DIETCHINE DESROCHES v. RAZANOL DICKSON

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1187-08T31187-08T3

DIETCHINE DESROCHES,

Plaintiff-Appellant,

v.

RAZANOL DICKSON, WANDA J. DASH,

AMERICAN INTERNATIONAL INSURANCE

COMPANY, TAXISURE EXCHANGE,

Defendants,

and

GEICO INDEMNITY COMPANY,

Defendant-Respondent.

___________________________________

 
 

Argued May 20, 2009 - Decided:

Before Judges Rodr guez and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2891-06.

Steven L. Kessel argued the cause for appellant (Drazin and Warshaw, attorneys; Mr. Kessel, on the briefs).

Gregory T. Keller argued the cause for respondent (Stein, McGuire, Pantages & Gigl, LLP, attorneys; Mr. Keller, of counsel and on the brief).

PER CURIAM

This appeal presents the question of whether a request to a house guest to "warm up" an automobile for the convenience of the hosts is sufficient permission to "use" the vehicle for application of the "initial-permission" rule. See Matits v. Nationwide Mut. Ins. Co., 33 N.J. 488, 496-97 (1960) ("[I]f a person is given permission to use a motor vehicle in the first instance, any subsequent use short of theft or the like while it remains in his possession, though not within the contemplation of the parties, is a permissive use within the terms of a standard omnibus clause in an automobile liability insurance policy."). Because we conclude that such a request does not constitute "initial permission" to "use" the vehicle, we affirm the motion judge's order granting summary judgment to defendant GEICO Indemnity Company (GEICO).

I

We discern the following facts, which are not materially in dispute, from the record. On January 20, 2005, defendant Wanda Dash was residing with her fiancé, Steve Jackson. Dash and Jackson both worked the night shift at their respective jobs. Dash was the owner of a 1999 Chevrolet Malibu, which was insured under an automobile liability policy underwritten by GEICO. Dash would occasionally leave the Malibu for Jackson's use and Jackson would, accordingly, assist in some of the related expenses.

Razanol Dickson, a childhood friend of Jackson, was living with Jackson at this time. In return for his living accommodations, Dickson took care of Jackson's father, who was bedridden and also lived there.

On the evening of January 20, 2005, Jackson and Dash were getting ready to leave for work. Jackson asked Dickson to start up the Malibu, which was parked in the driveway, in preparation for his departure with Dash. Jackson stated at deposition that "whenever it was a cold night, somebody would start the car up and let it run for a few minutes so that we [could] get to work." Dash confirmed that warming up the car was a "regular routine" whenever it was cold out. Neither Dash nor Jackson, however, ever gave Dickson permission to drive the vehicle.

After starting the car, Dickson drove it out of the driveway and away from the residence. He later told Jackson that he had intended to drive to the post office. However, due to the time of night, Jackson testified that it was his belief that Dickson had really planned to go to a liquor store. Shortly after Dickson left Jackson's home, he was involved in an accident with plaintiff Dietchine Desroches, who was driving a taxi cab. Dickson then returned the car to Jackson's driveway and disappeared from the area.

On June 20, 2006, Desroches filed a personal injury action against Dickson, Dash, GEICO, American International Insurance Company (AIG), and Taxisure Exchange. GEICO was the insurer of the Malibu and is the only respondent in this appeal. AIG provided uninsured motorist (UM) and personal injury protection coverage under Desroches's personal policy. Taxisure Exchange provided UM coverage for the taxi driven by Desroches.

GEICO moved for summary judgment, arguing that, because Dickson did not have permission to drive the Malibu, there was no coverage under its policy. On January 18, 2008, Judge Terence P. Flynn granted GEICO's motion for summary judgment, concluding that GEICO had no duty to provide a defense or liability insurance coverage to Dickson. That order is the subject of the present appeal.

II

In Proformance Insurance Co. v. Jones, 185 N.J. 406, 412-13 (2005), the Supreme Court explained the public policy behind the initial-permission rule.

In adopting that rule, we expressed that it "best effectuates the legislative policy of providing certain and maximum coverage, and is consistent with the language of the standard omnibus clause in automobile liability insurance policies." [Matits, supra, 33 N.J.] at 496. Thus, we concluded that the permittee's "deviation from the purpose for which she borrowed the vehicle did not annul the protection afforded her and the injured plaintiffs by the omnibus clause of [the] policy." Id. at 497.

