State Farm Mutual Automobile Insurance v. White

RICHARDSON, J.,

concurring in part; dissenting in part.

The majority rejects the decisions of the Kansas court in United States Fidelity & Guar. Co. v. Farm Bureau Mut. Ins. Co., 2 Kan App 2d 580, 584 P2d 1264 (1978), and the Illinois court in State Farm Mutual Auto. Ins. Co. v. Larsen, 62 Ill App 3d 1, 18 Ill Dec 582, 377 NE2d 1218 (1978). I would follow those decisions and would accordingly hold that, by grabbing the wheel and depriving the driver of control of the car, defendant Lorri Ann White became the “operator.”

In each of the cases on which the majority does rely, the person actually driving the car was excluded from coverage. The issue was whether the presence or physical intervention of another person meant that the driver was not operating the vehicle. Those cases are 180 degrees apart from this one. The issue here is not whether Ms. Morgan, the driver, was operating the vehicle, but whether White’s act was an assumption of physical control which also constituted operation. The answer, in my view, was ably stated by the Kansas court in United States Fidelity & Guar. Co. v. Farm Bureau Mut. Ins. Co., supra:

“We believe that when a person takes control of a moving vehicle, even though for only an instant, that person has gained control over it and is operating it within the normal definition and understanding which ordinary laymen would give to an insurance policy.” 2 Kan App 2d at 583.

The majority states:

“* * * [W]hat Miss White was doing was interfering in the operation of a motor vehicle, not ‘operating’ it. She was not sitting in the operator’s seat; she did not have her foot on, or even have access to, either the brake or the *674accelerator. All the controls of the auto, other than the means of direction, were being physically controlled by Miss Morgan. By no stretch of the imagination was Miss White ‘operating’ a motor vehicle in the usual and accepted sense of the word. * * *” 60 Or App at 672.

I simply disagree with the majority’s understanding of the “usual and accepted sense of the word.” Having control of the “means of direction” of a car seems to me to be every bit as integral to its “operation” as the ability to stop it— especially when, as here, the act of taking control of the means of the car’s direction made it impossible for the driver to stop the car before the collision occurred.

For the foregoing reasons, I would conclude that White is excluded from coverage under her parents’ homeowners’ policy, and I therefore respectfully dissent from the majority’s contrary conclusion. Because White was operating the vehicle rather than acting within the scope of her permission as a passenger, I agree with the majority that she is not entitled to coverage under the two automobile liability policies.