# FILED
December 8, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

PERMANENT GENERAL ) ASSURANCE CORPORATION, ) ) Plaintiff/Counter-Defendant/ ) Appellant, ) Appeal No. ) 01-A-01-9712-CV-00720 VS. ) ) Davidson Circuit GILBERT WATERS, ) No. 96C-1147 ) Defendant/Count

er-Pla intiff, )

) PEGGY RICHARDSON, ) RODGERICK WATERS, ) ) Defendants/Appellees, ) ) BEVERLY BATEY, ) ) Defendant. )
APPEALED FROM THE CIRC UIT COURT OF DAVIDSON C

OUNTY AT NASHVILLE, TENNESSEE THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE

JOHN B. ALLYN 301 Plus Park Boulevard, Ste. 10 Nashville, Tennessee 37217 Attorney for Plaintiff/Appellant JOSEPH L. LACKEY, JR. 1230 First American Center Nashville, Tennessee 37238- 1230 Attorney for Defendants/Appellees

REVERSED AND REMAND ED

BEN H. CANTRELL PRESIDING JUDGE, M.S. CONCUR: KOCH, J. CAIN, J. 

## O P I N I O N- 2 - This case involves an ex clusion in a n au tomobile liability policy for a person operating the automobile w ithout a reasonab l e belief that that person is entitled to do so. The Circuit Court of Davidson County dismissed the insurance company’s action for a declaratory judgment. We reverse, and declare that th e exclusion preclude d coverage by the com pany.

I.

Gilbert Waters owned a 1989 Cadillac i nsured by Permanent General Assurance Corporation. The insurance policy cont

ained an exclusion for any per son using the vehicle w

ithout a reasonable belief that that person was entitled to do so.
Gilbert Waters’ son, Rodgerick Waters, lived in th e house with Mr. and Mrs. Waters. Rodgerick had a learnin g disabili ty, and despite being of drivi ng age, he had never passed the test for a driver’s license. Mr. Waters was teaching Rodgerick to drive by allowing hi m to drive the automobile in Mr. Waters’ company. Mr. and Mrs. Waters had both issued specific order s to Rodgerick forbiddin g him todrive either of theircars on his own. On one prior occasion Rodg erick took his father’s c ar without permission and was punished for disobeying orders.

Gilbert Waters worked the e arly shift at Middle T ennessee Mental Health Institute. On December 12, 1995 Mr. Waters returned home from work between 3:3 0 and 4:00 p.m. In preparing a snack he discovered that the family needed some items from the grocery store and mentioned that fact to his son Rodgerick. He the n followed his normal routine and lay down to take a nap. While he was asleep, Rodger ick took the keys to Mr. Water’s car and some money fro m his walle t and drove to the grocery store where he purchased the needed items. On the way home he took a detour and was involved in an accident. Mr. Waters arrived at the scene sh ortly thereafter, and he initially told the investigating officer that he had been driving the car.- 3 - II.

An excl usion id entical to the one involv ed here was upheld in Omaha Property & Cas. Co. v. Johnson, 866 S.W.2d 539 (Tenn. App. 1993), and the validity of the exclusion has

not been challenged here or i n the court below. The issue, then, boils down to a question of fact. Did Rodgerick Waters reasonably believe he had his father’s permission to driv e the car on the occasion of the acc ident?

The trial judge did not

make a finding of

fact on that issue. The court’s order recitesthat the insurance company “has not carried its burden of proof and has not shown to the Court by a preponde rance of the evidence it is entitled to a DeclaratoryJudgment.” Thecourt’s oral pronouncements in the record te nd to follow that same reasoning and appear to leave the question

open for a final determination by a jury at the tri al of the underlying tor t action.

Even it we took the trial judge’s action as a finding that Rodgerick Waters had a reasonable belief that he had Mr. W ater’s permission to drive the car, we are convinced that the ev idenc e preponderates against that findi ng. See Rule 13(d), Tenn. R. App. Proc.

In United Services Automobile Assoc. v. Continental Ins. Co.(Tenn. Ct. App., filed in Nashville, Dec. 24, 1985), we held that the “reasonable belief” langua ge in the exclusion requires a two-part finding. The first finding is subject ive: t hat the driver did in fact believe that he h ad th e owne r’s permission. The second part is objective: that the belief was reasonable, based upon the evidence in the record. See also Phillips v. Harding

, No. 89-307-II (Tenn. Ct. App., filed in Nashville Feb . 16, 1990).- 4 - We are of the opinion that all the ev idence in th e reco rd requires a negative answer to the first question. Rodgerick himself testified that he knew he did not have his father’ s permission to take the car to the store. Both parents had consistently and forcefully instructed him that he was not to driv e the car except when his father gave him driving lessons.

The appellee argues that the pr oof is too pat; that Rodgeri ck’s testimony on how he would escape detection by getti ng back before his father awoke from his nap is belied by the fact that he made the grocery purchases and would have brought home the proof necessary for his own co nvi ction. Rodgerick firs t testified that he would have hidden the groceries, and then he admitted that that course of action did not make much sense. But the inability to think logically is one of Rodgerick’s handicaps. When we recognize that fact , his testimony is more believable.

Since we have found that the first part of the test (a bel ief on the driver’s p art tha t he had permission) is not present, we do not have t o examine the reasonableness

of the bel ief.

The judg ment of the court below is reversed, and a judgment wil l b e entered here declaring that Rodgerick Waters was not covered by his father’s liability

policy. We remand the cause to the Circuit Court of Davidson County for any further proceedings that may

become necessary. Tax the costs on appeal to the appellee.

_____________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ WILLIAM B. CAIN, JUDGE