Insurance--automobile--regular use exception
Mollie Draughon's use of her mother-in-law's automobile was within the “regular use”
exception of an insurance policy issued by defendant-Farm Bureau to Mollie Draughon, and
summary judgment was correctly granted for Farm Bureau on the question of Farm Bureau's
coverage of Ms. Draughon's automobile accident. “Regular” use does not imply daily use.
Wallace and Graham, P.A., by Marc P. Madonia, for plaintiff-
appellant.
Caudle & Spears, P.A., by C. Grainger Pierce, Jr. and L.
Cameron Caudle, Jr., for defendant-appellee North Carolina
Farm Bureau Mutual Insurance Company.
MARTIN, Chief Judge.
On 6 October 2001, defendant Mollie Draughon was operating a
1993 Ford Explorer belonging to her mother-in-law, Betty Draughon,
when she was involved in a collision with a motorcycle operated by
plaintiff. Plaintiff was injured as a result of the collision.
The Ford Explorer belonging to Betty Draughon was insured by
Travelers Indemnity Insurance Company, along with a 1988 Dodge
Colt, also owned by Betty Draughon. The policy carried limits of
liability of $50,000 per person. At the time of the accident,
Mollie Draughon and her husband, Theodore, owned two vehicles, a
1992 Suzuki and a 1988 Honda. Those vehicles were insured by FarmBureau Mutual Insurance Company, Inc. (Farm Bureau) under a policy
which had limits of $250,000 per person. The policy specifically
excluded coverage for any other vehicle furnished for the
Draughon's “regular use,” stating in pertinent part:
B. We do not provide Liability Coverage for
the ownership, maintenance or use of:
1. Any vehicle, other than your covered auto,
which is
a. owned by you; or
b. furnished for your regular use.
Travelers tendered its policy limits of $50,000 to plaintiff;
Farm Bureau denied coverage based upon the exclusion in its policy.
Plaintiff brought this action seeking a declaratory judgment that
Farm Bureau provided coverage to Mollie Draughon for her liability
to plaintiff. Defendant Farm Bureau filed its answer, denying that
it provided coverage based upon the “regular use” exclusion in its
policy. Farm Bureau subsequently moved for summary judgment.
The evidence before the trial court showed that Mollie and
Theodore Draughon live next door to Betty Draughon, Theodore's
mother, in Lewisville, North Carolina. Their two houses are on a
single lot that measures an acre and a half, with a shared driveway
between the houses. Betty Draughon regularly drove the 1988 Dodge
Colt; the 1993 Ford Explorer had belonged to her husband, Billy
Draughon, prior to his death in November, 1999. Betty Draughon
stated in her deposition that she had only driven the Explorer once
or twice, and when it was not being used, it was parked between her
house and her son's house in the shared driveway. In 1998, Mollie and Theodore Draughon's son took the 1988
Honda away with him to college, leaving them with one car, the 1992
Suzuki, between them. When they needed a second car, they used the
Explorer. Betty paid the property taxes on the Explorer and kept
the title and other vehicle records, but the Explorer was available
for the Draughons' use at any time. Betty placed no restrictions
on its use, and the Draughons did not have to seek her permission
before driving it. The Draughons had one set of keys and two spare
keys for the Explorer, and they paid for the Explorer's gas and
emissions inspections. Mollie stated in her deposition that she
could not close the front driver's side door of the Explorer
without assistance. However, she also testified that from November
of 1999 to October of 2001 she drove the Explorer an average of two
to three times per week. Theodore verified this estimate in his
deposition. Mollie stated she used the Explorer to run errands, to
drive Betty to various places, and occasionally to drive to work.
Mollie and Theodore Draughon also used the Explorer for most trips
out of town because it was larger and more reliable than their
Suzuki. Indeed, the accident giving rise to this litigation
happened when Mollie and Theodore were using the Explorer to
vacation in Myrtle Beach, South Carolina.
The trial court granted Farm Bureau's motion for summary
judgment. Plaintiff appeals.
“The standard of review on appeal from summary judgment is
whether there is any genuine issue of material fact and whether the
moving party is entitled to a judgment as a matter of law.” Bruce-Terminex Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504
S.E.2d 574, 577 (1998). The burden is upon the moving party to
show that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law. Lowe v.
Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982); N.C. Gen.
Stat. § 1A-1, Rule 56(c) (2003). If the moving party satisfies its
burden, the burden shifts to the non-movant to set forth specific
facts showing there exists a triable issue of fact. Lowe, 305 N.C.
at 369-70, 289 S.E.2d at 366.
The only issue presented by this appeal is whether defendant
Draughon's use of the Explorer constituted “regular use” according
to North Carolina law. First, plaintiff argues there were genuine
issues of material fact which should have been presented to a jury
as to whether Mollie Draughon's use of the vehicle was such as to
be “regular.” We disagree.
