Plaintiff was injured when he was struck by an automobile owned by defendant Carlson Chevrolet and insured by defendant Federated Service Insurance (Federated). Plaintiff filed a complaint against Federated for declaratory judgment and to enforce Carlson Chevrolet’s insurance contract with Federated. He also filed a complaint against Carlson Chevrolet for negligent entrustment. The trial court granted Federated’s motion for summary judgment, granted Carlson Chevrolet’s motions to dismiss and entered judgments of dismissal in both cases. Plaintiff appeals. We reverse the summary judgment in favor of Federated and affirm the judgment in favor of Carlson Chevrolet.
In his first assignment of error, plaintiff contends thаt the court erred by granting Federated’s motion for summary judgment. Federated had the burden of demonstrating that there was no disputed issue of material fact and that it was entitled to judgment as a matter of law. ORCP 47C;
Tolbert v. First National Bank,
Stanley Carlson is thе owner of Carlson Chevrolet. His son, Jerry, works for Carlson Chevrolet and sold a Corvette to his friend, Ghiglieri, in mid-1988. On November 16, 1988, Ghiglieri came to Carlson Chevrolet and told Jerry that he wanted to rent a car to drive to California, because he did not want to put so many miles on his Corvette. Ghiglieri told Jerry that he wanted his girlfriend, Hutchinson, to drive the car. Jerry knew thаt Ghiglieri was 22 years old at the time and that Hutchinson was younger. Jerry told Ghiglieri that Hutchinson should not drive the car, because she was under 25 years old, and “there was a 25-years-of-age deal on it.”
In his deposition, Ghiglieri testified:
“I told [Jerry] that I was not going to be driving the vehicle, and he indicated that he wasn’t supposed to know that, that T don’t know this, but, you know, just take it and get out of here,’ basically.
“And so I said, ‘Where do I sign?’ And I signed [the contract.]
“I said that [Hutchinson] was going to be driving the car. He said, T don’t know that, so don’t tell me that. * * * I said, again, I wasn’t going to be driving the car and I was gettingit for [Hutchinson].”
Jerry’s deposition testimony indicates that he did not agree to allow Hutchinson to use the car. He testified:
“I told him, if he wanted to [have a car for Hutchinson to drive], he would have to give her the Corvette to drive and use the rental car to go to California with it; and I stuck with it until he got it in his head, until I knew that he understood what I meant.
cc* * * * *
“Q. Did he specifically ask for a Camaro?
“A. He wanted a sporty-type car.
“Q. For his girlfriend?
“A. No, no. For him to drive, because he was going to California.”
Ghiglieri signed a “Car Rental Agreement” form without reading it and took the car. The form includes these terms:
“(3) Renter agrees * * * not to operate the automobile beyond the boundaries of the State of Oregon.
“(4) Permission to drive and use the vehicle is limited exclusively to renter, unless written consent of Carlson Leasing is endorsed hereon.
“(11) The vehicle described * * * shall not be operated * * * by any person under the age of twenty-five (25) years.”
The next day, as Hutchinson drove the car, she struck plaintiff, a Washington County Sheriffs deputy who was investigating a traffic accident. Plaintiff, who was seriously injured, sued Hutchinson and obtained a judgment against her. Plaintiff
Carlson Chevrolet is insured by Federated under a “Garage Coverage” policy. The insurance policy contains an exclusions section, which provides:
“This insurance does not apply to any of the following:
<<* * * * *
“7. LEASED AUTOS
“Any covered ‘auto’ while leased or rented to others. But this, exclusion does not apply to a covered ‘auto’ you rent to one оf your customers while their ‘auto’ is left with you for service or repair.”
The trial court granted Federated’s motion for summary judgment on the grounds that Hutchinson had used the car without Carlson Chevrolet’s permission, that Carlson Chevrolet leased or rented the car to Ghiglieri and that the insurance contract excluded coverage for leased cars.
