Jason Rains, Crystal L. Carney, and Kathy Carney v. Edwin Scott Sussdorff,III, a/k/a/ Ed Sussdorff, Vicky R. Sussdorff, E. Scott Sussdorff and Allstate Insurance Company - Concurring

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
FILED
(July 1998 Session) August 4, 1998

Cecil Crowson, Jr.
Appellate C ourt Clerk

JASON RAINS, CRYSTAL L. ) HAMILTON CIRCUIT
CARNEY and KATHY CARNEY, )
) NO. 03A01-9801-CV-00025
Plaintiffs/Appellant )
v. )
) HON. W. NEIL THOMAS, III
EDWIN SCOTT SUSSDORFF, III ) JUDGE
a/k/a/ ED SUSSDORFF, VICKI R. )
SUSSDORFF, E. SCOTT )
SUSSDORF and ALLSTATE )
INSURANCE COMPANY, )
)
Defendants/Appellees ) AFFIRMED

Richard A. Schulman, Chattanooga, for Appellants Crystal and Kathy Carney.
Samuel R. Anderson, David L. Moss, Chattanooga, for Appellees.

OPINION

INMAN, Senior Judge

While riding as passengers in an automobile owned by defendant and

driven by a close friend of defendant’s son, the intervening plaintiff was

seriously injured in a one-car accident when the driver apparently fell asleep at

the wheel. The passenger intervened in the driver’s petition and alleged that the

vehicle had been driven with the express or implied permission of its owner and

sought a declaratory judgment that his insurer was therefore liable for her

injuries. The trial court found the driver did not have such permission and

dismissed intervenor’s petition, and she appeals.

We affirm the judgment of the trial court.
 I

Jason Scott Rains [“Jason”], the original plaintiff, age 20, is a neighbor

and “best friend” of defendant Scott Sussdorff [ “Scott”] also 20, whose father,

defendant Edwin Scott Sussdorff, III [ “Sussdorff”] owned a Pontiac Grand Am

vehicle which he insured through defendant Allstate Insurance Company.

The policy of insurance provides that Allstate insured Sussdorff, any

resident, and “any other person using [the auto] with the insured’s permission.”

In the late evening hours of May 5, 1995, with Sussdorff’s express

permission, Scott drove the Grand Am to David Johnson’s house for a party and

to spend the night. When Scott arrived he found Johnson’s car parked first in

the driveway and Jason’s car behind Johnson’s; Scott parked his father’s car

behind Jason’s, and thereafter neither Johnson’s car nor Jason’s could be moved

without first moving the Sussdorff car.

At 1:00 a.m. Jason agreed to drive plaintiff Crystal Carney, age 18, to

meet her mother at the Holiday Inn where she was to attend a mother-daughter

all night function. Johnson agreed to accompany them. When Jason could not

find his car keys, he awakened Scott and obtained his permission to drive

Sussdorff’s car. During the trip an accident occurred which seriously injured all

of the vehicle’s occupants.

II

Carney contends that Jason had Sussdorff’s express or implied

permission to use the vehicle and therefore is an additional insured under the

Allstate policy.

No witnesses testified at the hearing; the parties submitted as evidence

the depositions of Sussdorff, his wife, Scott, Jason, Johnson and Carney, along

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with Allstate’s policy of insurance and a stipulation that Jason was not on the

business of the Sussdorffs when the accident occurred.

The trial court found that Jason did not have Sussdorff’s permission to

drive the Grand Am, and for that reason was not an additional insured under the

Allstate policy. He dismissed the intervening petition.

Our review of the findings of fact made by the trial Court is de novo upon

the record of the trial Court, accompanied by a presumption of the correctness

of the finding, unless the preponderance of the evidence is otherwise. TENN. R.

APP. P., RULE 13(d); Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn.

1996).

When a case is heard entirely upon depositions, the presumption of

correctness of the factual findings of the trial judge does not apply with the

same strictness as it does in cases heard orally where the trial judge has the

opportunity to view and appraise the witnesses. Hohenberg Bros. Co. v.

Missouri Pacific R. R., 586 S.W.2d 117 (Tenn. App. 1979).

III

Sussdorff testified that he had given Jason express permission to drive his

Grand Am on two occasions prior to this accident. However, he also testified

that he had given Scott and his other children a standing order that “You don’t

let anybody just - - just anybody drive your car.” Scott testified that he knew he

was never allowed to drive his father’s Grand Am without express permission,

nor did he think his friend Jason could drive the car without his father’s

permission. Jason, however, testified that he drove the Grand Am “ . . . so many

times that you couldn’t count,” with Scott’s permission and without his father’s

knowledge.

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 The parties agree that Jason did not have Sussdorff’s express permission

to drive the Grand Am on the night of the accident but that he did have the

express permission of Scott. Plaintiffs argue that Jason had Sussdorff’s implied

permission to drive the vehicle because of the course of conduct between

Sussdorff and Jason.

We agree with the trial court that the evidence preponderates in favor of a

finding that Jason did not have such permission.

Under Tennessee law, implied permission must be “the act or conduct of

the named assured. It must amount to an intended selection of the person to

operate the car. No implied permission can arise merely because a man

obtained possession of the car without the knowledge of the named assured,

regardless of what permission was given by other persons . . . the essential point

is whether the named assured exercises his personal discretion and grants his

own permission to the particular person.” Schultz v. Tennessee Farmers Mutual

Ins. Co., 404 S.W.2d 480 (Tenn. 1966).

On the two occasions when Jason drove Sussdorff’s Grand Am with

Sussdorff’s knowledge, the conditions were somewhat exigent. In one instance

Jason’s car was being repaired in the Sussdorff’s driveway and the job was not

finished when he had to go home, so Sussdorff authorized him to drive the car

home. On the second occasion Jason requested to drive the Grand Am to take

his mother and handicapped sister to lunch and back home.

Plaintiff contends that the circumstances on the night of the accident were

again exigent and therefore Jason reasonably assumed that, had he called Mr.

Sussdorff, permission would have been granted. Clearly, by his own testimony,

Jason knew that a request for permission had always been required, yet he failed

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to obtain such permission. We find no convincing evidence in the record that

Sussdorff’s course of conduct would have reasonably led Jason to believe he

could drive Sussdorff’s Grand Am under any circumstances without his express

permission.

IV

Plaintiff argues that she is entitled to recover because Jason was a second

permittee, since he secured Scott’s permission to drive his father’s car. Indeed

Scott testified that he had given Jason permission to drive his father’s car

[without his father’s knowledge] on five to ten occasions. However, Scott also

testified that he knew that his father did not permit anyone, even his own son, to

drive the Grand Am without his express permission. Therefore Jason cannot be

a covered second permittee under Tennessee law, which requires that second

permittees must have permission from the named insured. Schultz v. Tennessee

Farmer’s Mutual Ins. Co., 404 S.W.2d 480 (Tenn. 1966).

We find the evidence preponderates in favor of the trial court’s finding

that Jason Rains did not have the express or implied permission of Edwin Scott

Sussdorff to drive his vehicle and therefore is not an additional insured under

the Allstate policy.

The judgment of the trial court is affirmed with costs assessed to the

appellants.

_______________________________
William H. Inman, Senior Judge

CONCUR:

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_______________________________
Herschel P. Franks, Judge

_______________________________
Charles D. Susano, Jr., Judge

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