                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON


LORRIE BETTS MURPHY, Ind. and             )
                                                                              FILED
as Mother and next Friend of              )                               March 17, 1998
April Murphy,                             )
                                          )                             Cecil Crowson, Jr.
             Plaintiffs/Appellants,       ) Shelby Circuit No. 70768 T.D.Appellate C ourt Clerk
                                          )
VS.                                       ) Appeal No. 02A01-9705-CV-00105
                                          )
JESSICA R. CHADWELL and                   )
GUY ANDERSON,                             )
                                          )
             Defendants/Appellees.        )


            APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                        AT MEMPHIS, TENNESSEE
                  THE HONORABLE KAY S. ROBILIO, JUDGE




HARVEY L. GIPSON
Memphis, Tennessee
Attorney for Appellants



WARREN D. McWHIRTER
McWHIRTER & WYATT
Memphis, Tennessee
Attorney for Appellees




AFFIRMED




                                                               ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.


      Plaintiff/Appellant, Lorie Betts Murphy (“Plaintiff”) appeals the judgment of the trial
court granting Defendant/Appellee’s, Mid-Century Insurance Company (“Mid-Century”),

motion for summary judgment. For reasons state hereinafter, we affirm the judgment of

the trial court.



                              Facts and Procedural History

       This case arises out of an automobile accident which occurred on October 1, 1994,

at approximately 7:40 p.m. Plaintiff was operating a 1985 Chevrolet Camaro with her

daughter, April Murphy (“Daughter”), riding as a passenger in the car. The Camaro was

owned by Joseph P. Murphy (“Father” or “ex-husband”) who was the father of Daughter

and the ex-husband of Plaintiff. Plaintiff had the consent and permission of her ex-

husband to drive the Camaro. On the day of the accident, Plaintiff was heading in a

southerly direction on New Allen Road in Memphis, Tennessee. She arrived at the

intersection of New Allen and Ridgemont Avenue. This intersection is controlled by a stop

sign. Plaintiff stopped and then proceeded through the intersection. Defendant Jessica

Chadwell was heading in an easterly direction on Ridgemont Avenue when she allegedly

failed to observe the stop sign thereby colliding with Plaintiff. As a result, Plaintiff and

Daughter suffered various personal injuries.           Chadwell was in the course of her

employment with Defendant Guy Anderson at the time of the accident. Anderson provided

no insurance for the car Chadwell was driving. Plaintiff filed suit for these personal injuries.

Additionally, Plaintiff filed a claim against Mid-Century which was served process pursuant

to the uninsured motorist statute of this state. It is this insurance claim that is the focus of

our concern in this matter.



       When the accident occurred, Plaintiff was covered by an insurance policy issued by

Mid-Century for her 1989 Ford Mustang. It is under this policy, specifically, under Part II,

Coverage C of the policy which provides for uninsured motorist coverage, that Plaintiff

seeks recovery for both herself and Daughter.



       Mid-Century filed a motion for summary judgment asserting that paragraph 4 of Part

II entitled “additional definitions used in this part only” barred Plaintiff and Daughter from



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recovering under this policy. Particularly, paragraph 4 provides in part:

               Uninsured motor vehicle, however, does not mean a vehicle:
                     a. Owned by or furnished or available for the
                     regular use by you or any family member.

Mid-Century contends that Plaintiff admits in her deposition that she used the car 3-4 times

per week, and as such, uses the car on a regular basis thereby disqualifying the car as an

“uninsured motor vehicle” under the policy.


               Q: Could you estimate for me how many times a week you
               drove this particular vehicle, the ‘85 Camaro?

               A: I’d say three to four in a week.

Mid-Century further contends that Plaintiff admitted that she used the car on a regular

basis.

               Q: Did you have a car that you used on a regular basis other
               than this ‘85 Camaro?

               A: That is correct.

Mid-Century asserts that since the 1985 Camaro was available for the regular use of

Plaintiff, the Camaro is not an “uninsured motor vehicle” under the policy. Therefore, Mid-

Century argues, there is no insurance afforded for Plaintiff or Daughter under the

uninsured motorist provision in this policy for this particular accident.



         In response to Mid-Century’s motion for summary judgment, Plaintiff proffered her

affidavit wherein she stated that the Camaro was not available to her for “regular use.”

Plaintiff further contends that the term “regular use” is not defined in the policy and is

ambiguous, thus, creating a genuine issue of material fact.



