Farm Bureau Mutual Insurance v. Hmelevsky Ex Rel. Ridgeway
539 P.2d 598
Idaho
1975
Check Treatment

*1 benefits, having for real these receive funds commissions received the fact subsequently that Pierson estate filed his lien not- sales. withstanding the waiver did not in determined that there it was When way prior personal obligation affect remaining with the lend- insufficient funds Sewell assumed to obtain the lien order and pay all claims Butler ing institution to waiver. relationship between Sewell discussed Sewell, that But- It is to be it Butler and Pierson to the effect noted that was Butler, together negotiations on who ler and Pierson had worked conducted contracts, Pierson, that many obtain lien waiver from construction previous necessary had on Sewell was real estate salesman when Pierson assumed- ly experienced in agreeable giving Butler real estate transactions. occasions obligation. my opinion these facts it is that time Under additional to meet obligated personally pay became Following this it determined Sewell discussion was Pierson, all and that the trial get lien waivers from Sewell would except be affirmed. and that all Pierson should claimants pro- claims, paid would be without lend-

rating money available from the

ing institution. approached Pierson to ob- Sewell

When waiver, expectation

tain his lien Pierson’s waiver

was that he would execute the lien paid

so that his he could be for claim FARM BUREAU MUTUAL INSURANCE lending funds disbursed institution. IDAHO, Plain COMPANY OF of execution sole tiff-Respondent, waiver, thinking, was so that Pierson’s made Sewell could have the funds available lending for disbursement institution HMELEVSKY, by through her Michelle to the claimant. Pierson was not advised guardian Ridgeway, litem, ad Mildred . that all other claimants who executed Defendants-Appellants, Ridgeway, Mildred paid, except himself. waivers were to be circumstances, my it is Under these conclu- implied sion that there was an offer COUCH, al., Defendants, Jr., et James H. Sewell to the effect that if Pierson would waiver, execute Sewell would see OF FARMERS INSURANCE COMPANY paid, execution Corporation, claim IDAHO, Defendant-Respondent. benefit waiver which for Sewell’s acceptance was Pierson’s No. 11483. of this offer.

See, Perillo, Contracts, Calamari & 73§ Supreme of Idaho. Court Aug. 8, 1975. ' At the time that Sewell obtained the lien Pierson, obligated waiver from he himself money

to see that Pierson his obtained —i. personal he thus assumed this as a obli-

gation. then used this lien waiver Sewell having lending

as the basis for institu- payment

tion release funds for to all claimants, and thus Sewell obtained agreement benefits of this ex- See, Perillo, supra,

tent. Calamari & my that Sewell

286(b). conclusion *2 Sudweeks, May, May, D. J. James J. Fuller,

May, Falls, & for Sudweeks Twin defendants-appellants. Reed, Doerr, A. Doerr & Twin John
Falls, for Farm Bureau Mut. Ins. Co. of Idaho. Larson, Robertson, Parry, Daly
Bert & Larson, Falls, Twin for Farmers Ins. Co. of Idaho. Walker, Lloyd Kennedy, Walker J.

