# FILED August 4, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE (July 1998 Session)

JASON RAINS, CRYSTAL L. ) HAMILTON CIRCUIT CARNEY and KATHY CARNEY, ) ) NO. 03A01-9801-C V-00025 Plaintiffs/Appell

ant ) v. ) ) HON. W. NEIL TH OMAS, III EDWIN SCOTT SUSSD ORFF, III ) JUDGE a/k/a/ ED SUSSDORFF, VICKI R. ) SUSSDORFF, E. SCOTT ) SUSSDORF and ALLSTATE ) INSURANCE COMPANY, ) ) Defendants/Appellees ) AFFIRMED

Richar d A. Schu lman, Cha ttanoo ga, for A ppella nts Crys tal and Kathy Car ney. Samuel R. A

nderson, David L.

Moss, Chattanooga,

for Appellees.



### O P I N IO N

INMAN, Senio

r Judge While riding as pa

ssengers in an autom

obile owned by de

fendant and driven by a close friend of defendant’s son, the intervening plaintiff was seriously injured in a one-car accident when the driver apparently fell asleep at the wheel. The passenger intervene d in the driver’s pe

tition and alleged tha

t the vehicle had been dri

ven with the express

or implied perm

ission of its owner a

nd sought a declaratory judgment that his insurer was therefore liable for her injuries. The t

rial court found the driver did not have suc h permission and dismissed intervenor ’s petition, and she ap peals. We affirm

the judgment of

the trial court.2 I Jason Scott Rains [“

Jason”], the ori

ginal plaintiff, a

ge 20, is a neighbor and “best friend” of defendant Scott Sussdorff [ “Scott”] also 20, whose father, defendant Edwin Scott Sussdorff, III [ “Sussdorff”] owne d a Pontiac Grand Am vehicle which he ins ured through defen dant Allstate Insura nce Company. The policy of insurance provides tha t Allstate insured S ussdorff, any resident, and “any other perso n using [the auto] wit h the insured’s permissio n.” In the late evening ho

urs of May 5, 199 5, with Sussdorff’ s express permission, S cott drove the Gra nd Am to David J

ohnson’s house for a

party and to spend the night. W

hen Scott arrived he

found Johnson’s car

parked first in the driveway and Jason’s car behind Johnson’s; Scott parked his father’s car behind Jason’s, and thereafter neither Johnson’s car nor Jason’s could be moved without first moving the Sussdorff car. At 1:00 a.m. Jason agreed to drive plaintiff Cry stal Carney, age 18, to meet her mother at the Holiday Inn where she was to attend a mother-daughter all night function. Jo

hnson agreed to accom

pany them.When Jason could not find his car key s, he awakened S cott and obtained his pe rmission to drive Sussdorff’s car

. During the trip a

n accident occurre

d which seriously

injured all of the vehicle’s occupants. II Carney contends that Jason had Sussdorff’s express or implied permission to use

the vehicle and ther

efore is an additiona

l insured under the Allsta te poli cy. No witnesses testified at the hearing; the parties submitted as evidence the depositions of Sussd

orff, his wife,

Scott, Jason, Johns on and Carney, along3

with Allstate’ s policy of insura nce and a stipulation t

hat Jason was not on the business of the Sussdor

ffs when the acci

dent occurred. The trial court f

ound that Jason did not have Sussdorff’s per

mission to drive the Grand A

m, and for tha

t reason was not an a

dditional insured under

the Allstate policy . He dismisse d the intervening peti

tion. Our review of the

findings of fact ma

de by the trial Court

is de novo upon the record of the tr

ial Court, accompanied by a presumption of the correctnes s of the finding, unless the preponderance of the evidence is otherwise. T ENN . R. A PP . P., R ULE 13(d); Campbell v. Florida S teel Corp., 919 S.W.2d 26 (Te nn. 1996). When a case is hea rd entirely upon deposi

