Permanent General Assurance Corporation v. Gilbert Waters

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
December 8, 1998
PERMANENT GENERAL )
ASSURANCE CORPORATION, ) Cecil W. Crowson
) Appellate Court Clerk
Plaintiff/Counter-Defendant/ )
Appellant, ) Appeal No.
) 01-A-01-9712-CV-00720
VS. )
) Davidson Circuit
GILBERT WATERS, ) No. 96C-1147
)
Defendant/Counter-Plaintiff, )
)
PEGGY RICHARDSON, )
RODGERICK WATERS, )
)
Defendants/Appellees, )
)
BEVERLY BATEY, )
)
Defendant. )

APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE

THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE

JOHN B. ALLYN
301 Plus Park Boulevard, Ste. 10
Nashville, Tennessee 37217
Attorney for Plaintiff/Appellant

JOSEPH L. LACKEY, JR.
1230 First American Center
Nashville, Tennessee 37238-1230
Attorney for Defendants/Appellees

REVERSED AND REMANDED

BEN H. CANTRELL
PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
CAIN, J.

OPINION
 This case involves an exclusion in an automobile liability policy for a

person operating the automobile without a reasonable belief that that person is

entitled to do so. The Circuit Court of Davidson County dismissed the insurance

company’s action for a declaratory judgment. We reverse, and declare that the

exclusion precluded coverage by the company.

I.

Gilbert Waters owned a 1989 Cadillac insured by Permanent General

Assurance Corporation. The insurance policy contained an exclusion for any person

using the vehicle without a reasonable belief that that person was entitled to do so.

Gilbert Waters’ son, Rodgerick Waters, lived in the house with Mr. and

Mrs. Waters. Rodgerick had a learning disability, and despite being of driving age, he

had never passed the test for a driver’s license. Mr. Waters was teaching Rodgerick

to drive by allowing him to drive the automobile in Mr. Waters’ company. Mr. and Mrs.

Waters had both issued specific orders to Rodgerick forbidding him to drive either of

their cars on his own. On one prior occasion Rodgerick took his father’s car without

permission and was punished for disobeying orders.

Gilbert Waters worked the early shift at Middle Tennessee Mental Health

Institute. On December 12, 1995 Mr. Waters returned home from work between 3:30

and 4:00 p.m. In preparing a snack he discovered that the family needed some items

from the grocery store and mentioned that fact to his son Rodgerick. He then followed

his normal routine and lay down to take a nap. While he was asleep, Rodgerick took

the keys to Mr. Water’s car and some money from his wallet and drove to the grocery

store where he purchased the needed items. On the way home he took a detour and

was involved in an accident. Mr. Waters arrived at the scene shortly thereafter, and

he initially told the investigating officer that he had been driving the car.

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 II.

An exclusion identical to the one involved here was upheld in Omaha

Property & Cas. Co. v. Johnson, 866 S.W.2d 539 (Tenn. App. 1993), and the validity

of the exclusion has not been challenged here or in the court below. The issue, then,

boils down to a question of fact. Did Rodgerick Waters reasonably believe he had his

father’s permission to drive the car on the occasion of the accident?

The trial judge did not make a finding of fact on that issue. The court’s

order recites that the insurance company “has not carried its burden of proof and has

not shown to the Court by a preponderance of the evidence it is entitled to a

Declaratory Judgment.” The court’s oral pronouncements in the record tend to follow

that same reasoning and appear to leave the question open for a final determination

by a jury at the trial of the underlying tort action.

Even it we took the trial judge’s action as a finding that Rodgerick

Waters had a reasonable belief that he had Mr. W ater’s permission to drive the car,

we are convinced that the evidence preponderates against that finding. See Rule

13(d), Tenn. R. App. Proc.

In United Services Automobile Assoc. v. Continental Ins. Co. (Tenn. Ct.

App., filed in Nashville, Dec. 24, 1985), we held that the “reasonable belief” language

in the exclusion requires a two-part finding. The first finding is subjective: that the

driver did in fact believe that he had the owner’s permission. The second part is

objective: that the belief was reasonable, based upon the evidence in the record. See

also Phillips v. Harding, No. 89-307-II (Tenn. Ct. App., filed in Nashville Feb. 16,

1990).

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 We are of the opinion that all the evidence in the record requires a

negative answer to the first question. Rodgerick himself testified that he knew he did

not have his father’s permission to take the car to the store. Both parents had

consistently and forcefully instructed him that he was not to drive the car except when

his father gave him driving lessons.

The appellee argues that the proof is too pat; that Rodgerick’s testimony

on how he would escape detection by getting back before his father awoke from his

nap is belied by the fact that he made the grocery purchases and would have brought

home the proof necessary for his own conviction. Rodgerick first testified that he

would have hidden the groceries, and then he admitted that that course of action did

not make much sense. But the inability to think logically is one of Rodgerick’s

handicaps. When we recognize that fact, his testimony is more believable.

Since we have found that the first part of the test (a belief on the driver’s

part that he had permission) is not present, we do not have to examine the

reasonableness of the belief.

The judgment of the court below is reversed, and a judgment will be

entered here declaring that Rodgerick Waters was not covered by his father’s liability

policy. We remand the cause to the Circuit Court of Davidson County for any further

proceedings that may become necessary. Tax the costs on appeal to the appellee.

_____________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.

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CONCUR:

_____________________________
WILLIAM C. KOCH, JR., JUDGE

_____________________________
WILLIAM B. CAIN, JUDGE