William L. Frame, Esq. Avrum Levicoff, Esq.
Wilson, Frame, Benninger Emily Hicks, Esq.
& Metheney, P.L.L.C. Brown & Levicoff, P.C.
Morgantown, West Virginia Pittsburgh, Pennsylvania
Attorney for the Appellant Attorneys for the Appellee
CHIEF JUSTICE DAVIS delivered the Opinion of the Court.
1. A circuit court's
entry of summary judgment is reviewed de novo. Syllabus point
1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
2. 'Language in an
insurance policy should be given its plain, ordinary meaning.' Syl. Pt. 1,
Soliva v. Shand, Morahan & Co., 176 W. Va. 430, 345 S.E.2d
33 (1986). Syllabus point 2, Russell v. State Automobile Mutual Insurance
Co., 188 W. Va. 81, 422 S.E.2d 803 (1992).
3. 'Where the provisions
in an insurance policy contract are clear and unambiguous they are not subject
to judicial construction or interpretation, but full effect will be given
to the plain meaning intended.' Syllabus, Keffer v. Prudential Ins. Co.,
153 W. Va. 813, 172 S.E.2d 714 (1970). Syllabus point 1, Russell
v. State Automobile Mutual Insurance Co., 188 W. Va. 81, 422 S.E.2d
4. Insurers may incorporate
such terms, conditions and exclusions in an automobile insurance policy as
may be consistent with the premium charged, so long as any such exclusions
do not conflict with the spirit and intent of the uninsured and underinsured
motorists statutes. Syllabus point 3, Deel v. Sweeney, 181 W. Va.
460, 383 S.E.2d 92 (1989).
5. Where a policy of motor
vehicle insurance contains an exclusion exempting from liability coverage
a vehicle that is furnished or available for the insured's or a family member's
regular use, a determination of whether the use of the subject vehicle has
been regular must be made by examining the pertinent facts on a case-by-case
6. Factors that may be considered
in determining whether a vehicle has been furnished or available for the insured's
or a family member's regular use include, but are not limited to, (1) the
general availability of the vehicle; (2) the frequency of the use, i.e.,
habitual, frequent, or principal use as opposed to temporary, casual, or occasional
use; (3) the restrictions, if any, placed upon the vehicle's use; and (4)
the nature of the use, i.e., whether the vehicle was used for a single
occasion or limited purpose.
Davis, Chief Justice:
The appellant herein and defendant below, Rachel Neal Handel, administratrix of the Estate of Oliver Neal, Jr. [hereinafter referred to as the Neal Estate], appeals from an order entered November 27, 2000, by the Circuit Court of Monongalia County. In that order, the circuit court granted summary judgment to the appellee herein and plaintiff below, American States Insurance Company [hereinafter referred to as American States], and found that the rental vehicle involved in the underlying accident was not covered by the regular use provision of the American States policy of motor vehicle insurance. In its appeal to this Court, the Neal Estate complains that the circuit court's decision was erroneous. Upon a review of the parties' arguments, the record submitted for appellate consideration, and the pertinent authorities, we conclude that Mrs. Tanner's use of the rental vehicle at issue herein did not constitute regular use. Accordingly, we reverse the decision of the Circuit Court of Monongalia County and remand this case for further proceedings consistent with this Opinion.
As a result of this crash, both estates filed claims
against Mrs. Tanner alleging that she had negligently operated her rental
vehicle. Payments subsequently were made to the injured parties and/or their representatives by various insurance
companies providing coverage for the Tanner vehicle. State Farm, which insured
Mrs. Tanner's Astrovan and deemed the Range Rover to be a temporary substitute
vehicle therefor, paid its full policy limits
(See footnote 2) to each Estate in exchange
for a release of the Tanners' personal liability for the fatal accident. Similarly,
Enterprise Rent-A-Car of Kentucky [hereinafter referred to as Enterprise],
which insured the Range Rover as part of its rental agreement, paid its policy
footnote 3) to both the Neal Estate and the Nelson Estate.
