omnibus clause in Missouri

1973Paul Insurance Company v. Carlyle, Mo.App., 428 S.W.2d 753 [1], To guide us in that determination are words from Helmkamp v. American Family Mutual Insurance Co., Mo.App., 407 S.W.2d 559 [17]: “Permission under the omnibus clause may be expressed or implied, but it must originate in language or conduct of the named insured or someone having authority to bind him in that respect, and the person claiming permission must prove it.” To the same effect see also Varble v. Stanley, Mo.App., 306 S.W.2d 662 [4].

1971It is well established that permission under an omnibus clause of an insurance policy may be either expressed or implied, see Mazdra v. Selective Insurance Company, Mo., 398 S.W.2d 841 ; Hanover Insurance Company v. Abchal, Mo.App., 375 S.W.2d 605 ; Straughan v. Asher, Mo.App., 372 S.W.2d 489 ; Haynes v. Linder, Mo.App., 323 S.W.2d 505 ; McKee v. Travelers Insurance Company, Mo.App., 315 S. W.2d 852 ; and Varble v. Stanley, Mo. App., 306 S.W.2d 662 .

1977Missouri cases cited which have “actual use” language in the omnibus clause and in which coverage was not found are Nye v. James, 373 S.W.2d 655 (Mo.App.1963); MFA Mutual Insurance Co. v. Alexander, 361 S.W.2d 171 (Mo.App.1962); MFA Insurance Co. v. Lawson, 336 S.W.2d 123 (Mo. App.1960); and Haynes v. Linder, 323 S.W.2d 505 (Mo.App.1959).

1972Under an omnibus clause affording protection to any person using the described vehicle with permission of the named insured—Western Casualty & Surety Co. v. Herman, 8 Cir., 318 F.2d 50 , 1 A.L.R.3d 1184 ; Sabella v. American Indemnity Co., supra, Mo., 372 S.W.2d 36 ; Haynes v. Linder, supra, Mo.App., 323 S.W.2d 505 ; Dealer under automobile sales and service policy insuring any automobile "in charge of named insured"—Kahn v. Lockhart, supra, Mo.App., 392 S.W.2d 30 : Named insured under policy insuring against liability instead of loss—Hall v. Weston, Mo., 323 S.W.2d 673 ; Named insured operati

2014In Allstate Insurance Co. v. Hartford Accident & Indemnity Co., the omnibus clause in an automobile liability policy afforded coverage to the named insured and “any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission.” 486 S.W.2d 38, 43 (Mo.App.1972) (emphasis omitted).

1977In Allstate Insurance Co. v. Hartford Accident and Indemnity Co., 486 S.W.2d 38, 42 (Mo.App.1972), the court set forth the distinction in the following language: “‘For the “use” of an automobile by an individual involves its employment for some purpose or object of the user while its “operation ” by him involves his direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle.’ Thus, as employed in an omnibus clause ‘use’ is a term of much broader scope and application than ‘operate’ or ‘drive,’ and conversely the latter terms are of narrower and more rest

1976Or the question of permission in the omnibus clause — Hanover Insurance Company v. Abchal, supra, 375 S.W.2d at 608-609 ; State Farm Mut.

1971It is well established that permission under an omnibus clause of an insurance policy may be either expressed or implied, see Mazdra v. Selective Insurance Company, Mo., 398 S.W.2d 841 ; Hanover Insurance Company v. Abchal, Mo.App., 375 S.W.2d 605 ; Straughan v. Asher, Mo.App., 372 S.W.2d 489 ; Haynes v. Linder, Mo.App., 323 S.W.2d 505 ; McKee v. Travelers Insurance Company, Mo.App., 315 S. W.2d 852 ; and Varble v. Stanley, Mo. App., 306 S.W.2d 662 .

1992That theory was treated to a scholarly discussion in Bourne v. Manley, 435 S.W.2d 420 (Mo.App.1968), where this Court said: We immediately recognize that one relying upon implied permission must prove it, that no implied permission arises *382 merely because someone obtains possession of a vehicle and uses it without the knowledge of the named insured, and that the permission contemplated by the omnibus clause is something more than mere sufferance or tolerance without taking steps to prevent, that term being used rather in the sense of leave, license or authority with the power to prevent.

