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FEDERAL KEMPER INSURANCE COMPANY v. THOMAS J. NEARY (08/31/87)

filed: August 31, 1987.

FEDERAL KEMPER INSURANCE COMPANY
v.
THOMAS J. NEARY, SR. AND DOLORES I. NEARY, ADMRS. OF THE ESTATE OF THOMAS J. NEARY, JR., DECEASED; PAUL R. WAITE, SR.; BRIAN MANGLE AND NORMAN KEEFER V. ERIE INSURANCE EXCHANGE. APPEAL OF NORMAN KEEFER



Appeal from Judgment of the Court of Common Pleas, Civil Division, of Dauphin County, No. 2889 S 1982.

COUNSEL

Charles E. Friedman, Harrisburg, for appellant.

Clyde W. McIntyre, Harrisburg, for Erie Ins. Exchange, appellee.

Wieand, Beck and Cercone, JJ. Beck, J., concurs in the result.

Author: Wieand

[ 366 Pa. Super. Page 136]

The issue in this declaratory judgment action involves the interpretation of an omnibus clause contained within a policy of automobile insurance. The named insured under the policy had entrusted the insured auto to his stepson on the condition that the stepson not permit anyone else to operate the vehicle unless the stepson was incapable of

[ 366 Pa. Super. Page 137]

    driving and the other person possessed a driver's license. The stepson allowed the car to be operated by a minor, unlicensed driver after the latter had fraudulently misrepresented his age and the fact that he held a valid learner's permit to drive. The trial court held that under these circumstances the omnibus clause did not provide liability coverage for the unlicensed driver because he had not had the permission of the insured to drive the car. We affirm.

In 1981, Paul R. Waite, Sr. purchased a 1971 Opel automobile for use by his family. Waite immediately obtained insurance for the vehicle from Erie Insurance Exchange (Erie). Although Waite and his wife were the only named insureds in the policy, coverage was expanded according to the following omnibus provision:

Others We Protect

(2) Any person using . . . an owned car we insure. This operation or other use must be with your permission . . . .

Upon purchasing the auto, Waite established certain guidelines to be followed by his children when they used the car. Specifically, he forbade them from allowing anyone else to operate the vehicle unless (1) they were unable to drive; (2) the other person was licensed; and (3) that person was accompanied by one of the children.

On August 26, 1981, Waite's stepson, Brian Mangle, was given permission to use the car. Mangle drove to the home of his friend, Thomas J. Neary, Jr. With Mangle at the wheel, the two young men travelled to the residence of Neary's girlfriend. During the return trip, Neary requested that Mangle allow him to drive. Mangle acceded to this request after being assured by Neary that he (Neary) was then sixteen years of age and had a valid learner's permit to drive. In fact, Neary was only fifteen ...


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