Twin for Falls Couch and Jensens. SHEPARD, Justice. a judgment

This is an en- following tered trial in an for de- action judgment. Plaintiff-respondent claratory brought seeking Farm Bureau declaratory judgment un- to its insurance, der a of automobile Company intervened in Farmers Insurance The trial seeking the action similar relief. of both court entered favor carriers, holding lia- neither was policies. We reverse. ble under owned an automobile On June Fay Wright was involved single driver vehicle accident. was one at the time of the accident Wright, minor Couch. James Fay child, daughter of Leon Wright family reside outside Twin and the Falls, acci- Prior to date Idaho. Leona, dent, child, minor and a car drive both the Wrights. truck, owned" pickup in another Depositions were taken discussed case infra along instant case trial used at the In the testimony of witnesses. with the thereof, Wrights heatedly course permission.” assert of such The Farmers gave daughter to their policy provides coverage for specific pur- to use the automobile for Couch if he car poses specific places. to travel to and “with the owner,” [in They specifically also assert that she was the Wrights]. case *3 forbidden to allow other to trial, Following the district court found drive the vehicle. Wrights that the given permission had not following We recite the in facts detail for Couch to drive their vehicle nor did they necessary they because to the con- consent to Leona Couch to day text of our decision. On the drive. Thus it found that neither accident Leona was absent applicable from the were provided nor cov- Wright Fay Wright erage. home when Leon and It company declared that neither They decided to obligated leave. left a for was provide coverage note to for or to Leona, giving her to drive the defend personal Couch either of the in- car to jury the home of an aunt about one and cases. It also declared that the Farm- one-half distant from Wright mile ers’ was any coverage excess over keys home and the provided were left car. Farm Bureau as to Leona going arrived home but instead arising out of the Hmelevsky accident. to the aunt’s home she first went to church takes this from the purchased and thereafter some beer and we reverse. Couch, ap- friends, picked up three James At the outset we note that an in pellant Hmelevsky, Michelle John Jen- company may surance adjudicate its liabili drugs pur- sen. Thereafter certain were ty policy prior under a to a trial of group chased and then the drove in the injury sonal action and therefore declara Wright Stanley, car the area of to Idaho. tory judgment properly sought here. After spending time there some start- Temperance Exchange Insurance v. Carv trip ed point, At home. some er, 365 P.2d 824 I. specified, Wright Leona allowed James 57; 10-1201; R.C.P. I.C. Fire Occidental to drive the vehicle. While Couch Cook, and Casualty Company v. was driving trip on the return home the 7, 435 P.2d also (1967). State place occupants accident took and all four Farm Mutual Ia Automobile Ins. Co. v. injured. of the vehicle were cober, Cal.Rptr. Cal.3d (1973). P.2d 953 separate actions filed in October and 1972 Hmelevsky and November that since The trial court found Leona Jensen brought Wrights nu- Wright had made of the vehicle on injuries Couch for the in that suffered ac- par- previous with her merous occasions Bureau, cident. Thereafter Farm who consent, general ents’ she had Fay Wright, insurer found, to use the car. The trial court also brought declaratory the instant action for par- however, Leona did not have liability, judgment as to its and Farmers precise use she ents’ for the Company, alleged in- who day question. made of the car on Couch, surer of was allowed to intervene specific permission is clear that Leona had and to obtain a determination as its lia- purpose on the the car for a limited to use bility. Fay Wright par- Leon are not day The trial court accident. ties to the instant action. prior to occasions on three found that Wright allowed policy insuring The Farm Bureau vehicles, but persons other Wrights’ provides automobiles for cover- Fay Wright were Leon nor age that neither if a driver than other being permitted persons aware of other operating the vehicle “with the vehicles. The drive the of either and within the Wrights] [of divergent re- produced widely Wright cisions Fay that neither Leon nor found or sults. acquainted or with Couch knew them given and had neither of adopted differing John Jensen Three rules have involved to drive vehicle In- set in Ryan forth v. Western Pacific Although might view the we the accident. Company, surance 242 Or. found differently, the trial court evidence Fay Wright were that neither Leon nor falling catalogued as “These have been using the aware of Leona’s into three rules: The ‘strict’ (1) one of than to to travel destination rule, e., any deviation ‘conversion’ i. specific permission given she was permission given approx- go. The accident was scene of the coverage; ends The ‘minor devia- imately resi- 150 miles from the e., minor tion’ i. deviation *4 dence. scope permission does of the initial as matters of The trial court concluded coverage, major but a deviation not end permission ei- law that Leona did have does; ‘initial and The ‘liberal’ or implied family express ther or to use permission’ i. vehicle to to the area where the ac- travel beyond although is covered the use is occurred, cident nor did she have either permission initial unless of the implied allow or express permission the use so far exceeds the initial vehicle, did Couch to drive the nor Couch permittee is akin to a thief sion that the implied permission or P.2d at 86. converter.” 408 to drive the vehicle. Automobile Insur- See also 7 Am.Jur.2d part is 49-1521(b) I.C. ance, also Fi- seq. § 119 et See American safety responsibility