1972Bourne v. Manley, Mo.App., 435 S.W.2d 420, 427 (6) ; Helmkamp v. American Family Mut.

2014E.D.1980) (“[U]se in an omnibus clause imports more than the actual driving of or riding in a vehicle,” and includes the act of pushing a disabled vehicle as in doing so, the person is exercising supervisory control over the vehicle’s movement)); see also Harrison v. Tomes, 956 S.W.2d 268, 269 (Mo. banc 1997) (where in interpreting an exclusion in a homeowner’s liability policy for “personal liability [that] arises out of the ‘use’ of a motor vehicle ‘operated’ by an insured,” the court defined “use” as “a broad term that includes riding in the vehicle”).

2014Co., 599 S.W.2d 516, 518 (Mo. App. E.D. 1983) ("[U]se in an omnibus clause imports more than the actual driving of or riding in a vehicle," and includes the act of pushing a disabled vehicle as in doing so, the person is exercising supervisory control over the vehicle's movement)); see also Harrison v. Tomes, 956 S.W.2d 268, 269 (Mo. banc 1997) (where in interpreting an exclusion in a homeowner's liability policy for "personal liability [that] arises out of the 'use' of a motor vehicle 'operated' by an insured," the court defined "use" as "a broad term that includes riding in the vehicle"). 12

1994That statute requires every auto liability policy issued to comply with that law to protect not only the named insured but “any other person ... *533 using any such motor vehicle ... with the express or implied permission of such named insured.” The appellate courts of this state, in addressing the requirements of the omnibus clause, have consistently drawn the distinction between “use” of a vehicle and its “operation”. “[T]he omnibus clause speaks broadly to the use of the automobile, not narrowly to its operation.” Weathers v. Royal Indemnity Co., 577 S.W.2d 623 (Mo. banc 1979) l.c.625.

1982That provision mandates that any policy issued to comply with the Safety Responsibility Law include an omnibus clause to provide liability insurance not only for the named insured but also for “any other person ... using any such motor vehicle ... with the express or implied consent of such named insured.” Weathers v. Royal Indemnity Co., 577 S.W.2d 623 (Mo. banc 1979) l.c. 625.

2008Co., 522 S.W.2d at 812 (discussing this issue in the context of an insurance policy’s omnibus clause).

1981As a further note regarding the refusal to adopt the more liberal “initial permission rule”, see United States Fidelity & Guaranty Co. v. Safeco Insurance Company of America, 522 S.W.2d 809 (Mo.banc 1975) where at 812, our State Supreme Court, in a social relationship case, declared that “the trend of the times is for people to be compensated for automobile accidents and the omnibus clause, therefore, should be broadened accordingly when a question of its coverage arrives,” and further, “the existence of safety responsibility acts and uninsured motorists statutes are said to work a broadening

1969See Sabella v. American Indemnity Co., Mo., 372 S.W.2d 36, 40 [2]; Haynes v. Linder, Mo.App., 323 S.W.2d 505, 509 [2-5]; Allstate Insurance Co. v. Hartford Accident & Indemnity Co., Mo.App., 311 S.W.2d 41, 46-47 [6], Each of the defendants’ policies contained an omnibus clause which provided in legal effect that the word “insured” included any person while using, with the permission of the named insured, an automobile covered by the policy.

1959In Allstate Insurance Co. v. Hartford Accident & Indemnity Co., 311 S.W.2d 41, 45 , the Springfield Court of Appeals stated the rule thusly: “The word ‘permission’ as used in an omnibus clause has a flexible meaning depending upon the sense in which it is used.

