Opinion
May 6, 1986.
Appeal from the Circuit Court of Gibson County, Tennessee The Honorable Dick Jerman, Jr., Gibson Law No. 1.
Clinton V. Butler, Jr. of Jackson MENZIES, RAINEY, KIZER ALDERSON Attorneys for the Plaintiff-Appellee.
R. David Strickland of Jackson HILL, BOREN STRICKLAND, P.C. Attorneys for the Defendants-Appellants.
TOMLIN, P. J., W. S. (concurs) HIGHERS, J. (concurs).
This case concerns a suit for injuries incurred by Deborah L. Branch, a minor, as a result of an automobile accident on June 29, 1983. This action was consolidated with the actions of other plaintiffs injured or killed in the accident. State Farm insured Ms. Branch's father, Jerry Branch, the owner of the car in which she was a passenger at the time of the accident. State Farm sought declaratory judgment against Deborah L. Branch and her mother, Glenda Lane, as well as other defendants who have not appealed the trial court's ruling in this matter. The trial court found that Deborah Branch was an insured under the automobile insurance policy covering her father's 1979 Honda automobile and that there was therefore no coverage under that policy for the claims asserted by Deborah Branch and her mother, Glenda Lane. Deborah L. Branch and Glenda Lane appeal.
Deborah Branch has resided full-time with her mother since her parents' divorce in 1965. Her father, Jerry Branch, purchased a 1979 Honda automobile in late 1982 and insured it with State Farm. For about one month before the accident, the car was kept almost exclusively at the residence of Deborah and her mother. Jerry Branch had instructed his daughter not to drive the vehicle outside the city limits of Trenton, Tennessee, but they had not discussed whether she should allow someone else to drive her outside the city limits. On the night of the accident, Deborah and three of her friends left Trenton to go to McDonald's in Dyersburg. Before leaving Trenton, Deborah relinquished the keys to the Honda to Barry Elliott. He drove to McDonalds in Dyersburg and was driving on the return trip to Trenton when the accident occurred.
Jerry Branch was the named insured under the State Farm policy. As a result of the automobile accident, Jerry Branch and the administrator of the estate of Barry Elliott were sued by Deborah Branch and her mother, as well as by others. In all cases except the case brought by Deborah Branch and her mother, State Farm acknowledged coverage as to the other suits against Jerry Branch and the estate of Barry Elliott.
The issue on appeal is whether the trial court erred in finding that Deborah Branch was an insured under State Farm Mutual Automobile Insurance Company's policy of insurance which covered the 1979 automobile involved in the accident.
The State Farm policy defines an insured as:
"Any person while using such a car if its use is within the scope of consent of you . . .".
("you" being the named insured.)
The policy excludes coverage for bodily injury to any insured. Thus, in order to determine whether Deborah Branch is an insured, it must be determined whether she was "using" the car at the time of the accident. State Farm contends that Deborah Branch is an insured because, as a first permittee, she had implied permission from her father, Jerry Branch, to give permission to the second permittee, Barry Elliott, to drive the car. In support of this argument, State Farm relies onTeague v. Tate, 213 Tenn. 269, 375 S.W.2d 840 (1964). InTeague, the insured's 17-year-old son and his 17-year-old friend were schoolmates and fraternity brothers. They would occasionally use the insured's automobile when they went on dates. The insured gave his son permission to use his automobile to go to a party. The son became sleepy, asked his friend to drive, and the friend was involved in an accident while the son was a passenger. The court found that the friend had implied permission of the insured to drive the car, and was therefore an additional insured under the automobile liability policy.Teague is the exception to the general rule that in the absence of some showing that express or implied permission was given by the named insured to the second permittee, the second permittee is not an additional insured. This exception arises when the original permittee is riding with the second permittee at the time of the accident and the automobile is being used to serve some purpose of the original permittee. The facts of the case at bar are similar to Teague. The insured, Jerry Branch, gave his daughter, the first permittee, permission to drive his automobile and Deborah Branch allowed her friend Barry Elliott, the second permittee, to drive the car. Teague does hold that the second permittee under these circumstances is an additional insured. However, we do not interpret Teague as holding that the first permittee is an additional insured while riding as a passenger in the car.
Since we do not find that Teague holds that the first permittee is an insured while riding as a passenger, we must look elsewhere to determine whether or not Deborah Branch was an insured. As noted above, the policy before us defines insured as "any other person while using such car if it is within the scope of consent of you . . .". The question then becomes whether or not Deborah Branch was "using" the car at the time of the accident. The policy does not define the terms "use" or "using". InTravelers Insurance Co. v. Aetna Casualty and Surety Co., 491 S.W.2d 363 (Tenn. 1973), the Tennessee Supreme Court dealt with an exclusionary clause in a Travelers homeowner's policy which dealt with an exclusion of coverage ". . . to the ownership, maintenance, operation, use loading or unloading of (1) automobiles . . .". The Court held:
There can be little doubt that the terms "use" and "loading and unloading" are ambiguous, particularly in light of the courts' major efforts to define and interpret those terms. Those terms have taken on varied meanings and have been subjected to varied applications and tests in construing coverage under automobile liability policies. That being true, under facts such as those in the instant case, homeowner policies of insurance should stand on their own language and exclusions should be strongly construed against the insurer. After properly construing the ambiguous terms strictly against automobile liability carriers to provide coverage, some courts have conversely, by allowing homeowner carriers the benefit of the same construction, construed homeowner policies, bought for insurance coverage against nonvehicular liability, strictly against the insured. In keeping with the policy of the law, the inverse should be true. By holding Travelers liable in the instant case, we are neither redefining the terms nor changing the standard of causation. We are, rather, merely strictly construing those ambiguous terms and the standard of causation against the homeowner carrier standing by itself. As pointed out previously in Ayers, the sole object of the insured in obtaining insurance is indemnity. To exclude coverage, exclusion clauses must be drafted in clear and unambiguous terms. The terms being ambiguous, they must be strictly construed against the insurer.
Citing Sturgill v. Life Insurance Co. of. Georgia, 62 Tenn. App. 550, 465 S.W.2d 742 (1970), Travelers further stated:
The terms and provisions of a policy drafted by the insurance company must be construed strongly in favor of the insured.
A provision in a policy limiting or reducing coverage is to be construed strongly against the insurer.
Thus, Travelers, supra, having held the term "use" to be ambiguous, we conclude that the term "using" in the present policy is likewise ambiguous and must therefore be construed against the company issuing it.
This results in somewhat of an anomaly in that construing the terms and provisions of a policy generally results in one becoming an insured rather than being determined not to be. Nonetheless, the result in this cause in construing the ambiguous language against the insurer results in Ms. Branch not falling within the definition of an insured under the policy, and therefore not excluded from coverage therefrom.
This ruling is not intended to address whether the driver is an additional insured. Permission of the named insured may be express or implied. Travelers Insurance Co. v. Weatherford, 520 S.W.2d 726 (Tenn. 1975). Implied permission must be the act or conduct of the named insured. Card v. Commercial Casualty Ins. Co., 20 Tenn. App. 132, 95 S.W.2d 1281 (1936).
The judgment of the trial court in holding that Deborah L. Branch is an insured under the policy, and therefore excluded from coverage, is reversed and the cause is remanded to the trial court for any further proceedings consistent with this opinion. The costs of this appeal are taxed to the appellee, for which execution may issue if necessary.