Monday, March 25, 2013

Regular Use Exclusion Upheld Yet Again

The Pennsylvania Superior Court has upheld the "regular use" exclusion again in its non-precedential unpublished memorandum decision from last week in the case of Progressive Preferred Ins. Co. v. Kalmanowicz, No. 848 MDA 2012 (Pa.Super. March 21, 2013 Shogun, Lazarus, Ott, J.J.) (mem. op. by Ott, J.).

The claimant in this case was injured while driving his employer provided vehicle. He settled the third party case and then sought underinsured motorist (UIM) coverage on his own personal policy with Progressive.

The Progressive policy contained an exclusion that precluded UIM coverage where an insured was injured while operating a vehicle not owned by the insured but which was made available for his or her regular use. Progressive denied the claimant's UIM claim.

In this matter, the injured party claimant argued that an issue of fact existed as to whether the vehicle was being used "regularly" by the claimant since other people also drove the vehicle and since the claimant did not operate it 100% of the time.

The Superior Court upheld the exclusion and concluded that the regular use exclusion applied to the employee/truck driver who used his employer's vehicle 30% of the time during his work day. The fact that other people used the vehicle was found not to be significant.  The court also found, based upon the facts presented that the insured's use was not casual or incidental.

Anyone wishing to review this decision may click this LINK.

For a listing of previous Tort Talk posts on the Regular Use Exclusion, click HERE

I send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer and Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this decision to my attention.

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