
    Jonathan E. PERKINS, Daniel Perkins, and Georgia Jones Perkins, Plaintiffs-Appellants, v. James Woodrow McDOW, Jr., et al., Defendants-Appellees.
    No. 23693-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 1992.
    
      M. Carl Rice & Associates by William F. Kendig, Shreveport, for appellant.
    Hicks & Hubley by Michael Hubley, Lunn, Irion, Johnson, Salley & Carlisle by Marshall R. Pearce, Shreveport, for appel-lee.
    Before HIGHTOWER, VICTORY and BROWN, JJ.
   HIGHTOWER, Judge.

Plaintiffs, Jonathan E. Perkins and his parents, seeking to recover for personal injuries and loss of consortium caused by a vehicle accident, appeal an adverse summary judgment denying coverage under the terms of an automobile liability insurance policy. We affirm.

FACTS

This action arises from a one-car accident occurring in Caddo Parish on October 12, 1990, when the driver lost control of a 1989 Camaro. Thomas A. Mosely owned the car, which his son, Michael, age 18, frequently operated. On the day in question, while at a Shreveport nightclub, James McDow obtained permission from Michael to drive the automobile. Upon receiving the keys, he and two other persons departed in the vehicle. Shortly thereafter, the mishap transpired.

Perkins, one of the occupants, together with his parents, instituted suit on March 27, 1991, naming three defendants: Michael; his father’s automobile liability insurer, State Farm Mutual Automobile Insurance Company; and McDow. Later, a jointly filed motion dismissed Michael from the litigation with prejudice. Subsequently, the insurer moved for summary judgment, contending that McDow had not received permission, as contemplated by the insurance policy, to operate the vehicle.

To the motion, State Farm attached a certified copy of its applicable policy, which listed Thomas Mosely as the “named insured” on the declarations page of the contract. The insurance section of that agreement contained the following pertinent language:

Who Is an Insured
When we refer to your car, ... insured means:
4. any other person while using such a car if its use is within the scope of consent of you or your spouse;....

The policy further defined “you or your” as the named insured or named insureds shown on the declarations page.

According to State Farm’s motion, no coverage existed inasmuch as McDow never obtained permission to use the vehicle from Thomas Mosely or his wife, as required by the policy. The insurer also filed the depositions of all three of the Moselys. Their testimony confirmed that (1) neither parent provided consent to McDow; (2) Michael had explicit instructions to not let others drive the automobile; and (3) neither the father nor the mother, prior to the accident, had reason to believe that their instructions had been violated. At the conclusion of the hearing on the motion, the trial judge granted summary judgment, dismissing plaintiffs’ demands against the insurer. This appeal followed.

DISCUSSION

Generally, a driver granted operating privileges by a first permittee, contrary to the named insured’s restrictions, does not receive omnibus coverage under a policy similar to the one at hand. See Malmay v. Sizemore, 493 So.2d 620 (La.1986), and authorities cited therein. Nevertheless, in Solice v. State Farm Mutual Auto Ins. Co., 488 So.2d 1159 (La.App. 2d Cir.1986), after recognizing such a rule, this court reviewed three exceptions that, when present, constitute implied consent:

The first is where the actions of the second permittee serve some purpose, benefit or advantage of the named insured. Devall v. State Farm Mutual Ins. Co., supra [249 So.2d 282 (La.App. 1st Cir.1975) ]; Thomas v. Peerless Ins. Co., 121 So.2d 593 (La.App. 2d Cir.1960). The second exception is where the first permittee violates the restriction to the knowledge of the named insured who makes no significant protest. Butler v. Pardue, 415 So.2d 249 (La.App. 2d Cir.1982). The third exception is where despite the express restriction, the facts present a situation where it can reasonably be implied that the named insured nevertheless granted permission to the second permittee, such as in an emergency situation where the first permittee requests that the second permittee operate the vehicle. Brooks v. Delta Fire & Casualty Co., 82 So.2d 55 (La.App. 1st Cir.1955).

Id. at 1162. Essentially, as explained in King v. La. Farm Bureau Ins. Co., 549 So.2d 367 (La.App. 2d Cir.1989), writ denied, 552 So.2d 387 (La.1989), where the original permittee has been restricted from allowing use by others, the inquiry concerns whether the existing circumstances negate that restriction. More specifically, contrary to plaintiffs’ assertions, in such instances the issue is not one of the foreseeability that the first permittee would allow others to operate the vehicle. Id.

