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McPhee v. Tufty3/20/2001
8 Lee R. Russ, Couch on Insurance § 111:35, at 111-61 (3d ed. 1997) (footnotes omitted). The majority also correctly states: "In the context of insurance law, courts have usually given the term "use" a broad, rather than narrow, construction." See, e.g., Woodrich Constr. Co. v. Indem. Ins. Co., 89 N.W.2d 412, 418 (Minn. 1958). Most courts, including our Court, have taken the position a person need not actually operate a vehicle to "use" it. See, e.g., Hertz Corp. v. Amerisure Ins. Co., 627 So.2d 22, 23 (Fla. App. 1993); BATS, Inc. v. Shikuma, 617 P.2d 575, 577-78 (Hawaii App. 1980); Hertz Corp. v. Gov't Employees Ins. Co., 683 N.Y.S.2d 483, 487 (N.Y. App. Div. 1998); Manock v. Donley, 139 N.W.2d 391, 392 (N.D. 1966). The majority concludes the standard analysis applied in deciding whether an insured "used" a vehicle when the insured was not driving is "(1) whether the vehicle was under the supervision and control of the insured, and (2) whether the vehicle was being operated to serve a purpose of the insured." Shikuma, 617 P.2d at 577. The Toyota was under the supervision and control of Curtis Tufty according to the findings of the trial court, and even the majority concedes the first inquiry of the analysis is satisfied in this case. I am of the opinion the second inquiry is also satisfied.
[ ] Curtis Tufty's liability is based on the family car doctrine. The majority concludes the evidence supports the trial court's findings that Curtis Tufty had an ownership interest in the Toyota and furnished the vehicle for Christopher Tufty's use as a family auto. The family purpose doctrine was first adopted in this state more than eighty years ago, and we reaffirm it today. See Ulman v. Lindeman, 176 N.W. 25, 27 (N.D. 1919). "The decision was founded upon the theory that the driver of a family car, in pursuit of recreation or pleasure, was engaged in the owner's business," and thus the driver was either the agent or servant of the owner. Schobinger v. Ivey, 467 N.W.2d 728, 729 (N.D. 1991) (emphasis added). Clearly the Toyota was being operated to serve and benefit the family purpose of Curtis Tufty, the owner.
[ ] The majority struggles to distinguish Rogers v. MFA Mut. Ins. Co., 554 S.W.2d 327 (Ark. 1977). The only factual difference between Rogers and the present case is that the Supreme Court of Arkansas relied on an Arkansas statute that imputed the negligence of a minor child to a parent who signed the application of the minor for a permit or license. Id. at 329-30. Although the McPhees did not argue the applicability of N.D.C.C. § 39-06-09, it must be noted that this North Dakota statute imputes the negligence of a minor when driving a motor vehicle to the person who has signed the application for a permit or license. See Anderson v. Anderson ex rel., 1999 ND 57, 7, 591 N.W.2d 138 (interpreting N.D.C.C. § 39-06-09 to establish that a minor's negligence as well as financial liability will be imputed to a parent who signed the application for a permit, barring recovery for injuries to that parent). The Rogers decision is persuasive. The Rogers court concluded the statute's imputation of negligence was vicarious liability and placed the "parent in the position of an actual user of an automobile any time the parent knowingly permits a minor to drive an automobile upon a highway, . . ." 554 S.W.2d at 330.
[ ] Although Brabender v. Northern Assurance Co. of America, 65 F.3d 269 (2nd Cir. 1995) is not factually directly on point, its analysis of the ambiguity of the term "use" is persuasive. Both the Brabender court and the Rogers court hold the term "use" as used in similar policies ambiguous. Brabender, 65 F.3d at 273; Rogers, 554 S.W.2d at 330. Both courts point out that "use" of an auto m
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