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Should Have. Would Have. Could Have. Didn’t: Rental Agreement Controls Use of Vehicle for Purposes of No-Fault Coverage

Motor Vehicle Litigation / April 29, 2021

In the published case of Ahmed v Tokio Marine America Insurance Company, the Court differentiated the rulings in Monaco v Home-Owners Co from the case at bar. In Monaco, plaintiff sued on behalf of her daughter, Alison, who drove the insured vehicle while only having her permit. While her mother initially testified that Alison took the vehicle without permission, she later recanted and stated that permission was given for her daughter to take the car. The Court stated that since the taking was not unlawful, Alison was entitled to no-fault benefits.

However, in this case, the Court found that the panel in Monaco incorrectly analyzed the case from the perspective of the owner of the car rather than that of the driver. In Monaco, the Court should have considered whether the taking was unlawful from the perspective of Alison, the driver and the person on whose behalf an “entitlement to be paid personal protection insurance benefits” was sought. Had Monaco considered the question from Alison’s perspective, it should have concluded that her driving of the car constituted a taking and the taking was unlawful because it was illegal under the Motor Vehicle Code for Alison to drive alone. It should be noted that Monaco is only controlling when the owner purports to give permission to an unlicensed person to drive. The Court further stated that they would consider the possible need for a special panel if a case involving facts like Monaco’s should recur.

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