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City of Norfolk v. Ingram4/22/1988
In this appeal, we decide whether a motor vehicle owner's direction to a user not to operate the vehicle while under the influence of intoxicants effectively limits the omnibus insurance coverage required under Code § 38.2-2204.
James G. Ingram, a Norfolk detective acting as an undercover drug investigator, brought this declaratory judgment action against his employer , the City of Norfolk (the City), and Travelers Insurance Company (Travelers), the liability carrier for his personal automobile. Ingram sought an adjudication of insurance coverage for claims made against him when Ingram, while driving a City car which was self-insured by the City, collided with another car. Both defendants denied liability. The trial court heard the evidence and concluded that the city was obligated to provide coverage, but that Travelers was not.
The case is now before us upon the City's appeal. In accord with well-established appellate principles, we consider the evidence in the light most favorable to Ingram, who prevailed in the trial court.
The Commonwealth supplied the City of Norfolk with six or seven cars that the Commonwealth had confiscated for violations of law. The City furnished those vehicles to Ingram and other undercover
drug investigators for use in their work. Ingram was permitted to keep a car at his home and to drive it to and from work. He admitted at trial that his superiors had directed him not to drive the car while under the influence of intoxicants or use it for his personal purposes. Ingram's superiors knew, however, that he had previously used the car for a number of personal purposes, occasionally detouring a distance of three miles from the authorized route to pick up his children from their day care center.
In the evening of March 17, 1982, Ingram drove the city-owned car from his home to conduct a surveillance of a reported "drug home." He left his surveillance post after about half an hour and drove to a nearby shopping mall on a personal errand. After stopping for half an hour, Ingram drove to a restaurant about two blocks from the mall. While at the restaurant he drank four double margaritas, alcoholic drinks made with tequila. After leaving the restaurant, Ingram returned to the mall, where he met a friend whom he agreed to take home in the city-owned car.
While on the way to his own home, Ingram had a head-on collision with another car. The mall, the restaurant, the friend's home, and the place of the accident were situated along the normal route from the "drug home" to Ingram's home. Ingram's counsel conceded that Ingram was driving under the influence of intoxicants.
On appeal, the City contends that, as a self-insurer, it was not required to provide omnibus coverage to permissive users. Omnibus coverage, it argues, protects a permissive user of another person's motor vehicle against liability for claims arising out of the use of that vehicle. The city's attorney did not make this contention in the trial court. In his motion to strike the plaintiff's evidence, the city's attorney argued that "the Plaintiff's evidence has not proven that the Plaintiff in the case is entitled to any coverage." At the close of all the evidence, the city's attorney based his defense solely upon the ground that Ingram had not been acting within the scope of his employment. As the city's attorney said, "The City would not be contesting this matter if Mr. Ingram had been working within the scope of his employment at the time of the accident." Because we do not find in the record any contention by the City that a s
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