1972Under an omnibus clause affording protection to any person using the described vehicle with permission of the named insured—Western Casualty & Surety Co. v. Herman, 8 Cir., 318 F.2d 50 , 1 A.L.R.3d 1184 ; Sabella v. American Indemnity Co., supra, Mo., 372 S.W.2d 36 ; Haynes v. Linder, supra, Mo.App., 323 S.W.2d 505 ; Dealer under automobile sales and service policy insuring any automobile "in charge of named insured"—Kahn v. Lockhart, supra, Mo.App., 392 S.W.2d 30 : Named insured under policy insuring against liability instead of loss—Hall v. Weston, Mo., 323 S.W.2d 673 ; Named insured operati

1972Under an omnibus clause affording protection to any person using the described vehicle with permission of the named insured — Western Casualty & Surety Co. v. Herman, 8 Cir., 318 F.2d 50 , 1 A.L.R.3d 1184 ; Sabella v. American Indemnity Co., supra, Mo., 372 S.W.2d 36 ; Haynes v. Linder, supra, Mo.App., 323 S.W.2d 505 ; Dealer under automobile sales and service policy insuring any automobile “in charge of named insured” — Kahn v. Lockhart, supra, Mo.App., 392 S.W.2d 30 : Named insured under policy insuring against liability instead of loss — Hall v. Weston, Mo., 323 S.W.2d 673 ; Named insured o

1963(All references to rules are to the Rules of Civil Procedure, V.A.M.R.; and all statutory references are to RSMo 1959, V.A.M.S.) The sole issue framed by plaintiff’s denial of the garnishee’s answers to interrogatories and by the garnishee’s reply to said denial [Rule 90.18; Sec. 525.190; Rainwater v. Wallace, 351 Mo. 1044 , 174 S.W.2d 835, 839 (9); South Central Securities Co. v. Vernon, 227 Mo.App. 486 , 54 S.W.2d 416, 421 (1)] and presented in the jury-waived trial by the circuit court, was whether defendant Gloria was an “insured” within the contemplation and meaning of the omnibus clause

1963(All references to rules are to the Rules of Civil Procedure, V.A.M.R.; and all statutory references are to RSMo 1959, V.A.M.S.) The sole issue framed by plaintiff’s denial of the garnishee’s answers to interrogatories and by the garnishee’s reply to said denial [Rule 90.18; Sec. 525.190; Rainwater v. Wallace, 351 Mo. 1044 , 174 S.W.2d 835, 839 (9); South Central Securities Co. v. Vernon, 227 Mo.App. 486 , 54 S.W.2d 416, 421 (1)] and presented in the jury-waived trial by the circuit court, was whether defendant Gloria was an “insured” within the contemplation and meaning of the omnibus clause

2014The omnibus clause 5 in the policy afforded coverage for bodily injuries “caused by accident and arising out of the ownership, maintenance, or use of the automobile.” Id. at 183.

2014The “bodily injury coverage” section of the policy defined “use” to “include[] loading and unloading” of the vehicle. 6 Id. at 182.

2014Co., 599 S.W.2d 516, 518 (Mo. App. E.D. 1983) ("[U]se in an omnibus clause imports more than the actual driving of or riding in a vehicle," and includes the act of pushing a disabled vehicle as in doing so, the person is exercising supervisory control over the vehicle's movement)); see also Harrison v. Tomes, 956 S.W.2d 268, 269 (Mo. banc 1997) (where in interpreting an exclusion in a homeowner's liability policy for "personal liability [that] arises out of the 'use' of a motor vehicle 'operated' by an insured," the court defined "use" as "a broad term that includes riding in the vehicle"). 12

2001Distler v. Reuther Jeep Eagle, 14 S.W.3d 179, 181 (Mo.App.2000).

1998Co. v. McGaugh, 617 S.W.2d 436, 441 (Mo.App.1981) (interpreting a non-owned vehicle clause).

1998Co. v. Ricks, 902 S.W.2d 823, 324 (Mo.App.1995) (interpreting an omnibus clause); Auto-Owners Ins.

1995Co., 511 S.W.2d 826, 829 (Mo.1974) (whenever the unqualified term “insured” is used, it includes not only the named insured but such other persons as are protected by the omnibus clause).