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PRUDENTIAL PROPERTY & CASUALTY INSURANCE CO. v. ARMSTRONG

March 24, 2004.

PRUDENTIAL PROPERTY & CASUALTY INSURANCE CO.
v.
JEFFREY D. ARMSTRONG



The opinion of the court was delivered by: JOHN PADOVA, District Judge

MEMORANDUM

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.

 I. RELEVANT BACKGROUND

  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 Page 2 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.)

 II. LEGAL STANDARD

  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 Page 3 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).

 III. DISCUSSION

  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 resident. Page 4

 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. Page 5 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 Page 6 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 . ...


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