This opinion will be unpublished and

may not be cited except as provided by

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




Joshua Richard Lobeck,



State Farm Mutual Automobile Insurance Co.,


West Bend Mutual Insurance Co.,


Filed September 9, 1997

Affirmed in Part, Reversed in Part, and Remanded

Davies, Judge

Hennepin County District Court

File No. 967401

Ronald L. Snelling, Snelling, Christensen & Laue, P.A., 5101 Vernon Ave. S., Suite 400, Minneapolis, MN 55436 (for appellant)

Roderick D. Blanchard, William M. Hart, Katherine A. McBride, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth St., Minneapolis, MN 55402 (for respondent State Farm Mutual Automobile Insurance Co.)

Dale M. Wagner, Christopher R. Morris, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth St., Minneapolis, MN 55402-3787 (for respondent West Bend Mutual Insurance Co.)

Considered and decided by Harten, Presiding Judge, Parker, Judge, and Davies, Judge.



Appellant challenges an order of the district court granting summary judgments in favor of respondent insurance companies. We affirm the district court's conclusion that appellant did not have the owner's consent to operate the vehicle. But, as to a coverage exclusion in the West Bend policy, we reverse, holding that an exclusion, conditioning coverage on consent-to-drive, is inapplicable to members of the insured's family.


In September 1994, Christopher Reid, whose parents were away for the weekend, invited several friends to his home for a party. Michael Aeshliman and appellant Joshua Lobeck were two of the guests. At about 2:00 a.m., Lobeck and Aeshliman went to the garage to smoke. In the garage was a Mazda automobile belonging to Steven Reid, Christopher's father. Lobeck and Aeshliman decided to take the car "out for a ride." Neither Lobeck or Aeshliman told Christopher that they were taking the car.[1] About two miles from the house, Lobeck lost control and "rolled" the vehicle. Aeshliman suffered a severe spinal cord injury.

Aeshliman brought a personal injury action against Lobeck as the driver and Steven Reid as the owner. Lobeck tendered defense to respondent West Bend, his family's insurance carrier, and to respondent State Farm, Steven Reid's carrier. Both companies agreed to provide a defense under a reservation of right to deny coverage. Following Lobeck's deposition, in which he admitted not having Steven Reid's express consent to drive the Mazda, both insurance companies withdrew their representation.

Lobeck then brought this declaratory judgment action against respondent insurers on the issue of whether they had an obligation to defend and indemnify him in the personal injury lawsuit. All parties moved for summary judgment. The district court granted the insurers' motions, ruling that Lobeck was not an insured under either insurance policy because he did not have the owner's consent to operate the vehicle. Lobeck now brings this appeal. 2


On appeal from summary judgment, a reviewing court must determine: "(1) whether there are any genuine issues of material fact; and (2) whether the lower court erred in its application of the law." Lubbers v. Anderson, 539 N.W.2d 398, 401

(Minn. 1995). An issue of fact is material if it would affect the outcome of the case. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976). The evidence is to be viewed in the light most favorable to the non-moving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). "A reviewing court is not bound by a district court's determination of a purely legal issue." Summit House Co. v. Gershman, 502 N.W.2d 422, 423-24 (Minn. App. 1993) (citation omitted).

I. Implied Consent to Operate

Minn. Stat. § 170.54 (1996) provides in part:

Whenever any motor vehicle shall be operated within this state, by any person other than the owner, with the consent of the owner, express or implied, the operator thereof shall in case of accident, be deemed the agent of the owner of such motor vehicle in the operation thereof.

(Emphasis added.) Consistent with this statute, the State Farm policy covering the Mazda extends coverage to any person who drives the car, but only if the driver has the consent of Steven Reid or his wife.

The parties do not dispute that Lobeck did not have express consent to drive the Mazda. Lobeck argues, however, that there is a genuine issue of material fact whether he had Steven Reid's implied consent to use the car.

Implied consent means that

under some factual situations permission may be found even though not expressly granted. The strongest evidence of implied permission would be a series of prior uses without express permission and yet without objection by the owner.

Stewart v. Anderson, 310 Minn. 495, 498, 246 N.W.2d 576, 578 (1976). Implied consent also may be inferred from a familial relationship between the vehicle owner and the driver or between the owner and the person who gave the driver permission to use the car. See Mutual Serv. Cas. Ins. Co. v. Lumbermens Mut. Cas. Co., 287 N.W.2d 385, 386 (Minn. 1979) (parent/owners' consent implied when child previously operated vehicle in parents' presence); Granley v. Crandall, 288 Minn. 310, 313, 180 N.W.2d 190, 192 (1970) (consent implied when parent/owners gave permission to child to use car and child gave permission to friend).

