similar results. See, e.g.: Grange Ins. Ass'n. v. Mackenzie, 37 Wash. App. 703, 683 P.2d 221 (1984), aff'd, 103 Wash. 2d 708, 694 P.2d 1087 (1985); Woodman v. Hartford Accident & Indemnity Co., 27 Mass. App. Ct. 1120, 537 N.E.2d 601 (1989). In fact, defendant...points to no case in which a court has found the term "regular use" ambiguous.
965 F. Supp. at 703.
As was Judge Pollak's experience, our investigation of Pennsylvania insurance law has yielded no cases in which a regular use exception was found ambiguous. Accordingly, we also find the language of Exclusion 9 in this matter to be unambiguous and shall therefore read it in the context of its plain and ordinary meaning.
As explained by Judge Gawthrop at page 5 of his Memorandum and Order of January 7, 1997, Exclusion 9 will apply if, at the time of the subject accident, James Curran, Jr. was the owner of the Mercedes or it was furnished or available for his regular use. We thus now to these issues.
Under the Pennsylvania Motor Vehicle Code, 75 Pa.C.S. § 102, "owner" is defined as "[a] person, other than a lienholder, having the property right in or title to a vehicle. The term includes a person entitled to the use and possession of a vehicle subject to a security interest in another person, but excludes a lessee under a lease not intended as security." However, in Pennsylvania, a certificate of title is merely evidence of ownership of a motor vehicle--it is not conclusive in and of itself. Wasilko v. Home Mutual Casualty Co., 210 Pa. Super. 322, 232 A.2d 60, 61 (1967). Instead, the courts of Pennsylvania look to see who it is that in fact possesses the attributes commonly associated with ownership. Aetna Casualty & Surety Co. v. Duncan, 972 F.2d 523, 526 (3rd Cir. 1992). The relevant issue as to whether the insured was vested with the "elements of ownership--the use, benefit, possession, control, responsibility for, and disposition of the automobile." Id., citing Wasilko, 232 A.2d at 62.
In common usage, "furnished" means "to provide or supply;" "available" means "suitable or ready for use" and "readily obtainable, accessible;" and "regular" means "usual, normal or customary." Federal Kemper Insurance Co. v. Ward, 679 F. Supp. 489, 492 (E.D.Pa. 1988), aff'd, 860 F.2d 1074 (3rd Cir. 1988). Pursuant to these definitions, it has been recognized that the test of a regular use exclusion is not use but availability for use or ownership by a member of a group who would be likely to make their cars available for each other's use. 679 F. Supp. at 493, citing Kieffer v. Nationwide Insurance Co., 7 Pa. D. & C. 3d 293, 298 (1978) and Johnson v. Braunsberg, 51 Pa. D. & C. 2d 659 (1970).
In this case, since 1989 the Mercedes 6.9 was titled in the name of Caitlin Curran and there is no evidence that the vehicle was ever titled in the name of James Curran, Jr. The vehicle was, however, insured in the names of James J. Curran, Jr. and Carolyn Curran and, by his own testimony, it was James Curran, Jr. who paid for the loan payments, gasoline, oil, maintenance and repairs to the vehicle and it was under Mr. Curran's direction that the maintenance on the vehicle was performed. (N.T. 9-10, 12-14, 19-25, 40; Curran Dep. Excrpt., Exhibits "J," "O," "P," "Q," "R," "U," "V"; Exhibit P-3). The address at which the vehicle was titled was Defendant Curran's and it was also at the behest of Defendant Curran that the car was kept at his parents' home and was utilized to chauffeur his parents, particularly his father, on a regular basis. (N.T. 8, 9-22, 38-41, 52-55, 61, Curran Dep. Excrpt., Exhibits "I," "V" "W"; Exhibit P-1). Defendant Curran also kept a set of keys to the vehicle in his home and, following the accident, Curran directed that certain parts be removed and that the car be kept secure. (N.T. 9-10, 12-14, 19-20, 40; Curran Dep. Excrpt., Exhibits "O," "Q," "R," "U," "V," "X").
The record further reflects that while Curran seldom drove the 6.9, he testified that "it was available at the house for whomever needed it." To operate the car, Curran had only to walk up the street and take it out. (Curran Dep. Excrpt., Exhibits "P," "V"). It was not necessary for Curran (or for any other family member) to obtain Caitlin Curran's permission to drive the car. (N.T. 19-24; Curran Dep. Excrpt., Exhibits "P," "V").
As the foregoing evidence demonstrates, Caitlin Curran had none of the attributes of ownership to the Mercedes, with the exception of the title, while her father, James Curran, Jr. had virtually all of those attributes. Indeed, Mr. Curran had easy access to and could freely use the vehicle whenever he so chose and it is clear that he, more than anyone else, had responsibility for the car's maintenance, repairs and insurance and had control over who used the car and when. Likewise, it appears that it was Defendant Curran who had the ability to control whether, how, when and where the vehicle could have been disposed following the accident. We thus conclude that he was the de facto owner of the vehicle.
Moreover, while it is obvious that Mr. Curran seldom operated the Mercedes and that he certainly did not "regularly use" it, it is equally clear that he could have done so had he so chosen. The 6.9 was thus a "vehicle ...furnished or available for [Curran's] regular use" within the meaning of Exclusion 9. AICHC therefore has no obligation or duty to defend or indemnify James Curran, Jr. in the pending state court actions which arose out of the May 11, 1992 accident.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the subject matter and the parties to this action pursuant to 28 U.S.C. §§ 1332 and 2201.
2. The "regular use" exclusions set forth at Exclusion No. 9 in both AICHC Policy Nos. 204SX20216293PCH and 204SX34157593PCH are clear and unambiguous.
3. Defendant James J. Curran, Jr. is the de facto owner of the 1979 Mercedes 6.9 sedan which was involved in the accident at the intersection of State Routes 924 and 329 in East Union Township, Schuylkill County, Pennsylvania on May 11, 1992.
4. At or about the time of the May 11, 1992 accident, the 1979 Mercedes 6.9 sedan was a vehicle which was available for James J. Curran, Jr.'s regular use.
5. Plaintiff has no duty to defend or indemnify James J. Curran, Jr. under Policy Nos. 204SX20216293PCH and 204SX34157593PCH with respect to the lawsuit instituted against him by Frank C. and Margaret Williams at No. S-565-94 in the Court of Common Pleas of Schuylkill County, Pennsylvania or with respect to any cross-claims or potential cross-claims arising therefrom and/or brought by any of the co-defendants in that lawsuit or any other lawsuits arising out of the May 11, 1992 accident.
An order follows.
AND NOW, this 9th day of February, 1998, it is hereby ORDERED and DECREED that Judgment is Entered in Favor of Plaintiff and against Defendant James J. Curran, Jr. and it is hereby DECLARED that no coverage or duty to defend and/or indemnify exists under Policy Nos. 204SX20216293PCH and 204SX34157593PCH issued by The Automobile Insurance Company of Hartford, Connecticut to James J. Curran, Jr. for the claims raised against Defendant Curran in the lawsuit now pending in the Court of Common Pleas of Schuylkill County, Pennsylvania at No. S-565-94 or for any cross-claims or potential cross-claims arising therefrom and/or brought by any of the co-defendants in that lawsuit or any other lawsuits arising out of the May 11, 1992 accident.
IT IS FURTHER ORDERED that the Counter-claim for Declaratory Judgment brought by Defendant James J. Curran, Jr. against Plaintiff is DISMISSED with Prejudice for the reasons set forth in the preceding Decision.
BY THE COURT:
J. CURTIS JOYNER, J.
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