ATTORNEYS FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
MICHAEL G. GETTY DONALD J. TRIBBETT
RORI GOLDMAN SCOTT L. STARR
Hill Fulwider McDowell Funk Starr Austen Tribbett Myers
& Matthews & Miller
Indianapolis, Indiana Logansport, Indiana
SUPREME COURT OF INDIANA
COURTNEY SMITH, )
) Supreme Court Cause Number
Appellant (Petitioner ), ) 41S01-0212-CV-628
CINCINNATI INSURANCE COMPANY, ) Court of Appeals Cause Number
Appellee (Respondent ). )
APPEAL FROM THE JOHNSON SUPERIOR COURT, NO. 3
The Honorable Kim Van Valer Shilts, Judge
Cause No. 41D03-9808-CT-00149
June 27, 2003
An underage driver crashed the car of her intoxicated friend while attempting to
drive the friend home in the car purportedly with the friends permission.
The question we address is whether the level of intoxication has a bearing
on the ability of an intoxicated would-be driver to give permission to another
to operate her car. We hold that it does not.
Facts and Procedural History
Eighteen-year-old Natalie Deem owned a car insured by the Cincinnati Insurance Company.
While out late one evening with fifteen-year-old Courtney Smith, Deem became extremely intoxicated,
sick, and wanted to go home. Smith claimed Deem gave her permission
to drive Deems car. Deem did not remember. In any event
the record is clear that Smith possessed only a learners permit and could
lawfully drive only when accompanied by a guardian or relative who holds a
valid operators license. See Ind. Code § 9-24-7-4(2). It is undisputed
that Deem had a valid operators license, however Deem is not Smiths guardian
and Deem and Smith are not related. Attempting to drive Deem home,
Smith ran off the roadway, which was covered with snow and ice.
Both Smith and Deem were injured as a result.
Deem filed a complaint for damages against Smith. In turn, Smith filed
a declaratory judgment action against Cincinnati Insurance to determine whether coverage existed.
After a bench trial, the trial court determined that Smith was not covered
under Deems insurance policy. On direct review, the Court of Appeals affirmed.
See Smith v. Cincinnati Ins. Co., 769 N.E.2d 599, 604 (Ind. Ct.
App. 2002). Having previously granted transfer, we affirm the judgment of the
The policy provision at issue in this case excludes coverage for any person
[u]sing a vehicle without a reasonable belief that that person is entitled to
do so. Appellants App. at 37. Entering judgment in favor of Cincinnati
Insurance the trial court concluded, essentially on two grounds, that Smith could not
reasonably have believed she had permission to drive Deems car: (1) Smith
was not legally entitled to drive; and (2) Deem was too intoxicated to
Affirming the trial court, the Court of Appeals focused on the policy language
entitled and adopted a five part test to determine whether a driver has
a reasonable belief that she is entitled to drive another persons car:
(1) whether the driver has the express permission to use the vehicle; (2)
whether the drivers use of the vehicle exceeded the permission granted; (3) whether
the driver was legally entitled to drive under the laws of the applicable
state; (4) whether the driver had any ownership or possessory right to the
vehicle; and (5) whether there was some form of relationship between the driver
and the insured, or one authorized to act on behalf of the insured,
that would have caused the driver to believe that she was entitled to
drive. Smith, 769 N.E.2d at 603 (citing Omaha Prop. & Cas. Ins.
Co. v. Peterson, 865 S.W.2d 789, 791 (Mo. Ct. App. 1993)). Noting
that the trial courts findings of fact employed the foregoing criteria, the Court
of Appeals agreed with the trial courts conclusion that Smiths belief that she
was entitled to drive Deems car was not reasonable. Id. at 604.
We agree with our colleagues.
However, although focusing on the entitled component of the trial courts findings of
fact, the Court of Appeals seemed to have endorsed that portion of the
trial courts finding which said Smith knew Deem was extremely intoxicated when Deem
purportedly gave this permission [to drive Deems car]. Deem had been vomiting
and passed out from extreme intoxication shortly before Deem purportedly gave Smith permission
to drive[.] [A] reasonable person who had these facts would not have
believed Deem was in a condition to give permission. Id. It
is this portion of the opinion with which we take issue.
This jurisdiction has long recognized the toll that drunk driving has taken on
the general public and the states interest in preventing accidents caused by drivers
who are intoxicated. See, e.g., State v. Gerschoffer, 763 N.E.2d 960, 968
(Ind. 2002) (observing there is a public danger of impaired driving and a
legitimate law enforcement purpose of combating drunk driving); Ruge v. Kovach, 467 N.E.2d
673, 681 (Ind. 1984) (noting Indianas interest in keeping its highways safe by
removing drunken drivers from its roads); Stroud v. Lints, 760 N.E.2d 1176, 1187
(Ind. Ct. App. 2002) (rejecting the notion that there can be such a
thing as a normally good drunk driver); Schrefler v. State, 660 N.E.2d 585,
588 (Ind. Ct. App. 1996) (recognizing the states interest in keeping its highways
safe from intoxicated drivers); see also Governors Council on Impaired & Dangerous Driving
2002 Annual Report 6 (2003) (noting that in the year 2001, 337 people
died in alcohol-related crashes in Indiana).
To be sure, drunk driving is not a public safety concern unique to
Indiana. The Supreme Court has said that [n]o one can seriously dispute
the magnitude of the drunken driving problem or the States interest in eradicating
it. Mich. Dept of State Police v. Sitz, 496 U.S. 444, 451
(1990). The Court has also observed:
The situation . . . of the drunk driver occurs with tragic
frequency on our Nations highways. The carnage caused by drunk drivers is
well documented and needs no detailed recitation here. This Court, although not
having the daily contact with the problem that the state courts have, has
repeatedly lamented the tragedy.
South Dakota v. Neville, 459 U.S. 553, 558 (1983). See also Alcohol,
Drug Abuse, & Mental Health Admin., U.S. Dept of Health & Human Servs.,
Tenth Special Report to the U.S. Congress on Alcohol & Health 391 (2000)
(pointing out [t]he current level of 16,000 deaths and more than one million
injuries in alcohol-related traffic accidents each year demonstrates the need for continuing attention
to this major public health problem).
Given the strong state and national interest of keeping persons who are intoxicated
from operating motor vehicles, we think it sound policy to encourage sober drivers
to get behind the wheel and not let their friends drive while drunk.
It is true that a person may be so intoxicated that she
may be unable to give her consent in other contexts. However, in
the case of an intoxicated would-be driver, the level of sobriety should not
prohibit another person from relying on the drivers request to operate her car.
In essence, the fact that a would-be driver is extremely intoxicated has
no bearing on whether she can nonetheless give her permission for a sober
designated driver to drive her car.
Because Smith was not legally entitled to drive we affirm the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.