Bond v. Pennsylvania National Mutual Casualty Co

In Bond v. Pennsylvania Nat'l Mut. Cas. Ins. Co., 289 Md. 379, 424 A.2d 765 (1981), the car owner and insured gave her daughter permission to drive her car but instructed her that she was not to allow anyone else to drive the vehicle. 289 Md. at 384. The persons insured under the owner's insurance policy were the owner as the "named insured" and "any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission." Id. at 381. Disregarding her mother's instruction, the daughter not only permitted a friend to drive the car but was not even present when the accident occurred. Id. at 383. The vehicle's only passenger was not so fortunate, and, as a result of the accident, suffered injuries. Seeking compensation for those injuries, the passenger filed a declaratory judgment against the insurer of the vehicle, among others, to determine the extent of the driver's coverage. Id. at 382. Concluding that the car, at the time of the accident, "was not being used by anyone who was authorized expressly or by implication to use the car," the circuit court held that the owner's policy did not cover the accident and therefore that her insurance company was under no obligation to defend the driver or pay any judgment rendered against her. Id. at 383. Affirming the circuit court, the Court of Appeals stated: "The reason we conclude that appellant Bond cannot prevail here . . . is that once the trier of fact determined (as without being clearly erroneous he did in this case) that the named insured 'had specifically restricted her daughter, Kathy, from allowing anybody . . . to drive the car,' and that this express ban was operative when the accident occurred, there is no escape from Judge Raine's further conclusion that 'you cannot imply something in face of an express statement to the contrary.'" Id. at 385. In Bond v. Pennsylvania National Mutual Casualty Co., the named insured had expressly directed that the ultimate driver of the vehicle, by name, was not to be permitted to drive it. In defining the scope of a grant of permissive use, moreover, the focus must be on the relationship between the named insured and the first permittee and not on the relationship between the first permittee and the second permittee. We initially note that the principal focus of our inquiry is on the relationship between the named insured (the mother) and the first permittee (Kathy Fairley) and not, as Patricia would have it, between the first and second permittees. 289 Md. at 385. It is true that when the admonition by the named insured is from a parent to a teenaged child and is simply a generic "Do not let anyone else drive the car," the courts have sometimes been willing to find an overriding implied consent by the named insured under various sets of reasonably persuasive circumstances. The Bond opinion is steadfast, however, that such tolerant inferential factfinding is inappropriate in the face of an unambiguous command by the named insured to the contrary. Once the trier of fact determined ... that the named insured "had specifically restricted her daughter, Kathy, from allowing anybody, including Renee Lantz, to drive the car," and that this express ban was operative when the accident occurred, there is no escape from Judge Raine's further conclusion that "you cannot imply something in face of an express statement to the contrary." This is so because implied permission arises from the use of circumstantial evidence showing a course of conduct indicative of mutual acquiescence or a lack of objection signifying permission and, thus, it flows by inference to fill the void created by the absence of an express statement. But when an uncountermanded express statement exists, there is no vacuum to be filled. The vast majority of our sister jurisdictions considering the matter have reached a decision which is in accord with the view we express. 289 Md. at 385-86. The circumstantially implied consent that may trump a modest admonition does not have the same force against an unequivocal command. The Bond opinion did, however, note two possible situations in which a stern adherence to the named insured's prohibition might be ameliorated. This annotation notes two variations from the general rule denying coverage to the second permittee where the named insured expressly prohibited the first permittee from allowing others to drive the car. They are, one, where the first permittee was riding in the car, or was benefited by its operation, and two, where the second permittee's driving was occasioned by an emergency or a situation involving elements of urgency or necessity, benefiting the first permittee. Neither of these variations are applicable here, and we have in this case no occasion to consider their viability in this State. 289 Md. at 386 n.1. The Court of Appeals interpreted an omnibus clause that included, as an insured, "any other person using an automobile owned by the named insured with the permission of the named insured, provided his actual operation or (if he is not operating) his actual use thereof is within the scope of such permission." The court determined that where a mother was the named insured, and the mother permitted her daughter to use the automobile but specifically prohibited her from allowing anyone else to use it, a third person who used the automobile with the daughter's permission was not insured under the policy. In doing so, the Court explained: Our inquiry is on the relationship between the named insured (the mother) and the first permittee (the daughter) and not, as the plaintiff in a personal injury action would have it, between the first and second permittees. Moreover, the existence of permission, whether express or implied, is largely a factual determination, and one which varies in response to the circumstances present in each case. Id. at 385. The court went on to explain: Unless some statute, regulation having the effect of a statute, or public policy is violated, (and none is suggested by the parties here) insurance, being contractual, is measured by contract terms. In this case the terms of the insurance agreement clearly require that the operator have permission of the named insured to drive the vehicle, and if that person does not, there is no coverage for her under this policy. Id. at 387.