Lamont DIXON, Appellant v. GEICO, Appellee.
Superior Court of Pennsylvania.
July 29, 2010.
Submitted June 9, 2010.
¶ 10 When probed for greater precision on the nature of the “object” and asked to describe its size, the trooper estimated the object at varying sizes, stating that it was “probably six to eight inches tall, maybe three, four inches wide,” and eventually resorted to using his hands to approximate the size, which counsel and the court both recognized could not be documented of record. Id. at 18, 19 (BY THE COURT: I don‘t know what that does in the record[,] that tall[,] that wide) In fact, the object the trooper had seen was merely a gaggle of the ubiquitous pine tree-shaped air fresheners commonly marketed for use in automobiles. Id. at 18. There were three of them, they were flat, and they hung together at the same level; they were not hanging in sequence. Id. at 19-20.
¶ 11 More to the point, however, the trooper‘s observations were the product of the stop itself; he did not make detailed observations of the character of the object before making the stop. Rather, he acted on the basis of an incomplete understanding of the regulation at
¶ 12 For the foregoing reasons, we reverse the judgment of sentence.
¶ 13 Judgment of sentence REVERSED. Defendant DISCHARGED. Jurisdiction RELINQUISHED.
Scott B. Cooper, Harrisburg and John C. Capek, Philadelphia, for appellant.
Platte B. Moring, III, Center Valley, for appellee.
BEFORE: BENDER, OTT and KELLY, JJ.
OPINION BY KELLY, J.:
¶ 2 Appellant worked in Philadelphia for the United States Postal Service (USPS) at a vehicle repair and maintenance facility as a garage man. ([Appellant‘s] Answer to [Appellee‘s] Motion for Summary Judgment, Exh. F, G). His duties were varied, including washing vehicles, replacing fluids or lights, operation of a tow truck, snow removal and transporting vehicles from one location to another. (Id.); (see also Trial Court Memorandum in Support of Order Granting [Appellee‘s] Motion for Summary Judgment, 9/28/09, at 1, citing Appellant‘s Memorandum.).
¶ 3 On December 6, 2007, en route to drop off a mail delivery vehicle in West Philadelphia,1 Appellant was driving southbound on Roosevelt Boulevard. He suffered substantial injuries when Iona Naroditsky allegedly made an illegal left turn on to Roosevelt Boulevard, at or near Robinson Street, i.e., northbound into his southbound lane of travel.2
¶ 4 After Naroditsky‘s insurer, State Farm, paid policy limits of $15,000, substantially less than Appellant‘s claimed losses, Appellant made a UIM claim against Appellee under his personal auto insurance policy.3 Appellee rejected his
¶ 5 The policy exclusion at issue reads in full as follows: “When using a motor vehicle furnished for the regular use of you, your spouse, or a relative who resides in your household, which is not insured under this policy.” (See Exhibit to Appellant‘s Complaint, GEICO auto insurance policy, Section IV Uninsured and Underinsured Motorists Coverage, Exclusion 9, as amended) (emphasis added; original emphasis removed); (see also Trial Court Memorandum, at 3).
¶ 6 Appellant brought suit. The trial court granted Appellee‘s motion for summary judgment. (Order, 9/28/09). Appellant filed a motion for reconsideration on October 19, 2009.4 Before the trial court decided the motion for reconsideration, Appellant filed a timely notice of appeal.5
¶ 7 Appellant asserts three errors in his questions on appeal, (see Appellant‘s Brief, at 4), paraphrased here for clarity and brevity: First, he asserts the regular use exclusion conflicts with the Motor Vehicle Financial Responsibility Law (MVFRL),
¶ 8 Our standard of review for the grant of summary judgment is well settled.
A reviewing court may disturb the [entry of summary judgment] only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary.
In evaluating the trial court‘s decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof [...] establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will review the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.
Whether a claim for insurance benefits is covered by a policy is a matter of law which may be decided on a summary judgment motion. Nordi v. Keystone Health Plan West Inc., 989 A.2d 376, 379-80 (Pa.Super.2010) (citations omitted).
“[A] proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense[.]” Under [Civil] Rule 1035.2(2), “if a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicate that the plaintiff is unable to satisfy an element of his cause of action.” Correspondingly, “[t]he non-moving party must adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof such that a jury could return a verdict favorable to the non-moving party.” Thus, a plaintiff‘s failure to adduce evidence to substantiate any element of his cause of action entitles the defendant to summary judgment as a matter of law.
Bishops, Inc. v. Penn Nat. Ins., 984 A.2d 982, 989 n. 3 (Pa.Super.2009) (citation omitted).
¶ 10 Here, Appellee maintains that all arguments are waived because Appellant failed to raise “any” of the issues in the trial court. (Appellee‘s Brief, at 5) (emphasis in original). This is untrue. Appellant plainly raised the second question, the existence of a fact issue, namely whether he was operating a vehicle furnished for his regular use, in the trial court. (See Reply of [Appellant] to Motion for Summary Judgment of [Appellee], ¶¶ A.-D.).
