WAS UNLICENSED DRIVER A PERMISSIVE OPERATOR?

Automobile	Unlicensed Driver
Permissive Driver

David Pearlman held an automobile insurance policy with Commerce Insurance Company insuring his Toyota Avalon. On March 23, 1997, David let his teenage daughter, Samantha, use his car to go on an outing with friends. After meeting at a restaurant, Samantha and several of her friends decided to travel to a common destination, taking two cars. Samantha gave her friend, Timothy Thomas, permission to drive her car, although she knew that Thomas only had a learner's permit, had not taken a driver's education course, and had previously driven her car only two or three times. The other car, a Toyota Corolla, was driven by Jeffrey Smith. There were three passengers in the Corolla in addition to Smith.

The two cars were driving on a two-lane highway, Smith following Thomas, when Smith lost control of the Corolla and crashed into several trees. Two of the passengers were killed, and one severely injured. There was evidence that Smith had been trying to pass Thomas just before he lost control of the car.

The accident resulted in lawsuits filed by the mothers of the injured passenger and one of the passengers who was killed. The lawsuits included several claims against Thomas. Commerce filed a declaratory judgment action seeking a ruling that it had no duty to defend or indemnify Thomas. The cases were eventually consolidated in Superior Court. The judge granted Commerce's motion for summary judgment as well as those of the defendants. The mothers appealed.

On the issue of whether Commerce was required to defend or indemnify Thomas, the appeals court agreed with the lower court. The relevant language of the policy (a sixth edition standard Massachusetts automobile insurance policy) provided, for compulsory insurance, in part:

"We will pay only if you or someone else using your auto with your consent is legally responsible for the accident."

For optional bodily injury to others, the language provided:

"We will also pay damages if someone else using your auto with your consent is legally responsible for the accident…Also, like the Compulsory Part, this Part does not pay for the benefit of anyone using an auto without the consent of the owner."

The court construed this language to mean that the insurer's obligation under the policy extended only to persons who were driving the vehicle with the consent of the policyholder. The evidence showed that David Pearlman was the policyholder. Samantha was listed as an operator, but she did not have her father's permission to allow Thomas or anyone else to operate the vehicle except in an emergency.  This was not a case where Samantha had unfettered permission to operate the car. Because David Pearlman, the policyholder, did not give consent to Thomas' operation of the car, Commerce was under no obligation to defend or indemnify Thomas.

In the action brought by Commerce for declaratory judgment, the judgment of the lower court was affirmed.

It should be noted, however, that, based on evidence that there may have been racing between the two cars or that Smith was responding to a challenge posed by Thomas, the appeals court did reverse the lower court judgment dismissing complaints against Timothy Thomas and Samantha Pearlman.

Picard v. Thomas-No. 01-P-1716-Appeals Court of Massachusetts, Middlesex-January 28, 2004-802 North Eastern Reporter 2d 581