Following these distributions, Mrs. Tanner and the two Estates' representatives
sought additional insurance monies from the American States policy insuring
Mrs. Tanner's husband's motor vehicle, a Chevrolet Lumina.
American States denied coverage under this factual
scenario and, on January 4, 1999, filed a declaratory judgment action in the
Circuit Court of Monongalia County. Through this action, American States sought
to ascertain whether it was legally bound and obligated to provide insurance
for this occurrence, denying that it was required to provide coverage based
upon the regular use exclusion contained in Mr. Tanner's policy.
This exclusion states that
B. We [American States] do not provide Liability Coverage for the ownership, maintenance or use of:
. . . .
2. Any vehicle, other than your covered auto, which is:
a. owned by you; or
b. furnished or available for your regular use.
3. Any vehicle, other than your covered auto, which is:
a. owned by a family member; or
b. furnished or available for the regular use of a family member.
Subsequent to American States' filing, the parties entered into a stipulation of facts, and American States filed a motion for summary judgment. By order entered November 27, 2000, the circuit court granted American States' motion, denying the claims of State Farm, the Tanners, and the Neal Estate to the contrary. In awarding summary judgment, the circuit court determined that the Range Rover was not a regular use vehicle as contemplated by Mr. Tanner's motor vehicle insurance policy providing coverage for his Lumina as it did not serve as a substitute or replacement therefor.
Applying this reasoning, the circuit court likewise found that the American
States policy did not cover Mrs. Tanner's use of the Range Rover. Moreover,
the circuit court concluded that W. Va. Code § 33-6-29(b) (1992)
(Repl. Vol. 2000) did not render the American States policy applicable to
the accident herein because the Legislature did not anticipate the statute
to require an insurance company to provide coverage for a rental vehicle that
is being used as a replacement for a vehicle not covered by the policy.
From these rulings of the circuit court, the Neal
Estate appeals to this Court.
We begin our inquiry with a review of elementary insurance law. In general, '[l]anguage in an insurance policy should be given its plain, ordinary meaning.' Syl. Pt. 1, Soliva v. Shand, Morahan & Co., 176 W. Va. 430, 345 S.E.2d 33 (1986). Syl. pt. 2, Russell v. State Auto. Mut. Ins. Co., 188 W. Va. 81, 422 S.E.2d 803 (1992). Thus,
'[w]here the provisions in an insurance policy contract are clear
and unambiguous they are not subject to judicial construction or interpretation,
but full effect will be given to the plain meaning intended.' Syllabus, Keffer
v. Prudential Ins. Co., 153 W. Va. 813, 172 S.E.2d 714 (1970).
Syl. pt. 1, Russell, 188 W. Va. 81, 422 S.E.2d 803. Accord
Syl. pt. 5, Ward v. Baker, 188 W. Va. 569, 425 S.E.2d 245 (1992);
Syl. pt. 3, Soliva, 176 W. Va. 430, 345 S.E.2d 33.
Insofar as exclusions contained in policies of insurance are concerned, we previously have held that [i]nsurers may incorporate such terms, conditions and exclusions in an automobile insurance policy as may be consistent with the premium charged, so long as any such exclusions do not conflict with the spirit and intent of the uninsured and underinsured motorists statutes. Syl. pt. 3, Deel v. Sweeney, 181 W. Va. 460, 383 S.E.2d 92 (1989). This sentiment also has been expressed by the West Virginia Legislature in W. Va. Code § 33-6-31(k) (1995) (Repl. Vol. 1996), (See footnote 5) which provides that this section [shall not] be construed as preventing any insurer from incorporating in such terms, conditions and exclusions as may be consistent with the premium charged. (See footnote 6)
Nevertheless, [w]here the policy language involved is exclusionary,
it will be strictly construed against the insurer in order that the purpose
of providing indemnity not be defeated. Syl. pt. 5, National Mut.