Plaintiff contends that there are disputed issues of material fact concerning whether Carlson Chevrolet leased the car to Ghiglieri, whether Carlson Chevrolet gave permission for Hutchinson to drive its car and whether the “LEASED AUTO” exclusion applies to the transaction between Carlson Chevrolet and Ghiglieri. Plaintiff also cоntends that the “LEASED AUTO” exclusion violates Oregon’s Financial Responsibility Law. 1
Plaintiff contends that, even if there is a lease, the “LEASED AUTO” exclusion in the insurance policy is invalid, because that exclusion violates Oregon’s Financial Responsibility Law. ORS 806.080(1) provides, in part:
“A motor vehicle liability insurance policy used to comply with financial responsibility requirements under ORS 806.060 must * * * include in its coverage all persons who, with the consent of the named insured, use the motor vehicles insured under the policy, except for any person specifically excluded from coverage under ORS 742.450.” 2
In
Viking Ins. Co. v. Peterson,
“We interpret [the Financial Responsibility Law] to require every motor vehicle liability insurance policy issued in this state to provide for statutory minimum limits of coverage. * * * The policy must cover not only the named insured but also must provide coverage for all persons who operate the insured vehicle with the consent of the insured.”308 Or at 621 .
Federated suggests that the use of an automobile pursuant to a lease does not constitute “permissive” use. Oregon courts have not directly addressed that issue. In
Fagg v. Massachusetts B. & I. Co.,
In contrast, the rights of a lessee may be restricted both temporally and in the manner of use. In
Mission Ins. Co. v. Guarantee Ins. Co.,
37 Wash App 695,
“[The insurer] admitted that the vehicle in question was rented to [the driver] and that the rental agreement was in effect on the day of the accident. This situation establishes consent on the part of the owner. * * * [P]ermission to use and drive [acar] is implied in thе rental agreement.” 193 F2d at 454.
Other courts have reached the same conclusion, and we find their reasoning to be persuasive.
See Royal Indemnity Co. v. Markley,
116 Colo 84,
We hold that the granting of an automobile lease constitutes “consent” within the meaning of ORS 806.080(1). A “motor vehicle liability insurance policy used to comply with financial responsibility requirements under
ORS 806.060” must therefore рrovide coverage when a covered vehicle is leased to another person. The “LEASED AUTO” exclusion in the insurance policy is invalid to the extent that it would deny coverage in the minimum amount required by the Financial Responsibility Law.
Collins v. Farmers Ins. Co.,
The transfer of the car from Carlson Chevrolet to Ghiglieri was consensual, regardless of whether the transfer constituted a lease under Oregon law. Consequently, we need not decide whether the transfer was a lease. The issue then, is whether the transfer to Ghiglieri included consent to Hutchinson’s use of the car.
Federated contends, and the trial court apparеntly agreed, that Carlson Chevrolet did not consent to Hutchinson’s use of the car. The “Car Rental Agreement” purported to limit consent to Ghiglieri, because Carlson Chevrolet did not endorse the form to grant permission to anyone else. Federated contends that the written form establishes the terms of the agreement between Carlsоn Chevrolet and Ghiglieri.
4
However, the fact that the parties signed a “Car Rental Agreement” form does not necessarily establish that they intended to integrate the terms of an oral agreement into a written lease.
Nat. Cash Reg. Co. v. I.M. C., Inc.,
Ghiglieri’s and Jerry’s deposition testimony conflict over whether Jerry understood that Ghiglieri would allow Hutchinson to drive the car. Consequently, the court could have granted Federation’s motion for summary judgment only if Ghiglieri and Jerry intended the “Car Rental Agreement” to be an integrated contract. In reaching its decision, the court was required to make findings of historical fact and to determine the legal effect of those facts.
Wescold, Inc. v.
Logan International, Ltd.,
Because the court did not make any express findings, we must presume that it implicitly found that the parties intended the written form to constitute an integration of their agreement. We are bound by that finding if there is evidence to support it.
What we are left with is the conflicting testimоny in Ghiglieri’s and Jerry’s depositions. Ghiglieri’s testimony, if believed, would allow the inference that Jerry acquiesced, and thereby consented, to Hutchinson’s operation of the car. Jerry’s testimony indicates that he made it clear to Ghiglieri that Hutchinson was not to drive the car. There is a genuine issue of material fact: whether the transfer of thе car from Carlson Chevrolet to Ghiglieri included permission for Hutchinson to drive the car. That is a question that can only be answered by the factfinder. The court erred by granting Federated’s motion for summary judgment.
In his second assignment of error, plaintiff contends that the court erred by granting Carlson Chevrolet’s ORCP 21A(8) motion
5
to dismiss his negligent entrustment claim. A court mаy grant a pre-trial motion to dismiss under ORCP 21A(8) only if the complaint, on its face, fails to state a claim.
