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Russell v. Hahn12/19/2003
AFFIRMING
John Russell appeals from a summary judgment of the Nelson Circuit Court, entered October 24, 2002, dismissing his claim for damages against Nationwide Mutual Insurance Company and two affiliated insurance agents, Joseph Hahn and Kim Cheek. Russell complains that Hahn and Cheek were negligent in facilitating the driving of one of their customers, whom they knew to be a dangerous driver, and in failing to advise this customer of his alleged need for greater liability insurance coverage. The trial court ruled that Russell's allegations did not amount to a cause of action for negligence. Russell contends that the trial court erred and proffers several theories according to which, he maintains, the defendants could be deemed liable. We agree with the trial court, however, that the theories Russell advances either have no basis in the law or do not apply to the facts he has alleged.
As the parties note, summary judgment is appropriate only if there is no material factual dispute and the moving party is entitled to judgment as a matter of law. Both the trial court and this Court assess such motions, not by weighing the evidence, but by reviewing the record favorably to the opposing party.
During the evening of September 13, 2000, Russell was riding with his friend, Jody Coulter, in Coulter's Chevrolet Camaro on Woodland Road outside Bardstown. Coulter was twenty two years old at the time and living in an apartment. Both young men had consumed beer and marijuana. Rounding a curve, Coulter lost control of the Camaro, which collided with an oncoming car and turned over. Russell suffered serious injuries. Coulter's insurer, Nationwide Mutual, tendered Coulter's policy limit of $25,000.00. Russell declined the payment and instead brought suit against Coulter and, by amended complaint, against Hahn, Cheek, and Nationwide. Hahn owns the Nationwide agency in Bardstown where Coulter applied for his policy. Cheek is a licensed agent who works for Hahn. Hahn is also Coulter's grandfather and Cheek his mother.
Russell alleged that Hahn and Cheek were aware of Coulter's alcohol and drug abuse and of his history of traffic citations and automobile accidents. This awareness, he maintained, imposed on them a duty not to facilitate Coulter's driving, either by concealing his record from the insurer or by paying his premiums. Alternatively, he maintained, their awareness imposed on Hahn and Cheek a duty to advise Coulter to obtain more than the minimum liability coverage. Breach of these duties, Russell asserted, rendered Hahn and Cheek jointly liable for Coulter's negligence or liable for the additional insurance they should have recommended. As noted above, the trial court declined to recognize these asserted duties and dismissed the claims based on them. It is from that ruling that Russell has appealed.
Section 390 of the Restatement (Second) of Torts provides that
one who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.
Several courts have found that under this principle, one who supplies an automobile to a driver he knows to be incompetent or unreasonably dangerous is subject to liability for injuries resulting from the driver's known propensities. Russell insists that the notion of "supplying" an automobile should be understood expansively so as to include any contributi
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