Ins. Co. v. McMahon & Sons, Inc., 177 W. Va. 734, 356 S.E.2d
488 (1987). For this reason, then, [a]n insurance company seeking to
avoid liability through the operation of an exclusion has the burden of proving
the facts necessary to the operation of that exclusion. Syl. pt. 7,
Applying these tenets to the instant controversy,
we find it necessary to consult the jurisprudence of other courts that have
resolved the issue of first impression presented by the instant appeal: what
constitutes regular use of a vehicle as that term is used in insurance policy
exclusions? The words 'regular use' suggest a principal use as distinguished
from a casual or incidental use . . . . 'Regular use' means
'habitual use' as opposed to occasional or incidental use. Crum &
Forster Pers. Ins. Co. v. Travelers Corp., 428 Pa. Super. 557, 561, 631
A.2d 671, 673 (1993) (internal quotations and citations omitted). Another
tribunal likewise has determined that [t]he words 'regular use' connote:
used according to some established rule or principle; a use steady or uniform
in course, practice or occurrence (as contrasted to unexplained or irrational
variation); use in conformity with established or prescribed rules.
State Farm Mut. Auto. Ins. Co. v. Townsend, 361 N.W.2d 332, 335 (Iowa Ct. App. 1984) (citation omitted).
See also Volpe v. Prudential Prop. & Cas. Ins. Co., 802
F.2d 1, 4 (1st Cir. 1986) (When facts have shown use sufficiently frequent,
systematic or authoritative as to have made it reasonable for an insurer to
expect an extra premium to insure an additional car, . . . 'regular
use' [has been found]. (citations omitted)); Syl. pt. 5, Central
Sec. Mut. Ins. Co. v. DePinto, 235 Kan. 331, 681 P.2d 15 (1984) ('Regular'
use is defined as continuous use; uninterrupted normal use for all purposes;
without limitation as to use; and customary use as opposed to occasional use
or special use.). Distinguishable from regular use, however,
is limited use or availability,
(See footnote 7) casual driving,
(See footnote 8)
occasional or infrequent use,
(See footnote 9) and irregular, . . . .
infrequent, random, casual or unpredictable use.
(See footnote 10)
Moreover, the phrase furnished for regular use as
used in context does not imply the manner of use, that is, putting the automobile
to the same uses to which an insured would use his own automobile, but implies
a right to the regular use of the automobile in the sense that there is an expressed or implied understanding
with the owner of an automobile that the insured could have the use of the
particular automobile or perhaps any automobile of the other at such times
as he desired, if available.
The term furnished for regular use does not embody the term for temporary use, but describes the antithesis thereof. It, therefore, expresses no thought of excluding protection in those situations where the use is but for a single occasion or single purpose.
George B. Wallace Co. v. State Farm Mut. Auto. Ins. Co., 220 Or. 520, 526, 349 P.2d 789, 792 (1960) (emphasis added). See also Nationwide Mut. Ins. Co. v. Shoemaker, 965 F. Supp. 700, 706 (E.D. Pa. 1997) (observing that indicia of regular use [includes]: (1) blanket permission to use the car rather than having to request permission each time and (2) an available set of keys (citation omitted)), aff'd, 149 F.3d 1165 (3d Cir. 1998) (unpublished table decision); United States Sugar Corp. v. Nationwide Mut. Ins. Co., 475 So. 2d 1350, 1352 (Fla. Dist. Ct. App. 1985) (concluding that determination of regular use should consider the time, place, and purpose for which the automobile was to be used by the insured (citation omitted)). Thus, regular use also includes a situation wherein an insured driv[es] cars usually at hand which he could take instead of his own, and which he would be likely to use often, (See footnote 11) as well as the scenario where the insured had no other car to drive for the personal use of himself and his family but for the vehicle under scrutiny. (See footnote 12)
