                             No.    91-026

          IN THE SUPREME COURT OF THE STATE OF MONTANA




ALLSTATE INSURANCE COMPANY,
               Plaintiff and Respondent,


WILLIAM R. HANKINSON, LUKE
HANKINSON, GERALD BAASCH,
GWEN GRENFELL,
               Defendants and Appellants.


APPEAL FROM:   District Court of the Fourth Judicial District,
               In and for the County of Missoula,
               The Honorable Jack L. Green, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Darla J. Keck; Datsopoulos, MacDonald       &   Lind,
               Missoula, Montana
          For Respondent:
               Sherman V. Lohn and Susan P. Roy; Garlington, Lohn
               & Robinson, Missoula, Montana



                              Submitted on Briefs: June 6, 1991
                                             Decided: ~ u l y15, 1991




                                   Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
    The District Court for the Fourth Judicial District, Missoula
County, granted summary judgment to Allstate Insurance Company in
this action for declaratory judgment as to automobile liability
insurance coverage. We affirm.
     The issue is whether the District Court erred in concluding
that the insured, William Hankinson, did not give implied permis-
sion to his son, Luke Hankinson, to drive the Cloninger vehicle on
July 30, 1988.
     On July 30, 1988, a 1967 Buick driven by Luke Hankinson was
involved in an automobile accident on U.S. Highway 200 east of
Bonner, Montana.    The vehicle was owned by Kathy Cloninger, whose
son, Brian Young, had given his friend Luke Hankinson permission
to drive the car.   As a result of the accident, defendants Gerald
Baasch and Gwen Grenfell were injured.
     Luke Hankinson was an insured driver on his father's insurance
policy with Allstate insurance Company (Allstate). In this action,
Allstate seeks a declaratory judgment that it has no obligation to
defend or indemnify Luke Hankinson for any claims by defendants
Baasch and Grenfell arising out of the accident.     In a previous
appeal to this Court, the Court reversed a summary judgment in
favor of defendants.      The District Court had granted summary
judgment on the basis t h a t Luke Hankinson was driving the 1967
Buick with the owner's permission. Allstate Ins. Co. v. Hankinson
(Mont. 1990), 795 P.2d 480, 47 St.Rep. 1380. This Court held that,
under   §   61-6-301, MCA, "the key issue for this case is whether
Luke's father gave him permission to drive the non-owned vehicle."
Allstate, 795 P.2d at 482.
     On remand, Allstate and the defendants each filed with the
court affidavits by      Luke's father, William Hankinson.     The
affidavit submitted by Allstate read as follows:
             1. I am the named insured in Allstate Policy
             No. 020 960067. My son is Luke Hankinson.
             2. I recall the day of the accident because
             the boys stopped by my house. Brian Young was
             driving the car. When I learned they were
             going on the Blackfoot road, which is a dan-
             gerous road, I asked who was driving. They
             said Brian was driving; I then told Brian to
             drive carefully because the road is dangerous.
             3. We had no discussion about Luke's driving
             the car, and I never gave any permission,
             implied or express, to Luke to drive the car
             on July 30, 1988, and would not have given any
             permission.
             4. If I had known that Luke wished or in-
             tended to drive a car belonging to Kathy Clon-
             inger, without her permission, I would not
             have given my permission.
             5.  If I had known that Luke would be drinking
             alcohol on July 30, 1988, I would not have
             given my permission for him to drive and would
             have instructed him not to drive Kathy Clon-
             inger's vehicle or any other vehicle.
The affidavit of William Hankinson submitted by defendants read as
follows:
           1. That I am the named insured on the policy
           of insurance which is the subject of this
           declaratory judgment action.
           2. That T am the father of Luke ank kin son,
           who was also insured under my Allstate policy
           of insurance at t h e time of the accident.
           3. That I previously signed an Affidavit on
           the 25th day of July, 1990, for Allstate
           Insurance Co. which is true and accurate to
           the best of my knowledge and belief. That the
           following information is provided to supple-
           ment and to better understand the information
           provided in such A f f i d a v i t .
           4.  That on the day of the accident, although
           I did inquire as to who was going t o drive and
           asked Brian to drive carefully, T did not tell
           my son Luke that he could not drive.
           5. That I have not in the past restricted
           Luke's driving of vehicles and Luke did not
           need to routinely seek my permission when he
           wanted to d r i v e . For that reason, Luke could
           have reasonably believed that he had my im-
           plied permission to drive on the day of the