Even viewed in the light most favorable to Lobeck, there is nothing in the record to support Lobeck's argument that he had Steven Reid's implied consent to drive the Mazda. Although Lobeck was a friend of Christopher, there is no familial relationship. Lobeck was not living at the Reid home. Christopher himself did not have permission to use the car, nor did he give permission to Lobeck. Lobeck had never driven the Mazda before the night of the accident. Lobeck and Steven Reid had never discussed Lobeck's driving the Mazda. Nor was Lobeck's use of the car for the benefit of either Christopher or Steven Reid. Lobeck admitted in his deposition that he knew he did not have Steven Reid's consent to drive the car.

Q: And you realize as you sit there right now that you did not have Mr. Steven Reid's permission to use that Mazda 929 on the night you rolled it?

A. Yes.

Lobeck and Aeshliman took the car for a joy ride. With no evidence of prior usage of the vehicle, or of a familial relationship between the driver and owner, there can be no implied consent. This, by itself, disposes of the issue of coverage under the State Farm policy. We therefore affirm the district court's order granting State Farm's motion for summary judgment.

II. Validity of West Bend's Policy Exclusion

Lobeck next argues that the trial court erred in upholding the validity of the following liability coverage exclusion in West Bend's policy:

We do not cover liability arising out of the use of any vehicle by you or your family if that use is without permission, or if that use exceeds the scope of permission given to you or your family.

In Safeco Ins. Cos. v. Diaz, 385 N.W.2d 845, 846 (Minn. App. 1986), review denied (Minn. June 30, 1986), the insurance policy excluded coverage for a person "[u]sing a vehicle without a reasonable belief that person is entitled to do so." This court found the exclusion, when applied to the insured himself, conflicted with the purposes of the Minnesota No-Fault Act and was therefore void. Id. at 849. The court found a consequence of such an exclusion ("an uncompensated or undercompensated injured person") to be "repugnant to the purpose of the No-Fault Act." Id. The court went on to state:

Even more disturbing is that such an exclusion would leave an innocent third party without recourse against either the owner of a vehicle or the driver. Minnesota has a clear policy of providing insurance coverage to the maximum extent possible; losses should be spread widely through insurance coverage, not rest on one unfortunate individual.

Id. (citations omitted).

The reasoning of Safeco is applicable here. In Safeco, as here, the driver was driving a car without the owner's permission. Here, as there, the injured party, if the exclusion is upheld, has no recourse against either the owner of the car or the driver.[3]

Lobeck is entitled to the liability protection for which his parents paid a premium. See Safeco, 385 N.W.2d at 849 (named insured driving vehicle without permission entitled to liability coverage "for which he has paid a premium"). We hold that the West Bend policy exclusion is contrary to the purposes of the Minnesota

No-Fault Automobile Act and void as applied.[4] We reverse the district court's decision on this issue.

Affirmed in part, reversed in part, and remanded.

[ ]1 According to Christopher Reid's deposition testimony, he had no "knowledge of [Aeshliman and Lobeck] taking the car." This was corroborated by Lobeck, who testified during his deposition that he "never asked [Christopher Reid] * * * [if he] had permission to go."

2 Lobeck and Aeshliman have entered into a Miller v. Shugart stipulation for settlement, under which Lobeck assigned to Aeshliman his claims against State Farm and West Bend.

[ ]3 We do not find Toomey v. Krone, 306 N.W.2d 549 (Minn. 1981), and its progeny, as cited by the district court and West Bend, to be applicable. In each, claimants were attempting to transfer liability insurance coverage to an uninsured vehicle. Toomey, 306 N.W.2d at 549-50; Mutual Service Cas. Ins. Co. v Van Doren, 424 N.W.2d 791, 792, 794 (Minn. App. 1988), review denied (Minn. July 28, 1988); Gunderson v. Classified Ins. Corp., 397 N.W.2d 922, 925 (Minn. App. 1986). The claim against West Bend represents no such attempt to transfer coverage from vehicle to vehicle.

[ ]4 We point out that Lobeck and the driver in Safeco were both joy riders. A thief without an intention to return the car might be excluded from coverage.