Of particular relevance to the instant appeal, it additionally has been suggested that [a] short term rental agreement does not qualify as 'regular use' under the generally accepted definition of that term. Mercury Ins. Group v. Checkerboard Pizza, 15 Cal. Rptr. 2d 657, 659, 12 Cal. App. 4th 495, 498 (1993). See also Strickland v. State Farm Mut. Auto. Ins. Co., 133 N.C. App. 71, 75, 514 S.E.2d 304, 306 (1999) (refusing to find that a rental car, agreed by the parties to be a temporary substitute . . ., is a vehicle furnished for [the insured's] regular use). Cf. Shoemaker, 965 F. Supp. at 701-02 (noting insurance policy provision language stating that '[f]urnished for regular use does not include a motor vehicle rented from a rental company for less than 28 days'); Powers v. Detroit Auto. Inter-Insurance Exch., 427 Mich. 602, 618 n.5, 398 N.W.2d 411, 418 n.5 (1986) (quoting insurance policy language that excluded from coverage '[a] non- owned Automobile . . . rented to or leased by the named Assured or relative for a consecutive period of more than thirty days'), decision abrogated by Farm Bureau Mut. Ins. Co. of Michigan v. Nikkel, 460 Mich. 558, 596 N.W.2d 915 (1999). (See footnote 13)
Once the definitional dilemma of the nature of regular use has been resolved, though, courts examining such exclusions continue to have difficulty establishing a bright line test applicable to every conceivable case. Rather, the general consensus is to consider, on a case-by-case basis, whether the facts of a particular controversy suggest regular use of the subject vehicle.
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.
Crum & Forster, 428 Pa. Super. at 561, 631 A.2d at 673 (quoting Central Sec. Mut. Ins. Co. v. DePinto, 9 Kan. App. 2d 85, 87, 673 P.2d 122, 124 (1983), aff'd, 235 Kan. 331, 681 P.2d 15 (1984) (additional citation omitted)). Accord Shoemaker, 965 F. Supp. at 704 (Where courts have had difficulty is not in the definition of the term ['regular use'], but in its application.). In other words, [w]hether a car has been furnished for regular use within the meaning of the exclusionary provision is determined by the particular facts and circumstances in each case. . . . Factors to be considered, however, include the general availability of the vehicle and the frequency of its use by the insured. Liberty Mut. Ins. Co. v. Sentry Ins., 515 N.Y.S.2d 557, 558, 130 A.D.2d 629, 630 (mem.), modified, 522 N.Y.S.2d 462, 135 A.D.2d 508 (1987) (citations omitted). See also Townsend, 361 N.W.2d at 335 (No hard and fast rule has been nor can be established for determining the question of what constitutes furnishing for regular use, but each case must stand or fall on the particular facts before the court. (citation omitted)); North Carolina Farm Bureau Mut. Ins. Co. v. Warren, 326 N.C. 444, 446, 390 S.E.2d 138, 140 (1990) ('No absolute definition can be established for the term furnished for regular use. Each case must be decided on its own facts and circumstances.' (quoting Whaley v. Great Am. Ins. Co., 259 N.C. 545, 552, 131 S.E.2d 491, 496-97 (1963) (additional quotations and citations omitted))).
The exclusion at issue in the case sub judice
is nearly identical to those considered by the courts we have looked to for
guidance. In the policy issued to Mr. Tanner, American States specifically
excludes from coverage [a]ny vehicle, other than 'your covered auto,'
which is . . . furnished or available for your regular use . . .
[or] furnished or available for the regular use of a 'family member.'
Based upon the foregoing authorities and their definitional guidance, we find
that the language of American States' regular use exclusion is
plain and unambiguous and that further judicial interpretation or construction
thereof is not warranted.
(See footnote 14) See Syl. pt. 1, Russell
v. State Auto. Mut. Ins. Co., 188 W. Va. 81, 422 S.E.2d 803. For
the purpose of applying this exclusion to the facts of the instant appeal, we hold that
where a policy of motor vehicle insurance contains an exclusion exempting
from liability coverage a vehicle that is furnished or available for the insured's
or a family member's regular use, a determination of whether the use of the
subject vehicle has been regular must be made by examining the pertinent facts
on a case-by-case basis.
