Travelers Insurance Company Fearless, Inc. T/a Mama's Fish House Brent Jones v. Budget Rent-A-Car Systems, Inc.

concurring separately:

I concur in Judge Kozinski’s thoughtful and comprehensive opinion. At a time when “authority” is a preferred source of rights and duties in this nation, it is good to read that “contract” is also a proper source of rights and duties. Judge Kozinski properly decries the transmutation of “contract” to “authority” by courts committed to redistributing wealth as between the parties and their attorneys.

*772 On the other hand, it must be recognized that “authority” sometimes wears the mask of “contract.” A relationship in which the “consent” of one party is coerced rests not on “contract” but, to the extent it is enforceable by law, on “authority.” Courts frequently go astray by finding “coercion” when only inattention and convenience produced a “bad bargain” for a party. Too often do judges seek to protect the foolish from their folly. On the other hand, not all documents purporting to be contracts embody consent determined either subjectively or objectively. Parties should be bound by their words so long as, and only so long as, the words are theirs.

In this case there can be little doubt but that the words are those of the parties. Moreover, there exists no…

Once again, we consider whether a contract is an instrument by which parties can define their rights and responsibilities by mutual agreement, or a platform for judicial policymaking. We address this question in a diversity case involving a rental car agreement that excludes insurance coverage for unauthorized drivers, where the unauthorized driver in question was a parking valet.

Facts

The facts are not in dispute. In October 1985, while vacationing on the island of Maui in Hawaii, Albert Mellon rented a car from Budget Rent-A-Car. The rental agreement stated that Budget would provide liability insurance for Mellon and any other authorized driver. Budget was self-insured.

Several days after renting the car, Mellon and his wife drove to Mama’s Fish House, a local restaurant of some renown. On arrival, Mellon turned the rental car over to Brent Jones, a valet parker in Mama’s employ. The Mellons partook of piscine fare; Mr. Mellon had the mahi-mahi, Mrs. Mellon the shrimp.

After a satisfying dinner, Mellon dispatched Jones to retrieve the car. Jones drove the car to the restaurant entrance, where — while still seated behind the wheel — he opened the passenger side door for Mrs.…

901 F.2d 765 TRAVELERS INSURANCE COMPANY; Fearless, Inc.; T/A Mama's Fish House; Brent Jones, Plaintiffs-Appellants, v. BUDGET RENT-A-CAR SYSTEMS, INC., Defendant-Appellee. No. 88-15400. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 31, 1989. Decided April 18, 1990. Randall Y.S. Chung and Kevin P.H. Sumida, Honolulu, Hawaii, for plaintiffs-appellants. Steven K. Hisaka, Hisaka, Furusho, Ayabe & Goto, Honolulu, Hawaii, for defendant-appellee. Appeal from the United States District Court for the District of Hawaii. Before SNEED, KOZINSKI and THOMPSON, Circuit Judges. KOZINSKI, Circuit Judge: 1 Once again, we consider whether a contract is an instrument by which parties can define their rights and responsibilities by mutual agreement, or a platform for judicial policymaking. We address this question in a diversity case involving a rental car agreement that excludes insurance coverage for unauthorized drivers, where the unauthorized driver in question was a parking valet. Facts 2 The facts are not in dispute. In October 1985, while vacationing on the island of Maui in Hawaii, Albert Mellon rented a car from Budget Rent-A-Car. The rental agreement stated…