Opinion
C.A. No. 01C-01-092(CHT) NON-ARBITRATION CASE TRIAL BY JURY DEMANDED
Submitted: September 11, 2001
Decided: April 30, 2002
On the Plaintiff's Motion for Summary Judgement.
David P. Cline, Esquire, Wilmington, Delaware, Attorney for the Plaintiff.
Patricia D. Murphy, Esquire, SWARTZ, CAMPBELL DETWEILER, Wilmington, Delaware Attorney for the Defendant.
OPINION AND ORDER
STATEMENT OF FACTS
On February 20, 1999 the Plaintiff, Edgar D. Marvin, was involved in an traffic collision near Newark, Delaware while he was riding a motorcycle personally owned by his employer, J. Michael Parvis, for which there was no insurance coverage. Mr. Marvin suffered extensive injuries in the collision, including a ripped aorta, broken hip and broken femur. He was in a coma for four days, had to have a metal rod inserted into his leg, metal screws attached to his hip and suffers from memory loss. He alleges medical expenses and lost wages in excess of $100,000.
Prior to the accident, the Defendant, State Farm Mutual Insurance Company, had issued an insurance policy to Mr. Marvin's mother, Maryjane Marvin. He alleges that in addition to Ms. Marvin, this policy covered all members of Ms. Marvin's household. Accordingly, he asserts that because he lived with his mother at the time of the accident, he is covered under the policy and State Farm is required to pay for his medical bills and his lost wages. State Farm has refused his demands in this regard based upon the "regular use" exception.
Mr. Marvin filed a motion for summary judgment with the Prothonotary on August 28, 2001. It is his contention that the "regular use" exception is inapplicable to him, because he did not have continuous and uninterrupted use of the motorcycle. He also contends that he is entitled to summary judgment because the "regular use" exclusion is contrary to public policy because there are no personal injury protection ("PIP") benefits available to him.
State Farm filed a response and a cross motion on September 5, 2001. They assert that Mr. Marvin does in fact fall within the "regular use" exception because he had unrestricted access to any one of a number of his employer's vehicles for personal use on a daily basis. State Farm also refutes Mr. Marvin's claim that application of the "regular use" exception here is against public policy. They argue that coverage is available to Mr. Marvin from other sources, and indeed, he has already collected from the tortfeasor and from State Farm.
DISCUSSION
Cross motions for summary judgement are presented to the Court pursuant to Superior Court Civil Rule 56. Summary judgment may be granted only where, considering the facts in a light most favorable to the nonmoving party, there is no material issue of fact in dispute and the moving party is entitled to judgment as a matter of law. Temple v. The Travelers Indemnity Co., Del. Super., 98C-08-088, Carpenter, J. (Nov. 30, 2000) (Mem.Op. at 3). If, after viewing the evidence, the court finds such issues of material fact or if it is desirable to inquire more thoroughly into the facts in order to clarify the application of law to the circumstances, then the court may not grant the motion for summary judgment. Guy v. Judicial Nominating Comm'n., Del. Super., 659 A.2d 777 (1995).
The Delaware "PIP Statute", 21 Del. C. § 2118(a)(2)(d), provides:
The coverage required by this paragraph shall also be applicable to the named insureds and members of their households for accidents which occur through being injured by an accident with any motor vehicle other than a Delaware insured motor vehicle while a pedestrian or while occupying any registered motor vehicle other than a Delaware registered insured motor vehicle, in any state of the United States, its territories or possessions or Canada.
However, this statute may be limited in certain instances. 21 Del. C. § 2118(f). One such limitation is commonly referred to as the "regular use" exception. This exception excludes from the coverage of the policy, vehicles which are furnished or made available for regular use to a person covered under the policy. David B. Harrison, Annotation, When is Automobile Furnished or Available for Regular use Within "Drive other Car Coverage of Automobile Liability Policy. 8 A.L.R. 4th 387. The purpose of this exception is to "avoid the situation in which a policy holder carries insurance on only one vehicle but seeks to claim PIP benefits for injuries suffered while occupying another vehicle that the insured regularly uses but has not paid a premium." Mason v. State Farm Mutual Auto. Ins. Co., C. A. No. 96C-07-148, Del Pesco, J. (July 21, 1997) (Letter Op. at 5). In determining whether the vehicle is provided for the claimant's "regular use" is an issue that must be decided on a case by case basis according to the facts and circumstances of each case. Patilla v. Grissom, Del. Super., 96C-12-008, Graves, J. (July 28, 1999) (Mem. Op.).
