Prudential Property & Casualty Insurance v. Walker

Andrews, Judge,

The central issue before us on appeal is whether the trial court erred in denying Prudential’s motion for directed verdict. Prudential contends there was no evidence from which the jury could find that Ms. Segal had either express or implied permission to drive James Therrell’s car. We agree and reverse.

James Therrell III had temporarily loaned his son James Therrell IV (“Jimmy”) his Ford Escort so that Jimmy could transport his belongings from his home in Roswell to college at Georgia Southern University in Statesboro. Jimmy borrowed the car because he could not get everything he needed to take back into his own car. He was to take the car back to school and return with it a few weeks later on Easter weekend.

Although Jimmy knew he was not supposed to loan the car to *85anyone, he allowed Faith Segal to take the car and drive to Tallahassee, Florida, to be fitted for a bridesmaid’s dress. On the way to Tallahassee, Segal was involved in an accident with the Walkers.

Prudential brought this declaratory judgment action, contending that Segal was not a covered driver under Therrell’s automobile policy. The case was tried to a jury which answered a special interrogatory finding that Segal did have permission to use the car at the time of the accident. Prudential appeals, claiming that it should not be obligated to defend Segal or pay on any judgment awarded to the Walkers against her.

1. First, Prudential claims that the trial court erred in denying its motion for directed verdict because the evidence shows that Segal was not a “permissive driver” under the terms of Therrell’s insurance policy. The pertinent policy provision is as follows: “You and a resident relative are insured . . . other people are insured while using your car ... if you give them permission to use it. They must use the car in the way you intended.” The policy defines “you” and “your” to be the named insured, i.e., Therrell and his wife.

The “second permittee” doctrine provides that when a third person uses a car via another person who did have permission to use the car, this is a permissive use under the insurance policy as long as “the use falls within the scope of the permission.” (Citations omitted.) Allstate Ins. Co. v. Wood, 211 Ga. App. 662, 663 (440 SE2d 78) (1994). To determine whether the use falls within the scope of the permission, the test is: (1) whether the owner’s permission to the first permittee included the use to which the third person put the car, and (2) whether the scope of the permission the third person received from the first permittee exceeded the scope of permission given the first permittee by the owner.

Applying this test to our facts, it becomes apparent that Segal’s use of the car far exceeded the permission given by Therrell to his son. Because there was not room in Jimmy’s car for everything Jimmy wished to take back to school, Therrell allowed him to take his car to Statesboro. Jimmy was given permission only to travel to Statesboro and back to Roswell. He was not to loan the car to anybody, and he was expressly instructed not to go to Florida, Savannah, or anywhere else. Ms. Segal’s use of the car to go to Florida to be fitted for a bridesmaid’s dress falls nowhere within the parameters of this permitted use.

The applicable case law supports this conclusion. In Ga. Farm Bureau Mut. Ins. Co. v. Allstate Ins. Co., 190 Ga. App. 593 (1) (379 SE2d 619) (1989), a mother lent her car to her son’s girl friend so that the girl friend could take the son back and forth to work and “get groceries and stuff.” Id. at 594. The mother claimed she never gave her son permission to drive the car. When the son had an accident *86while driving the car to town to get a TV antenna, we found that this came under the generic use for which the owner had loaned the car, i.e., for the son’s benefit in going to work and running errands. Id. The facts in Transp. Ins. Co. v. Allstate Ins. Co., 208 Ga. App. 837 (432 SE2d 259) (1993) are similar. Gwendolyn Flitter’s company gave her a company car for business and personal use. A visiting friend of Flitter’s had an accident while driving this car to the grocery store to buy groceries for a dinner party Flitter was giving. We held that the use of the vehicle was within the scope of permission given to the employee since the friend was running a personal errand for the employee’s benefit. Id. at 840.

Here, Segal’s use of the car bore no relation to the purpose for which Jimmy borrowed it. He needed it to transport his belongings back to school. Jimmy was to use the car while at school and was not to take it anywhere else except back to Roswell. Accordingly, Ms. Se-gal’s use of the car to go to Florida to be fitted for a bridesmaid’s dress was not included within the use for which Therrell allowed Jimmy to take the car and also exceeded the scope of permission given by Therrell to Jimmy for the car’s use. Therefore, we find that Ms. Segal did not have James Therrell’s express or implied consent to drive his car to Florida. Accordingly, the trial court erred in denying Prudential’s motion for directed verdict.

2. Because of our holding in the first division, we need not address the remaining enumerations of error.

Judgment reversed.

Birdsong, P. J., Pope, P. J., Johnson, Smith and Ruffin, JJ., concur. Beasley, C. J., McMurray, P. J., and Blackburn, J., dissent.