(See footnote 15) We hold further that factors
that may be considered in determining whether a vehicle has been furnished
or available for the insured's or a family member's regular use include, but
are not limited to, (1) the general availability of the vehicle; (2) the frequency
of the use, i.e., habitual, frequent, or principal use as opposed to
temporary, casual, or occasional use; (3) the restrictions, if any, placed
upon the vehicle's use; and (4) the nature of the use, i.e., whether
the vehicle was used for a single occasion or limited purpose.
Mindful of these holdings, we turn now to the facts
of the case sub judice. The parties do not dispute that Mrs. Tanner
acquired the use of the Range Rover when her Astrovan vehicle was damaged in an accident and required repairs. Moreover,
it is not contested that the Range Rover was a rental car and that it was
not owned by Mr. or Mrs. Tanner. Applying the first test of regular use, we
must determine whether the Range Rover was generally available to Mrs. Tanner.
We find that it was not. The Range Rover was rented to Mrs. Tanner after her
Astrovan had been rendered undrivable and as a result of the ensuing repairs.
Therefore, the Range Rover was available to Mrs. Tanner only for a finite
period of time, i.e., while her Astrovan was being repaired. While
it is true that Mrs. Tanner retained physical possession of the Range Rover
during this period, her use thereof nevertheless was restricted by the terms
of her rental agreement with Enterprise.
Next, we must determine whether the frequency of
Mrs. Tanner's use of the Range Rover constitutes regular use. On this point,
the parties claim that Mrs. Tanner was the sole operator of the Range Rover,
but it is unclear as to how often Mrs. Tanner actually used this car. Assuming
arguendo that Mrs. Tanner made frequent, habitual, or even principal
use of this vehicle, this factor, alone is not solely determinative of the
regular use issue. Rather, all facts and circumstances must be considered
when addressing such an inquiry. See, e.g., Crum & Forster,
428 Pa. Super. at 561, 631 A.2d at 673.
The third factor to consider in determining whether
use of a motor vehicle has been regular is whether any restrictions were placed
on the insured's use of the subject vehicle. This criterion can undoubtedly be answered with a resounding yes.
According to the terms of Mrs. Tanner's rental agreement with Enterprise,
numerous restrictions were placed upon her use of the Range Rover. Among other
things, the contract permitted Mrs. Tanner to drive the Range Rover for only
100 miles per day; she was not permitted to drive the vehicle out of the State
of West Virginia; and other motorists could not drive the Range Rover until
Enterprise had granted permission for them to do so. These limitations on
use are hardly consistent with an insured's unfettered ability to regularly
use a vehicle according to his/her whims, needs, or desires. Moreover, it
goes without saying that Mrs. Tanner's breach of these rental contract conditions
could have exposed her to potential liability to Enterprise with which she
would not have had to concern herself vis-a- vis her own, personal automobile,
which was not subject to such restrictions on use.
Finally, the nature of the use is instructive to determining whether a particular vehicle's use has been regular. Under the facts of this case, it is clear that Mrs. Tanner's use of the Range Rover was for a specific, limited purpose: as a temporary substitute vehicle while her customary car was being repaired. But for the accident damaging the Astrovan, Mrs. Tanner would not have needed a replacement car and would not have rented the Range Rover. Furthermore, it can be inferred that, following the completion of such repairs, Mrs. Tanner fully intended to return the Range Rover to Enterprise.
Based upon the foregoing factual analysis, (See footnote 16) we conclude that Mrs. Tanner's use of the Range Rover was not regular, and, therefore, the regular use exclusion does not apply to the instant claim. (See footnote 17) Accordingly, we reverse the circuit court's order and remand this case for further proceedings consistent with this Opinion.
Reversed and Remanded.