JULY 2007 BAD FAITH CASES INSURER’S INTERPRETATION OF “REGULAR USE” EXCLUSION WAS REASONABLE (Western District)

    

In Liberty Mutual Ins. Group and Prudential Prop. & Cas. Ins. v. Johnson, the Western District of Pennsylvania interpreting the “regular use” exclusion, found that the exclusion applied and the insurer properly denied coverage.  The insureds filed a declaratory action contending that the insured was not entitled to underinsured motorist benefits.  The insured was involved in an accident while a passenger in a “crash truck” during the course of his employment with PennDot as a member of a cleaning crew.  For four of the five nights of his work week, the insured drove or rode as a passenger in either the “wash truck” or “crash truck” during the nightly cleaning.  Every workday, comprising the majority of his shift, he drove or rode in a PennDot vehicle. 

The insurer denied coverage under the “regular use” exclusion which provides that payment will not be made for bodily injury sustained while using or occupying a non-owned motor vehicle that is furnished or made available for the regular use by you.  The insured filed the instant action seeking a declaratory judgment that the insured is not entitled to underinsured motorist benefits.  The insured counterclaimed asserting bad faith.  The court finding that PennDot provided the “crash trucks” for systematic and repeated use by the cleaning crew and that the insured used a “crash truck” on a repetitive, predictable schedule and they were readily obtained by him.  The court held that the “regular use” exclusion applied because the insured’s use of the “crash truck” was a principal and habitual part of his job and no reasonable jury could find that his use was casual, occasional or incidental.  Based on a reasonable and correct interpretation of “regular use”, the court dismissed the insured’s bad faith counterclaim.

Date of Decision: June 14, 2007

Liberty Mutual Ins. Group. and Prudential Prop. & Cas. Ins. Co., United States District Court for the Western District of Pennsylvania, 2:06-cv-03, 2007 U.S. Dist. LEXIS 43278 (E.D. Pa. 2007) (McVerry, J.).