ALICE JANE WINTERS, A MINOR, ETC., APPELLANT,
v.
ELIZABETH E. PHILLIPS, APPELLEE
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This case addresses whether a driver operating an automobile without the owner's express permission but with the consent of the owner's son falls within an insurance policy's omnibus clause. The court held that implied consent doctrine from tort law does not extend to insurance contract interpretation, and the driver was not covered under the policy.
The driver was not covered under the omnibus clause because he was not operating the vehicle with the express permission of the named insured (the owner). Implied consent doctrine from tort law does not extend to contract interpretation of insurance policies.
[1] An automobile insurance policy's omnibus clause, which defines "insureds" as persons using the owned automobile with the permission of the named insured, requires express…
[2] Implied consent in tort law, which may impose liability on an automobile owner for a vehicle driven without express permission but with the consent of someone entrusted w…
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Join FLexlaw to unlock all legal intelligence“the owner and his carrier liable for accidents occasioned by a dangerous instrument, • to wit: an automobile, under the doctrine of implied consent, when one is driving a vehicle without the express permission of the owner but with the permission of one to whom the automobile was entrusted”
Establishes the tort law doctrine of implied consent that the court distinguished from contract law
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Join FLexlaw to unlock all legal intelligenceThe owner of an automobile entrusted it to his son with express instructions not to let anyone else drive it. The son allowed another person to drive …
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This appeal brings on for review a consolidated final judgment, entered in two causes lately pending in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida.
The principal question is whether a person driving an automobile without the express permission of its owner, but with the consent of the owner’s son,1 comes within the omnibus clause in the automobile owner’s insurance policy, which reads as follows :
“Under the Liability and Medical Expense Coverages, the following are insureds :
“(a) with respect to an owned automobile,
(1)the named insured,
(2) any other person using such automobile with the permission of the named insured, provided its actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and
(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a) (1) or (2) above.”
This matter is presented in a contest between two insurance carriers as to whether the one representing the owner of the automobile [who was held vicariously liable to a third person] may seek recovery from the active tort feasor by subrogation. The carrier representing the active tort feasor contended that the operator of the vehicle was included in the omnibus clause and, therefore, the automobile owner’s carrier cannot subrogate its claim, citing Maryland Casualty Co. v. Employers Mutual Liability Ins. Co., 2nd Cir. 1953, 208 F.2d 731; Pacific Employers Insurance Co. v. Hartford Accident & Indemnity Co., 6th Cir. 1955, 228 F.2d 365; American Surety Co. of New York v. Canal Insurance Co., 4th Cir. 1958, 258 F.2d 934; Atlantic National Insurance Co. v. Erie Insurance Exchange, Dist.Ct.S.D.Fla.1962, 211 F.Supp. 878.
The courts of Florida have held, in tort cases, the owner and his carrier liable for accidents occasioned by a dangerous instrument, • to wit: an automobile, under the doctrine of implied consent, when one is driving a vehicle without the express permission of the owner but with the permission of one to whom the automobile was entrusted. Lynch v. Walker, 159 Fla. 188, 31 So.2d 268; Susco Car Rental System of Florida v. Leonard, Fla.1959, 112 So.2d 832; American Fire & Casualty Company v. Blanton, Fla.App.1966, 182 So.2d 36. Counsel for the appellant urges that this implied consent in tort law should be carried over to contract actions. We do not concur.
*718Public policy dictates, as between the innocent injured third party and the owner, that the carrier be liable and not permitted to hide behind exclusions in the policy. No such policy dictates that, as between the insurance companies, the clear language of the policy or policies should not control. Clearly, in the instant case, the operator was not operating the insured vehicle with the express permission of the insured and we are not inclined to extend the implied consent found in tort law to contract law.
Therefore, we affirm the action of the trial court holding that the active tort feasor, operating the vehicle without the express consent of the owner, was not an insured under the provisions of the policy set forth above. The judgment under review be and the same is hereby affirmed.
Affirmed.
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Stuyvesant Ins. Co. v. Alphonso Butler, 314 So. 2d 567 (Fla. 1975)…as to give effect to the intent of the parties and if uncertainty is present in a policy, it should be construed against the insurer and in favor of the insured. Harris v. Carolina Life Insurance Co., 233 So. 2d 833 (Fla.1970); Winters v. Phillips, 234 So. 2d 716 (Fla.App.1970); Continental Casualty Co. v. Gold, 194 So. 2d 272 (Fla.1967); Hartnett v. Southern Insurance Co., 181 So. 2d 524 (Fla.1965); Griffin v. Speidel, 179 So. 2d 569 (Fla.1965); Aetna Casualty and Surety Co. v. Cartmel, 87 Fla. 495, 100 So.…
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Jones v. Fla. Ins. Guar. Ass'n, Inc., 908 So. 2d 435 (Fla. 2005)…mplaint alleged that “[a]s the person with possession and control of that motor vehicle, Mike Pratt and Spruill Auto Sales are legally responsible for Mr. Gilliam’s negligence.” See Ray v. Earl, 277 So. 2d 73 (Fla. 2d DCA 1973); Winters v. Phillips, 234 So. 2d 716 (Fla. 3d DCA 1970). The liability insurance coverage provisions of the policy provided that Dealers Insurance would pay “all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies ca…1 / 2
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Royal G. RAY & Morrison Assurance Co. v. Earl, 277 So. 2d 73 (Fla. 2d DCA 1973)…e facts. See Lynch v. Walker, 159 Fla. 188, 31 So. 2d 268 (1947); Susco Car Rental System of Florida v. Leonard, 112 So. 2d 832 (Fla.1959); American Fire and Casualty Co. v. Blanton, 182 So. 2d 36 (1st D.C.A.Fla.1966). See also, Winters v. Phillips, 234 So. 2d 716 (3d D. C.A.Fla.1970) (impliedly assuming that the owner’s carrer may be liable to an injured third party even where consent is expressly negated regarding further bailment of the car by the original permittee). This is true even where the original p…1 / 2
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miller v. Miller, 112 So. 2d 832 (Fla. 1959)
- Susco CAR Rental Sys. OF Fla. v. Leonard, 112 So. 2d 832 (Fla. 1959)
- Finney P. Lynch v. Walker, 159 Fla. 188 (Fla. 1947)
- Am. Fire & Cas. Co. v. Blanton, 182 So. 2d 36 (Fla. 1st DCA 1966)
- Am. Sur. Co. OF NEW York v. Canal Ins. Co., 258 F.2d 934 (4th Cir. 1958)
- Pac. Emp'rs Ins. Co. v. Hartford Accident & Indem. Co., 228 F.2d 365 (9th Cir. 1955)
- Md. Cas. Co. v. Emp'rs Mut. Liab. Ins. Co. of Wis., 208 F.2d 731 (2d Cir. 1953)