This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-518

State Farm Insurance Company, et al.,

Respondents,

vs.

Efren Vasquez,

Appellant.

Filed December 17, 1996

Affirmed

Klaphake, Judge

Ramsey County District Court

File No. C1-95-5790

Steven L. Theesfeld, Yost & Baill, P.L.L.P., 2350 One Financial Plaza, 120 South Sixth Street, Minneapolis, MN 55402 (for Respondents)

Arthur R. Martinez, 425 South Third Street, Minneapolis, MN 55415 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Appellant Efren Vasquez appeals from a judgment, claiming the trial court erred in finding that Esmeralda Jeraige had permission to use his truck at the time of her collision with another vehicle. Because the trial court did not err in determining that Jeraige had implied permission to use appellant's truck, we affirm.

D E C I S I O N

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

Minn. R. Civ. P. 52.01. An appellate court will reverse the trial court's factual findings only if it has "'the definite and firm conviction that a mistake has been made.'" In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993) (quoting Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987)), review denied (Minn. Aug. 16, 1993).

Appellant challenges the trial court's determination that Jeraige had implied consent to drive his truck at the time of her collision with another vehicle. In Minnesota, a motor vehicle owner who has given another person express or implied permission to operate his vehicle is liable to those injured by the vehicle's operation. See Minn. Stat. § 170.54 (1994) (operator with consent to operate vehicle is deemed agent of owner). The question of whether an owner has impliedly consented to operation of his vehicle by another person is a fact question. Safeco Ins. Cos. v. Diaz, 385 N.W.2d 845, 848 (Minn. App. 1986), review denied (Minn. June 30, 1986).

Consistent with the liberal construction given to the statute to provide a more certain recovery for those injured in automobile accidents, Minnesota courts relate consent to the driver rather than to the vehicle that will be driven. Milbank Mut. Ins. Co. v. United States Fidelity & Guar. Co., 332 N.W.2d 160, 166 (Minn. 1983); Shuck v. Means, 302 Minn. 93, 96, 226 N.W.2d 285, 287 (1974). Thus, if the initial driver has permission to use the vehicle, that driver may give another driver, or "sub-permittee," consent to use the vehicle, and liability will be imposed upon the owner if the sub-permittee is involved in an accident. Milbank, 332 N.W.2d at 165-66; Shuck, 302 Minn. at 96-97, 226 N.W.2d at 287-88. This rule applies even if the permittee does not follow the owner's "use limitations." Milbank, 332 N.W.2d at 167. To prove lack of consent, the owner must show "that the car was being used by the permittee without the owner's knowledge and contrary to his explicit instructions." Shuck, 302 Minn. at 97, 226 N.W.2d at 288; see Milbank, 332 N.W.2d at 167 (absent "facts indicating theft or conversion by permittee," owner liable for accident involving permittee under Minn. Stat. § 170.54); Whaley v. Anderson, 461 N.W.2d 913, 914 (Minn. 1990) (truck owner not liable when third party decided to move truck without driver's permission).

Although appellant refers to the facts of this case as undisputed, the record does not support this characterization. Appellant claims he gave only limited consent to drive his truck as needed to repair it, to his employer, Adolpho Villanueva, and Villanueva testified that he did not consent to Jeraige driving the truck. Although appellant did not expressly consent to Jeraige driving the truck, appellant's giving Villanueva limited permission to use the truck imposed liability on appellant for Jeraige's use if Villanueva, in turn, gave Jeraige permission to drive the truck. See Milbank, 332 N.W.2d at 167. The facts regarding Jeraige's permission to use the truck were disputed. The trial court apparently found credible Jeraige's testimony that she had Villanueva's permission to use the truck and that the Villanueva family had used the truck on previous occasions. The trial court gave less weight to Villanueva's testimony that Jeraige did not have permission to use the truck and that he had not used the truck in excess of appellant's limited permission. As the trial court's findings are supported by the record, we conclude that they are not clearly erroneous. See Minn. R. Civ. P. 52.01.

Appellant further contends that Minnesota courts have found implied consent to use a vehicle only where there is a pattern of prior use or where there is some "familiar relationship between the owner and the driver." While a pattern of prior use or familiar relationship may directly prove implied consent, consent may also be shown when an owner expressly consents to a driver who then expressly consents to a third party. The owner has then impliedly consented to use by the third party. Thus, a pattern of prior use or familiar relationship are not prerequisites for a finding of implied consent.

Affirmed.