Estate of Trobaugh Ex Rel. Trobaugh v. Farmers Insurance Exchange

AMUNDSON, Justice

(dissenting).

[¶ 42.] I agree with the majority’s analysis concluding there was a lack of express permission by Juffer as to prohibit coverage under the omnibus clause. I disagree, however, with the majority’s conclusion that there is a genuine issue of material fact as to implied permission. Hence, there should also be a dismissal of the negligent entrustment claims. As such, the trial court should be affirmed on all grounds.

Implied Permission

[¶ 43.] Certain facts are undisputed. In the present ease Amy was given conditional permission to operate the Taurus, which was owned, licensed and insured by her father, Juffer. It is also clear from the record that Juffer placed an express restriction on the use of the ear telling Amy that her husband, Mike, could not drive it. In his deposition, Mike admitted that he knew that he was not to operate the Taurus and that he had no permission, express or implied, to use the vehicle. Mike understood that only Amy was authorized to drive the vehicle. Mike admitted that he had violated Juffer’s restrictions by taking the Taurus the day of the accident. Simply put, there are absolutely no facts in the record to support a finding of implied permission. In fact, these undisputed facts support Juffer’s express for-biddance of Mike from driving the Taurus.

[¶ 44.] To establish the existence of implied permission or consent, there must be a showing of “a course of conduct or practice known to the owner and acquiesced in by him that would lead to an application of permission of a particular venture.” Western Casualty & Surety Co. v. Anderson, 273 N.W.2d 203, 205 (S.D.1979). The majority, however, relies on speculative, hypothetical reasons for finding a dispute of fact as to implied permission. The majority relies on facts that the vehicle was being stored in Amy’s garage; that Mike’s work is four miles outside of town; and that the Taurus’ odometer does not coincide with Juffer’s and Amy’s driving patterns to conclude it is “disputed” whether Juffer gave Mike implied permission to drive the Taurus.1 Those facts cited by the majority and the inferences drawn therefrom do not form a basis for implied permission. The majority concedes that there is absolutely no evidence that Juffer *507actually knew Mike drove the Taurus. “The permission contemplated by an omnibus clause is something more than mere sufferance or tolerance without taking steps to prevent.” 46 CJS Insurance § 1049. It logically follows that there is no evidence that Juffer acquiesced to Mike’s prohibited driving of the Taurus because Juffer lacked knowledge of Mike’s unpermitted driving.

[¶ 45.] The burden of proof is upon the Trobaughs to show that Mike’s use at the time of the accident was with the permission of Juffer since Mike “is a stranger to the policy and not the named insured.” Howe, 584 F.Supp. at 372 (D.S.D.1984) (citing Western, supra at 205). I submit that the express prohibition by Juffer cannot be overcome by the speculative inferences drawn by the majority as such “course of conduct or practice” was not “known” to Juffer at the time of the accident. “[T]here must be some connection between the named insured’s conduct and the operation of the car by the third person, the critical question being whether the named insured said or did something that warranted the belief that the ensuing use was with his consent.” 46 CJS Insurance § 1052. As the evidence is contrary to Trobaugh’s position, he has failed to meet his burden.

[¶ 46.] It appears the majority confuses implied permission or authority with ratified permission or authority.2 Ratified permission or authority may overcome an express prohibition. See Bank of Hoven v. Rausch, 382 N.W.2d 39 (S.D.1986). Implied permission, however, is analyzed only if there is an absence of whether the owner, or named insured, has either allowed or denied express permission to another. In other words, if the insured has expressly allowed or denied a third party permission to drive the insured’s vehicle, then implied permission is not analyzed. This is because the insured has spoken, and his or her permission or non-permission cannot be overcome by the actions of the third party. “It is incongruous to first recognize that the named insured has expressly forbidden the original permittee to extend permission to another, and then proceed to hold he has given implied consent under these circumstances.” Tristan v. Government Employees Ins. Co., 489 S.W.2d 365, 367 (Tex.Civ.App. 1973). Implied permission cannot overcome express non-permission. Being that implied permission does not apply to this case, we should affirm the trial court on this issue.

