United States District Court, E.D. Pennsylvania
March 24, 2004.
PRUDENTIAL PROPERTY & CASUALTY INSURANCE CO.
JEFFREY D. ARMSTRONG
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.
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
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
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 . . . defines
`use' in such a way as to incorporate occupants and passengers.")
(citation omitted). Furthermore, the record does not indicate that there
were any restrictions upon new employees riding as passengers in vehicles
before they had completed the driver training program.
Defendant next asserts that he cannot remember whether he ever
rode as a passenger in or drove a Park Commission vehicle before the date
of the accident, which occurred when Plaintiff had only been employed
with the Park Commission for three weeks. (Armstrong Dep. at 13-15.)
Defendant further asserts that, during the first two weeks of the job,
his training included only office work, and he did not have occasion to
travel in Park Commission vehicles. (See Booker-Harris Dep. at 19.)
However, regardless of whether Defendant had been relegated to office
work during the first two weeks of his employment, it is clear that,
beginning in the third week, Defendant's job responsibilities included
riding in and/or operating Park Commission vehicles on a regular basis.
(Armstrong Dep. at 17.) Indeed, the park rangers' human resources
representative testified that Defendant would be expected to ride with
other employees as a trainee to learn his duties. (Griffith Dep. at 22,
27.) According to the record, at least one Park Commission vehicle was
available to employees at each district at all times if they needed it to
perform their duties, unless multiple vehicles were out of service due to
maintenance or repair. (Griffith Dep. at 24.) Accordingly, the mere fact
that Defendant's ride in a Park Commission vehicle on the date of the
accident may have been the first of many such trips in a Park Commission
vehicle does not provide support for Defendant's assertion that this
vehicle was not available for his regular use at the time of the
accident. Cf. Shoemaker, 965 F. Supp. at 706 n.8 (holding that the
time during which a driver made use of a vehicle for purposes of
determining the applicability of the regular use exclusion should be
calculated by reference to the time that the driver planned to use the
vehicle, rather than by reference to the amount of time that the driver
had actually used the vehicle at the time of the accident.)
In a similar vein, Defendant argues that, because he had only been
employed with the Park Commission for three weeks on the date of the
accident and cannot remember riding in a Park Commission vehicle before
that date, he could not have anticipated that Park Commission vehicles
would be available for his regular use, and that UIM coverage on these
vehicles would therefore be excluded. Defendant further argues that, as
the insured, his reasonable expectation of coverage should govern the
scope of the coverage provided. "`The proper focus regarding issues of
coverage under insurance contracts is the reasonable expectation of the
insured.' The Court must look at the totality of the circumstances in
determining what expectations are reasonable." Peppelman, 2003 U.S. Dist
Lexis 7650, at * 10 (quoting Curran, 994 F. Supp. at 328-29). Defendant's
assertion that, because he may have been using a Park Commission vehicle
for the first time on the day of the accident, he could not have
reasonably anticipated that such vehicle was available to him for his
regular use, is baseless. The record is clear that the regular use of a
Park Commission vehicle
was part of the job requirements for all park rangers. Indeed, the
Human Resources Coordinator, Ms. Booker-Harris, testified that any new
employee was required to have a driver's license at the time he was
hired, because a part of each park ranger's responsibilities was vehicle
patrol. (Booker-Harris Dep. at 10.) Ms. Booker-Harris further testified
that a job description was given to all new employees during the
interview process, and that a policy and procedure manual was gone over
in its entirety with new employees at the start of their employment.
(Booker-Harris Dep. at 14.) Accordingly, reasonable minds cannot differ
as to the conclusion that Defendant should reasonably have expected that
his job responsibilities would include the regular use of a Park
Defendant further argues that this case is distinguishable from prior
cases in which UIM coverage was denied, because he was expected to use
Park Commission vehicles relatively less frequently than the parties
seeking coverage in those prior cases. See Peppelman, 2003 U.S. Dist
Lexis 7650 (coverage denied to an insured who used a Sears service
vehicle every working day for over 30 years). According to Defendant, his
job responsibilities at the time of the accident did not require him to
use a Park Commission vehicle every day. (Armstrong Dep. at 14-15.)
Moreover, the record indicates that Park Commission vehicles were not
available to Park Commission employees for their own personal use. (See
Summ J. Ex. D.)
However, this distinction is ultimately irrelevant. Both Defendant and
his supervisors testified that Defendant was required to use a Park
Commission vehicle on a regular basis, for the purpose of traveling to
parts of the park which could not be easily reached on foot. (Griffith
Dep. at 16; Booker-Harris Dep. at 11.) Moreover, Defendant has not cited,
and the Court has not found, any case which has interpreted the term
regular use under Pennsylvania law to require that the vehicle in
question be used on a daily basis. To the contrary, the term regular use
simply requires that the vehicle in question be available to the insured
on a "usual, normal or customary" basis. Curran, 994 F. Supp. at 330.
Accordingly, the mere fact that Defendant and other park rangers did not
necessarily use a Park Commission vehicle every day does not mean that
Park Commission vehicles were not available for their regular use.
For the foregoing reasons, Plaintiff's Motion for Summary Judgment is
granted in its entirety.
An appropriate order follows.
AND NOW, this 24th day of March, 2004, upon consideration of
Plaintiff's Motion for Summary Judgment (Docket # 8), and all related
submissions, IT IS HEREBY ORDERED that said Motion is GRANTED in its
entirety. Judgment is hereby entered in favor of Plaintiff and against
Defendant. IT IS FURTHER ORDERED that Defendant is not entitled to
collect Uninsured Motorist Benefits under Prudential car policy #
282A476929, issued to John E. Armstrong, for the motor vehicle accident
occurring on June 13, 2001.
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