Universal Underwriters Ins. Co. v. Davis

697 S.W.2d 189, 1985 Mo. App. LEXIS 3649
CourtMissouri Court of Appeals
DecidedFebruary 13, 1985
DocketNo. WD 35421
StatusPublished
Cited by3 cases

This text of 697 S.W.2d 189 (Universal Underwriters Ins. Co. v. Davis) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Universal Underwriters Ins. Co. v. Davis, 697 S.W.2d 189, 1985 Mo. App. LEXIS 3649 (Mo. Ct. App. 1985).

Opinions

CLARK, Judge.

This suit for declaratory judgment was brought to ascertain which of the contesting insurance companies was obligated to cover a liability claim resulting from an automobile accident. The trial court found appellant, Universal Underwriters, to be liable under a policy issued by it, and Universal appeals contending that the trial court misapplied the law. Reversed.

The facts of the accident, as pertinent here, and the circumstances under which the insured vehicle was being driven were not in dispute. One John N. Davis was operating a 1982 Oldsmobile on September 27, 1982 when a collision occurred between the car and two motorcycles. . Michael Pierce, the operator of one of the motorcycles suffered fatal injuries in the accident. Pierce’s mother, Willena Calvin, commenced a wrongful death action against Davis.

The automobile Davis was driving was owned by H.E. Miller Oldsmobile, Inc., the insured under the policy issued by Universal. Davis, a resident of California, owned a passenger vehicle which he maintained there and which was insured by respondent, Mid-Century Insurance Company. The question for decision was whether coverage as to the September 27 collision was due Davis as an omnibus insured under the Universal policy or, failing that, under the non-owned substitute vehicle provisions of the Mid-Century policy. That respondent concedes effectiveness of its coverage if it be determined that the Universal policy is not applicable.

Davis’ father was in the employ of Miller Oldsmobile as a salesman. He was provided the use of the 1982 Oldsmobile by Miller as a demonstrator vehicle. On the evening when the accident occurred, the son Davis was to attend a social function in the company of his brother, Christopher. The intent was that transportation for the two would be by Christopher’s car which he had driven to Kansas City from Lawrence, Kansas. Some thirty minutes before the engagement, however, it was found that Christopher’s car was inoperable and Davis prevailed on his father to loan him the demonstrator.

The issue in the case is whether the use of the 1982 Oldsmobile by son Davis for his personal transportation was with the permission of the vehicle owner and named insured of Universal, H.E. Miller Oldsmobile, Inc. That inquiry must be made because omnibus coverage under the Universal policy was limited by the contract language to “any other person using an owned auto * * * within the scope of your permission * * The term “your”, as used in the foregoing phrase, is defined in the policy as referring to the named insured, in this case, H.E. Miller Oldsmobile, Inc. Salesman Davis was not a named insured and his permission given his son was not the permission required to activate [191]*191the omnibus coverage clause. The son John Davis was an insured by the definition of the Universal policy only if he was using the car within the scope of the permission, express or implied, given by H.E. Miller Oldsmobile, Inc.

Pertinent to the inquiry as to the subject of permitted use of the demonstrator automobile was the arrangement under which salesman Davis acquired the car from his employer. It was not disputed that this arrangement was covered by the written agreement introduced in evidence and entitled, “Employee Demonstrator Agreement.” The document was signed by Davis and by the employer representative. The agreement called for Davis to drive the car as a “showroom on wheels,” to maintain the interior and exterior in clean and presentable condition and to strive for high visibility to help advertise the product. He was admonished to drive the demonstrator to “church, club functions, shopping, etc.” and to and from his residence and the dealership. A charge against the employee’s earnings was made for the described personal use of $50.00 per month. The agreement also contained the following: “Members of the employee’s family are prohibited from using the automobile for personal use.”

At trial, Jack Davis testified that he was fully acquainted with the terms of his agreement with Miller Oldsmobile and the restriction in the agreement against any use of the demonstrator by members of his family for their personal convenience. He also testified that when he gave his son John permission to drive the 1982 Oldsmobile on September 27, 1982, he knew that was in violation of the permission given him by his employer and contrary to the terms of the agreement he had signed.

On these facts, the trial court found that John Davis’ use of the demonstrator was within the uses anticipated by H.E. Miller Oldsmobile, Inc. and within the scope of its permission as contemplated in the Universal Underwriters policy. It also found that the agreement between Jack Davis and H.E. Miller Oldsmobile, Inc. prohibiting any members of the Davis family from driving a demonstrator was “wholly immaterial.”

The seminal case establishing general guides for ascertainment of whether a second permitted driver is covered by omnibus clause insurance is United States Fidelity and Guaranty Company v. Safeco Insurance Company, 522 S.W.2d 809 (Mo. banc 1975). In that case, the first permittee, the seventeen year old daughter of the automobile’s owner, had broad and unrestricted use of the car and had allowed a companion, also age seventeen, to drive when the accident occurred. The question was whether the conduct of the owner in giving free and unfettered control of the car to her daughter supported the inference that the daughter also was entitled to permit others to drive who would thereby do so under delegated permission of the owner. To decide such cases, the court announced particular rules. First, the proposition that permission must come from the named insured and not alone from the first permit-tee was reaffirmed. Second, the court held that permission by the named insured may be established by implication from circumstantial evidence which tends to show a willingness by the named insured for the first permittee to authorize others to drive. Finally, the court held that the circumstantial evidence relied on must show the permission as an inferred fact reasonably following upon the evidence and not a product of guess work, conjecture or speculation.

The U.S.F. & G. case was followed by Farm Bureau Mutual Insurance Company v. Broadie, 558 S.W.2d 751 (Mo.App.1977). In that case, the vehicle owner and named insured was teaching his fifteen year old grandson to drive. On the night of the accident, the grandson and his companion Kim, who was seventeen and had a driver’s license, borrowed the vehicle upon the express instruction of the grandfather that Kim and not his grandson should drive. Contrary to this direction, the grandson did later drive the vehicle and the accident occurred.

In Broadie, the omnibus insurance clause, unlike the language of the Univer[192]*192sal policy here, stated that coverage extended to persons, responsible for the use of the automobile, “provided the actual use is with permission of the named insured.” (Emphasis in original). The Broadie court concluded that use of an automobile involves its employment for some purpose or object and is distinguishable from the term “operation” which denotes control of the mechanism by the driver.

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Bluebook (online)
697 S.W.2d 189, 1985 Mo. App. LEXIS 3649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/universal-underwriters-ins-co-v-davis-moctapp-1985.