ANALYSIS PERMISSIVE USE
Under Texas law, a person who deviates from the permitted use of a car will still be covered under insurance policy if the deviation is minor or immaterial. Old Am. County Mut. Fire Ins. Co. v. Renfrow, 130 S.W.3d 70, 73 (Tex. 2004). The factors to be considered while determining whether the deviation was minor or material are “extent of deviation and actual distance or time”… “purposes for which vehicle was given and other factors”. Id. at 72. If permission to given to a person to use a car, he may use the car for the purpose the car is given to him, and he is not excluded from insurance coverage because of a minor deviation from the purpose the car is given. Allstate Ins. Co. v. Smith, 471 S.W.2d 620, 624 (Tex. App. 1971). When a person has permission to use a vehicle and if the person uses the vehicle with minor deviations, it is still considered to have been done with permission. Coronado v. Employees Nat. Ins. Co., 577 S.W. 2d 525, 529 (Tex. App. 1979), aff’d 596 S.W.2d (Tex. 1979). If a car owner does not object to the use of the car by another person, such non-objection may be considered as implied consent to use of the car. United Services Auto. Ass’n v. Stevens, 596 S.W.2d 955, 957 (Tex. App. 1980). Whether consent is given for the use of the car may be inferred from the circumstances of the case, relationship between the parties and from the lack of objection by the owner of the car for use of the car. Tristan v. Gov’t Emp. Ins. Co., 489 S.W.2d 365, 367 (Tex. App. 1972); Royal Idem. Co. v. H.E. Abbott & Sons, Inc., 399 S.W. 2d 343, 345 (Tex. 1966), rev’g 392 S.W.2d 359 (Tex. App. Austin 1965).
In Truck Ins. Exch. v. Ballard, 343 S.W.2d 953 (Tex. App. 1961), an individual was employed as an automobile salesman to sell new and used cars. Id. at 954. The first day he reported for work, he took a used car and while driving the car had an accident. Id. The individual was neither given permission to take the used car nor had been denied such permission. Id. The individual testified that, since he had a prospective purchaser for a used car, he took the car to determine whether it was suitable for sale and to go to his home for lunch. Id. The court noted that an employee can act within the scope of his employment, although he is at the same time accomplishing his own purpose. Id. The court held that since evidence demonstrated that he was driving the car to test it in furtherance of his employment and the fact that he joined with such purpose some of his private business, i.e., going to lunch, would be immaterial and the appellee is covered under insurance policy as employee. Id. at 956.
In United Serv. Auto. Ass’n v. Stevens, 596 S.W.2d 955 (Tex. App. 1980), the insured left the vehicles for sale, the sales manager, during the course of his employment, was expected to show the vehicles to prospective purchasers and the prospective purchasers were expected to drive the vehicles before buying. Id. at 956. The court held that since at the time of the accident the prospective purchaser’s daughter was driving the vehicle and the prospective purchaser was seated in the front seat of the vehicle, it is sufficient to support a finding that the prospective purchaser and his daughter, even though an unlicensed driver, were using the vehicle with implied consent of the insured at time of accident. Id. at 959.
In Liberty Mut. Ins. Co. v. Behringer, 419 S.W.2d 651 (Tex. App. 1967), Aiken lived in the home of Pepper’s parents. Id. at 652. Aiken was Pepper’s boyfriend, he went on dates using her car. He had driven her car by himself when he wanted to go to the store to get things for Pepper, her family and also for himself and Pepper never objected to the use of the car by Aiken. Id. 652. On the day of the accident, a kid asked Aiken to take him for a ride in the car. Id. Pepper told Aiken that he should not take the car for a drive; however, Aiken did not listen to Pepper and took the kid for a drive in the car. Id. Pepper made no effort to take the keys away from Aiken and made no further effort to stop Aiken. Id. at 653. When they went for drive Aiken meet with an accident. Id. The court held that since Aiken always uses Pepper’s car and Pepper in that instant did not make any effort to prevent Aiken from taking the car for drive, Aiken was driving the car with the permission of Pepper. Id. This case seems quite similar to the present. The dealer knew that Phillips drove the car on unapproved trips. They did nothing to stop him. Behringer, 419 S.W.2d at 653.
In Tull v. Chubb Group of Ins. Companies, 146 S.W.3d 689 (Tex. App. 2004), Shaffer was driving a pickup truck owned by her employer. Id. at 691. Shaffer during the accident was not at work for her employer but was with her boyfriend. Id. Following the accident, Shaffer was arrested and charged with driving while intoxicated. Id. The court held that Shaffer’s use of the truck while being intoxicated and after office hours, which resulted in collision, was a material deviation from her permitted use of the truck. Id. at 696. In Old Am. County Mut. Fire Ins. Co. v. Renfrow, 130 S.W.3d 70 (Tex. 2004), rev’g 90 S.W.3d 810 (Tex. App. Ft. Worth 2002), the employee used the company vehicle after work to visit his friend and took her with him to a location which is 40 miles from employer’s office. Id. at 71. The court held that the employee materially deviated from the permission granted by the employer for the use of the company vehicle and was thus not covered under employer’s commercial auto liability policy. Id. at 72.
Knowledge of an agent can be imputed to the principal. Poth v. Small, Craig & Workenthin, L.L.P., 967 S.W.2d 511, 515 (Tex. App. Austin 1998) citing Wellington Oil Co. v. Maffi, 150 S.W.2d 60, 63 (Texas 1941). It therefore seems reasonable that the dealer’s employees’ knowledge of Phillips’ deviations can be imputed to the dealership. Poth, 967 S.W.2d at 515. A minor deviation such as driving the car in a different direction then the owner’s address, is immaterial for the purpose of insurance coverage. See Coronado, 577 S.W.2d at 529. Moreover, the deviation appears to be “minor” if the actual distance and the time the car was taken was not long enough to term the deviation material. Cf. Tull, 146 S.W.3d 689; Old Am. County Mut. Fire Ins. Co., 130 S.W.3d 70. If an agent drove the car for doing his job and joined with such purpose some private business it would not amount to deviation and the accident would still be covered under insurance policy. See Truck Ins. Exch. 343 S.W.2d at 956.
