COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73502 SAID A. DRAKE, : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : STATE FARM INSURANCE CO., : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 15, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 310001 JUDGMENT : REVERSED AND REMANDED : TO ENTER JUDGMENT FOR : APPELLANT. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Thomas Mester Kathleen J. St. John NURENBERG, PLEVIN, HELLER & McCARTHY 1st Floor, Standard Building 1370 Ontario Street Cleveland, Ohio 44113-1792 For defendant-appellee: Cornelius J. O'Sullivan MEYERS, HENTEMANN & REA 815 Superior Avenue, N.E. Suite 2100 Cleveland, Ohio 44114 -2- NAHRA, J.: Appellant, Said A. Drake, appeals the trial court's granting of appellee's, State Farm Insurance Co., motion for summary judgment concerning appellant's claim for injuries arising out of an automobile accident and the denial of appellant's motion for summary judgment. The complaint arose out of an automobile accident occurring January 25, 1995, in which Dominick Tibbs negligently drove a 1989 Chevrolet Corsica into appellant's vehicle. The Chevrolet Corsica was owned by Pamela Johnson and insured by State Farm. Pamela Johnson had loaned the car to her mother, Gail Johnson, to go to a bar. At the bar Gail Johnson had too much to drink and the barmaid tried to call Gail's godson to come and drive her home, but she was unable to reach him. Tibbs was also at the bar and was known to Gail Johnson and the barmaid. Tibbs was driving the car and Gail Johnson was in the passenger seat when the accident happened. The issue herein was whether Tibbs was insured under the vehicle owner's, Pamela Johnson, policy provided by State Farm Insurance. At trial, Gail Johnson testified that she had no recollection of the evening in question and could not say for sure if she gave Mr. Tibbs consent to drive her daughter's vehicle. Further, neither the barmaid or Mr. Tibbs had been located and, as a result, were unable to testify. Appellant timely filed and assigns one error for our review. Appellant's sole assignment of error states: -3- THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFF- APPELLANT IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. We review the instant assignments of error de novo. Soltis v. Wegman, Hessler, Vanderburg & O'Toole (Feb. 13, 1997), Cuyahoga App. No. 69602, unreported. In an action for summary judgment, the court is compelled to affirm provided that: (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) construing the evidence and the inferences to be drawn therefrom in favor of the non-moving party, reasonable minds can come to but one conclusion, and that conclusion is adverse to the non-movant. Civ.R. 56(C), Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 375 N.E.2d 46 Turner v. Turner (1993), 63 Ohio St.3d 337, 341. Summary judgment can only be granted if the entire record demonstrates no genuine issue of material fact, and the non-movant is entitled to judgment as a matter of law. Civ.R.56, Harless, supra. The State Farm insurance policy provided coverage to an insured. It further provided: Who Is an Insured When we refer to your car, a newly acquired car, or a temporary substitute car, insured means: 1. you; 2. your spouse; 3. the relatives of the first person named in the declarations; -4- 4. any other person while using such a car if its use is within the scope of the consent of you or your spouse; and 5. any other person or organization liable for the use of such a car by one of the above insureds. Pursuant to the terms of State Farm's insurance policy the only way Tibbs can qualify as an insured is under subsection 4; i.e., was his driving of the car within the scope of the consent of Pamela, the owner. Subsection 4 of the above policy is commonly referred to as the omnibus clause. Jackman v. Cincinnati Ins. Co. (1987), 41 Ohio App.3d 149, 151, 534 N.E.2d 955, 957. The Ohio Supreme Court addressed the elements of an omnibus clause in West v. McNamara (1953), 159 Ohio St. 187, 11 N.E.2d 909, where the court stated in its syllabus that absent an express prohibition by the owner of the car, coverage extends to the permittee of a permittee of the named insured, where the last permittee drives the car in the presence of the named insured or the first or second permittee; or, the last permittee drives the car in the interest of or for the purpose mutual to such driver and the named insured or his permittee; and either the named insured or the first permittee permits, either directly or by implication, the last permittee to drive such a car. Further, the court in Jackman reaffirmed these principles when it stated, the initial permission granted by the named insured to the first permittee may extend to a second permittee so as to bring use by the second permittee within the protection of the policy if use by the second permittee serves some purpose, benefit or advantage to the first permittee, e.g., if the first permittee is -5- a passenger in the vehicle or if the vehicle is driven in the interest of the first permittee or for some purpose mutual to the first permittee and the second permittee. Jackman, supra, citing West, supra. In the instant case, Gail Johnson's daughter gave unrestricted permission for Gail to use her vehicle. While using her daughter's vehicle, Gail became intoxicated and, as a result, was unable to drive home. Tibbs was then solicited to drive Gail home. On the way home, Tibbs caused an accident with appellant, Said Drake. It is clear from the above facts that Tibbs was a permittee of Gail's due to her acquiescence, and the fact that she was a passenger in the vehicle at the time of the accident. Further, the only reason Tibbs was operating Pamela Johnson's vehicle was for the benefit of the first permittee, her mother. As a result, under the omnibus clause of the State Farm insurance policy Pamela is deemed to have given her implied consent to Tibbs to operate her vehicle. This implied consent in turn triggers coverage and protection for Tibbs' actions under the policy. Accordingly, the trial court erred in granting State Farm's motion for summary judgment and in denying appellant's motion for summary judgment. Judgment reversed and remanded to enter judgment for appellant. -6- This cause is reversed and remanded to enter judgment for appellant for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA JUDGE BLACKMON, A.J., and SPELLACY, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .