ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL G. GETTY DONALD J. TRIBBETT
RORI GOLDMAN SCOTT L. STARR
Hill Fulwider McDowell Funk Starr Austen Tribbett Myers
& Matthews & Miller
Indianapolis, Indiana Logansport, Indiana
IN THE
SUPREME COURT OF INDIANA
COURTNEY SMITH, )
) Supreme Court Cause Number
Appellant (Petitioner), ) 41S01-0212-CV-628
)
v. )
)
CINCINNATI INSURANCE COMPANY, ) Court of Appeals Cause Number
) 41A01-0109-CV-353
Appellee (Respondent). )
APPEAL FROM THE JOHNSON SUPERIOR COURT, NO. 3
The Honorable Kim Van Valer Shilts, Judge
Cause No. 41D03-9808-CT-00149
CIVIL TRANSFER
June 27, 2003
RUCKER, Justice
An underage driver crashed the car of her intoxicated friend while
attempting to drive the friend home in the car purportedly with the
friend’s permission. The question we address is whether the level of
intoxication has a bearing on the ability of an intoxicated would-be driver
to give permission to another to operate her car. We hold that it does
not.
Facts and Procedural History
Eighteen-year-old Natalie Deem owned a car insured by the Cincinnati
Insurance Company. While out late one evening with fifteen-year-old
Courtney Smith, Deem became extremely intoxicated, sick, and wanted to go
home. Smith claimed Deem gave her permission to drive Deem’s car. Deem
did not remember. In any event the record is clear that Smith possessed
only a learner’s permit and could lawfully drive only when accompanied by a
guardian or relative who holds a valid operator’s license. See Ind. Code §
9-24-7-4(2). It is undisputed that Deem had a valid operator’s license,
however Deem is not Smith’s guardian and Deem and Smith are not related.
Attempting to drive Deem home, Smith ran off the roadway, which was covered
with snow and ice. Both Smith and Deem were injured as a result.
Deem filed a complaint for damages against Smith. In turn, Smith
filed a declaratory judgment action against Cincinnati Insurance to
determine whether coverage existed. After a bench trial, the trial court
determined that Smith was not covered under Deem’s insurance policy. On
direct review, the Court of Appeals affirmed. See Smith v. Cincinnati Ins.
Co., 769 N.E.2d 599, 604 (Ind. Ct. App. 2002). Having previously granted
transfer, we affirm the judgment of the trial court.
Discussion
The policy provision at issue in this case excludes coverage for any
person “[u]sing a vehicle without a reasonable belief that that person is
entitled to do so.” Appellant’s App. at 37. Entering judgment in favor of
Cincinnati Insurance the trial court concluded, essentially on two grounds,
that Smith could not reasonably have believed she had permission to drive
Deem’s car: (1) Smith was not legally entitled to drive; and (2) Deem was
too intoxicated to give consent.
Affirming the trial court, the Court of Appeals focused on the policy
language “entitled” and adopted a five part test to determine whether a
driver has a reasonable belief that she is entitled to drive another
person’s car: (1) whether the driver has the express permission to use the
vehicle; (2) whether the driver’s use of the vehicle exceeded the
permission granted; (3) whether the driver was legally entitled to drive
under the laws of the applicable state; (4) whether the driver had any
ownership or possessory right to the vehicle; and (5) whether there was
some form of relationship between the driver and the insured, or one
authorized to act on behalf of the insured, that would have caused the
driver to believe that she was entitled to drive. Smith, 769 N.E.2d at 603
(citing Omaha Prop. & Cas. Ins. Co. v. Peterson, 865 S.W.2d 789, 791 (Mo.
Ct. App. 1993)). Noting that the trial court’s findings of fact employed
the foregoing criteria, the Court of Appeals agreed with the trial court’s
conclusion that “Smith’s belief that she was entitled to drive Deem’s car
was not reasonable.” Id. at 604. We agree with our colleagues.
However, although focusing on the “entitled” component of the trial
court’s findings of fact, the Court of Appeals seemed to have endorsed that
portion of the trial court’s finding which said “Smith knew Deem was
extremely intoxicated when Deem purportedly gave this permission [to drive
Deem’s car]. Deem had been vomiting and passed out from extreme
intoxication shortly before Deem purportedly gave Smith permission to
drive[.] [A] reasonable person who had these facts would not have believed
Deem was in a condition to give permission.” Id. It is this portion of
the opinion with which we take issue.
This jurisdiction has long recognized the toll that drunk driving has
taken on the general public and the state’s interest in preventing
accidents caused by drivers who are intoxicated. See, e.g., State v.
Gerschoffer, 763 N.E.2d 960, 968 (Ind. 2002) (observing there is a “public
danger of impaired driving” and a “legitimate law enforcement purpose of
combating drunk driving”); Ruge v. Kovach, 467 N.E.2d 673, 681 (Ind. 1984)
(noting “Indiana’s interest in keeping its highways safe by removing
drunken drivers from its roads”); Stroud v. Lints, 760 N.E.2d 1176, 1187
(Ind. Ct. App. 2002) (rejecting the notion that “there can be such a thing
as a normally ‘good’ drunk driver”); Schrefler v. State, 660 N.E.2d 585,
588 (Ind. Ct. App. 1996) (recognizing the state’s interest in keeping its
highways safe from intoxicated drivers); see also Governor’s Council on
Impaired & Dangerous Driving 2002 Annual Report 6 (2003) (noting that in
the year 2001, 337 people died in alcohol-related crashes in Indiana).
To be sure, drunk driving is not a public safety concern unique to
Indiana. The Supreme Court has said that “[n]o one can seriously dispute
the magnitude of the drunken driving problem or the States’ interest in
eradicating it.” Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 451
(1990). The Court has also observed:
The situation . . . of the drunk driver – occurs with tragic frequency
on our Nation’s highways. The carnage caused by drunk drivers is well
documented and needs no detailed recitation here. This Court,
although not having the daily contact with the problem that the state
courts have, has repeatedly lamented the tragedy.
South Dakota v. Neville, 459 U.S. 553, 558 (1983). See also Alcohol, Drug
Abuse, & Mental Health Admin., U.S. Dep’t of Health & Human Servs., Tenth
Special Report to the U.S. Congress on Alcohol & Health 391 (2000)
(pointing out “[t]he current level of 16,000 deaths and more than one
million injuries in alcohol-related traffic accidents each year
demonstrates the need for continuing attention to this major public health
problem”).
Given the strong state and national interest of keeping persons who
are intoxicated from operating motor vehicles, we think it sound policy to
encourage sober drivers to get behind the wheel and not let their friends
drive while drunk. It is true that a person may be so intoxicated that she
may be unable to give her consent in other contexts. However, in the case
of an intoxicated would-be driver, the level of sobriety should not
prohibit another person from relying on the driver’s request to operate her
car. In essence, the fact that a would-be driver is extremely intoxicated
has no bearing on whether she can nonetheless give her permission for a
sober designated driver to drive her car.
Conclusion
Because Smith was not legally entitled to drive we affirm the trial
court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.