           accident.
Allstate also filed an affidavit of Luke Hankinson, which read as
follows:
           1. I was the driver of a 1967 Buick belonging
           to Kathy Cloninger when an accident occurred
           on July 30, 1988.
           2. It is possible that I was not living at
           home on the day of the accident.
           3. My father never gave me any permission of
           any kind, implied or express, to drive the car
           belonging to Kathy Cloninger, and I had no
           belief that I had my father's implied permis-
           sion to drive the Cloninger car on the day of
           the accident.
          4.  If my father had known that Kathy Clon-
          inger had denied permission for my driving her
          1967 Buick, he would not have allowed me to
          drive it.
          5. If my father had known that I would be
          drinking on July 30, 1988, he would have
          specifically denied me permission to drive
          Kathy Cloninger's 1967 Buick or any vehicle on
          that day.
Based on the affidavits, the court found that William Hankinson did
not give express permission to Luke to drive the Cloninger car and
that Luke denies that he thought he had implied permission to do
so.   The court granted summary judgment for Allstate.   Defendants
appeal.
      The defendants cite two cases in support of their position
that William Hankinson gave implied consent to his son Luke to
drive the Cloninger vehicle. They argue that Allstate must provide
insurance coverage and that they are entitled to summary judgment.
      Defendants first cite Mountain West Farm Bureau v. Farmers
Ins. (l984), 209 Mont. 467, 680 P.2d 330.    In that case, Gerald
McArthur, a friend of the son of the insured, had been given
permission by the son to drive the vehicle Iton many     occasion^.^
At the time of the accident, the son of the insured was enjoying
an early-morning breakfast in a restaurant while McArthur and
another friend remained in the car. McArthur had obtained the keys
in order to listen to the car radio, but the son of the insured had
admonished him only to listen to the radio and not go anywhere.
When a police officer approached the car and questioned the two
occupants about a possible curfew violation, they locked the car
doors and McArthur began backing out of the parking lot, running
over the police officer in the process.
     This Court held that there was implied permission to use the
car because the facts did not establish an absolute revocation of
permission to use the car and, as "a stronger reason,I1 there was
testimony that McArthur never heard the admonishment not to go
anywhere. Mountain West, 680 P.2d at 331. This Court also stated
that "[a] complete and unreasonable departure from the intended
use, or an intentionally dangerous and wrongful operation could
support a ruling that the use was outside of the scope of permitted
use as a matter of law."    Mountain West, 680 P.2d at 331.
     The second case cited by defendants is Horace Mann Ins. v.
Hampton (1989), 235 Mont. 354, 767 P.2d 343.         In that case, a
mechanic had possession of the insured vehicle so that he could
overhaul the engine.   He used the car when he went out drinking,
and was in an accident.     This Court held that Montana's Mandatory
Liability Protection Act,   §   61-6-301, MCA, required that liability
insurance continue in force to the minimum statutory requirement,
because the mechanic initially obtained control and operated the
vehicle with the permission of the owner.       Horace Mann, 767 P.2d
at 345-46.
     The reasons for concluding that there was implied permission
to drive the vehicles in Mountain West and Horace Mann are not
present in this case.     As indicated above, resolution of Mountain
West was determined by the particular facts of that case, including
permission by the insured "on many occasions" to drive the car in
question. And h e r e , unlike the situation in Horace Mann, there was
no initial permission by William Hankinson for Luke to drive the
Cloninger car, according to the affidavits submitted.
     William Hankinson stated in his affidavit that he did not and
would not have given Luke permission to drive the Cloninger car on
the day in question.    Luke stated in his affidavit that he believed
his father would have denied him permission to drive the Cloninger
vehicle on that day.      We conclude that t h e District Court w a s
correct in determining that there was no express or implied
permission by William Hankinson for Luke to drive the Cloninger
vehicle.   We hold that the District Court did not err in granting
summary judgment for Allstate.
     Affirmed.




  We concur:
                                            July 15, 1991

                            CERTIFICATE O F SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Darla J. Keck
Datsopoulos, MacDonald & Lind
201 W. Main, Ste. 201
Missoula, MT 59802

Sherman V. Lohn and Susan P. Roy
Garlington, Lohn & Robinson
P.O. Box 7909
Missoula, MT 59807-7909

Hugh G. Kidder
Attorney at Law
144 W. Front St.
Missoula, MT 59802

                                               ED SMITH
                                               CLERK OF THE SUPREME COURT


                                               BY:
