By Cory Bilton
Most of the time, a person drives her own car. But occasionally, a vehicle owner lends her car to a friend or relative. When this happens, the friend or relative is a permissive driver. If that friend or relative injures someone else while driving the car, the driver is liable for the person’s injuries. But what about the vehicle owner? Is she liable to the injured person too? Figuring out a legal puzzle involving permissive drivers and vehicle owners can be a little like watching Abbot and Costello doing “Who’s on First?” It is made more complex by the multi-jurisdictional nature of the Washington, DC area. The following statutes and cases will help you get the ball rolling.
According to DC Code § 50-1301.08, the driver of any vehicle operated upon the roads and highways in DC is considered to be the agent of the vehicle owner, so long as the driver has the express or implied consent of the owner. This agency relationship makes the vehicle owner liable for the acts of the driver. The statute goes on to say that proof of ownership is prima facie evidence that the driver operated the vehicle with consent of the owner. So, after ownership is established, the burden shifts from the injured person to the vehicle owner to prove that she did not give the driver permission to drive the vehicle. As explained in Curtis v. Cuff, 537 A.2d 1072 (D.C. 1987), if the owner offers uncontradicted proof that the driver did not have permission to operate the vehicle, then the vehicle owner is not liable for the driver’s acts. However, if both sides offer conflicting evidence of consent, then the vehicle owner’s liability is a question for the jury.
Virginia law takes a different approach. In Virginia, a vehicle owner is not liable for the driver’s negligence simply because the driver had the owner’s permission. Lumbermens Mut. Cas. V. Indemnity Ins., 186 Va. 204, 208 (1947). Instead, an injured victim must prove that the driver was an agent of the vehicle owner (e.g. the driver was the employee of the vehicle owner). See id. at 209. If a driver had the owner’s permission to use the vehicle, but the driver was not the owner’s agent or employee, the vehicle owner is not personally liable.
But this doesn’t end the analysis in Virginia. Virginia Code § 38.2-2204(A) says that all automobile insurance in Virginia must insure not only the named insured, but also “any other person using or responsible for the use of the motor vehicle . . . with the express or implied consent of the named insured . . . .” For historical reasons, this provision is referred to as the “omnibus” statute or clause. Thus, even though a vehicle owner may not be personally liable for a permissive driver’s negligence if there is no agency relationship, the owner’s liability insurance is available to pay for the permissive driver’s negligence. But once that insurance is exhausted, the injured victim cannot pursue the vehicle owner for further monetary damages.
A further wrinkle that has come up in Virginia, but not in DC case law, is whether a permissive user can grant permission to another person. The Virginia Supreme Court said that if a permissive user has “general use” of the vehicle, he can grant permission to a another person, and this will have the same effect as if the vehicle owner granted the third person permission to use the vehicle. Virginia Farm Bureau Mut. Ins. v. Appalachian Power Co., 321 S.E.2d 84, 87 (Va. 1984). The omnibus statute in Virginia Code § 38.2-2204(A) then says that automobile liability insurance that covers permissive drivers “shall be construed to include permission or consent of the custodian in the provision requiring permission or consent of the owner.” So permission, and thus automobile liability insurance coverage, can pass from one permittee or custodian to another person.
Maryland courts adhere to the principle that a negligent driver is presumed to be the agent, servant, or employee of the vehicle owner. Williams v. Wheeler, 249 A.2d 104, 109 (Md. 1969). However, as in DC, this is a rebuttable presumption. Id. And unlike DC, permission and agency aren’t the same. Id. If the vehicle owner provides uncontested proof that the driver was not acting on his behalf, then the owner can avoid being personally liable for the driver’s negligence as a matter of law. Id. If the evidence is in dispute, it’s a factual question for the jury. Id.
The Maryland Court of Appeals has also explained that independent of any agency relationship, a vehicle owner is presumed liable for the negligence of the driver when the owner is in the car. Powers v. State, Use of Reynolds, 11 A.2d 909, 911 (Md. 1940). The logic is that if the owner is riding in the car, she is in control of the driver unless it is shown otherwise. However, if the owner is shown to have given up control, or is unable to exercise control, then the vehicle owner is not personally liable for the driver’s negligence. Williams, 249 A.2d at 110.
As with Virginia, Maryland automobile liability insurance policies include an omnibus clause extending coverage to permissive users of the vehicle. Unlike Virginia, the omnibus clause is not a statutory requirement in Maryland. Because of this, Maryland automobile insurers use different language to extend the omnibus clause coverage. Interpreting these clauses to find the edges of coverage has been dubbed the “total facts” approach. See Cohen v. American Home Assur., Co., 258 A.2d 225, 232 (Md. 1969). Andrew Janquitto, in his treatise Maryland Motor Vehicle Insurance, summarized that with regard to the omnibus clause coverage, different facts can result in different outcomes with the same policy language, and different policy language can lead to different outcomes with the same facts. So for coverage for permissive drivers in Maryland, start with the first rule of insurance law: read the policy.
As this discussion suggests, when someone is driving a vehicle other than the owner, legal liability can suddenly become really complicated. Looking at our local jurisdictions as a whole, there seems to be a policy decision that there is a relatively low hurdle to reach the vehicle owner’s liability insurance, but a higher hurdle to hold the vehicle owner personally liable beyond her automobile insurance. And although I focused on the law, any legal conclusion about permissive drivers is heavily dependent on the facts. Whether someone has permission to drive a vehicle is determined largely by the individual facts of the case. Likewise, whether a driver is acting as an agent for the vehicle owner is also fact sensitive. But if the vehicle driver is unable to compensate your client for her injuries, it is be worth teasing apart the facts and the law to determine if the vehicle owner shares liability for your client’s injuries.
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