 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
City of Norfolk v. Ingram4/22/1988
elf-insurer is not obligated to provide omnibus coverage to the permissive users of its motor vehicles, we will not notice such an argument made for the first time on appeal. Rule 5:25; Avocet Development Corp. v. McLean Bank, 234 Va. 658, 699, 364 S.E.2d 757, 764 (1988).
[2-3] Therefore, we assume, without deciding, that the City is obligated to provide omnibus coverage to those persons who use the City's self-insured motor vehicles with its consent. For that reason, we do not consider the City's claim that Ingram was not acting within the scope of his employment at the time of the accident. As we pointed out in Aetna v. Czoka, 200 Va. 385, 395, 105 S.E.2d 869, 876 (1958), " f course, the issue under § 38-238 [Virginia's omnibus clause, now Code § 38.2-2204], is not one of agency but one of permission."
The City's remaining contention is that Ingram was operating the vehicle outside the scope of his permission. The City claims three deviations: (1) Ingram's shopping and drinking excursions for more than an hour when he was supposed to be heading home from work, (2) his deviation from a direct route home from the place of surveillance when he "backtracked on his route" to go to the mall and restaurant, and (3) Ingram's operation of the car while he was intoxicated.
The trial court found as a fact that Ingram had implied permission to use the car at the time. We assume that the trial court considered the evidence showing Ingram's prior personal use of the car with the City's knowledge, which supports a factual inference of permission to operate the car for personal purposes. See State Farm Mutual Automobile Ins. Co. v. Cook, 186 Va. 658, 667-68, 43 S.E.2d 863, 867 (1947). The trial court also concluded, as a matter of fact, that the accident occurred when Ingram was driving on the most direct route from the point of surveillance to his home. If there had been a deviation from the direct route, it was no longer material because the collision occurred on the direct route to Ingram's home.
The City asserts that Ingram also acted outside the scope of its permission when he operated the car while he was intoxicated, in violation of the City's express orders. We have denied omnibus coverage because of a bailee's violations of an owner's instructions as to the time of operation of the vehicle, the purpose of its operation, the route the vehicle is to be driven, and the person who is to operate the vehicle. See Virginia Farm Bureau Mutual Ins. Co. v. Appalachian Power Co., 228 Va. 72, 79-80, 321 S.E.2d 84, 87-88 (1984) (jury issue on disputed facts as to whether owner limited operation of bailed vehicle to two persons); Czoka, 200 Va. at 395, 105 S.E.2d at 876 (use of company truck for personal errand in violation of owner's instructions and at unauthorized place and
time held not to be use within owner's permission and, therefore, not covered by omnibus clause); Fidelity and Casualty Company of New York v. Harlow, 191 Va. 64, 71-72, 59 S.E.2d 872, 875 (1950) (no omnibus coverage because use of company truck without authority for personal use was outside scope of owner's permission).
We have found no prior Virginia case discussing the loss of omnibus coverage because the bailee operated the owner's car in a manner violating the owner's instructions. At least one ju
Page 1 2 3 Virginia DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|