Who Are Permissive Drivers

Fort Worth Insurance Lawyers and those in Grand Prairie, Saginaw, Benbrook, Lake Worth, Grapevine, and other places in Tarrant County need to understand who gets covered by an auto insurance policy and who doesn’t. Here is a case that helps with part of that question.
It is a 1989, Dallas Court of Appeals case. The style is United States Fire Insurance Company v. United Service Automobile Association. Here are some facts.
This is an appeal involving a dispute between insurance companies over which one has a duty to defend Anna Milliken, a passenger in an auto, who allegedly caused an accident by grabbing the steering wheel of a moving vehicle.
This is a declaratory judgment action filed by USAA against Anna Milliken and U. S. Fire to determine who, if anyone, had the duty to defend Anna in an underlying lawsuit filed against her. Both insurance companies filed motions for summary judgment.
The underlying liability lawsuit arose out of an accident that occurred when Anna was riding back with Douglas Martin from a church sponsored retreat. The car Douglas was driving was owned by his father and was covered by the U.S. Fire policy. Douglas testified that there was some swerving and horseplay prior to the accident. Anna testified that Douglas was zigzagging the wheel back and forth prior to the accident and that she grabbed the wheel on two occasions prior to the accident in an effort to play back with him. The first time Douglas did not object, and the second time was immediately prior to the accident. Anna testified that she and Douglas were “just kind of playing around.” Deposition excerpts were made a part of the record pursuant to stipulations. Anna brought suit against Douglas for injuries she sustained in the accident. Douglas counterclaimed against Anna for his injuries. This counterclaim gives rise to the dispute regarding the duty to defend. The relevant portion of Douglas’s counterclaim states as follows:
Suddenly and without warning [Anna] grabbed the steering wheel of the car, causing it to leave the road, run into a ditch and seriously injure [Douglas], who was a minor at the time of said accident.
U.S. Fire issued a Texas personal automobile policy to Robert Martin covering the vehicle involved in the accident. The liability portion of the U.S. Fire policy provides liability coverage for any “covered person” which is defined, in part, as “any person using your covered auto.” The policy also contains an exclusion excluding liability for any person “using a vehicle without a reasonable belief that that person is entitled to do so.” United Service issued a Texas personal automobile policy to Anna’s father, Frank Milliken. This policy also provides liability coverage to a “covered person,” which is defined in part to mean “you or any family member for the ownership, maintenance or use of any auto or trailer.” The United Service automobile policy also contains the same exclusion for persons “using a vehicle without a reasonable belief that that person is entitled to do so.” The United Service policy also provides in its “Other Insurance” clause that “any liability insurance we provide to a covered person for the maintenance or use of a vehicle you [Frank Milliken] do not own shall be excess over any other applicable liability insurance.”
In evaluating the case this court looked said following:
First, we consider the question of “use.” The issue of “use” of the automobile by Anna arises both under the United Service homeowner’s policy and the two automobile policies. At the time of the accident, it is undisputed that Anna was riding as a passenger in the Martin automobile. We conclude that this fact alone constitutes a “use” of the automobile.
Next, we turn to the question of “operating.” We conclude that Anna was also “operating” the vehicle when she grabbed the steering wheel:
By grabbing the wheel and exerting a force on it, she obtained control of the vehicle, even though for only an instant….
We believe that when a person takes control of a moving vehicle, even though for only an instant, that person has gained control over it and is operating it within the normal definition and understanding which ordinary laymen would give to an insurance policy.
Two factors determine whether or not Anna has liability coverage in this case under the U.S. Fire and the United Service automobile liability policies: first, whether Anna was “using” the Martin automobile at the time of the accident; and second, whether Anna was using the vehicle “without a reasonable belief” that she was entitled to do so. The first inquiry pertains to whether Anna is a “covered person” under either policy, and the second inquiry pertains to whether coverage under either policy is excluded. The key point, however, is that the inquiries to determine coverage under both automobile policies are identical. Either Anna will have liability coverage under both the U.S. Fire and the United Service automobile liability policies, or she will have no liability coverage under either policy.
In the present case, the relevant pleading against Anna is the counterclaim filed against her. In that pleading, Martin alleges that:
Suddenly and without warning, [Anna] grabbed the steering wheel of the car, causing it to leave the road, run into a ditch and seriously injure [Douglas]….
This is the only portion of the counterclaim pleading that U.S. Fire relies on to exclude coverage under its policy. In examining the specific language of the counterclaim set forth above, there is nothing in that language which indicates that Anna did not have a “reasonable belief” that she was entitled to grab the steering wheel of the car. The words “suddenly and without warning” refer only to Douglas’s perception of events. Nothing in that sentence or in the entire counterclaim alleges or suggests that Anna did not have a reasonable belief that she was entitled to grab the steering wheel. This is the test expressly prescribed under the terms of Exclusion A. (8) of the U.S. Fire policy. The issue is not whether Anna had the express or implied permission of Douglas to grab the steering wheel; rather, the issue is whether Anna had a “reasonable belief” that she was entitled to grab the steering wheel when she did. We read the Martin counterclaim as silent on this point. Since there is no allegation in the counterclaim which would indicate that Anna did not have a reasonable belief that she was entitled to grab the steering wheel, we conclude that there is no allegation on which to base a denial of coverage and refusal to defend under Exclusion A. (8) of the U.S. Fire policy. Therefore, considering only the language in the Martin counterclaim, we conclude that U.S. Fire, as the primary insurer in this case, has the duty to defend Anna since there is no allegation in the counterclaim suggesting that Anna did not have a reasonable belief that she was entitled to grab the steering wheel when she did.
In this case the court found that Anna was a permissive driver of the automobile. The circumstances in this case are unusual. Most cases involving whether or not some one had permission involve a person getting in the car for personal reasons, getting into an accident, then the owner saying, “I didn’t give them permission.”
Any time an insurance company denies a claim based on a lack of permission to be operating the vehicle, an attorney needs to be contacted.