(dissenting):
I respectfully dissent. I concur with the well reasoned opinion of the majority right up to the point where they find an express modification of the bailment agreement between Diumenti and Brown regarding insurance for the airplane. I find no support in the record for any such express agreement, and would reverse on that basis.
While accepting the findings of the trial court regarding the meeting between the various parties on April 28, 1984, it is clear that the discussions were focused on the lease agreement, not the temporary bailment by which possession was delivered on April 30, 1984. It is also clear from the record, that although Brown participated in the discussion about insurance, it was the lessee of the airplane, and not Brown, who was undertaking the contractual obligation to assure adequate insurance was in place.
The fact that upon delivering the keys, and thereby possession of the airplane, Diumenti specifically told Brown that he, Diumenti, did not expect the airplane to go anywhere until there was insurance, does not make Brown a party to any contract regarding insurance for the airplane. Diumenti testified that he did not believe at any time that he was entering into a contract with Brown.
There is absolutely no evidence in the record that Diumenti and Brown entered into a valid agreement to modify the obligations which would otherwise arise from the relationship of bailor and bailee that is “actually a part of the contract of bailment and is expressed in clean and unmistakable language”, and in which there is “actual assent to the conditions modifying the bailee’s liability growing out of the contract of bailment.” Allen v. Southern Pac. Co., 117 Utah 171, 213 P.2d 667, 668 (1950).
Brown did not assent to “modification” of the bailment agreement. The only testimony before the trial court regarding the bailment agreement is that Diumenti made a statement regarding insurance at the time of delivering the keys to the airplane. Brown’s-acceptance of the keys under those factual circumstances amounts to no more than accepting them for his employer,- as he was expected to do. It did not make Brown a party to anything.