The Honorable Thomas Vanaskie on March 25, 2010 granted a Motion for Judgment on the Pleadings on insurers assertion of regular use “exclusion” but denied judgment as premature pending factual determination of whether coverage should have nontheless been afforded under the “reasonable expectations” of insured. Costello was injured in a car accident while in the course and scope of his employment with the Commonwealth of Pennsylvania as an Auditor II with the Attorney General’s office. At the time of the accident he was operating a Commonwealth owned and provided vehicle. He sought underinsured motorist coverage on his personal policy with GEICO, which denied the coverage asserting the “regular use” exclusion contained in his personal GEICO policy. Suit was filed and GEICO filed a Motion for Judgment on the Pleadings.
First, Costello argued in opposition that the exclusion was not valid as applied to him because the Commonwealth-owned vehicle was not a vehicle subject to his “regular use”. The District Court observed the pleadings and found that Costello’s use was not infrequent or casual nor occasional or incidental. Overall, the usage was not only regular but habitual. Since he had “regular access” to the vehicle, the vehicle was available for his “regular use” and was therefore subject to the plain and ordinary terms of the policy.
Second, Costello argued in the alternative that the exclusion was not applicable because it would defeat the coverage that he reasonably expected under his policy. The District Court noted that the test to be applied is to look at the totality of the circumstances. Under the facts so far, the Court noted that “where the insured cannot obtain UIM coverage for the employer provided vehicle a glaring gap in the statutorily mandated UIM coverage occurs.” At this stage of the case, there was no evidence of whether GEICO knew about the coverage on the employer vehicle; nor was it apparent whehter Costelo informed his agent that the employer vehicle had no UIM coverage; that Costello made an affirmative request for the coverage or that Costello was assured he would have UIM coverage when using the state car.
Based upon the stage of the proceedings the District Court held that the “reasonable expectations” of Costello may show that the exclusion was not valid or at some point a Summary Judgment Motion may be filed by GEICO to dismiss the case and that argument. It concluded that “adjudication of Mr. Costello’s reasoanble expectation’ of coverage claim must await development of a pertinent factual record.”
BY: Scott B. Cooper, Esquire