HUGENBERG V. WEST AMERIDAN INS. CO.
INSURANCE – Exclusions (Permissive Use)
TORTS – Negligence Supervision of Minor by Parents
PUBLISHED (COA) MINTON
OPINION AFFIRMING CASE NOS. 2004-CA- 2004-CA-2172-MR
1472-MR, 2004-CA-1490-MR, AND 2004-CA-1491-MR
OPINION REVERSING AND REMANDING CASE NOS. 2004-CA-2127-MR AND 2004-CA-2172-MR
This opinion deals with 5 unconsolidated appeals dealing with the same MVA. SJ in three of the appeals is affirmed; it is reversed and remanded in the remaining two.
A teenager ("Mikael") obtains beer through his sister’s boyfriend, takes boyfriend’s car, drinks the beer with several friends at a local cemetery, and gets into a MVA, causing brain damaged to a friend. Friend’s parents sue everyone. On appeal, the issues are: 1) Mikael’s parents’ negligent supervision; 2) Mikael’s parents’ homeowners policy coverage; 3) Mikael’s parents’ auto policy coverage; and 4) boyfriend’s auto policy coverage.
The CA holds that the negligent supervision claim was properly dismissed on SJ because the parent’s owed no duty to the appellants as his actions were not foreseeable and the child was not under the parents’ immediate control. As to the parents’ homeowners coverage, the CA holds that a clear and unambiguous motor vehicle exclusion properly prevents homeowners coverage. As to the parents’ auto coverage, The CA holds that SJ was properly granted as coverage was excluded under a non-permissive user exclusion or "entitlement exclusion," which requires coverage only for a vehicle that the insured is using with a reasonable belief that he is entitled to do so. Mikael’s testimony showed that he did not believe he had permission to use the car. Finally, as to the boyfriend’s auto coverage, CA holds that a material question of fact exists as to whether Mikael was a permissive user precluding summary judgment.
digested by John Hamlet