Resident Could Not Give Himself Permission
InsureMax issued a policy to John Q. Adams for a Buick. John rented a Mercury to use while his son, Bryan Adams, was home on leave from the military. [These are not fictitious names.] John was the only driver listed on the rental agreement and was going to drive the Mercury to work. His wife continued to use the Buick. Bryan did not have permission to use either car and his license was suspended. Venerable v. Adams, 2008 AP 2188.
John came home from work and fell asleep. Without permission, Bryan took the Mercury and went out with friends. Bryan lost control of the Mercury and hit a building. One of the passengers was killed.
The deceased's estate received $100,000 from her underinsured (UIM) coverage. The UIM carrier obtained an assignment of the estate's claims and sued InsureMax. InsureMax moved for summary judgment on the basis that Bryan was not an insured person and that the rental car did not qualify as an insured vehicle.
The UIM carrier objected and argued that Bryan was a relative and adult resident who an insured the InsureMax policy. It argued that as an insured, Bryan could give himself permission to drive the Buick under Arps v. Seelow, 163 Wis.2d 645, 472 N.W.2d 542 (Ct. App. 1991). The trial court agreed with the UIM carrier. InsureMax appealed.
The InsureMax policy stated:
We will pay damages for bodily injury for which an insured person is legally liable because of the. . .use of. . .a non-owned car.
InsureMax argued that the trial court erred and that there was no coverage because the rental car was not an insured car under the policy. InsureMax further argued that the circuit court erred in extending the "deemed permission" rule of Arps to this fact pattern. The appellate court agreed with InsureMax.
The appellate court found that the omnibus statute did not extend coverage to Bryan because it only required coverage under the InsureMax policy when Bryan was "using any motor vehicle described in the policy when the use is for purposes and in the manner described in the policy." Wis. Stat. §632.32(3)(a). The appellate court found that the Mercury was not a car described in the policy and it did not fit the policy's definition of an insured "non-owned car." Also, because the Buick was still available for use, the Mercury was not being used for replacement purposes described in the policy.
With regard to the "deemed permission" rule, the policy specifically excluded liability for use of a vehicle "other than your insured car by any person without the owner's express permission." Unlike Arps, the Mercury was not owned by the named insured. The Mercury was owned by the rental company. The father was the only authorized driver on the rental agreement. Therefore, under the policy language only the rental company could grant Bryan permission to use the Mercury.
