Wait! Before you loan out your car . . .

Item #1
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It’s extremely important to understand that car insurance follows the car, not the driver. Say the person who borrowed your car causes an accident, and you try to raise the issue that the person didn’t have your permission (you claim “non-permissive use”). It may surprise you to learn that your car insurance must cover anyone living in your household unless you expressly exclude a household-member from your policy. One excuse that defendant-owners often assert is that they “didn’t give [insert negligent driver’s name here] permission to drive the car, and therefore should not be subjected to a lawsuit”. For instance, a man who is living with his mother drives her vehicle and causes an accident. Afterwards, the mother makes the claim that she did not allow her son permission to drive the vehicle.

The above scenario is reminiscent of several court-cases we’ve tried in which the insurer denied coverage based on the “non-permissive use” rule, and in each case, we were able to settle after demonstrating how difficult it would be to prove that the insured vehicle-owner didn’t give the driver permission to operate the vehicle. Interestingly, whereas our judicial system generally always leaves the plaintiff with the burden of proof, the court has determined that in a case where a “non-permissive use” issue is raised, it’s only fair that this burden falls on the defendant-vehicle-owner. In Rhode Island, if you are sued and claim “non-permissive use”, certain factors come into play which determine whether or not you could be held vicariously liable; first and foremost, whether the person had access to your keys. A lot of people are confused by this. The term “access” here does not suggest that the household-member was allowed to, say, go into the owner’s purse, but that the owner left the keys in a conspicuous place. This simple act is strongly suggestive of permissive use, and most insurance companies would be loath to accept responsibility based on this alone.

The Rhode Island Supreme Court’s decision on the issue of consent is rather clear, and only a “rare and exceptional case” would take the issue of consent out of the hands of a jury and “prove as a matter of law the [affirmative] defense” under § 31–33–7, which states:

“In all civil proceedings, evidence that at the time of the accident or collision the motor vehicle was registered in the name of the defendant, shall be prima facie evidence that it was being operated with the consent of the defendant, and the absence of consent shall be an affirmative defense to be set up in the answer and proved by the defendant.” . If you do not expressly exclude someone who lives with you from the insurance policy, it is not considered a “rare and exceptional case”.

§ 31–33–7 makes it very clear that if the defendant driver causes an accident while driving a defendant owner’s vehicle, then the defendant owner is vicariously liable for defendant driver’s damages: “An affidavit in which the defendant lessee denies giving permission to the defendant driver “does not resolve the issue of consent… It is undisputed that [defendant] was the registered owner of [defendant owner’s vehicle] at the time of the collision; as expressly provided for in § 31–33–7, that fact alone serves as prima facie evidence that she gave consent to the unidentified driver. [Defendant’s] Affidavit, however, fails to overcome the prima facie evidence created by statute… rarely under § 31–33–7 can the affirmative defense be proven as a matter of law—“especially when the proof rests upon oral testimony introduced by the party upon whom the burden rests and upon inferences from the surrounding circumstances.” (Pichardo v. Stevens). 

“A lack of consent under § 31-33-7 is difficult to prove as a matter of law because the statute provides for the creation of prima facie evidence of consent. Under ordinary circumstances, “prima facie evidence remains in the case throughout the trial and is entitled to be weighed like any other evidence upon the question of fact as to consent.” (Andreoni v. Ainsworth

Further damaging the merits of “non-permissive use”, should someone raise the issue without evidence that they did nothing to prevent his or her implication in a tort (i.e. file a police report), they will be hard-pressed to substantiate their innocence. Yes, this is the case even in the above scenario involving a mother and her son.

You should carefully consider who you allow to borrow your car, especially if the person has a history of poor driving habits or citations. Remember that if the person causes an accident with your vehicle, you will have to file a claim with your insurance company, which will require payment of a deductible and the hiking of insurance rates. Of course, if liability is disputed, then you may have little to worry about; however, you could be sued for damages that your insurance company refuses to pay in the event the other driver disputes your company’s rejection of liability. Avoid the hassle. Remember: all it takes is one mistake. Don’t let that mistake start with you!

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