Parks v. Willis,
Plaintiff alleged that Hutchinson’s negligent operation of the car caused the accident that injured plaintiff. He also alleged:
“6.
“The vehicle involved in the accident was a 1986 Chevrolet Camaro owned by Carlson Chevrolet.
“7.
“Carlson Chevrolet was negligent in allowing the vehicle to leave its control and custody in one or more of the following particulars:
“a) In providing the vehicle to Mark Ghiglieri when he was under 25 years of age, when the rules and regulations of Carlson Chevrolet provided that no one under the age of 25 could use a vehicle, and it was foreseeable that Mark Ghiglieri would allow another to drive the vehicle, who was also under thе age of 25;
“b) In providing the car to Mark Ghiglieri with the understanding that he was going to provide the vehicle to Angela Dawn Hutchinson, when Carlson Chevrolet knew or should have known that Angela Dawn Hutchinson was an inexperienced or dangerous driver.”
There is no question that the complaint alleges that Carlson Chevrolet entrusted the car to Ghiglieri. The question is whether that entrustment was negligent. Plaintiff does not allege that there was a “special relationship” between plaintiff and Carlson Chevrolet.
See Buchler v. Oregon Corrections Div.,
Plaintiff asserts that Carlson Chevrolet’s own rule against renting cars for use by persons under 25 years of age establishes the standard of care to which
Plaintiff alleged in paragraph 7(b) that Carlson Chevrolet knew or should have known that Hutchinson was a dangerous driver:
“Including the words ‘knew or should have known’ in a complaint does not automatically satisfy the requirement of foreseeability. * * * An allegation that a defendant knew something may be an allegation of fact, but an allegation that [the defendant] should have known something is merely a conclusion drawn from other facts. When a plaintiff claims that a risk was foreseeable, though not necessarily foreseen, the plaintiff must allege facts that would allow the factfinder to conclude that the defendant should have known of the risk.” Moore v. Willis,307 Or 254 , 259,767 P2d 62 (1988).
Plaintiff s allegation that Carlson Chevrolet should have known that Hutchinson was a dangerous driver was nothing more than a conclusion that could only have been drawn from other facts. Plaintiff did not allege any facts that would have pеrmitted that conclusion.
The more difficult question is the sufficiency of plaintiffs allegation that
Carlson Chevrolet knew
that Hutchinson was a dangerous driver. We faced a similar question in
Page v. Sparling,
“Plaintiff allege [d] that [the defendant] knew or had reason to know that [the driver] was a potentially dangerous driver who might drive while under the influence of intoxicants. A reasonable jury could find it foreseeable that entrusting a car tо such a person * * * might cause an accident.”87 Or App at 123 .
In isolation, that conclusion might suggest that plaintiffs allegation is sufficient.
However, our conclusion in
Page
is tempered by the Supreme Court’s observation that “[a]n allegation that a defendant knew something
may
be an allegation of fact.”
Moore v. Willis, supra,
In contrast, plaintiff has not alleged any facts that would support an inference that Hutchinson was a dangerous driver, nor did plaintiff allege that Carlson Chevrolet had a duty to investigate her driving record. In the absence of those predicate allegations, an allegation that a defendant knew about a dangerous condition is conclusory and insufficient. The court did not err by striking paragraph 7(b)
Judgment for defendant Federated reversed and remanded; judgment in favor of defendant Carlson Chevrolet affirmed.
Notes
There is also some question about the authenticity of the “Car Rental Agreement” form. Federated attached a copy of the rental form to its Amended Answer. That copy did not have the insurance box checked. Federated attached a copy of the rental form, as an exhibit, to its motion for summary judgment. The insurance box is checked on that copy.
Federated has never contended that the “Garage Coverage” policy is not a ‘ ‘motor vehicle liability insurance policy used to comply with financial responsibility requirements under ORS 806.060.” ORS 806.080.
For the purposes of an omnibus clause, the terms “consent” and “permission” are synonymous.
Fagg v. Massachusetts B. & I. Co., supra,
ORS 41.740, the parol evidence statute, provides in part:
“When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, [and] no evidence of the terms of thе agreement, other than the contents of the writing, except where a mistake or imperfection of the writing is put in issue by the pleadings or where the validity of the agreement is the fact in dispute.”
ORCP 21A provides, in part:
“[T]he following defenses may at the option of the pleader be made by motion to dismiss: * * * (8) failure to state ultimate facts sufficient to constitute a claim[.]”