Permissive Driver

Parker County lawyers need to know how the courts interpret “permissive driver” in an insurance policy.
A 1989, Dallas Court of Appeals case gives good guidance for answering this question. The style of the case is, United States Fire Insurance Company v. United Service Automobile Association. Here is some of the relevant information.
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 are 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.
In suing Anna Milliken, Douglas Martin plead that she “suddenly and without warning … grabbed the steering wheel of the car….” Relying solely on the pleaded allegations and the policy language, U.S. Fire submits that this pleading establishes the application of the relevant exclusion, i.e., that Anna Milliken was not using the vehicle with a reasonable belief that she was entitled to do so. One does not do something “suddenly and without warning” which one reasonably believes one is entitled to do. Based solely on the pleading in the policy, U.S. Fire should be granted summary judgment that it has no duty to defend Anna in the claims against her by Douglas.
Hence, U.S. Fire would have the court negate Anna’s “belief” as a matter of law because she acted “suddenly and without warning.” Indeed, “suddenly and without warning” in this context refers to surprise experienced by the driver. The phrase does not refer to a perception on the part of the actor-passenger. The court declined to hold that the exclusion provided in section A. (8) of the U.S. Fire policy excluding liability coverage for any person “using a vehicle without a reasonable belief that the person is entitled to do so” shall be determined by the amount of surprise experienced by the driver of a vehicle when the passenger grabs the steering wheel. The court concluded, therefore, that the inquiry does not focus on the named insured’s permission as U.S. Fire would have the court hold.
Instead, the allegations against the insured should be considered in light of the policy provisions without reference to the truth or falsity thereof and without reference to what the parties know or believe the true facts to be. 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. 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, the court concluded 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 the court concluded 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.