366 S.W.3d 116
Mo. Ct. App.2012Background
- Ellis, a Papa John's delivery driver, was operating his personal car in the course of employment when he collided with McCravey on July 31, 2009.
- Allstate insured Ellis's vehicle; the named insureds were Ellis's grandparents, the Kretzers, who owned the car.
- Kretzers permitted Ellis to use the car for employment purposes for Papa John's.
- McCravey sued Ellis and Papa John's; Allstate defended Ellis and settled against him for $100,000.
- Papa John's sought defense and indemnity from Allstate, arguing it qualified as an insured person under the policy, and the exclusion did not apply.
- The circuit court granted summary judgment for Allstate, concluding Papa John's was not an insured person and, even if, the exclusion applied; Papa John's appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Papa John's qualifies as an insured person under the omnibus clause. | Papa John's used with permission via Ellis and Kretzers' consent. | Permission was limited to Ellis's use, not Papa John's. | No; not an insured person. |
| Whether the Kretzers' permission to Ellis equates to permission for Papa John's to use the car. | Consent to Ellis's use in the course of employment extends to Papa John's. | Consent limited to Ellis's use; no permissive use by Papa John's. | No; consent did not make Papa John's a permissive user. |
| Whether the employment relationship and respondeat superior expand coverage for permissive use. | Employer liability implies permissive use by Papa John's. | Respondeat superior does not enlarge permissive use. | No; vicarious liability does not create permissive use. |
| Whether the policy exclusion for carrying property for a charge applies to bar coverage. | Exclusion should not bar Papa John's coverage since it was not using for a charge. | Exclusion would apply if Papa John's was using the car for Papa John's' business for a fee. | Irrelevant to the decision since Papa John's was not using with permission; the court affirmed on other grounds. |
Key Cases Cited
- Weathers v. Royal Indem. Co., 577 S.W.2d 623 (Mo. banc. 1979) (defines 'use' vs. 'operation' in omnibus clause analysis)
- Lindquist v. Scott Radiological Group, Inc., 168 S.W.3d 635 (Mo. App. 2005) (discusses scope of employment and permissive use with omnibus clauses)
- Mo. Employers Mut. Ins. Co. v. Nichols, 149 S.W.3d 617 (Mo. App. 2004) (policy interpretation and insured person definitions)
- State Farm Mut. Auto. Ins. Co. v. Scheel, 973 S.W.2d 560 (Mo. App. 1998) (omnibus clause interpretation in Missouri)