¶ 11 However, it is not equally evident that Appellant properly raised and preserved his first and third issues, conflict of regular use exclusion with MVFRL and public policy respectively. Further, Appellant has failed to comply with Pa.R.A.P. 2117(c) and Pa.R.A.P. 2119(e) (statement of place of raising or preservation of issues). Accordingly, Appellant‘s first and third issues are waived.
¶ 12 Even if not waived, these two issues would not merit relief under current controlling law. Contrary to Appellant‘s argument, our Supreme Court has concluded that the regular use exclusion does not violate public policy and is not in conflict with MVFRL. See Burstein v. Prudential Property and Cas. Ins. Co., 570 Pa. 177, 809 A.2d 204, 208 (2002) (holding regular use exclusion applied to vehicle provided to wife by employer both for business and personal use, as benefit of employment, even though non-employee husband only drove vehicle occasionally).
¶ 13 We observe, and Appellant reminds us, that our Supreme Court has recently granted allowance of appeal in a similar case involving underinsured motorist coverage.6 (See Appellant‘s Brief, at 16). This Court is of course bound by existing precedent under the doctrine of
¶ 14 The controlling issue, and the only properly preserved question in this appeal, is whether there was a material issue of fact that the regular use exclusion in Appellant‘s personal auto policy applies in this case. Appellant claims that there is a material issue of fact. The trial court concluded there was no dispute as to a material issue of fact, and therefore it could decide as a matter of law that GEICO properly denied coverage under the exclusion. We disagree.
¶ 15 In consideration of this second question, we are mindful of the following principles:
In Pennsylvania, the test for “regular use” is whether the use is “regular” or “habitual.” [Crum & Forster Personal Ins. Co. v. Travelers Corp., 428 Pa.Super. 557, 631 A.2d 671, 673 (1993).] Federal courts have held that an employee “regularly uses” a fleet vehicle if he regularly or habitually has access to vehicles in that fleet. Regular use of any particular vehicle is not required. See e.g., [Calhoun v. Prudential General Ins. Co., 2005 WL 1154599, at *3 (M.D.Pa.2005).] We find this analysis persuasive and hereby adopt it.
Brink v. Erie Ins. Group, 940 A.2d 528, 535 (Pa.Super.2008) (emphasis in original) (finding use was “regular” under exclusion even though fleet vehicle assigned to police officer to perform duties of his job was not always particular vehicle in which accident occurred). See also Nationwide Assur. Co. v. Easley, 960 A.2d 843, 848 (Pa.Super.2008), (regular use exclusion applied where Appellant cabbie leased vehicle on per diem basis, selecting vehicle from cab company‘s fleet, and was injured in cab during commute home), appeal denied, 602 Pa. 668, 980 A.2d 609 (2009).
¶ 16 We further note,
The exclusionary language is not ambiguous, and must be given its ordinary meaning. The words ‘regular use’ suggest a principal use as distinguished from a casual or incidental use, and such a regular use is not covered. “Regular use” means “habitual use” as opposed to occasional or incidental use.
Under the language in the instant policy, it is not only “regular use” which is determinative of the applicability of the exclusion. The vehicle must be “furnished or available” for regular use []. This implies an understanding with the owner of the vehicle that the [] insured could use the automobile of the other person at such times as he or she desired, if available. Such an understanding may be shown by direct or circumstantial evidence.
Although it is not the use of ambiguous language which causes court‘s to disagree about the meaning of the exclusionary language, [c]ourts struggle with its application because each case must be decided on its own facts and circumstances and therefore, its application is a struggle. Its meaning is not. Whether a vehicle is covered, or whether it is excluded under a provision denying coverage where such vehicle is furnished for the insured‘s (or family member‘s) regular use, normally becomes a jury question. Where the facts are not in dispute, however, and reasonable minds
cannot differ regarding the result, the issue of coverage can be decided as a matter of law by the court.
Crum & Forster, supra at 673 (citations and some internal quotation marks omitted; emphases added).
¶ 17 Here, we conclude from our review of the record that Appellant raised a material issue of fact as to whether his operation of the specific vehicle in question was “regular use” within the meaning of the policy exclusion. Under our standard of review, we review the record in the light most favorable to Appellant as the non-moving party, and we resolve all doubts as to the existence of a genuine issue of material fact against Appellee as the moving party. See Nordi, supra.
¶ 18 Applying that standard, we find that Appellant presented evidence that his ferrying of the vehicle in question was not “a principal use,” as distinguished from a casual or incidental use. See Crum & Forster, supra. This evidence would have been at least sufficient to raise a jury question of whether his use of the vehicle he was driving was “regular” or “habitual.” Id. The trial court erred in not resolving any doubts as to the existence of a material issue of fact against Appellee as the moving party. See Nordi, supra.
