Appeal from judgment of Court of Common Pleas of Crawford County, Nov. T., 1966, No. 111, in case of Erik W. Carlsson v. Pennsylvania General Insurance Company.
Paul D. Shafer, Jr., with him Thomas, Shafer, Walker, Dornhaffer & Swick, for appellant.
Stuart A. Culbertson, with him Allen and Truax, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.
[ 214 Pa. Super. Page 480]
This action of assumpsit was tried before a judge sitting without a jury. The court found for the defendant and this appeal followed. The court found the following facts.
William K. Unverzagt, a resident of Pittsburgh, owned a 1960 automobile. His son, William S. Unverzagt, was a student at Allegheny College in Meadville. The father had given the son permission to operate the automobile in the Pittsburgh area, and had affixed no restriction as to its operation there. He had, however, refused his son permission to take the car to Meadville. In spite of this express prohibition, the son took the auto to Meadville at a time when his parents were not at home, and when his father was under the impression that the car remained in Pittsburgh. The son loaned the car to Allen Glick and Erik Carlsson.
Subsequently, Erik Carlsson, while driving the automobile was involved in an accident. A lawsuit was instituted against Carlsson resulting in judgments against him totaling $10,000.
At the time of this accident, Erik Carlsson was a member of the household of his father, Henry Carlsson, and was covered by an automobile policy issued by defendant insurance company. When the above suits were instituted, defendant refused to defend the actions brought against plaintiff. As a result plaintiff retained his own attorneys to defend him which resulted in attorneys' fees and costs of $1530.08.
Plaintiff, in this action, now seeks to recover from the defendant insurance company: (1) the amount of
[ 214 Pa. Super. Page 481]
the judgments against him, and (2) the attorneys' fees and costs incurred in defending the actions against him.*fn1
Defendant's insurance policy provided insurance coverage under the "non-owned automobile" provisions as follows: "The following are insureds under Part I . . . (b) With respect to a non-owned automobile (1) the name insured (2) any relative but only with respect to a private passenger automobile or trailer provided the actual use thereof is with the permission of the owner."
The defendant insurance company contends that at the time of the accident Erik Carlsson was not operating the Unverzagt automobile with the permission of William K. Unverzagt, the actual owner. Plaintiff argues, on the other hand, that he had the permission of the actual owner's son who had possession and control of the vehicle, that he was unaware of the territorial restrictions imposed by the father, and that he drove the automobile under the reasonable assumption that the son had the right to lend it to others.
Many courts have considered the effect on insurance coverage of the use of an automobile by a second permittee with the consent of the first permittee but without the consent of the titleholder. The decisions in the various jurisdictions in this regard have been conflicting. See "Omnibus Clause of Automobile Liability Policy as Covering Accidents Caused by Third Person Who Is Using Car with Consent of ...