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Raitz v. State Farm Mutual Automobile Insurance Co.6/8/1998
ositive here because that case concerned only one level of permission between the named insured and the vehicle's driver. For this reason, our consideration was limited to a deviation from the initially permitted use. Wiglesworth, and the initial permission rule we announced therein, does not address situations where permission to use the vehicle is passed from the initial permittee to subsequent drivers. In my view, these subsequent permission cases must be analyzed using the plain meaning of the No Fault Act, which does not include subsequent permittees within the term "insured." See Section 10-4-703(6).
Furthermore, we explicitly rejected the majority's implied permission rationale in McConnell v. St. Paul Fire & Marine Insurance Co., 906 P.2d 109, 114 (Colo. 1995), when we explained that section 10-4-707(1)(c) requires an occupier to have consent from one authorized to give such consent in order to qualify for mandatory coverage under the Act. This consent must come from the named insured, a resident relative of the named insured, or the named insured's permittee. A named insured may allow a permissive user a wide scope of discretion, including the authority to permit others to ride in or use the vehicle.
However, this certainly does not mean that if a named insured permits one person to use the vehicle, he or she thereby permits everyone to use the vehicle. Where a named insured expressly forbids an individual to use his or her car, we fail to see how permitting another to use the car would affect this prohibition.
Id. (emphasis added).
In this case, it is undisputed that the named insureds, the Dahlins, prohibited anyone other than family members from driving the van. Clearly then, neither Angelopulous nor Raitz had permission from the named insureds to drive the van on the night in question and are therefore not "insureds" under the plain meaning of section 10-4-703(6). For this reason, Naranjo was not authorized to occupy the van by an insured and cannot recover under the Dahlins' State Farm policy. See McConnell, 906 P.2d at 114.
Even if, as the majority concludes, the initial permission rule covers situations where there is a chain of consent from the initial permittee to subsequent drivers, the chain in this case was broken once Angelopulous obtained the keys from Kristin. In my view, Angelopulous acted as a converter which forecloses any subsequent claims against the Dahlins' policy. See Maryland Cas. Co. v. Messina, 874 P.2d 1058, 1065 (Colo. 1994). Although the trial court determined that "there is no evidence to contradict the fact that Kristin willingly gave Angelopulous the keys to allow him to drive the van," the trial court's Conclusion is not supported by the record. See Arapahoe County Bd. of Equalization v. Podoll, 935 P.2d 14, 18 (Colo. 1997) ("Ordinarily, we will defer to the district court's findings of fact unless they are clearly erroneous and not supported by the record.").
Kristin permitted Angelopulous to drive the van on prior occasions; however, she testified that she would never allow him to drive the van if he had been drinking or was drunk. Both Kristin and Angelopulous admitted in their depositions that Angelopulous had been drinking on the day and evening in question. Furthermore, Kristin's "willingness" to hand over the keys is doubtful considering that she has no recollection of ever giving them to Angelopulous after being momentarily awoken from a deep, alcohol-induced sleep. Finally, the fact that earlier that day Kristin admonished Angelopulous and another passenger for climbing onto the van's roof further indicates that, if she had been coherent, she would have been hesitant about handing Angelop
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