[¶ 47.] It is undisputed that Juffer gave neither express nor implied permission to Mike to operate the Taurus at any time, much less on the date of the accident. To the contrary, Juffer expressly forbade Mike from driving the Taurus. Additionally, there is no evidence in the record to suggest that Juffer ever acquiesced or consented to Mike’s use of the vehicle prior to the accident. Accordingly, the trial court’s grant of summary judgment in favor of Farmers Insurance should be affirmed.

Negligent Entrustment

[¶ 48.] The issue of negligent entrustment is moot as such a cause of action is predicated on permission from the owner. The “owner of a vehicle ‘may be guilty of negligence if he permits an incompetent, inexperienced and knowingly reckless and accident prone person to drive’ his vehicle.” Stover v. Critchfield, 510 N.W.2d 681, 684 (citing Robe v. Ager, 80 S.D. 597, 129 N.W.2d 47, 51 (S.D.1964); see also Arbach v. Gruba, 89 S.D. 322, 232 N.W.2d 842, 846 (S.D.1975)) (emphasis supplied). As discussed above, Juffer expressly forbade Mike from driving the Taurus. Without the requisite permission, Tro-*508baugh cannot make out a claim based on negligent entrustment.

[¶ 49.] Even assuming that there is some lingering question as to issue of implied permission, the negligent entrustment issue in this case is clearly answered by our holding in State Farm Mut. Auto. Ins. Co. v. Ragatz, 1997 SD 123, 571 N.W.2d 155. In Ragatz, this Court made clear that

If an owner of the car expressly forbids the permittee to lend his car to another, but the permittee nevertheless allows the second permittee to drive the car in violation of the named insured’s express orders, the insurer is not liable while the second permittee is driving on the theory that a prohibition against delegation is a restriction upon the use of the vehicle. [Thus, the second permittee] is not an omnibus insured.

Ragatz, 1997 SD 123 at ¶ 18, 571 N.W.2d at 158. Under Ragatz, what more could Juffer do to show he denied Mike permission to use the vehicle? He expressly forbade Mike from driving the Taurus. He placed restrictions on Amy’s permission to drive the vehicle. He also instructed Amy to not allow Mike to drive the vehicle. Our holding in Ragatz makes it clear that Juffer cannot be held liable under a theory of negligent entrustment.

. As unpersuasive as these facts are and do not create implied permission, I address them individually. First, the Taurus was at Amy’s residence because she had limited permission to drive it. Mike’s access to the vehicle was not a fact contemplated by Juffer, and Tro-baugh has not shown otherwise. Second, Mike’s job being four miles out of town is also a non-issue. Although not a popular way to get to work in South Dakota, Mike could have easily carpooled to work or used alternative transit. The use of the Taurus was not the only mode of transportation available to him. Third, the unaccounted for mileage does not, inter alia, rise to the level of a disputed fact whether Mike had driven the vehicle. The restrictions and limitations fashioned by Juf-fer in the use of his vehicle by Amy does not in any way dilute his unwavering prohibition of Mike being able to use the Taurus. “Providing the opportunity for [Mike] to take the [Taurus] without any physical impediments does not constitute consent for [Mike] to use the vehicle for his own personal ventures.” American Family Ins. Group v. Howe, 584 F.Supp. 369, 377 (D.S.D.1984) (citing Dickinson v. Great American Indemnity Co., 296 Mass. 368, 6 N.E.2d 439 (1937)).

. Ratification by a named insured of a third party's use after the fact creates no omnibus coverage. Pettis v. State Farm Mut. Ins. Co., 286 Ala. 344, 239 So.2d 772 (1970). “The permission must be given before the accident for coverage to apply; subsequent notification of the use is insufficient to invoke coverage.” 8 Couch on Insurance 3d § 112:5. Thus, we are left with Juffer’s express prohibition versus this Court’s hypothetically driven idea of implied permission.