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IMT Insurance v. Sayer12/8/2004
ht most favorable to the insured." Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Federated Mut. Ins. Co., 596 N.W.2d 546, 550 (Iowa 1999). Exclusions in an insurance policy are strictly construed against the insurer. Kalell v. Mutual Fire & Auto. Ins. Co., 471 N.W.2d 865, 867 (Iowa 1991); Hickman v. IASD Health Servs. Corp., 572 N.W.2d 165, 167 (Iowa Ct. App. 1997). The insurer bears the burden of proving the applicability of an exclusion. Farm & City Ins. Co. v. Gilmore, 539 N.W.2d 154, 157 (Iowa 1995).
The supreme court has previously considered this exclusionary clause and determined it meant "coverage is excluded when a person is using a vehicle without a reasonable belief that he or she had permission of the owner or apparent owner to do so." Id. Evidence on this issue may be either express or implied by the circumstances. See Grinnell Mut. Reins. Co. v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 176, 182 (Iowa 1997).
In Farm & City, 539 N.W.2d at 156, Brian Osweiler customarily drove a car owned by his brother, Gary Osweiler, with Gary's knowledge and consent. One evening, Brian asked Bradden Tuma to drive the car. Farm & City, 539 N.W.2d at 156. Tuma, who did not have a driver's license, lost control of the vehicle and several people were injured. Id. In considering whether Tuma was driving the car with a reasonable belief that he was entitled to do so, the supreme court looked at the facts in the case and concluded:
Although Tuma knew he did not have a driver's license and his actions violated traffic laws, he also believed he not only was driving with the permission of the apparent owner of the vehicle, but was doing so at the specific request of Brian. The actual owner of the vehicle, Gary, never instructed Tuma not to drive the vehicle nor instructed Brian not to allow others to drive the vehicle. We find there is sufficient evidence to support the court's finding. Construing the exclusion strictly against the insurer, we hold that Tuma had a reasonable belief that he was entitled to use the vehicle.
Farm & City, 539 N.W.2d at 158.
The issue of implied consent to drive someone else's car is generally a fact question. See Grinnell Mut., 558 N.W.2d at 182; Farm & City, 539 N.W.2d at 159. Likewise, the question of whether Chopard reasonably believed he had permission to drive Sherman's car was an issue of fact. We accordingly consider whether there is sufficient evidence to support the jury's finding. See Farm & City, 539 N.W.2d at 158.
We find there was substantial evidence in the record to support the jury's finding that Chopard did not have a reasonable belief he had permission to drive Sherman's car. Neil Sherman, the owner of the vehicle, did not give Chopard permission to drive the car. Zachary was specifically told no one else was supposed to drive the car. Everett testified he did not hear Zachary give Chopard or anyone else permission to drive the car. Everett attempted to stop Chopard from driving the car. Chopard then punched Everett and got in the car. There was no evidence Zachary woke up, although there was evidence he was in a sitting position when the car left. Chopard had a high blood alcohol level, which likely affected his ability to reason. We conclude the district court did not err in failing to find for appellants as a matter of law.
V. Jury Instructions
Appellants contend the district court erred by improperly instructing the jury. The jury was instructed:
In this case the burden of proof is on IMT Insurance Company and Depositors Insurance Company to establish that Nathan Chopard was operating the vehicle without a reas
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