¶ 19 As previously noted, “each case must be decided on its own facts and circumstances and therefore, its application is a struggle.” Crum & Forster, supra (emphasis added). In the present matter, the facts of the case do not readily match any controlling case law such that the outcome is a foregone conclusion. Notably, this is not a case where Appellant was furnished a vehicle for business or personal use. Nor is it a case where Appellant was regularly assigned a vehicle for business, or a combination of business and personal use. He was not furnished a vehicle from a fleet, either for personal use as a benefit of employment, for commuting back and forth to work, or for the performance of his other job duties, such as police patrol or driving a taxicab.7
¶ 20 As also previously noted, “[w]hether a vehicle is covered, or whether it is excluded under a provision denying coverage where such vehicle is furnished for the insured‘s (or family member‘s) regular use, normally becomes a jury question.” Id. The issue of coverage can be decided as a matter of law by the court only where the facts are not in dispute, and “reasonable minds cannot differ regarding the result.” Id.
¶ 21 In this case, Appellant presented evidence that the vehicle in question was not furnished to him for his regular use. He had a variety of job duties, many if not most of which did not involve any use of a vehicle. He did not have regular or recurring access to this vehicle, or any vehicle from a fleet. In fact, the vehicle in question was not provided for his use at all. He was merely returning it somewhere else. His one time ferrying of the mail delivery vehicle in question, after repair, was merely a transport of the restored vehicle back to its primary location in West Philadelphia where someone else would put it to regular use, delivering mail.
¶ 22 Neither the trial court nor Appellee offers any case authority in which the regular use exclusion was held applicable to a driver making incidental use of a vehicle not otherwise regularly provided to him or her.8 Appellant presented more
¶ 23 In effect, the trial court disregarded the well-settled principle that “[t]he exclusionary language is not ambiguous, and must be given its ordinary meaning.” Crum & Forster, supra. “‘Regular use’ means ‘habitual use’ as opposed to occasional or incidental use.” Id. “The vehicle must be ‘furnished or available’ for regular use []. This implies an understanding with the owner of the vehicle that the [] insured could use the automobile of the other person at such times as he or she desired, if available.” Id. The trial court here erred in assuming that reasonable minds could not differ about whether the use in this case was or was not “regular use.”
¶ 24 Viewed in the light most favorable to Appellant as the non-moving party, he presented sufficient evidence to raise a jury question whether or not the vehicle at issue was “furnished” or “available” to him for “regular use” within the plain meaning of the policy exclusion or the applicable decisional law. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. See Nordi, supra. The trial court erred in finding there was no material issue of fact. The existence of a material issue of fact precluded its grant of summary judgment.
¶ 25 Order vacated. Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished.
¶ 26 OTT, J. files a Concurring Opinion.
CONCURRING OPINION BY OTT, J.:
¶ 1 While I concur with the Majority decision, I write separately to emphasize what I believe is the most salient problem with this matter.
¶ 2 It is undisputed in this matter that Dixon‘s job entails his driving vehicles of the post office fleet and that he is not driving any specific or particular vehicle. Therefore, to the extent the interpretation of the exclusion rests on the fact that Dixon operates vehicles from a fleet of cars, Nationwide v. Easley, 960 A.2d 843 (Pa.Super.2008), and Brink v. Erie, 940 A.2d 528 (Pa.Super.2008), tell us the exclusion applies.9
¶ 3 What is at issue is how often Dixon drives those vehicles and whether the frequency of his driving the vehicles qualifies as regular use. The record before us is singularly lacking in that information. Geico submitted a request for admissions to Dixon. Number 16 stated: “At the
¶ 4 In his memorandum of law against summary judgment, Dixon specifically raises the issue of the frequency of his use of the vehicles: “Operating a postal vehicle, such as the one involved in this accident, was not a regular or routine part of plaintiff‘s job.” See Plaintiff‘s Memorandum of Law Contra Defendant‘s Motion for Summary Judgment, at 2, Sept. 2, 2009.
¶ 5 Whether Dixon‘s job required him to regularly use post office fleet vehicles is a material fact that needs to be determined. However, this central issue is not resolved in the record and was not addressed by the trial court.
¶ 6 Because summary judgment is not appropriate when genuine issue of material facts are unresolved, summary judgment in favor of Geico was inappropriate.
Notes
Williams v. Geico Government Employees Ins. Co., 986 A.2d 45 (Pa.2009).AND NOW, this 18th day of November, 2009, the Petition for Allowance of Appeal is GRANTED. The issue, rephrased for clarity, is:
Whether, under the MVFRL and our decision in Burstein v. Prudential Property & Cas. Ins. Co., 570 Pa. 177, 809 A.2d 204 (2002), the “regular-use” exclusion to underinsured motorist coverage in an automobile insurance policy is valid where the insured is a police officer, who has sustained bodily injury in the course of performing his duties while driving a police vehicle, for which vehicle he could not have obtained underinsured motorist coverage.