In the case sub judice, it is well shown that Michael Mosely’s parents repeatedly told him not to let anyone else drive the car. Obviously, neither Thomas Mosely nor his wife gave express consent to McDow. Nor do we find such approval implied, as envisioned in King, supra. McDow’s use of the Camaro clearly served no purpose, benefit or advantage insofar as the named insured, and no emergency situation existed. Furthermore, the deposition testimony shows that, at the time of the accident, neither parent had any knowledge of their son previously violating their limitations upon the operation of the vehicle.

Consequently, no express consent or exception of implied consent being established, McDow did not become an omnibus insured. Cf. Malmay, supra. Thus, given the principles controlling the granting of summary judgment, see LSA-C.C.P. Art. 966; American Bank v. Saxena, 553 So.2d 836 (La.1989); Hartford Acc. & Indem. Co. v. Joe Dean Contractors, Inc., 584 So.2d 1226 (La.App. 2d Cir.1991), the district judge correctly found no genuine issue of material fact existing. It follows, then, that the insurer demonstrated an entitlement to judgment as a matter of law.

CONCLUSION

Accordingly, the summary judgment of the district court, granted in favor of defendant, State Farm Mutual Automobile Insurance Company, is affirmed. Costs of the appeal are assessed against plaintiffs.

AFFIRMED.

BROWN, Judge,

dissenting.

When Michael Mosely was a 17 year old high school senior his parents purchased him a 1989 high-performance IROC Cama-ro automobile. Although Michael’s father was the registered owner, every family member considered this to be “Mike’s” car. Mike testified that he was the primary operator of that vehicle and also a turbo Thunderbird likewise registered in his father’s name. Mike testified that “I was trying to get rid of the IROC at the time.” Mike’s parents had their own individual vehicles. Mike could not drive his parents’ vehicles because he was an excluded driver on the insurance.

At the time of the accident Mike at age 18 was a major and a student in college. According to the documents submitted with the motion for summary judgment, Mike was driving the IROC on the night of the accident. Mike took plaintiff, Jonathan Perkins, and Tammy Bonner to a football game at Trinity Heights High School. Following the game, Mike drove Jonathan and Tammy to Charlie’s 29 Club located in Shreve Square, Shreveport, Louisiana.

According to the affidavit of Jonathan Perkins the following events occurred:

1) Perkins asked Mosely to borrow the IROC to run an errand, (to get money from a bank machine in Bossier City);
2) At the same time, James McDow asked Mosely for permission to borrow the car (Mosely had dated McDow’s sister in the past);
3) Mosely gave McDow permission to borrow the vehicle by placing the keys in McDow’s hand and stating “be careful”.

McDow drove Perkins and another young man, Bobby Tobey, from the nightclub to Bossier City to obtain money from a bank machine. On the return from the bank to Charlie’s 29 Club, McDow accelerated to a speed in excess of 100 miles per hour and lost control of the vehicle on 1-20 resulting in the death of Tobey and serious injuries to Perkins.

When the car was purchased, Mike was told by his father not to loan it to anyone. Perkins’ affidavit indicates that Mike had allowed him to drive the car earlier on the day of the accident. Mike initially lied to the police claiming that McDow stole his keys. A real issue of fact exists as to whether Mike had loaned the vehicle to others in the past.

The majority’s opinion classifies Mike as a permitted driver and then denies coverage because the named insured, Mike’s father, did not give expressed or implied permission to Mike to allow McDow to drive the vehicle.

Under the circumstances, as presented in the motion for summary judgment, it was foreseeable that Mike might give permission to another to use the vehicle for an errand. Our state’s public policy favors interpretations of insurance policies that allow coverage to those entitled to it. “After-the-accident” reconstruction of the initial restrictions imposed by the parent should be viewed in the light of the existing circumstances. Mike was an adult attending college with complete discretion and continuous control over the vehicle. McDow was given permission by Mike to drive the vehicle and had no knowledge that his use of the vehicle was without the permission of Mike’s parents. Mike was empowered with the apparent authority to use the vehicle as he wanted. Self-serving limitations following an accident should not override common sense.

The cases cited by the majority are easily distinguishable. In Malmay v. Sizemore the truck involved in the accident was owned and operated by the parent. The son in Sizemore had his own car and did not reside with the parent, but borrowed the truck to move his belongings into a new apartment. In Solice the vehicle in question was normally operated by the owner and seldom loaned out to the plaintiff driver.

Under these circumstances there is coverage under the policy or at least an issue of material fact which would defeat a motion for summary judgment. I respectfully dissent.  