Four years later, in Small v. Schuncke, 42 N.J. 407 (1964), we extended the initial permission rule to provide coverage for a subsequent permittee using the vehicle beyond the original permission. In that case, Herbert Weidel authorized his nephew, Michael Wagner, to use Weidel's car to drive his wife to visit him in the hospital and to perform errands for her. Id. at 410. One night after returning from the hospital, Wagner picked up a friend, Martin Schuncke, and drove to New York for the weekend. Ibid. At some point, Schuncke started driving and later was involved in a fatal crash. Ibid. Various actions were filed against Weidel and Schuncke. Id. at 410-11. Weidel was insured by Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Company. Id. at 410. Pennsylvania Threshermen refused to cover Schuncke because he was operating Weidel's car without his permission. Id. at 413. We held that Pennsylvania Threshermen must provide coverage for Schuncke because "[t]he initial permission rule as expressed in Matits contemplates a situation in which the subsequent use of a car may be inconsistent with and even frustrate the intention and plans of the person granting permission." Id. at 414-15. We explained that "[u]nder the initial permission rule only two questions must be answered to determine coverage. Was there permission to use the car initially? Did the subsequent use, while possession was retained, constitute 'theft or the like?'" Id. at 413.

Since our decisions in Matits and Small, "[c]ourts have held that a nearly unlimited range of conduct on the part of a driver or passenger, 'short of outright theft [of the vehicle,] is within the scope of an insured's or owner's permission.'" Jaquez v. Nat'l Cont'l Ins. Co., 178 N.J. 88, 93 (2003) (citation omitted). Underlying the initial permission rule is the intent "to assure 'that all persons wrongfully injured have financially responsible persons to look to for damages' because 'a liability insurance contract is for the benefit of the public as well as for the benefit of the named or additional insured.'" Verriest v. INA Underwriters Ins. Co., 142 N.J. 401, 414 (1995) (citation omitted).

We need not concern ourselves with the outer-reach of the initial permission rule. It is obvious that the answers to the two relevant questions require a conclusion that the initial permission rule was satisfied in this case. The first question is: Did the insured or owner give initial permission to use the vehicle? It is undisputed that [the owner] gave [the user] permission to use the pickup truck. Moreover, "[o]nce established that 'the first user . . . ha[d] permission from the named insured, lack of permission, whether express or implied, of such named insured for use by a later permittee is irrelevant.'" Rutgers Cas. Ins. Co. v. Collins, 158 N.J. 542, 549 (1999) (citations omitted). Thus, [the user]'s disregard of [the owner]'s instruction not to let anyone else drive the vehicle has no impact on the coverage issues. Coverage should be afforded in favor of [the subsequent users] unless the subsequent use constituted "theft or the like." The obvious answer, which Proformance does not challenge, is that the initial permittee and the subsequent permittee's use of the vehicle did not constitute theft or the like.

[Ibid.]

With that background, we turn to consideration of the two questions articulated in Proformance: (1) whether the insured or owner gave initial permission to "use" the vehicle; and (2) whether the subsequent use constituted "theft or the like."

There is no real dispute that Jackson, although not the owner of the Malibu, had authority to permit its use by Dickson. Judge Flynn concluded, however, that Jackson did not give Dickson permission to "use" Dash's Malibu. He explained his reasons as follows:

Now, . . . the question is whether or not using the vehicle, in this case, [] mean[ing] that he was actually [] moving the car forward or not. [ I]n Jaquez, [supra, 178 N.J. 88,] the Court specifically identified what it means to use, and on page 96 of that opinion it says, "The use of an automobile denotes its employment for some purpose of the user. The word 'operation' denotes the manipulation of the car's control in order to propel it as a vehicle." [Dickson] was not given authority, and was not expected to propel this as a vehicle. It could have been very difficult if, in fact, the car was somewhere else, and he was told, go get the car, and bring it around front. This case would have been very different. But if he simply was asked to go outside, and turn on the car, the Court cannot find that he is a permissive user.

In French [v. Hernandez, 184 N.J. 144 (2005)], the Court pointed out, simply put, once an owner gives his vehicle keys to another person for a drive, the Courts, ordinarily, will find coverage.

In this case, the use was not to propel the vehicle, or to drive the vehicle, even though in the other cases cited, that was part of the expected use, although it was limited driving -- limited propelling.

In this particular case there wasn't any. So, on that basis, there was no use that was permitted here.

We agree.

