Regular Use Exclusion Upheld Again by Eastern District Court

In the case of Reeves v. The Travelers Companies, No. 16-6448 (E.D. Pa. Oct. 30, 2017, Baylson, J.), the court again upheld an insurance carrier’s regular use exclusion and entered summary judgment in favor of the insurance company.

Plaintiff worked for the Street Lighting Department for the City of Philadelphia.  The Street Lighting Department’s had a fleet of 17 vehicles of various types.  On a typical work day, Plaintiff would load a City truck and travel to a job site.  Plaintiff would be assigned to one of these trucks depending on the daily task.  Plaintiff estimated that he would only drive city-owned truck “maybe once or twice” a month, or 10% of the time.  Otherwise, he rode as a passenger.  Since he lacked a commercial driver’s license, Plaintiff was only permitted to drive a few of the trucks in the fleet.  On the day of the accident, Plaintiff was a passenger in a city-owned truck driven by a co-worker.  While stopped on JFK Boulevard, the truck was struck by another vehicle.  Plaintiff alleged a lower back injury. After settling a personal injury claim against the driver of the tortfeasor vehicle, Plaintiff sought underinsured motorist (UIM) benefits from Defendant Travelers under the Policy covering Plaintiff’s personal vehicle, a 2006 Mercury Mariner.   Defendant denied coverage under the “regular use exception” for the UIM claim.

The Court noted the wording of the Exclusion as follows:


B. We do not provide Uninsured Motorist Coverage or
Underinsured Motorists Coverage for “bodily injury”

1. By you while “occupying” or when struck by,
any motor vehicle you own or that is furnished
or available for your regular use which is not
insured for this coverage under this policy ….

2. By a “family member”:
Who owns an auto while “occupying”, or
when struck by, any motor vehicle owned by,
or furnished or available for the regular use
of, you or any “family member” which is not
insured for this coverage under this policy.

The Court noted that both state and federal courts have found nearly identical language to be unambiguous.  See e.g., Nationwide Mut. Ins. Co. v Shoemaker, 965 F. Supp., 700, 703 (E.D. Pa. 1997); Crum & Forster Pers. Inc. Co. v Travelers Corp., 631 A.2d 671. 673 (Pa. Super. Ct. 1993).  The Pennsylvania Supreme Court has also held that “regular use” exception to automobile insurance contracts does not violate public policy.  Burstein v Prudential Prop. & Cas. Ins. Co., 809 A.2d 204, 210 (Pa. 2002).  Courts have frequently applied “regular use” exceptions where an accident occurred while an insured was occupying an employer-owned vehicle.  See, e.g., Erie Ins. Grp. v. Catania, 95 A.3d 320, 322 (Pa. Super. 2014) (delivery truck); Armstrong, 2004 WL 603416 at *4 (park commission vehicle); Burstein, 570 Pa. at 179 (vehicle provided as a benefit of employment).

Plaintiff argued that the regular use exception nevertheless should not apply because 1) he performed his core duties as a trades helper outside the truck in which he was riding at the time of the accident, and 2) was allowed to drive only three out of seventeen vehicles in the fleet.  Courts have applied “regular use” exceptions where the insured was injured while traveling to a job site where the work would be performed outside the vehicle.  See Armstrong, 2004 WL 603416 (park employee, who was not allowed to drive park commission vehicles, injured on the way to a job site); Costello v. Gov’t Employees Ins. Co., No. 3:CV-09-1246; 2010 WL 1254273, at *1 (M.D. Pa. Mar. 25, 2010) (plaintiff employed as an auditor).  Moreover, courts have regularly applied the term “regular use” to apply to passengers as well as drivers of non-owned vehicles.  Armstrong, 2004 WL 603416; Prudential Prop. & Cas. Ins. Co. v. Peppleman, No. CIV.A.02-1515, 2003 WL25795214, at *1 (E.D. Pa. Apr. 25, 2003).

Based upon the longstanding, continuing line of cases upholding the regular use exclusion, the Court dismissed Plaintiff’s case.

Sean P. Buggy

Office: King of Prussia, Philadelphia
Phone: (610) 977-2975
Practice Areas: Third Party, UM/UIM, Premises Liability, Products Liability,
Construction Litigation, Dram Shop/Liquor Liability, Appellate Practice, General Liability