The opinion of the court was delivered by: JOHN PADOVA, District Judge
Plaintiff Prudential Property and Casualty Co. has filed a declaratory
judgment action against Defendant Jeffrey Armstrong, seeking a judgment
from this Court that Plaintiff does not owe Defendant benefits pursuant
to an automobile insurance policy issued to Defendant's father.
Specifically, Plaintiff seeks a declaratory judgment that precludes
Defendant from recovering under the uninsured motorist (UIM) provisions
of the insurance policy.
Plaintiff has filed a Motion for Summary Judgment, asserting that,
given the undisputed facts in this case, no reasonable fact-finder could
determine that Defendant was entitled to coverage under the terms of the
policy. For the following reasons, the Court will grant Plaintiff's
Motion for Summary Judgment.
The facts of this case are in relevant part uncontested. On June 13,
2001, Defendant was employed by the Fairmont Park Commission, an agency
of the City of Philadelphia, as a Park Ranger. On this date, Defendant
was riding as a passenger in a Fairmont Park Commission vehicle when it
was struck from behind by a paratransit bus. Defendant sustained injuries
as a result of
this accident. Defendant thereafter filed an uninsured motorist (UIM)
claim with his father's automobile insurance policy, which was issued by
Plaintiff. At the time of the accident, Defendant was named on his
father's policy as a licenced resident operator, and Defendant asserts
that he lived at his father's residence during this period.
Defendant testified at his deposition that, at the time of the
accident, he had been employed with the Fairmont Park Commission for only
three weeks, and was working in the Burholme district of the park.
(Armstrong Dep. at 9, 11.) At the time of the accident, Defendant and his
co-worker, Sahlee Brown, were returning to the Burholme district after
picking up mail at Memorial Hall. (Armstrong Dep. at 19.)
Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). An issue is "genuine" if the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is
"material" if it might affect the outcome of the case under governing
law. Id. A party seeking summary judgment always bears
the initial responsibility for informing the district court of the basis
for its motion and identifying those portions of the record that it
believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). After the moving
party has met its initial burden, "the adverse party's response, by
affidavits or otherwise as provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
When considering a motion for summary judgment, the court must view all
evidence in favor of the non-moving party and must resolve all doubts in
favor of the non-moving party. SEC v. Hughes Capital Corp., 124 F.3d 449,
452 (3d Cir. 1997).
The policy under which Defendant claims coverage provides that UIM
coverage will be provided, in certain circumstances, when an insured is
driving a non-owned car. However, the policy contains a provision
specifically excluding UIM coverage for non-owned vehicles which are
"furnished or made available for the regular use" of an insured
(hereinafter referred to as the "regular use exclusion.") The regular use
exclusion provides as follows:
3. Non-owned motor vehicles
We will not pay for bodily injury caused by anyone
using a non-owned motor vehicle or trailer not
insured under this Part, that is furnished or made
available for the regular use by you or a household
See Pl's Mot. Summ. J., Ex. D, § 4(E). The parties do not dispute that
Pennsylvania law applies to this case. The Pennsylvania Supreme Court has
upheld such exclusions in insurance contracts against attacks that they
are violative of public policy, and thus there is no dispute as to the
enforceability of this provision of the contract. See Burstein v.
Prudential Prop. and Casualty Ins. Co., 809 A.2d 204 (Pa. 2002).
"An insurance policy's language that is clear and unambiguous should be
given its plain and ordinary meaning, unless the parties indicate that
another meaning was intended." Automobile Ins. Co. of Hartford v.
Curran, 994 F. Supp. 324, 329 (E.D. Pa. 1998) Courts considering the
issue have held that the term "regular use" is unambiguous. See
Prudential Prop. and Casualty Co. v. Peppelman, Civ. A. No. 02-1515, 2003
U.S. Dist Lexis 7650, at *7 (E.D. Pa. April 25, 2003) (collecting
cases). Accordingly, the Court will interpret the term "regular use" in
accordance with its plain and ordinary meaning. One court has defined the
provisions in a regular use exclusion clause as follows:
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."
Pursuant to these definitions, . . 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.
Curran, 994 F. Supp. at 330; see also Nationwide Mut. Ins. Co. v.
Shoemaker, 965 F. Supp. 700, 706 (E.D. Pa. 1997) (holding that regular
use exclusion applies when use is "habitual rather than incidental or
casual.") Determining whether a vehicle was available for the insured's
"regular use" is a fact-intensive inquiry. Prudential Prop, and Casualty
Co. v. Hinson, 277 F. Supp.2d 468, 474 (E.D. Pa. 2003). However, "where
the facts are not in dispute, and reasonable minds cannot differ as to
the result, the issue of coverage can be decided as a matter of law by
the Court." Crum & Forster Personal Ins. Co. v. Travelers Corp.,
631 A.2d 671, 673 (Pa. Super. 1993).
Courts have held that the regular use exclusion applies when a fleet of
vehicles, as opposed to a specific vehicle, are available for the use of
an insured. See Peppelman, 2003 U.S. Dist Lexis 7650, at *13 (Sears
service technician who regularly drove one of a fleet of service vans in
connection with his work excluded from UIM coverage under his own
automobile insurance policy by virtue of regular use exclusion); Hinson
277 F. Supp.2d at 475 (holding that regular use exclusion applied to
fleet of police cruisers). Additionally, the test for regular use does
not consider how often a vehicle, or fleet of vehicles, was actually
used, but rather considers whether this vehicle or group of vehicles was
regularly available for use. See Curran, 994 F. Supp. at 330 (denying UIM
coverage to an insured who was operating a vehicle which was available
for his use at any time that he needed
it, notwithstanding the fact that he rarely used it).
Plaintiff claims that the Park Commission vehicle that Defendant was
riding in at the time of the accident qualifies as a non-owned vehicle
available for Defendant's regular use, thereby precluding coverage.
Defendant disputes this contention. Defendant submits that he was not
allowed to drive a Park Commission vehicle at the time of the accident,
because he had not yet completed a driver training program. Defendant
therefore argues that Park Commission vehicles were not regularly
available for his use at the time of the accident. There is inconsistent
testimony in the record, and therefore a disputed issue of fact,
concerning whether this driver training requirement was actually
enforced, or whether employees were allowed to operate a vehicle without
such training. (See Booker-Harris Dep. at 11.) However, this issue is
essentially irrelevant, as courts interpreting Pennsylvania law have
uniformly defined "use" to include riding in, as well as operating, motor
vehicles. See Allstate Ins. Co. v. Davis, 977 F. Supp. 705, 709 (E.D.
Pa. 1997) ("the Motor Vehicle Financial Responsibility Law . ...