Permission To Drive Car

Insurance lawyers want to know when coverage is provided in the situations they are presented with. Who is covered when a car is being loaned or borrowed? That question is addressed in a 1967, Corpus Christi Court of Appeals case styled, Phoenix Insurance Company v. Allstate Insurance Company.
The material facts in evidence are undisputed. At all times relevant here, Phoenix was the insurer of a car owned by the named insured Ralph Gilster, Jr. Father Wallace J. Stiles, assistant pastor and Youth Director of St. Mary’s Church, Victoria, Texas, contacted Gilster for the purpose of borrowing this car on June 27th to return to their homes in Victoria six girls who were attending a Summer School of Catholic Action for Youth in Corpus Christi. Borrowing the car and returning the girls to their homes in Victoria was in line with Father Stiles’ duties as Youth Director, a fact which Gilster well knew. He had on a number of other occasions borrowed Gilster’s car for out of town trips in connection with such duties. Gilster knew the purpose for which Father Stiles wanted the car, and readily agreed with his request. The distance from Victoria to Corpus Christi and return is a total of 180 miles. Nothing was said between the two as to who would drive the car during the trip, nor had anything been said as to who should drive on any of the other occasions that Gilster had let Father Stiles use the car in his church work. Gilster testified that as a matter of fact, he didn’t give the matter of who would drive any thought; though he further stated that he considered that Father Stiles would be the one to take the car, use it, and bring it back. The words ‘use’ and ‘borrow’ were the terms used in the conversation between Gilster and Stiles, and no reference was made by either party as to who would actually operate the car.
On June 25th, two days before the trip to Corpus Christi, Father Stiles asked James DeLane to drive on this trip. It was agreed by both of the parties that Gilster had not given express permisson for James to drive; but Father Stiles after testifying about the former times he had borrowed Gilster’s car for such trips, on which occasions some one other than himself had driven, stated that he believed it all right that DeLane drive. James, 16 years of age, was president of the Church’s Catholic Youth Organization (C.Y.O.) He had obtained his drivers’ license two years before this, and frequently on these Church trips drove for Father Stiles, who considered him a very good and careful driver. On the morning of June 27th, James went to the Gilster residence, got the car keys from a servant and drove the car to the Rectory where he picked up Father Stiles, and they proceeded to Corpus Christi. They got the six girls and, with James DeLane driving, went back to Victoria. Father Stiles then instructed James to let him off at the Rectory where he had some church duties to perform, and to take the girls to their homes and then to return the car to Gilster’s home. While the girls were being delivered to their homes, an accident occurred between the car driven by James and one driven by Sandra Lou Barr and owned by her father. James had not deviated from his route at any time, and at the time of the accident was engaged in carrying out the instructions of Father Stiles, and in executing the purpose for which the car had been borrowed from Gilster. At a meeting between Gilster, Father Stiles and James DeLane in Gilster’s office two or three days after the accident Gilster made no adverse comment on the fact that James was driving at the time of the accident.
Sandra Lou Barr and her father have employed a lawyer, and are asserting claims for damages against James DeLane. The issue to be determined here is whether the evidence sufficiently supports the trial court’s findings and conclusions that under the provisions of Gilster’s automobile policy that James DeLane was an ‘insured’ as that term is defined in the omnibus clause. Phoenix denies that James was protected as an added insured under its policy .
The pertinent portion of the ‘omnibus clause‘ of Texas Standard Automobile Endorsement made a part of Phenix’s policy covering the Gilster car reads as follows:
D. With respect to such insurance as is afforded by the policy for Bodily Injury Liability and Property Damage Liability arising out of the ownership, maintenance or use of any automobile, the unqualified word ‘insured’ also includes:
1. With respect to an owned automobile, the spouse, and any other person using such automobile with the permission of the named insured or his spouse, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission.
Allstate Insurance Company had issued an automobile policy covering two family cars belonging to John DeLane, the father of James DeLane, which, in addition to other protection, provided coverage for the operation of a non-owned vehicle by John DeLane or the members of his family provided that the use thereof was with the permission of the owner, or was reasonably believed to be with such permission, and is within the scope of such permission, and which provided further that such coverage as to a non-owned automobile shall be excess insurance over any other valid and collectible insurance. Allstate did not deny its responsibility to James DeLane, but contended that its liability was secondary to that of Phoenix, and should be considered only as excess insurance to the policy limits of the Phoenix policy.
At the request of Phoenix, the trial court made and filed Findings of Fact and Conclusions of Law, as follows:
FINDINGS OF FACT
1. That Plaintiff, The Phoenix Insurance Company, issued its Policy No. CC53453 covering the vehicle involved in the collision, which said policy was in effect on the date of the accident made the basis of this suit.
2. That Allstate Insurance Company had issued its Policy of Insurance No. 29847607 covering JOHN DeLane and any members of his household in the driving of the automobile made the subject of the policy of insurance, and any other non-owned automobile which was being driven by John DeLane or his family while such non-owned automobile was being operated with the permission, or reasonably believed to be with the permission of the owner.
3. That the policy of insurance issued by the Phoenix Insurance Company insured RALPH GILSTER, JR. and any other person operating the insured vehicle with the permission of said Ralph Gilster, Jr.
4. That JAMES LEE DeLANE was a member of the household of John DeLane.
5. That Ralph Gilster, J. gave express permission to FATHER WALLACE J. STILES to operate the Gilster vehicle.
6. That permission to use the vehicle was for the purpose of Father Stiles in his capacity as Assistant Pastor of SAINT MARY’S CATHOLIC CHURCH to go to Corpus Christi, Texas, and return with some students.
7. That at the time of the accident in question the automobile was being used for the purpose for which it was borrowed.
8. That Father Wallace J. Stiles in his capacity as Assistant Pastor had implied permission to delegate another party to drive the vehicle.
9. That Father Stiles did delegate the driving of the vehicle to James Lee DeLane.
10. That the loaning of said automobile by Ralph Gilster Jr. was not conditioned upon Father Stiles being the only person to drive said vehicle.
11. That James Lee DeLane had implied permission to use said automobile.
12. That Ralph Gilster Jr. should have known that Father Stiles in his capacity as Assistant Pastor would likely delegate someone else to drive the vehicle under his general supervision.

