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ESMOND v. LISCIO (ET AL. (12/16/66)

decided: December 16, 1966.

ESMOND, APPELLANT,
v.
LISCIO (ET AL., APPELLANT)



Appeals from judgments of Court of Common Pleas of Mercer County, June T., 1966, No. 283, March T., 1965, No. 43, March T., 1966, No. 696, June T., 1966, No. 284, and June T., 1965, No. 21, in case of Joseph Esmond v. John Francis Liscio et al.

COUNSEL

James A. Stranahan, III, with him Stranahan & Stranahan, for Ohio Casualty Insurance Company, appellant.

Albert E. Acker, with him Cusick, Madden, Joyce, Acker and McKay, for Erie Insurance Exchange, appellee.

Bernard Goldstone, with him Routman, Moore and Goldstone, for plaintiff, appellant, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 209 Pa. Super. Page 203]

On October 19, 1963, Michael Liscio was approached by his son John and a friend, Robert Spinelli. John asked if he might borrow his father's automobile for the evening. Mr. Liscio readily agreed, provided that John did not drive, since his license had been suspended several months earlier. The two youths proceeded to a tavern in Ohio, where John met another friend, Judd Youkers. John, who had been drinking heavily, gave the car keys to Youkers, who then drove toward Sharon, Pennsylvania. John was seated as a passenger in the front of the automobile.

While driving on State Line Road in Sharon, Youkers struck Joseph Esmond, a pedestrian, with the right front fender of the car. Liscio then opened the car door, striking Esmond a second time.

Esmond brought actions in trespass against both youths. He secured a judgment of $4000, including $1000 punitive damages, against John Liscio, and a judgment of $2000, including $500 punitive damages, against Judd Youkers.

Esmond then instituted these garnishment proceedings against the Ohio Casualty Insurance Company (hereinafter, Ohio), Michael Liscio's insurer. He also named the Erie Insurance Exchange, Youkers' insurer, as garnishee on the Youkers judgment.

Michael Liscio is the named insured under a Garage Liability Policy issued by Ohio. The policy provides:

"Part I -- Liability. Coverage A -- Bodily Injury Liability. . . . Persons insured. Each of the following is an

[ 209 Pa. Super. Page 204]

    insured under Part I . . . (1) The named insured . . . [and] (3) With respect to the Automobile Hazard: (a) any person while using, with the permission of the named insured, an automobile to which the insurance applies . . . provided such person's actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission. . . ."

The policy further provides: "The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: A. Bodily injury . . . caused by accident. . . ."

The following provision appears at the end of Part I: "Assault and Battery. Assault and battery shall be deemed an accident unless committed by or at the direction of the insured."

Both garnishment actions were consolidated for trial and heard by the court below sitting without a jury. The court found that John Liscio was using the car with his father's permission and was, consequently, an "omnibus insured" under the Ohio policy. The court further found that John Liscio's act in opening the car door was wanton, not intentional. It, therefore, entered a finding against Ohio in the sum of $3000 on the Liscio judgment, but denied recovery against the insurer on the $1000 punitive damages award. The court also found that Judd Youkers had the elder Liscio's implied permission to operate the automobile and was entitled to coverage under the Ohio policy. It therefore entered a finding against Ohio in the sum of $1500 on the Youkers judgment, again denying recovery on the punitive damages award. No finding was entered against Erie Insurance Exchange, because its policy provided Youkers with "excess" coverage only.

On exceptions, the court reversed its original finding that John Liscio's act in opening the car door was wanton, describing it instead as an intentional assault. The court then denied any recovery to Esmond on the

[ 209 Pa. Super. Page 205]

Liscio judgment, stating that an intentional act was not an "accident" within the meaning of the Ohio policy. On reargument, the court reversed itself again and held that the Ohio policy did cover liability arising from John Liscio's assault. The $3000 judgment against Ohio was reinstated.

The Ohio Company now appeals from both judgments, arguing that Judd Youkers was not an insured under the terms of its policy and that John Liscio's assault is excluded from coverage. Plaintiff Esmond appeals from the dismissal of his claims for punitive damages against the insurer.

I

Ohio first contends that Judd Youkers was not operating the Liscio automobile with the permission of Michael Liscio, the named insured. Consequently, it argues, Youkers was not entitled to the status of an additional insured under the policy's "omnibus" clause.

The lower court found that Judd Youkers ". . . had permission to drive Michael Liscio's car at the time the plaintiff was injured. Though the permission was not specifically given to Youkers, it is clearly implied. . . ." The evidence amply supports such a finding.

John Liscio testified that his father had permitted him to use the car, in the company of a licensed driver, on many previous occasions. Five different boys, including Youkers, had driven the car before. On the night of the accident, Mr. Liscio allowed John to use the car for his own pleasure, without limitation as to time or place. He attached only one condition: John was not to do the actual driving.

Michael Liscio corroborated this testimony. Any licensed driver, who was also an acquaintance of his son, had permission to drive the car. Mr. Liscio had

[ 209 Pa. Super. Page 206]

    no specific objection to Youkers' driving the car on the night in question. He did not tell his son that only Spinelli was to drive, and he did not ...


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