omnibus clause in Kansas

1996While it is true that the general rule is that a second permittee using the car solely for his or her own purposes is not entitled to protection under the omnibus clause of an automobile insurance policy where the named insured has expressly prohibited the first permittee from allowing other persons to use or operate the car, Gangel v. Benson, 215 Kan. 118 , Syl. ¶ 3, 523 P.2d 330 (1974), this general rule has no application to this case.

1996While it is true that the general rule is that a second permittee using the car solely for his or her own purposes is not entitled to protection under the omnibus clause of an automobile insurance policy where the named insured has expressly prohibited the first permittee from allowing other persons to use or operate the car, Gangel v. Benson, 215 Kan. 118 , Syl. ¶ 3, 523 P.2d 330 (1974), this general rule has no application to this case.

1978(Jones v. Smith, 1 Kan.

1977App. 2d 331 , 564 P.2d 574 , rev. den’d, 221 Kan. 756 ,_P.2d_, this court considered the question of implied permission under an omnibus clause.

1974Corp., 163 Kan. 252 , 181 P.2d 498 ; National Farmers Union Property & Cas.

1964Corp., 163 Kan. 252 , 181 P. 2d 498 , where the omnibus clause in an automobile liability policy limited the use of the automobile to permission of the named insured, but the facts developed therein clearly indicated the insured had given her implied permission. *95 In a discussion in Horn v. Allied Mutual Casualty Company, 272 F. 2d 76 , reference was made to the rule in our Gibbs case as follows: “The Kansas court followed the general rule that the permission referred to in the omnibus clause may be express or implied.

2000The trial court held and the Eighth Circuit affirmed that the directing by the general contractor of the backward movement of the truck made the participation of the general contractor such an immediate part of the actual operating of the truck as to make the general contractor “a person ‘using the automobile’, or in any event a person ‘legally responsible for the use thereof, within the language and coverage of the omnibus clause of the policy.” Steenberg, 225 F.2d at 296 .

2000Similarly, in Woodrich Construction Co. v. Indemnity Insurance Co., 252 Minn. 86 , 89 N.W.2d 412 (1958), the plaintiff insured (Woodrich) brought an action against three insurers to recover the amount it had paid in settlement of damages to a man injured when a subcontractor’s truck backed over him.

2000Similarly, in Woodrich Construction Co. v. Indemnity Insurance Co., 252 Minn. 86 , 89 N.W.2d 412 (1958), the plaintiff insured (Woodrich) brought an action against three insurers to recover the amount it had paid in settlement of damages to a man injured when a subcontractor’s truck backed over him.

1994Veal relies on Krupp v. Pan Air Corporation, 183 So. 2d 403 (La.

1994“The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by the court on appeal.” Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 455 , 827 P.2d 24 (1992).

1994“The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by the court on appeal.” Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 455 , 827 P.2d 24 (1992).

1991If per chance, as here, the buyer also has coverage under a separate policy issued to him on another automobile as the driver of a non-owned automobile, the injured party is protected under the buyers policy as well.” (Emphasis added.) 199 Kan. at 379 .

1979It is noted that: “[I]n every case where the first permittee permits another to use the insured automobile, a factual determination must be made whether the initial grant of permission was broad enough to include an implied grant to the permittee of authority to give another use of the automobile and thus render the latter an additional insured under the omnibus clause.” Krebsbach v. Miller, 22 Wis. 2d 171, 175-76 , 125 N.W.2d 408 (1963).

1979It is noted that: “[I]n every case where the first permittee permits another to use the insured automobile, a factual determination must be made whether the initial grant of permission was broad enough to include an implied grant to the permittee of authority to give another use of the automobile and thus render the latter an additional insured under the omnibus clause.” Krebsbach v. Miller, 22 Wis. 2d 171, 175-76 , 125 N.W.2d 408 (1963).

1978Co., supra; Reznik v. McKee, Trustee, 216 Kan. 659 , 534 P.2d 243 [1975].) Farm Bureau first asked this court to find that if its insured was “using” the vehicle within the meaning of the “use of other vehicle” coverage of its policy, then she must have been “using” the vehicle within the meaning of the omnibus clause of the Western policy.

1978Co., supra; Reznik v. McKee, Trustee, 216 Kan. 659 , 534 P.2d 243 [1975].) Farm Bureau first asked this court to find that if its insured was “using” the vehicle within the meaning of the “use of other vehicle” coverage of its policy, then she must have been “using” the vehicle within the meaning of the omnibus clause of the Western policy.

1977App. 2d 331 , 564 P.2d 574 , rev. den’d, 221 Kan. 756 ,_P.2d_, this court considered the question of implied permission under an omnibus clause.

1977In this respect, Gangel continues, quoting from Gillen v. Globe Indemnity Company, 377 F. 2d 328 : “ ‘Perhaps as a consequence of the harshness of this approach, many courts, when given the opportunity, have been able to discover an implied consent from the named insured even in the face of express prohibitions against the loaning of the insured automobile.

1974Co. v. Hodsdon, supra, an argument was made that the omnibus clause was designed for the protection of those lawfully traveling upon the public highway, and that the policy should be held as affording coverage so long as the chain of express permissions was not broken by a conversion or an illegal taking.

1967(Sabella v. American Indemnity Company, [Mo.] 372 S. W. 2d 36 ; Allstate Insurance Co. v. Hartford Accident & Ind. Co., supra; Haynes v. Linder, supra; Harbor Ins.

1967Co., 66 Wash. 2d 38 , 401 P. 2d 205 , where the “other insurance” clauses of the separate policies covering the owner and driver were substantially identical to those in the instant case, the court quoted from Appleman, supra, to the effect that a non-ownership clause with an “excess” coverage provision does not constitute other valid and collectible insurance within the meaning of a primary policy with an omnibus clause.

1967Co., 66 Wash. 2d 38 , 401 P. 2d 205 , where the “other insurance” clauses of the separate policies covering the owner and driver were substantially identical to those in the instant case, the court quoted from Appleman, supra, to the effect that a non-ownership clause with an “excess” coverage provision does not constitute other valid and collectible insurance within the meaning of a primary policy with an omnibus clause.

1967(Haynes v. Linder, supra; *382 Allstate Insurance Co. v. Hartford Accident & Ind. Co., supra; Didlake v. Standard Ins.

1967(Sabella v. American Indemnity Company, [Mo.] 372 S. W. 2d 36 ; Allstate Insurance Co. v. Hartford Accident & Ind. Co., supra; Haynes v. Linder, supra; Harbor Ins.

1967(United Fire and Casualty Co. v. Perez, _ Colo._, 419 P. 2d 663 ; Farm Bureau Mut.

1964Corp., 163 Kan. 252 , 181 P. 2d 498 , where the omnibus clause in an automobile liability policy limited the use of the automobile to permission of the named insured, but the facts developed therein clearly indicated the insured had given her implied permission. *95 In a discussion in Horn v. Allied Mutual Casualty Company, 272 F. 2d 76 , reference was made to the rule in our Gibbs case as follows: “The Kansas court followed the general rule that the permission referred to in the omnibus clause may be express or implied.

1957As to use, see Wood v. Insurance Co., 109 Kan. 801, 804 , 202 Pac. 82 ; Miller v. Farmers Mutual Automobile Ins.

1957As to use, see Wood v. Insurance Co., 109 Kan. 801, 804 , 202 Pac. 82 ; Miller v. Farmers Mutual Automobile Ins.

1947Co. v. Chandler, 89 N. H. 95, 193 Atl. 233 , in which the omnibus clause respecting use of an automobile was held to cover a third person’s use of the automobile.