ESTATE OF REBECCA L. MASON et al. v. AMICA MUTUAL INSURANCE COMPANY
Docket: Oxf-16-50
MAINE SUPREME JUDICIAL COURT
Decided: March 28, 2017
2017 ME 58
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Reporter of Decisions; Argued: November 8, 2016
[¶1] The Estates of Rebecca L. Mason and Logan Dam (the Estates) appeal from summary judgments entered by the Superior Court (Oxford County, Clifford, J.) in favor of Amica Mutual Insurance Company (Amica) on the Estates’ consolidated actions to reach and apply insurance money toward the satisfaction of judgments they obtained against Amica‘s insured. See
[¶2] Viewing the evidence in the light most favorable to the nonprevailing parties, the Estates, the summary judgment record reveals the following undisputed facts.1 See, e.g., Estate of Frost, 2016 ME 132, ¶ 15, 146 A.3d 118. On January 7, 2012, in West Paris, Rebecca L. Mason and Logan Dam were passengers in a vehicle driven by Kristina I. Lowe. Lowe negligently caused the vehicle to crash in a single-vehicle accident, and Mason and Dam died from injuries they sustained.2
[¶3] The vehicle was owned by Lowe‘s friend, Dakota Larson. Larson‘s driver‘s license had been suspended in November 2011, and Lowe had agreed to drive Larson to work, to school, and to visit friends. When Lowe‘s own car broke down on December 23, 2011, Larson authorized her to use his car as if it was her own, as long as she continued to give him rides, until her car was fixed.3 Around the same time that Lowe‘s car broke down, Larson left town
[¶4] Lowe required transportation for her full-time job and, while her car was unavailable, she did not have access to any vehicle other than Larson‘s. She used Larson‘s car to drive to and from work, to visit relatives, to pick up friends, to go tanning, and to go to the gym. She kept Larson‘s car at her family‘s home, and she paid for gas most of the time.
[¶5] When the accident occurred, Lowe was a resident at the home of her mother, Melissa J. Stanley. Stanley had a personal auto insurance policy issued by Amica that provided for $300,000 in liability coverage. The policy excluded from coverage liability arising out of the use of a vehicle “furnished for the regular use of any family member.” The policy defined “family member” as “a person related to you by blood, marriage, or adoption, who is a resident of your household.”
[¶7] The action at issue in this appeal began when, in July 2014, the Estates filed separate reach-and-apply actions against Amica in the Superior Court (Oxford County) seeking to apply insurance money from Stanley‘s policy to the judgments against Lowe. See
[¶8] The Estates contend that based on the undisputed material facts, the “regular use” exclusion in Stanley‘s policy does not apply to preclude coverage for Lowe‘s negligent use of Larson‘s vehicle, and that the court therefore erred by entering summary judgments in Amica‘s favor.
We review a ruling on cross-motions for summary judgment de novo, considering the properly presented evidence and any reasonable inferences that may be drawn therefrom in the light most favorable to the nonprevailing party, in order to determine whether there is a genuine issue of material fact and whether any party is entitled to a judgment as a matter of law.
Frost, 2016 ME 132, ¶ 15, 146 A.3d 118; see
[¶9] “The interpretation of an insurance contract exclusion and its applicability is a matter of law reviewed de novo.” Pease v. State Farm Mut. Auto. Ins. Co., 2007 ME 134, ¶ 7, 931 A.2d 1072; see Allstate Ins. Co. v. Gov‘t Emps. Ins. Co., 263 A.2d 78, 80 (Me. 1970) (“[W]hether the underlying facts bring the claim within the [‘regular use‘] policy exclusion is . . . a matter of
[¶10] Stanley‘s policy excludes from coverage liability arising out of the use of a vehicle “furnished for the regular use of any family member.” Because it is undisputed that Lowe is Stanley‘s “family member,” the sole issue in this appeal is whether the vehicle Lowe was driving when the accident occurred was “furnished for [her] regular use.”
[¶11] We interpret “regular use” exclusions consistent with their “obvious contractual purpose,” which “is to cover occasional or incidental use of other cars without the payment of an additional premium, but to exclude the habitual use of other cars, which would increase the risk on the insurance company without a corresponding increase in the premium.” Acadia Ins. Co. v. Mascis, 2001 ME 101, ¶ 11, 776 A.2d 617 (emphasis omitted) (quotation marks omitted). Stated another way,
The general purpose and effect of [a “regular use” exclusion] is to give coverage to the insured while engaged in the only infrequent or merely casual use of an automobile other than the one described in the policy, but not to cover him against personal liability with respect to his use of another automobile which he frequently uses or has the opportunity to do so.
