The state Superior Court has ruled that a man’s use of his father’s car for work and emergencies constituted “regular use,” precluding him from collecting underinsured motorist benefits.
In doing so, the court ordered a grant of summary judgment in favor of his insurance company on remand.
The trial court had originally entered summary judgment in favor of Patrick Rother, deciding Rother’s limited use of his father’s car to travel to and from work and for emergencies distinguished his claim from cases where a “‘fleet’” or employer-issued car was in question. The relatively fledgling “regular use” exclusion found in many auto-insurance policies in this state, like the underlying Erie Insurance Exchange policy in this case, has been held enforceable and not void as against public policy by the state Supreme Court.
The unanimous three-judge panel reversed the decision of a Luzerne County Court of Common Pleas judge. In the case, Rother had just landed a job 10 miles from his mother’s house, where he lived, when his father agreed to let him use his Nissan for the work commute.
In 2007, Rother was severely injured in an accident involving a drunken driver. After claiming the policy limits of the negligent driver, Rother filed an underinsured motorist claim under the Erie Insurance policy of his mother, Daryl. Although Patrick Rother appeared to otherwise be covered as a “resident relative,” Erie denied the claim pursuant to the policy’s regular-use exclusion.
The exclusion precludes benefits for “bodily injury to you or a resident using a non-owned motor vehicle or a non-owned miscellaneous vehicle which is regularly used by you or a resident but not insured for [UM] or UIM coverage under this policy.”
With its October 18 opinion, the Superior Court upheld the policy’s exclusion.
“While Patrick had only used the vehicle for two weeks for this purpose, there was no indication that the use was temporary,” Judge Mary Jane Bowes wrote in a 10-page opinion. “The 1990 Nissan was the only vehicle Patrick used, it was used for a particular purpose, the pattern of use was consistent, and Patrick’s use and possession of the vehicle was exclusive for a significant time each workday.”
The panel in Rother v. Erie Insurance Exchange relied on a Supreme Court case that found similar exclusions to be enforceable and not contrary to public policy. Additionally, Bowes noted another appeals court has said the test for “regular use” is whether the use was “regular” or “habitual.”
The lawyer for Erie Insurance Exchange said oral arguments in the case featured a “really engaged panel,” one judge of whom asked whether it would have mattered if Patrick Rother had used the car only two or three times, as opposed to seven.
“This is an interesting case because the court ruled that Mr. Rother, who only used his father’s car seven times, used the car regularly and habitually,” said Michael Cognetti of Swartz Campbell.
According to the opinion, Patrick Rother was using the car to give a friend a ride when he collided with a drunken driver, who was determined to be at fault.
In the case, both parties filed motions for summary judgment and agreed on many of the facts. Common Pleas Court Judge Joseph M. Cosgrove had previously denied summary judgment to the Erie Insurance Exchange. After attorneys filed a subsequent round of motions, Cosgrove granted summary judgment last month to plaintiffs Patrick and Daryl Rother.
Cosgrove adopted the reasoning set forth in his previous opinion denying Erie’s motion for summary judgment. In the six-page opinion, Cosgrove distinguished the case before him — in which Rother used his father’s car for “work” and “emergencies” — from cases where a “‘fleet’” or employer-issued car was in question.
At a deposition, Rother’s father, Paul, testified that the car was on a “short leash.” With two exceptions, Patrick Rother had picked up the car at his father’s house before work and returned it after. On the day of his accident, he drove the car to his mother’s house because he was sick, before leaving in it to pick up his friend.
Key to the trial court’s conclusion that it could not say the regular-use exclusion applied as a matter of law was the fact that Paul Rother testified he would not allow his son to use the car to run to the store or get a pizza.
Erie cited a number of cases dealing with regular-use exclusions, but Cosgrove said they were “decidedly different” from Rother’s.
The panel’s decision clarifies the regular-use umbrella, spelling out that it stretches beyond the regularly litigated cases of fleet or employer-owned vehicles.
“While the vehicle was not one provided to Patrick by his employer for his use while working, often the case in regular-use litigation, the exclusion is not limited to fleet or employer-owned vehicles,” Bowes said.
Bowes was joined by Senior Judge Gene Strassburger and Judge Paula Francisco Ott.
James V. Pyrah of Pyrah Stevens in Kingston, Pa., the Rothers’ attorney, did not return a call requesting comment.
(Copies of the 10-page opinion in Rother v. Erie Insurance Exchange, PICS No. 12-1998, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •