Abductor's use of car was not use without reasonable belief of entitlement to do so for insurance exclusion purposes

Law Reporter, Oct 1999

Georgia Farm Bureau Cas Ins BL-008 Co. v Schlies, S.E.2d -, No. A99AO159,1999 V%rL 498524 (Ga. Ct. App. May 27,1999).

A Georgia appellate court held that driving a vehicle for an illegal purpose does not constitute use without the reasonable belief one is entitled to do so for automobile insurance exclusion purposes.

Here, Wright broke into his estranged wife's house, raped her, and then forced her to drive him in their car. The wife stopped and got the attention of a police officer. Wright started the car while the officer tried to detain him. The officer was injured when the vehicle hit a building. The officer sued the Wrights' insurer. The trial court denied the insurer declaratory judgment.

Affirming, the appellate court noted that the Wrights had an automobile insurance policy excluding coverage for people using the vehicle without a reasonable belief that they are entitled to do so. However, the court said that (1) the couple was married at the time of the incident; (2) Wright was a named insured; (3) he was making car payments at the time of the incident; (4) he had used the car several times since the couple separated without permission and his wife did not object to such use; and (5) his wife believed he had an ownership interest in the car, although it was actually titled in her name. Thus, the court said, there was no dispute that Wright was entitled to use the vehicle.

The court rejected defendant's argument that because Wright was using the car for an illegal purpose-to flee from a police officer-he could not have reasonably believed he was entitled to use the vehicle. The court cited a case in which an insurance company argued an unlicensed driver could not have reasonably believed he was entitled to drive the car because, without a license, he did not have a legal right to do so. There, the court held the exclusion issue does not address whether the driver had a legal right to drive, but whether the non-owner driver had a reasonable belief that he had permission from the owner to use the vehicle. Similarly, the court said that here, the exclusion provision does not exclude coverage for illegal acts.

Moreover, the court said such an exclusion would be unenforceable as against public policy. The court noted that with such an exclusion, anytime an accident was caused by an intoxicated driver, the insurer could exclude coverage because someone under the influence of alcohol is not legally entitled to drive a car. Further, the insurer is estopped from denying coverage to a named insured. Here, the court noted that Wright had paid premiums ostensibly calculated considering him as a listed driver, and the insurer had accepted those premiums and reaped the benefit from them.

Accordingly, the court concluded the trial court had properly denied defendant's motion.

Plaintiff's Counsel:

*Steven K. Leibel, Atlanta, Ga.