In response to an interrogatory asking her to describe the
“frequency of [her] use of the vehicle,” Mollie Draughon stated she
“[o]ccasionally used [it] for trips and taking Betty Draughon
places.” In her deposition, however, Mollie Draughon said she used
the Explorer an average of two to three times per week to run
errands, go to work, and take Betty Draughon places. Plaintiff
contends these answers are inconsistent and therefore present
genuine issues of material fact regarding the frequency of
defendant's use of the vehicle and her credibility as a witness.
We disagree. Defendant Draughon stated in her deposition that by
“occasionally” she meant two to three times per week. Thus, by her
own definition of “occasional,” her response to the interrogatory
and her deposition testimony are not inconsistent, but are actually
corroborative of each other. Because these statements can be
readily reconciled, the trial court did not err in finding no
conflict between them. The facts in this case, therefore, are not
in dispute. When the facts of a case are undisputed, construction
and application of an insurance policy's provisions to those facts
is a question of law. Nationwide Mut. Ins. Co. v. Walters, 142
N.C. App. 183, 189, 541 S.E.2d 773, 776 (2001). Because the trial
court was only required to apply the law to the undisputed facts in
this case, this case is appropriately resolved by summary judgment.
When a liability policy does not define the term “regular
use,” no “absolute definition” can be established, and a
determination of coverage under the policy must be based on the
particular facts and circumstances of that case. Id. at 188, 541
S.E.2d at 776 (quoting Whaley v. Insurance Co., 259 N.C. 545, 552,
131 S.E.2d 491, 496-97 (1963)). In Whaley, our Supreme Court set
out two factors for analyzing whether the use of a vehicle
constitutes regular use: (1) the availability of the vehicle to the
insured, and (2) the frequency of its use by the insured. Whaley,
supra at 554, 131 S.E.2d at 498.
In this case, the evidence established that Betty Draughon
“furnished” the vehicle for Mollie and Theodore's use by leaving it
in the shared driveway between their houses and placing norestrictions on its use. She did not require them to ask her
permission before using it, and she did not drive it herself. She
allowed them to take it out of town, the Draughons possessed three
keys for the Explorer, and the vehicle was clearly available for
Mollie's use on almost any given day for a period of nearly two
years, regardless of whether she needed assistance to close the
driver's side door. The fact that Betty Draughon retained
possession of the title is of no consequence to the issue of
whether the car was unavailable to Mollie. “Where an insured
driver has the unrestricted use and possession of an automobile,
the certificate of title for which is retained by another, the car
is 'furnished for the regular use of' the insured driver.” Gaddy
v. Insurance Co., 32 N.C. App. 714, 717, 233 S.E.2d 613, 615
(1977). Because Betty in no way restricted Mollie's use of the
vehicle, we find no genuine issue of material fact regarding the
availability of the Explorer for Mollie's use.
Plaintiff contends, however, that the frequency of Mollie's
use of the Explorer does not constitute “regular use” under our
case law. Our Supreme Court has established that the regular use
exclusion does not apply to the “casual,” “occasional,” or
“infrequent” use of another vehicle, see Whaley, 259 N.C. at 552,
131 S.E.2d at 496; Whisnant v. Insurance Co., 264 N.C. 195, 199,
141 S.E.2d 268, 270 (1965), and plaintiff argues that our case law
is drifting towards a definition of regular use as meaning daily
use. Mollie's use of the Explorer, however, was consistent as well
as continuing. Both Mollie and her husband estimated that shedrove the Explorer an average of two to three times per week for
almost two years. “The rules of construction of insurance
contracts are well established. Language must be given its
ordinary, plain meaning unless a word is ambiguous.'” Strickland
v. State Farm Mut. Auto. Ins. Co., 133 N.C. App. 71, 72, 514 S.E.2d
304, 304 (1999). The plain meaning of “regular” does not imply
“daily,” and we decline to create such a bright line rule. See
N.C. Farm Bureau Mutual Ins. Co. v. Warren, 326 N.C. 444, 448, 390
S.E.2d 138, 140-141 (1990)(using a Webster's dictionary definition
of “regular” as “steady or uniform . . . in practice or occurrence;
. . . returning or recurring at stated or fixed times or uniform
intervals” to support a finding that a recurring pattern of a
vehicle's use constituted regular use). Mollie's consistent and
recurring use of the Explorer was sufficient to satisfy the
frequency prong of the analysis. The trial court properly applied
both the availability and frequency prongs to the facts of this
case and properly granted summary judgment in defendants' favor.
The order from which plaintiff appeals is affirmed.
Affirmed.
Judges HUDSON and JACKSON concur.
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