Allstate, 263 A.2d at 82 (first emphasis added) (quotation marks omitted).
[¶13] We concluded that although the friend was an insured under his father‘s policy, a “regular use” exclusion in that policy precluded coverage for liability arising out of the friend‘s use of the servicemember‘s car. Id. at 80, 83. We explained that “regular use” exclusions are meant to prevent an insured from receiving coverage for use of a vehicle without paying a premium for that coverage, and that “[a] use may be a ‘regular use’ even though some restrictions or limitations are imposed on the use.” Id. at 81; see id. at 83 (“Without violating the limitations imposed . . . there was opportunity for substantial [enhancement] of the risk under [the] policy, a risk for which [the insurer] had not been compensated.“).4
[¶15] In Mascis, under a different set of circumstances, we concluded that a “regular use” exclusion did not apply to preclude coverage. 2001 ME 101, ¶¶ 2-4, 10-11, 776 A.2d 617. In that case, the insured, who had only a learner‘s permit, drove her boyfriend‘s car frequently in order to gain driving
[¶16] We reiterated the legal concepts expressed in Allstate, id. ¶¶ 10-11, and referred favorably to a list of non-exhaustive factors that the United States Court of Appeals for the Second Circuit considers in making “regular use” determinations, id. ¶¶ 8 n.3, 11.5 We noted that the insured “had neither an unrestricted right nor an unfettered opportunity to drive [the boyfriend‘s] vehicle,” that her ability to drive the vehicle “was strictly limited by his permission and the time she spent with him,” that “[t]he vehicle was not left in her possession[, and that] she did not own a set of keys.” Id. ¶ 11. We concluded that the policyholder, the insured‘s mother, “could not have reasonably expected that she would have to pay additional premiums for [her daughter‘s] use of [the boyfriend‘s] vehicle.” Id.
[¶18] Considering together all of the facts relevant to Lowe‘s use of Larson‘s vehicle, we cannot conclude that the record on summary judgment generates a triable contention that Lowe‘s use was “occasional or incidental,” id. (quotation marks omitted), or “infrequent or merely casual,” Allstate, 263 A.2d at 82 (quotation marks omitted).6 This is so even to the extent that Lowe‘s freedom of use was encumbered by her agreement to give Larson
[¶19] Contrary to the Estates’ urging, we do not consider the duration of Lowe‘s use to be determinative in this case. Although the duration of use may be a factor in determining whether a “regular use” exclusion applies to the facts of a given case, id., we decline to hold that “temporary” use cannot also be “regular,” see, e.g., Amica Mut. Ins. Co. v. Franklin, 147 F.3d 238, 242 (2d Cir. 1998) (holding that the exclusion applied where the insured “had unrestricted use of the car . . . [for] approximately two weeks,” and rejecting the trial court‘s reasoning that the exclusion could not apply “where a car was available for a short and predetermined amount of time, even if the use during that period is unrestricted” (quotation marks omitted)). Here, Lowe used Larson‘s car as if it was her own for at least the two weeks between when her car broke down and when the accident occurred. Although Larson and Lowe considered their arrangement to be “temporary,” there is no evidence
The entry is:
Judgments affirmed.
Sheldon J. Tepler, Esq., Hardy Wolf & Downing, Lewiston, for appellant Estate of Logan Dam
Martica S. Douglas, Esq. (orally), Douglas, Denham, Buccina & Ernst, Portland, for appellee Amica Mutual Insurance Company
Oxford Superior Court docket numbers CV-2014-31 and -32
FOR CLERK REFERENCE ONLY
Notes
Volpe v. Prudential Prop. & Cas. Ins. Co., 802 F.2d 1, 3 (1st Cir. 1986) (alterations omitted) (citation omitted) (quotation marks omitted), superseded by statute on other grounds as stated in Town of Allenstown v. Nat‘l Cas. Co., 36 F.3d 229, 231-32 (1st Cir. 1994).[A] policy which would give to an insured who simply took out a policy on a single owned car, coverage on any number of cars not owned by him, but furnished for his regular use, just as if he owned them, would be ruinous to an insurance company. Where more than one owned automobile is included, as a rule the insurance premium is larger. The exclusion therefore protects the insurer from multiple exposure to liability for which the insured pays only one premium.
- blanket permission to use the car rather than having to ask permission for each use;
- availability of a set of keys to the car;
- continuous, steady, methodical use as opposed to occasional or special use;
- the nature of the use (e.g. use for all purposes rather than solely business use); and
- that the insured would reasonably have expected to pay an extra premium to cover the use of the car.