James T. Cashin dep. pp. 7, 11, 12, 13; Mary Ann Cashin (Shields) dep. pp. 7, 11, 12, 13, 14, 17; Francis X. Shields dep. pp. 6, 10).
It is true that "permissive use of an automobile may be implied from a course of conduct in which the parties have mutually acquiesced". Donegal Mut. Ins. Co. v. Eyler, 360 Pa. Super. 89, 519 A.2d 1005, 1009 (1987). There are, however, no facts to support an inference of permissive use in this instance. On summary judgment the only evidence produced is that James T. Cashin was asleep when Francis X. Shields borrowed his car on August 18, 1985. Prior to that date, Francis X. Shields had never driven or even been a passenger in James T. Cashin's vehicle. Francis X. Shields did not have a previous history of borrowing or using James T. Cashin's vehicle at the time of the accident and there is no evidence that he had borrowed or used the vehicle of any other Cashin family member without their express permission prior to August 18, 1985. Mary Ann Cashin (Shields) did not know of or authorize the use of the vehicle. Thus, there is no course of conduct to support an inference that use of the vehicle by Francis X. Shields in this or any other context was with the implied permission of the owner.
The permissive use clause in the policy excludes from coverage any person "using a vehicle without a reasonable belief that the person is entitled to do so." Shields does not assert that he had a reasonable belief he was entitled to drive the vehicle but merely that he had a reasonable belief that had he sought authority to drive James T. Cashin's vehicle he would have been authorized to do so. Not only is this not the standard required by the permissive use clause but also implicit in Shield's statement is his admission that he knew he was driving James T. Cashin's vehicle on August 18, 1985 without entitlement to do so. Therefore, the exclusion clause in the Cashin policy applies and excludes coverage.
Under Rule 56(c) of the Fed. R. Civ. P., summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 at 2552, 91 L. Ed. 2d 265 (1986). It is undisputed that Francis X. Shields did not have express or implied permission to use James T. Cashin's vehicle on August 18, 1985. Furthermore, the facts of this case fall squarely within the language of the policy exclusion in that Francis X. Shields in his own deposition testimony discloses that he knew that he had not obtained permission to drive the automobile but relied upon a belief that if he had requested authority it would have been granted. Accordingly, American Mutual is entitled to judgment in their favor as a matter of law.
An appropriate order follows.
AND NOW, this 4th day of May, 1988, upon consideration of the contested cross motions for summary judgment of plaintiff, American Mutual and defendants, IT IS ORDERED that summary judgment is GRANTED in favor of American Mutual Insurance Company of Boston and against the defendants Joseph J. Gervasi, Sr., Joseph C. Gervasi, Jr., Francis X. Shields, Jr. and Anthony Masturzo.
AND NOW, this 4th day of May, 1988, IT IS DECLARED AND DECREED that American Mutual Insurance Company of Boston is not required to defend and indemnify Francis X. Shields, Jr., pursuant to the policy of insurance issued to James T. Cashin.