motor and act delity v. North British Mer. Inc. Co. provides policy that a vehicle owner’s 271, (1969), 124 Vt. 204 A.2d 110 person “shall insure the named therein along appears to have Ryan any person, any using other adopted approach still another which could such motor vehicle or vehicles with perhaps major motor be labeled “the deviation” express implied permission or of such rule. named insured.” Policies such as that is yet This has not as had the sued both Farm Bureau and Farmers adopt the above rules occasion to subject requirement. 49- I.C. § respective urge us policies 1521. Motor vehicle insurance rules, adopt differing the above one of must be construed in with the conformance adopted none can be for univer we believe mandate that act. Farmers Insurance application opin sal in this state. It our Wendler, Exchange v. 84 Idaho ig all rules tend to ion that above P.2d The stated inherent nore those differences which are purpose safety responsibility that act “is family as contrasted with a situation protect public against irresponsible Many inter other circumstances. cases Exchange, supra, drivers.” Farmers express permis preting deviation from an Idaho at 368 P.2d at 935. employ involving do in a context so principal point The of decision herein is er-employee relationships other differ or gen- granting the effect of family be ing from circumstances. We permission eral spe- to use the vehicle and distinguishable lieve are thus cific to use the vehicle for a might appropriate in a business be what limited on the of the accident par practical proper context is not spe- in view of Leona’s deviation from the ent-child context. cific deviation in unique intra-family relationship is vehicle. law, this court and others albeit similar nationally, cases a multitude of de- governing advantage certainty. have made inroads as to the law has the It relationship. Rogers Yellow to reduce liti- should serve the amount of stone, gation, expense delay may Hebel, preliminary injured ability particularly person’s Hebel to an pointed allowing compensation. action to be to even As (Alaska 1967), tort seek out Hoohuli, parent Hu brought against a child. Columbia Co. v. ques- experience teaches that when Haw. 437 P.2d “the man 99 (1968) prelimi- tion family car with of insurance often allow a child to drive nary adjudication permittee’s general permission at least occasion to an of a on an damages. expected and it is the suit for un- al basis it is to be require haps occasionally injured the child desirable to inevitable question in await the determination of that will deviate from the usage declaratory judgment The child governing the of the car. action.” probably drive the car without that insofar as a We therefore conclude may specific use permission, exceed the concerned, context situation is by exceeding granted or deviat “permission” statutes word as used in the specific ing use and violate and automobile insurance means specific governing restraints general permission occasionally to at least appears usage to be the of the car. Such use a Precise vehicle. least three occa case herein. Leona on at pre- doing to do what driver is at the express restraint sions violated the *5 unnecessary. cise moment accident is of the There allowing others to drive the car. occasionally allowed Leona to parents testimony by suggesting the drive car and of the acci- the on the probable knowledge that de Leona specific permission to drive it dent she viated from destination the purpose. she was for a limited Therefore pickup than the vehi albeit with the rather using the car the of her with it deem cle in this accident. We involved parents. proper impose upon carriers to knowledge of human behavior like undisputed gave is that Leona suggest undoubtedly such un frailties and specific permission to drive. On contemplated in the derwriting risks are it is clear and reflected in the other hand upon imposed vehicle owners with rates finding of the trial court herein, children. note minor We Couch, give Wrights did not know did not by the trial upon specifically not ruled drive, him and further had to testimony indicating court, that there was anyone else instructed Leona not to allow carrier’s of the insurance the awareness any vehicles. Thus of to operation agent Leona’s of of a required to decide whether sub we vehicles. permittee driving is with 4 owner. A.L.R.3d 10. See safety As herein noted the motor vehicle basically protect responsibility act is to Casualty & In v. Western Butterfield Co., irresponsible Idaho 357 P.2d public against Surety drivers. Our general rule to this court stated the possible is one consist- result here be: policy of 49-1521. We ent with the I.C. § “ * * * permission is general when a purpose in de- be served salutory see no to insured to use granted by the named remedy injured an nying an to effective vehicle, any limitation and without precise instant person solely because at the person a third named insured disapprove parent an accident a by the driving, operation of a doing what a child is permission of permittee is first adopted herein motor vehicle. The result taken nor is there issue No is though even another the named priority here as to between use is serve a provided the driving, policies and benefit, the two insurance hence advantage of purpose, Judgment issue not treated here. permittee.” first district and remanded for court is reversed Indemnity v. Unit Co. See also Industrial proceedings consistent herewith. Co., 59, 454 P. ed States F. & G. appellants. Costs to (1969). 