CONCLUSIONS OF LAW
1. I conclude as a matter law, that the policy of insurance issued by The Phoenix Insurance Company is of primary coverage in connection with the accident made the basis of this suit.
2. The driving of the vehicle by James Lee DeLane was with the implied permission of the owner, Ralph Gilster Jr. and that its operation was within the scope of the use for which it was loaned.
3. That the policy of insurance issued by Allstate Insurance Company is secondary coverage in connection with the accident made the basis of this suit.

There has been much litigation on the subject of the omnibus clause of an automobile insurance policy. The basic purpose of this provision is to provide liability coverage for the named insured, his family, and any one using the car with the express or implied permission of the named insured. While the general rule seems to be that the mere permission by the named insured to another to use the insured automobile does not Alone authorize the permittee to delegate his right of user to a third person so as to entitle the latter to protection under the omnibus clause, it is well settled that the named insured’s permission to a second permittee need not be express, but may be implied from the broad nature of the initial permission, or from the conduct of the parties and the attendant facts and circumstances. A factual determination as to the existence of such implied authority is usually necessary. Implied permission by the named insured if established is as effective to extend the coverage of the omnibus clause as that which is formally conferred.
In this court’s opinion, the trial court was justified by the evidence in finding that Father Stiles had the implied consent of Gilster to permit another to drive the car on this occasion, and that the driving of the car by James DeLane at the time of the accident was within the purview of such implied permission. Gilster had on several other instances loaned the car for use by Father Stiles in connection with his work with the Catholic Youth Organization, and had never expressed any limitation or any particular interest as to who should actually drive the car on such occasions. By his very silence the trial court could reasonably assume that, by reason of their past dealings and the circumstances of the case, Gilster had confidence in the good priest’s discretion and judgment as to such matter, and realized or should have realized that he might delegate the driving to some other competent person. This court can judicially note that it is not unusual for members and friends of church organizations to loan their cars on special occasions for use by the organization or its leader for out of town trips without designating who shall drive. It is borne in mind that the car was loaned for the Use of Father Stiles in his church and Youth Director capacity, and ‘use’ is the term used in the omnibus clause.