Notwithstanding the expansive application of the initial-permission rule outlined in Proformance, the rule "does not extend to every use of a car." Jaquez v. Nat'l Cont'l Ins. Co., 178 N.J. 88, 94 (2003) (citation omitted). The Supreme Court has defined "use" of an automobile in the context of the initial-permission rule as the automobile's "employment for some purpose of the user; the word 'operation' denotes the manipulation of the car's controls in order to propel it as a vehicle. Use is thus broader than operation." Id. at 96 (quoting Indemnity Ins. Co. of N. Am. v. Metropolitan Cas. Ins. Co., 33 N.J. 507, 513 (1960)). The Court explained that the "'use' of an automobile generally falls within the rule's purview when such use is rationally connected to the vehicle for the purpose of providing transportation or satisfying some other related need of the user." Ibid.

In Jaquez, the owner had given a friend's son the keys to her car so that he could get a cigarette. He decided to drive the car and was involved in an accident. The Court found that there was no permission to "use" the vehicle.

Here, [the owner] gave permission to [the son] to unlock the car for the sole purpose of retrieving a pack of cigarettes. That purpose did not relate to a transportational or similar need of [the son]. Stated differently, [the owner] did not permit [the son], either expressly or impliedly, to "use" or "employ" the car at all; she merely gave him limited license to enter the parked vehicle to recover an item believed to be stored inside. We appreciate the subtlety of our analysis, namely, that there is a distinction to be drawn in this case between permission to retrieve an item from the vehicle and permission to use the car itself. Although this might be the first decision to implicate that distinction so clearly, we believe that it is an appropriate and valid distinction under the totality of circumstances.

[Ibid.]

We conclude that Jackson's request that Dickson start the car for the sole benefit of Dash and Jackson, even though it did involve turning on the engine, did not "relate to a transportational or similar need" of Dickson and, therefore, was not "initial permission" for him to "use" the vehicle. This is not a case, like Small v. Schuncke, 42 N.J. 407, 413-14 (1964), in which the owner gave specific permission to a third-party to drive the vehicle, albeit for the owner's purposes rather than the driver's.

In support of his position, Desroches cites cases in which permission to "use" was found when permission was given to perform repairs on a car in a driveway. Verriest v. INA Underwriters Ins. Co., 142 N.J. 401, 414 (1995); Ferejohn v. Vaccari, 379 N.J. Super. 82, 88-89 (App. Div. 2005). In both Verriest and Ferejohn, however, the person given permission to work on the automobile was a relative of the owner. Verriest, supra, 142 N.J. at 404; Ferejohn, supra, 379 N.J. Super. at 84. Furthermore, in Verriest, the driver was in the process of buying the vehicle from the current owner, his cousin. Verriest, supra, 142 N.J. at 411. The Supreme Court noted that presumably, by the day after the accident, the driver would have had enough money to purchase the car and transfer title. Ibid. Similarly, in Ferejohn, the father and son had purchased the car together, although the car was titled in the father's name only because the son was not a licensed driver at the time. Ferejohn, supra, 379 N.J. Super. at 84-85. In both cases, the drivers were provided, on a permanent basis, with keys to the respective vehicle due to their ownership interest. Verriest, supra, 142 N.J. at 412; Ferejohn, supra, 379 N.J. Super. at 85.

In Jaquez, supra, 178 N.J. at 99, the Supreme Court noted that, in Verriest, it was "particularly the fact that the vehicle's owner expected to transfer the car to the user, [that] supported an inference of permissive use." Permission to use a vehicle in connection with purchasing the vehicle satisfied "some other related need of the user" and was thus a "use" as contemplated by the initial-permission rule. Id. at 96.

III

Based upon our understanding of the cases discussed above, we conclude that Dickson never had "initial permission" to "use" the Malibu, having been asked to warm up the car solely for the benefit of Dash and Jackson. Although we need not reach the second question posed in Jaquez, we nevertheless note our opinion that Dickson's use of the car would not have amounted to "theft or the like" had he actually received such "initial permission" to "use" it.

 
Affirmed.

The remaining claims were either dismissed or settled.

Desroches argues that this definition pertains to the "operation" of, as distinguished from the "use" of, an automobile. We disagree, inasmuch as the Court specifically stated in Jaquez, supra, 178 N.J. at 96, that it was defining the "use" of an automobile for purposes of the initial permission rule.

(continued)

(continued)

11

A-1187-08T3

 

June 10, 2009