Opinion
No. 236-78
Opinion Filed February 5, 1980
1. Insurance — Automobile Policies — Permission To Use Vehicle
Where auto insurance policy provided that an insured included one operating auto with the express or implied consent of the insured owner of it, and a person not known by owner or seen by owner on day that person drove owner's auto was involved in collision with plaintiff, and owner notified police as he feared theft, and plaintiff did not challenge trial court's finding there was no express or implied consent, urging that consent was implied from fact keys were in either the ignition or trunk when person took the auto, trial court properly dismissed plaintiff's claim against insurer.
2. Negligence — Negligent Entrustment — Motor Vehicles
Where person driving auto owned by another was involved in accident with plaintiff, and owner did not know that person or give him express or implied consent to drive his auto, and called police, fearing theft, when he realized the auto was missing, the consent necessary to hold owner liable to plaintiff for negligent entrustment was not shown and owner was not liable to plaintiff.
Plaintiff injured in motor vehicle collision, and her husband, appealed dismissal of action as to owner of the other vehicle on basis of statute of limitations and dismissal as to owner's insurer on basis that person driving owner's auto was not an insured, in action against the two on judgments secured against the person driving owner's auto. Lamoille Superior Court, Underwood, J., presiding. Affirmed.
Ryan Ryan and John A. Burgess, Montpelier, for Plaintiffs.
Fink Birmingham, P.C., Ludlow, for Graveline.
Spencer R. Knapp of Dinse, Allen Erdmann, Burlington, for Defendants.
Present: Barney, C.J., Daley, Billings and Hill, JJ., and Dier, Superior Judge, Specially Assigned
This appeal arises as a result of an accident on November 19, 1960, in Montpelier when a motor vehicle operated by the plaintiff-appellant, Yolanda Cutler, owned by her husband, plaintiff-appellant, Franklin Cutler, was in a collision with a motor vehicle operated by Alan Despault, owned by the defendant-appellee, Eugene S. Graveline and insured by defendant-appellee, The Travelers Insurance Company. In 1967 the plaintiffs sued Despault alone and recovered judgments. In November 1975 the plaintiffs brought suit on the judgments against the defendants claiming that defendant Graveline negligently entrusted the automobile and that Despault was "an additional insured" covered by defendant Travelers' policy of insurance on defendant Graveline's motor vehicle. On motion the trial court dismissed the action as to the defendant Graveline on the basis of the three-year statute of limitations. 12 V.S.A. § 512(4). After trial by court, the action was dismissed as to the defendant Travelers on the ground that Despault was not "an insured" under the policy, because he was not operating the motor vehicle with either the express or implied consent of the owner-defendant Graveline. Plaintiffs now appeal.
Under the omnibus provisions of the automobile liability insurance policy here applicable, an "insured" includes a person who operates the insured's motor vehicle with express or implied consent of the insured owner. Although the plaintiffs did not challenge the finding of the trial court or conclusion that Despault operated without either express or implied consent, plaintiffs urge that the fact that the keys were found either in the ignition of the motor vehicle or in the trunk lock implies consent. Plaintiffs assert this despite the findings that defendant Graveline did not know Despault either by sight or name, did not see him on the day in question, and, when he discovered the car was missing, first thought his father had moved it and then, fearing theft, notified the police. The trial court's findings and conclusions that Despault operated the motor vehicle without the express or implied consent is, on the basis of the evidence before us, without error. The claim against the defendant Travelers was properly dismissed.
The action here accrued on November 19, 1960. 12 V.S.A. § 512. Uncontested service on defendant Graveline was made on the Commissioner of Motor Vehicles as his designated agent pursuant to 12 V.S.A. § 892 on December 9, 1975. The applicable period of limitations here is three years. 12 V.S.A. § 512(4). This period had long expired at the time of plaintiffs' suit here. Plaintiffs' claim would be barred but the statute is tolled pursuant to 12 V.S.A. §§ 552, 892(b).
Although the court below erred in dismissing the action against the defendant Graveline on the basis of the statute of limitations, the error was harmless. The factual inquiry into whether Despault was an "insured" is identical to that as to the element of consent required to hold Graveline liable for negligent entrustment of his car to Despault. As we have stated, there was insufficient evidence that Despault had the consent of Graveline to operate his car. The plaintiffs failed to meet their burden on the issue of consent.
Affirmed.