The parties' cross motions raise two issues that the Court must confront. The first issue is whether State Farm's denial of benefits to Mr. Marvin under his mother's insurance policy was wrongful. A review of the parties' motions and their supporting papers, most notably Mr. Marvin's own deposition testimony, demands that the Court answer in the negative.
Mr. Marvin, citing Mason supra, contends that for the "regular use" exception to apply, the vehicle must be used on a "steady," "daily" and "frequent" basis. However, his use of the motor cycle was not "steady," "daily" and "frequent". In fact, he alleges, he used the motorcycle only on a "sporadic" basis. Therefore his use of the motorcycle did not rise to the level required to trigger the "regular use" exception.
When reviewing cases in which an employee is operating any one of a number of an employer's vehicles, the relevant inquiry should not focus on the particular vehicle involved, but instead on the employer's fleet of vehicles. "It is a well settled proposition that an automobile will be excluded under a `drive other automobile' clause even though it is only one of a group of vehicles furnished or made available for the regular use of the named insured." Colonial Ins. Co. of Cal. v. Cent. Nat'l Ins. of Omaha, D. Del., 644 F. Supp. 349, 352, Roth, J. (1986); see also Davy v. Merchants Mut. Cas. Co., N.H. Supr., 85 A.2d 388 (1952).
In Mr. Marvin's sworn statement he indicates that he had used the motorcycle 12 to 20 times when he "couldn't use the other vehicles that [Mr. Parvis] had." Def.'s Resp. and Cross-cl., Ex. B, Sworn Statement of Edgar Marvin at 15. He then goes on to state that Mr. Parvis permitted his employees to use the vehicles of a fairly regular basis and to take them home at night. Id. at 20. Moreover, Mr. Parvis' express permission was not required in order to use any of the vehicles, with the exception of his own personal car. Id. at 25. The keys to the vehicles were on a rack on the wall, and all any of the employees had to do to use one of the vehicles was to take the keys off of the rack and leave with the vehicle. Id. at 25-26 Finally, Mr. Marvin admitted that he regularly took one of the vehicles back and forth to work on a regular basis. Id. at 7-8, 15-16, 20-21. After reviewing his sworn statement, it is clear that Mr. Marvin had "regular use" of his employers fleet of vehicles, which includes the motorcycle, because he used them on a steady, daily and frequent basis.
Having established that the "regular use" exception is applicable in this case, the Court must now deal with Mr. Marvin's assertion that any application of the "regular use" exception in this case is contrary to public policy. The stated policy behind the "no-fault" insurance statute, 21 Del. C. § 2118, is "to protect and compensate all persons injured in automobile accidents." Hudson v. State Farm Mutual Auto. Ins. Co., Del. Supr., 569 A.2d 1168, 1171 (1992); and Universal Underwriters Ins. Co. v. The Travelers Ins. Co., Del. Supr., 669 A.2d 45, 48 (1995). Mr. Marvin's argument proceeds that an application of the "regular use" exception in this case would leave him with no insurance because Mr. Parvis carried no insurance on the motorcycle.
State Farm contends that Mr. Marvin's public policy argument is without merit because Mr. Marvin has in fact received payment for the injuries sustained. Specifically, previously recovered from both the tortfeasor and from State Farm as "under insured motorist" benefits. These benefits were paid by State Farm specifically because he was not eligible for benefits under his mother's policy because of the "regular use" exception. Therefore to let Mr. Marvin recover in the face of an insurance policy exclusion would itself violate public policy.
The Delaware Supreme Court's stated policy behind the "no fault" statute in Hudson supra, is to provide "protection" and "compensation" to the injured party. It follows then that a finding of "compensation" to Mr. Marvin for injuries sustained, would result in a denial of his motion and a granting of State Farm's motion. In that regard, assuming as State Farm asserts, that Mr. Marvin has already been compensated by the tortfeasor and pursuant to the "under insured motorists" coverage, this Court must conclude that there is no conflict with the policy as he suggests.
However, other than State Farm's assertions stating such, there has been no showing that such compensation has been forthcoming. Therefore, despite the Court's willingness to grant State Farm's motion in this regard, based upon the information available, the Court is unable to make such a grant because there are factual issues outstanding regarding what if any compensation Mr. Marvin has previously recieved.
CONCLUSION
Accordingly, the Plaintiff's Motion for Summary Judgment and the Defendant's Cross-Motion for Summary Judgment, must be, and hereby are denied. IT IS SO ORDERED.