         Additionally, Mid-Century contends that Daughter should be barred from recovery

under a section of Part II entitled “Exclusions.” The section provides in part:

               This coverage shall not apply to bodily injury sustained by a
               person:

               1. While occupying any vehicle owned by you or a family
               member for which insurance is not afforded under this policy
               or through being struck by that vehicle.

Mid-Century interprets the term “family member” to mean family member of the injured.



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In this case, Mid-Century argues, Daughter was injured while occupying the vehicle of a

family member, namely, her Father, Joseph Murphy. Consequently, Mid-Century contends

that Daughter is barred from recovery under this provision in the policy.



       Plaintiff argues that the term “family member,” although defined, is still ambiguous.

Specifically, Plaintiff argues that the term “family member” can be interpreted in two ways:

(1) a family member of the insured; or (2) a family member of the injured person.

Consequently, Plaintiff charges that this dispute over the interpretation of the term “family

member” creates a genuine issue of material fact.



       The trial court disagreed with Plaintiff and, consequently, granted Mid-Century’s

motion for summary judgment. Plaintiff appeals the judgment of the trial court raising the

following issue to be considered by this court: whether the trial court properly granted

summary judgment in favor of Mid-Century Insurance Company.



                                   Law and Discussion

       This action to recover for personal injuries under the uninsured motorist provisions

of an insurance policy issued by Mid-Century to Plaintiff was dismissed on motion for

summary judgment, the propriety of which is presented for our review. Consequently, our

review is de novo with no presumption of correctness. Carvell v. Bottoms, 900 S.W.2d 23,

26 (Tenn. 1995).



       Summary judgment is proper when there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.03. On a

motion for summary judgment, courts must take the strongest legitimate view of the

evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence. Byrd v. Hall, 847 S.W.2d 208, 210-211

(Tenn. 1993). Summary judgment is only appropriate when the case can be decided on

legal issues alone.




                                             4
       As a matter of procedure, the moving party has the burden to show that there is no

disputed, material fact creating a genuine issue for trial. Payne v. Breuer, 891 S.W.2d 200,

202 (Tenn. 1994). When the moving party makes such a showing through a motion

properly supported by nonconclusory assertions, the burden shifts to the nonmoving party

to set forth specific facts by using affidavits or discovery materials establishing that there

is indeed at least a single disputed, material fact creating a genuine issue which must be

resolved at trial. The nonmoving party may not rely on allegations made in the pleadings

or conclusory remarks unsupported by facts.



       The parties’ respective rights and obligations are governed by their contract of

insurance whose terms are embodied in the policy. As with any other contract, our

responsibility is to give effect to the expressed intention of the parties, Blaylock & Brown

Constr., Inc. v. AIU Ins. Co., 796 S.W.2d 146, 149 (Tenn. Ct. App. 1990), by construing the

policy fairly and reasonably, Demontbreun v. CNA Ins. Cos., 822 S.W.2d 619, 621 (Tenn.

Ct. App. 1991); Dixon v. Gunter, 636 S.W.2d 437, 441 (Tenn. Ct. App. 1982), and by giving

the policy’s language its common and ordinary meaning. Tata v. Nichols, 848 S.W.2d 649,

650 (Tenn. 1993); Parker v. Provident Life & Accident Ins. Co., 582 S.W.2d 380, 383

(Tenn. 1979). We are not at liberty to rewrite an insurance policy simply because we do

not favor its terms or because its provisions produce harsh results. In the absence of

fraud, overreaching, or unconscionability, the courts must give effect to an insurance policy

if its language is clear and its intent certain. Quintana v. Tennessee Farmers Mut. Ins. Co.,

774 S.W.2d 630, 632 (Tenn. Ct. App. 1989).



       At trial, much of the discussion focused on the definition of “uninsured motorist

vehicle” under Part II paragraph 4 of the policy. This was done in order to illustrate that the

1985 Camaro which Plaintiff was driving was not covered under the uninsured motorist

provisions in the policy. This emphasis was misplaced.



       We note that an “uninsured motor vehicle” is the vehicle driven by the third party

tortfeasor in an accident and not the vehicle driven by the insured. In this case, the


                                              5
“uninsured motor vehicle” would be the 1985 Cavalier driven by Chadwell and not the 1985

Camaro driven by Plaintiff-insured. It appears that the focus at trial should have been on

the policy provision that would prevent coverage from attaching to a vehicle furnished for

the regular use of Plaintiff. We need not be concerned with the definition of an “uninsured

motor vehicle” under the facts in this case.



