Nathan Bass Nov. 5, 2012, 3:41pm

AUGUSTA, Maine (Legal Newsline) - The Maine Supreme Court has modified the applicable burden of proof for insurance coverage in a "scope of consent" motor vehicle accident case in the light of the policy change signaled by Maine's enactment of compulsory liability insurance.

On Oct. 7, 2008, Roger Linton, an independent contractor driving a truck owned by Jonathan Jennings, his employer, collided with a vehicle driven by James Carey, who died as a result.

Linton had been given permission from Jennings to drive the truck home that evening. Linton didn't go home. Instead, he visited several people in the area and drank enough beer to have a blood alcohol content of .12 percent at the time of the accident, which occurred "approximately 20 miles from the jobsite, 20 miles from Linton's home, and 10 miles from the company."

State Farm Mutual Automobile Insurance Company, Jennings' insurer, filed a declaratory judgment action against Carey's Estate and Linton to determine whether it was responsible for liability coverage and obligated to defend and indemnify Linton for claims arising from the collision.

The trial judge held that State Farm was not responsible for coverage by "concluding that Linton was not an insured covered by Jennings's policy because his use of the truck was not within the scope of Jennings's consent" and Estate of James Carey appealed.

"We have historically applied the minor deviation rule to determine whether the use of a vehicle was within the scope of consent," Justice Jon Levy of the Maine Judicial Supreme Court wrote.

After noting that the rule was first employed before Maine adopted compulsory liability insurance, Levy announced, "Accordingly, we review the minor deviation rule in view of this change in policy."

The Court examined whether Maine should change to the more liberal "initial permission" rule which would extend coverage to any driver if they had permission to use the vehicle. They rejected the change because Maine's insurance requirements are not as broad as are the state that applies the "initial permission" rule.

"Although we decline to adopt the initial permission rule," the Court held "we announce that if the party seeking coverage establishes initial permission to use the vehicle, the minor deviation rule then shifts the burden to the insurance carrier to establish that there were explicit limitations placed on the borrower's use of the insured's vehicle to preclude coverage."

"The party opposing coverage must establish, by a preponderance of the evidence, that the operator of the vehicle breached an express restriction on the scope of permission established at the time permission was granted. This standard better recognizes the reality that, in exchanges of this sort, people are seldom thinking of the insurance consequences of their statements. In the absence of an explicit understanding to that effect, the law should not tilt toward a result where a vehicle is operated without any insurance coverage."

The Court, having clarified the application of the minor deviation rule, vacated the judgment and remanded the case back to the trial court to apply the modified rule.

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