Opinion
11-P-518
03-28-2012
PLYMOUTH ROCK ASSURANCE CORPORATION & another v. KEITH HASPERG & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On March 15, 2008, a Jeep Wrangler driven by Peter Celentano collided with a motor vehicle operated by Keith Hasperg, who sustained serious injuries. The Jeep Wrangler involved in the accident was owned by and registered to Matthew Witek. Although the registration remained in his name, Matthew had given the Jeep to his son, Noah Witek, as a birthday present in July, 2007. Noah Witek and Celentano were close friends.
On the date of the accident, Celentano's mother, father, and brother listed him as a household member on their automobile insurance policies. Celentano's mother and father were insured by Plymouth Rock Assurance Corporation (Plymouth Rock), and his brother was insured by Commerce Insurance Company (Commerce). All three policies were standard Massachusetts automobile insurance policies, seventh edition, and contained an Optional Bodily Injury to Others section, providing that the insurer 'will pay damages to people injured or killed in accidents if you or a household member is legally responsible for the accident.' The policies each contained the following 'regular use' exclusion in the Optional Bodily Injury to Others section, excluding coverage '[f]or injuries resulting from an accident while a household member . . . is using an auto which . . . any household member . . . uses regularly, unless a premium for this Part is shown for that auto on the Coverage Selections Page.' The Jeep was not listed as a covered vehicle on any of these policies. Celentano was not listed as an operator on the Jeep's insurance policy.
Hasperg, who claimed that Celentano negligently operated the vehicle and caused the accident, presented a claim to Plymouth Rock. Plymouth Rock brought a declaratory judgment action to determine the question of coverage, and Commerce, as the insurer for Celentano's brother, subsequently intervened as a party plaintiff. A Superior Court judge granted summary judgment to Plymouth Rock and Commerce after determining that the 'regular use' exclusion precluded coverage as matter of law. Hasperg now appeals, arguing that genuine issues of material fact exist as to whether Celentano was a 'regular user' of the Jeep at the time of the accident. We agree.
Discussion. An insurer has the burden to establish the applicability of an exclusion. Boazova v. Safety Ins. Co., 78 Mass. App. Ct. 438, 440 (2010). 'The regular use exclusion is expressed in the 'optional bodily injury to others' portion of the standard automobile liability policy as a denial of coverage in the event of an accident while the insured operator 'is using an auto which you or any household members owns or uses regularly' unless a premium has been paid for that vehicle.' Safety Ins. Co. v. Day, 65 Mass. App. Ct. 15, 20 (2005). The exclusion turns on whether the operator was using an automobile which he frequently used or had the opportunity to use. Id. at 21. Use while riding as a passenger may be relevant, at least where coupled with periodic operation. Ibid. However, the use must be 'habitual' and not simply 'incidental.' Ibid. Although not determinative by themselves, relevant considerations may include whether the operator used the vehicle to commute to work, whether he had exclusive use of the vehicle for any significant period, and whether he had unrestricted use of it. Id. at 22. Not only must there be 'minimum level of frequency' of use, there also must be a 'consistent pattern of use or availability of the other vehicle, thereby suggesting that the user relies on the likelihood that he will be permitted to use the vehicle at the times in question' (emphasis added). Id. at 21-22.
Here, viewing the evidence in the light most favorable to Hasperg as the nonmoving party, a trier of fact reasonably could find that Celentano's use of the Jeep was not consistent in this sense. Even during the period between July 2007 and October 2007, when Noah and Celentano were spending considerable time together, the parameters of Celentano's permission to use the Jeep are unclear or susceptible of different interpretations. We do not know, for example, whether or to what extent Celentano ever had exclusive use of the vehicle for any significant period of time. While we do know that Noah often invited Celentano to accompany him in the Jeep, Celentano testified that Noah would decide whether to allow him to drive and did not always give him permission.
Then, from October 10, 2007, until March 14, 2008, Celentano (who was away at National Guard training) did not use the Jeep at all, in any capacity. The day of the accident, March 15, 2008, was the first time Celentano had used the Jeep as a passenger or driver since being away. On that day, Celentano asked Noah if he could drive. Noah refused and drove them to their destination. Celentano drove home (and was the driver at the time of the accident) only because Noah developed an incapacitating migraine.
In these circumstances, even if it could be concluded on this record that Celentano had been a regular user of the Jeep prior to his departure for National Guard training, a trier of fact nevertheless could determine that things had changed while he was away, such that his use of the vehicle on the day of the accident was incidental and not habitual. Contrast RLI Ins. Co. v. Hanover Ins. Co., 42 Mass. App. Ct. 913, 914-915 (1997) (blanket permission to use parents' car during school vacations held to be regular use).
On the summary judgment record in this case, the plaintiff insurers were not entitled to judgment as matter of law.
The judgment is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.
By the Court (Kafker, Cohen & Katzmann, JJ.),
Commerce Insurance Company.