The Responsibility of the Insuror Once a Driver Is Given Initial Permission
| Publication year | 1986 |
| Pages | 1041 |
1986, June, Pg. 1041. The Responsibility of the Insuror Once a Driver is Given Initial Permission
The liberal or "initial permission" rule holds that when permission to use a motor vehicle is initially given, permission for subsequent use short of actual theft remains, even if such use was not contemplated by the parties or was outside of the limitations placed upon the initial grant of permission.(fn1) This article briefly describes the statutes and case law surrounding the "initial permission" rule.
If an individual gives initial permission for someone else to drive his or her motor vehicle, is "permission" granted under the omnibus clause of insurance policies? Suppose a father rents a motor vehicle and the rental agreement stipulates that there are to be no drivers other than the father. The son uses the rental vehicle and gets into an accident. Does the rental company's responsibility include P.I.P. coverage of the accident? According to Bukulmez v. Hertz Corp.,(fn2) the Auto Accident Reparations Act(fn3) answers these questions in the affirmative.
Moreover, suppose an employer allows an employee to drive the employer's motor vehicle only back and forth to work, garaging the motor vehicle at the employee's residence overnight. The employee's regular private vehicle is non-operative that evening. Subsequently, the employee uses the employer's motor vehicle to go to several different bars and then goes "cruising." Is the employer's insurance company responsible for liability coverage if the employee gets into an accident while going against the employer's orders regarding the use of the motor vehicle? Relying on the same rationale as Bukulmez, the answer again would seem to be in the affirmative.
The fact that the automobile driven by the son or the employee in these situations was legally within that person's possession at the time of the collision gives rise to a presumption that the driver had permission from the owner to use the automobile.(fn4) Furthermore, the presumption is supported by evidence of the initial permission. This presumption is enough to establish the injured parties' prima facie case, survive a directed verdict and have the matter go to the jury.(fn5) Indirect evidence of permission is competent and relevant.(fn6)
Since the insurance company has the burden of proving that the driver was driving without permission, the driver must be an insured under the policy and any ambiguity must be construed against the insurer.(fn7) Thus, where an automobile liability insurance policy issued to an employer contains an omnibus clause extending coverage to persons who have permission of the named insured to operate the insured vehicle, the employer's insurer is liable to defend and indemnify the employee permittee.(fn8) When initial permission to use a vehicle has been given, coverage attaches, notwithstanding subsequent use, even for an unauthorized or unintended purpose.(fn9)
Many cases follow this reasoning. For example, in Arnold v. State Farm,(fn10) a truck driver deviated from the business purpose of having possession of the truck by stopping to purchase whiskey on the way home and drinking some. While on his way home, he was involved in an accident. The court held that the use of the...
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