       Under part five of the section entitled “Definitions” in the policy, “Insured car” is

defined as follows:

              5. Any other private passenger car, utility car, or utility trailer
              not owned by or furnished or available for regular use by you
              or a family member.


(Emphasis added). This is the essential provision in determining whether or not Plaintiff

is covered under the terms of the policy for the 1985 Camaro she was driving at the time

of the accident. The parties’ arguments concerning the definition of “regular use” are still

germane to a discussion focused on the definition of an “insured car” under the definitions

section of this policy.



       Plaintiff argues that “regular use” is an ambiguous term and, as such, creates a

genuine issue of material fact sufficient to overcome Mid-Century’s motion for summary

judgment.    Tennessee authority concerning the definition of “regular use” is scant.

However, as both parties point out, United Services Auto. Ass’n. V. Couch, 643 S.W.2d

668 (Tenn. Ct. App. 1982), deals with the proper interpretation of “regular use.” The United

Services court looked to decisions in other states to aid in determining the interpretation

of “regular use.”



       In Moore v. State Farm Mutual Automobile Ins. Co., 239 Miss. 130, 121 So.2d 125

(1960) plaintiff was a regular employee, but operated employer’s truck only 2-3 times per

week. The Mississippi Supreme Court held this to be regular use.



       In Farm Bureau Mutual Automobile Ins. Co. v. Marr, 128 F. Supp. 67 (D.C.N.J.

1955), insured was operating one of several vehicles of a car pool maintained by his

                                               6
employer for insured and other employees of his federal agency. Insured had driven a car

from the same pool about fifty times in ten months, an average of five times per month.

The trial court took the position that use was more than occasional, hence it must be

regular.



       Additionally, the United Services court looked at definitions of “regular” in Webster’s

Third International Dictionary. United Services Auto. Ass’n. v. Couch, 643 S.W.2d at 671.

In doing so, they came to the conclusion that the issue of regularity centers around the

regularity with which a particular vehicle is furnished or made available for the insured’s

use. Id. at 672. The court in United Services stated in relevant part:

              The obvious purpose of the “non-owned vehicle” coverage is
              to afford protection to the insured on occasions when the
              insured is temporarily using a vehicle not covered by the
              policy. . . [t]he obvious purpose of the exclusion under
              discussion is to prevent abuse of the “non-owned” privilege by
              unnecessarily burdening the insurer with liability which ought
              to be covered by other insurance. . . [a]lso, the purpose of the
              exclusion is to deny coverage to the insured while using a
              vehicle as to coverage of which he has an opportunity to
              investigate. If a vehicle is not regularly available to insured
              and if insured uses a vehicle only on isolated occasions, it
              would not be expected that he inquire as to the liability
              insurance on the vehicle. If, however, insured has available to
              him or uses a vehicle with any degree of regularity, it is
              expected that he would ascertain whether the vehicle is
              covered by liability insurance, and, if not, would arrange for
              suitable protection for himself.



       We find the term “regular use” to be unambiguous. When employing the plain and

ordinary meaning of “regular use,” we conclude that Plaintiff’s use of the Camaro was,

undoubtedly, “regular.” There is no debate about the “degree of regularity” with which

Plaintiff used the 1985 Camaro.         It is uncontroverted that the 1985 Camaro was

consistently available to Plaintiff. In fact, Plaintiff, in her deposition, states that she used

the car 3-4 times a week. We have no doubt that this is “regular use” within its common,

customary meaning. It is this kind of regular use that the policy was designed to exclude

from coverage. As such, the 1985 Camaro is not an “insured car” under the provisions of

the policy. Consequently, Plaintiff and Daughter are prohibited from recovering under said

policy. We conclude that the trial court was correct in granting summary judgment for the



                                               7
defendant under the facts of this case.1



        The judgment of the trial court granting summary judgment in favor of Mid-Century

Insurance Company is affirmed. Costs are taxed to Plaintiff, for which execution may issue

if necessary.




                                                                        HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




LILLARD, J.




        1
        W e find it unnecessary to address the exclusion provisions discussed by Mid-Century in its brief
concerning an additional ground to exclude coverage for Daughter. Such discussion has become superfluous.



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