, 213 F.2d 826 (C.A.3d Cir. 1954); Volk v. Cacchione, [418]*418395 Pa. 636, 150 A.2d 849 (1959); Helwig v. Esterly, 205 Pa. Superior Ct. 185, 208 A.2d 10 (1965).

The court feels that all of those cases are distinguishable from the present fact situation, in that the cases cited by defendant all involved a vehicle in which the named insured was both the legal and equitable owner and over which the named insured had complete control, even as to designation of the first permittee. That is not the case here. Daher-father was the owner of record and the named insured. But the car was a gift from Daher-father to Daher-son and in Daher-father’s name for insurance purposes only. Daher-son at all times exercised complete control of the vehicle, and Daher-father risked incurring the wrath of his son whenever the father used the car, which was less than one percent óf the time.

As previously stated, the evidence and the surrounding circumstances all point inexorably to the conclusion that the car herein was an outright gift from father to son, with son having complete control over its use and amenities. Daher-father relinquished all dominion and invested same in Daher-son. The only incident of control which Daher-father claims to have retained is that of restricting the use of the vehicle by parties other than his son, but the evidence indicates that, if this command was ever given, it was certainly not followed or enforced.

Accordingly, when Daher-father accorded Daher-son unfettered use of the vehicle, then it would be an illogical conclusion indeed for us to accept that Daher-son did not have implied per[419]*419mission to entrust the vehicle to other drivers, and that these other people, by a theory of transferred intent, did not have the implied permission of Daher-father.

There are other factors involved here which also lead the court to the conclusion that Kelly had the implied permission of Daher-father and is thus afforded coverage under the Harleysville policy.

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Related

Aetna Casualty & Surety Co. v. De Maison
213 F.2d 826 (Third Circuit, 1954)
Touchet v. Firemen's Insurance Co. of Newark, NJ
159 So. 2d 753 (Louisiana Court of Appeal, 1964)
Teague v. Tate
375 S.W.2d 840 (Tennessee Supreme Court, 1964)
Volk v. Cacchione
150 A.2d 849 (Supreme Court of Pennsylvania, 1959)
Lifter Estate
103 A.2d 670 (Supreme Court of Pennsylvania, 1954)
Liberty Mutual Insurance v. S. G. S. Co.
318 A.2d 906 (Supreme Court of Pennsylvania, 1974)
Johnson Estate
171 A.2d 518 (Supreme Court of Pennsylvania, 1961)
MFA Mutual Insurance Company v. Mullin
156 F. Supp. 445 (W.D. Arkansas, 1957)
Helwig v. ESTERLY
208 A.2d 10 (Superior Court of Pennsylvania, 1965)
Melvin v. American Automobile Insurance
194 A.2d 269 (Court of Appeals of Maryland, 1963)
Keystone Insurance v. Warehousing & Equipment Corp.
165 A.2d 608 (Supreme Court of Pennsylvania, 1960)
Philadelphia v. Philadelphia Transportation Co.
171 A.2d 768 (Supreme Court of Pennsylvania, 1961)
Maryland Casualty Co. v. Marshbank
226 F.2d 637 (Third Circuit, 1955)

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Bluebook (online)
3 Pa. D. & C.3d 414, 1977 Pa. Dist. & Cnty. Dec. LEXIS 286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travelers-insurance-v-harleysville-insurance-pactcompldelawa-1977.