tions, the presumptio

n of correctness of the

factual findings of the trial judge does no t apply with the same strictness as it does in cases hear d orally where the

trial judge has the opportunity to view and appraise the wi tnesses. Hohenberg Bros. Co. v. Missouri Pacific R. R., 586 S.W.2d 117 (Tenn. App. 1979). III Sussdorff testifie

d that he had given Jason express permi ssion to drive his Grand Am on two occasions prior to this accident. However, he also testified that he had given Scot t and his o ther child ren a stand ing order t hat “You don’t let anybody j ust - - just any body drive you

r car.” Scott testified that he knew he was never allowe

d to drive his father ’s Grand Am without express per

mission, nor did he think his friend Jas on could d rive the car without h is father’s permission. Ja

son, however, te stified that he drove the Grand Am

“ . . . so m

any times that you couldn’t co unt,” with Scott’s permis sion and wi thout his father’s knowledge.4 The parties agre

e that Jason did not have

Sussdorff’s expr

ess permission to drive the Grand A

m on the night of th

e accident but that he

did have the express permission of Scott. Plaintiffs argue that Jason had Sussdorff’s implied permission to drive the vehicle because of the course of conduct between Sussdorff and Jaso n. We agree with the trial court that the evidence preponderates in favor of a finding that Jason did not have such permi ssion. Under Tennessee

law, implie

d permission m

ust be “the act or conduct of the named assur

ed. It must am

ount to an intended sele

ction of the person to operate the car. No implied permission can arise m erely because a man obtained possession of t

he car without the k

nowledge of the nam

ed assured, regardless of wha

t permission wa

s given by other pe

rsons . . . the es sential point is whether the nam

ed assured exercises his personal discr etion and grants his own permission to the particular person.” Schultz v. Tennesse e Farmers Mutual Ins. Co., 404 S.W.2d 480 (Tenn. 1966). On the two occasions when Jason drove Sus sdorff’s Grand Am with Sussdorff’s knowledge, the conditions were somewhat exigent. In one instance Jason’s car was

being repaired in the

Sussdorff’s dri

veway and the j ob was not finished when he had to go home, so Sussdorff authorized him to drive the car home. On the second occasion Jason r equested to drive the

Grand Am to t

ake his mother and handicap ped sister to lunch and back home. Plaintiff contends that the circumstances on the night of the accident were again exigent and therefore Jason reasonably assumed that, had he called Mr. Sussdorff, perm

ission would have been gr anted. Clearly, by his ow n testi mony, Jason knew that a request for permission had always been required, yet he failed5

to obtain such permission. We find no convincing evidence in the record that Sussdorff’s cour

se of conduct would ha

ve reasonably le

d Jason to believe he could drive Sussdorff

’s Grand Am

under any circ

umstances wit

hout his express permission. IV Plaintiff argues t

hat she is entitled to r

ecover because Ja

son was a second permittee, since he secured Scott’s permission to drive his father’s car . Indeed Scott testified that he had given Jason permission to drive his father’s car [without his father ’s knowledge] on five to ten occasio ns. However, S cott also testified that he kne

w that his father di

d not permit any

one, even his own son,

to drive the Grand A

m without his expr

ess permission.Therefore Jason cannot be a covered second per

mittee under T

ennessee law, w

hich requires that se

cond permittees must have permission from the named insured. Schultz v. Tennessee Farmer’s Mutual Ins. Co ., 404 S.W.2d 480 (Tenn. 1966). We find the evide

nce preponderates in favor of the tria l court’s finding that Jason Rains did not have the express or i mplied perm

ission of Edwin Scot

t Sussdorff to drive his vehicle and therefore is not an additional insured under the Allstate policy. The judgment

of the trial court i s affirmed w ith costs assessed to th

e appellants.

_______________________________ William H.

Inman, Senio

r Judge CONCUR:6

_______________________________ Herschel P. Fr

anks, Judge

_______________________________ Charles D. Susa

no, Jr., Judge