2d 956 home driving Leona back Couch was McQUADE, McFADDEN, J., and J., C. upon Stanley depending one’s concur. testimony such could have view of the arguable in view at least necessary or was DONALDSON, (dissenting)-. Justice illness, intoxication or other alleged of her I yet dissent. passed This Court has not consid- and could therefore be disablement on which of the three rules to re- follow purpose of serving ered garding the coverage extent of under an parents. arguably Never- omnibus policy. clause in an insurance Re- place a limitation theless did cent appear decisions from states against any the vehi- third favor the permission” “initial “liberal” or under similar circum- cle. other cases permit- rule which extends if the stances courts have found tee has initial to use the auto- notwithstanding that by the exists owner though mobile even the actual use is be- anyone the child not let owner told yond permission. such initial I would be else drive the car. Odolecki Hartford willing adopt rule in Idaho but the Co., Accident Indemnity N.J. n majority extends this rule much further A.2d 38 Cascade Insurance Co. granting coverage sub-permittee ato even Co., Mont. Glacier General where there limitation Mullin P.2d 259 anyone insured not origi- to allow but the 271 Minn. Fidelity & nal to drive the If automobile. *6 (1965), using the rationale N.W.2d 613 its reasoning logical is followed to actually permittee using that the the car conclusion, step the next be to will extend present in that he is exert con- able coverage to drivers of a all minor house- trol. As stated Odolecki: parents even though express- hold have * * * “We see the fail distinction ly prohibited' driving them from in- between a case where first sured The will automobile. result be that scope of in terms exceeds the companies require that all time, place, purpose, of case children who have drivers license be list- scope permis- he exceeds where of ed as of the insured drivers automobile by in terms of use of pay higher will be forced to at another.” 264 A.2d 42. coverage. rates for that I would follow agree We Odolecki and hold that the with holding this Court of Butterfield Co., rule must be in- modified to Butterfield Surety Casualty Western & clude within its those circumstances 79, (1960), deny 357 P.2d 944 cover- daughter wherein a son or allows another age. to drive the vehicle with such BAKES, (dissenting): Justice contrary sion is to the instruction of the parents. therefore with Couch was I concur with Donaldson Justice the insured would follow the decision of this Court in by afforded the insurance Surety v. Western Butterfield question here. 83 Idaho 357 P.2d 944 However, question proprie I P.2d ty key of determining the issue in the in Plaintiff-Respondent, Idaho, STATE case, jured claimant’s i. whether or not being the vehicle used with GRIFFITH, C. Defendant- Dennis than mission case other Appellant. negligence action filed claimant. 11160. No. Court, in Casey, This Ennis v. 72 Idaho Supreme Court of Idaho. 181, 185, (1951), P.2d warned Aug. 8, 1975. issues, against practice Sept. 4, liehearing Denied 1975. which should be decided in the main ac tion, being determined in a declarato

ry judgment proceeding preempts main action. And while this Court Temperance Exchange

stated in Carver,

(1961):

“Where an insurer acts reasonable

promptness, so that the insured and third prejudiced, are not insurer

entitled to have the of the va-

lidity policy, of its and its there-

under, prior determined of an trial upon the insured a liabili-

ty alleged policy, to be covered so

that the insurer know whether it is pro-

obligated to defend the insured as policy. (Citations omit-

vided

ted) .” 83 Idaho at today

actions such as that before the Court

point impropriety procedure out the of this prejudice possibly

and- how can result. plaintiffs

One effect is that the are forced the issue determined their action in the extent of injuries fact, is before the trier

but an action in which are at best parties one of several defendant. you complication

this case have the further insureds, Fay Wright,

in that the action,

were not even made

raising specter judg- of inconsistent think the district

ments the two cases. I carefully the admoni-

courts should heed case, supra, suggesting

tion Ennis

that critical issues such as ordinarily should be decided action, declaratory main com-

judgment action filed the insured’s

pany.