J-A24025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    LINDA ECKERT                               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    UNITRIN AUTO HOME INSURANCE                :   No. 1013 EDA 2019
    COMPANY                                    :

                 Appeal from the Order Entered March 13, 2019
     In the Court of Common Pleas of Chester County Civil Division at No(s):
                               No. 18-03053-TT


BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.:                              FILED JANUARY 22, 2020

        Appellant, Linda Eckert, appeals from the March 13, 2019 Order

granting summary judgment in favor of Unitrin Auto Home Insurance

Company (“Appellee”) on its declaratory judgment claim. After careful review,

we affirm.

        The relevant facts and procedural history are as follows. Appellant is a

school bus driver. On March 10, 2016, she was involved in a motor vehicle

accident with an underinsured driver while in the scope of her employment.1

Appellant filed a claim with Appellee, her personal automobile insurance
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1Appellant had been driving “a yellow school bus owned by Downingtown Area
School District and/or George Krapf Jr. & Sons, Inc. and or Krapf Management
Company, Inc.” at the time of the accident. See Complaint, 3/20/18, at ¶ 5.
J-A24025-19



carrier, seeking underinsured motorist (“UIM”) coverage. Appellee rejected

Appellant’s claim based on the regular use exclusion provision (“Regular Use

Exclusion”) contained in her policy.2

       On March 20, 2018, Appellant filed a breach of contract action against,

inter alia, Appellee, because Appellee rejected Appellant’s UIM claim.3 On May

10, 2018, Appellee filed an Answer with New Matter and a Counterclaim for

Declaratory Relief.

       In its New Matter, Appellee asserted that Appellant’s motor vehicle

insurance policy’s Regular Use Exclusion excluded UIM coverage for injuries

she sustained while she occupied a motor vehicle that was available for her

regular use. Accordingly, Appellee concluded that the Regular Use Exclusion

precluded Appellant’s recovery for UIM benefits arising from the instant

accident. Appellee also sought a declaratory judgment in its favor.

       Appellant filed her response to the New Matter and Counterclaim that

same day. Appellant asserted primarily that the Regular Use Exclusion did



____________________________________________


2 The Regular Use Exclusion in Appellant’s automobile insurance policy states,
in relevant part, that Appellee “do[es] not provide [UIM c]overage for ‘bodily
injury’ sustained . . . [b]y you while ‘occupying’ . . . any motor vehicle you
‘own’ or any motor vehicle which is furnished or available for your regular use.
. . . “ Unitrin UIM Coverage Exclusions, 6/18/15, at 2 § A.1.
3Appellant’s Complaint also raised claims against Kemper Services Group and
AIS Insurance Group. On July 6, 2018, the parties stipulated to dismiss
Kemper Services Group from the action, and Appellant discontinued her claims
against AIS Insurance Group.



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J-A24025-19



not apply because she drove several busses from her employer’s fleet, so the

bus she was driving on the day of the accident was not for her “regular use.”4

       On December 3, 2018, Appellee filed a Motion for Summary Judgment.

Appellant filed a response5 on January 2, 2019. On March 13, 2019, the trial

court entered summary judgment in favor of Appellee on the declaratory

judgment claim, concluding that Regular Use Exclusion precluded Appellant’s

recovery of UIM benefits from Appellee.

       This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

       Appellant raises the following issue on appeal:

       [] Did the trial court abuse its discretion and/or commit reversible
       error when it granted [Appellee’s] Motion for Summary Judgment
       pursuant to the “Regular Use Exclusion” in [Appellant’s]
       automobile policy with [Appellee]?

Appellant’s Brief at 4.

       Appellant challenges the trial court’s decision to grant summary

judgment in favor of Appellee. Accordingly, our standard of review is for an

abuse of discretion or error of law, and our scope of review is plenary.

Sokolsky v. Eidelman, 93 A.3d 858, 861 (Pa. Super. 2014).

____________________________________________


4 Appellant had admitted in her deposition that she drove the instant bus
“[p]robably 80 percent of the time.” Deposition, 10/18/18, at 21.

5 Appellant’s pleading was entitled “Plaintiff’s Cross Motion for Summary
Judgment and Opposition to Defendant’s Motion for Summary Judgment.”
This Court’s review of this pleading indicates, however, that Appellant did not
assert any grounds for entry of judgment in its favor and that it was, simply
a response to Appellee’s Motion for Summary Judgment.

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      We review a grant of summary judgment under the following well-

settled standards:

      Pennsylvania law provides that summary judgment may be
      granted only in those cases in which the record clearly shows that
      no genuine issues of material fact exist and that the moving party
      is entitled to judgment as a matter of law. The moving party has
      the burden of proving that no genuine issues of material fact exist.
      In determining whether to grant summary judgment, the trial
      court must view the record in the light most favorable to the non-
      moving party and must resolve all doubts as to the existence of a
      genuine issue of material fact against the moving party. Thus,
      summary judgment is proper only when the uncontraverted
      allegations in the pleadings, depositions, answers to
      interrogatories, admissions of record, and submitted affidavits
      demonstrate that no genuine issue of material fact exists, and that
      the moving party is entitled to judgment as a matter of law. In
      sum, only when the facts are so clear that reasonable minds
      cannot differ, may a trial court properly enter summary judgment.

      On appeal from a grant of summary judgment, we must examine
      the record in a light most favorable to the nonmoving party. With
      regard to questions of law, an appellate court's scope of review is
      plenary. The Superior Court will reverse a grant of summary
      judgment only if the trial court has committed an error of law or
      abused its discretion.      Judicial discretion requires action in
      conformity with law based on the facts and circumstances before
      the trial court after hearing and consideration.

Weible v. Allied Signal, Inc., 963 A.2d 521, 525 (Pa. Super 2008) (citation

omitted).

      The instant dispute involves the interpretation of the Regular Use

Exclusion in Appellant’s personal automobile insurance policy. Our standard

of review regarding contract interpretation is well-settled. Because contract

interpretation is a question of law, our standard of review is de novo, and the

scope of review is plenary. Ragnar Benson Inc. v. Hempfield Twp. Mun.



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J-A24025-19



Auth., 916 A.2d 1183, 1188 (Pa. Super. 2007). In construing an insurance

policy, Pennsylvania courts give an unambiguous contract provision its plain

meaning, unless the provision violates a clearly expressed public policy.

Burstein v. Prudential Property & Cas. Ins. Co., 809 A.2d 204, 206 (Pa.

2002).

      The Pennsylvania Supreme Court has consistently held that an insured

should not be permitted to demand coverage for a risk for which coverage was

not elected or premiums paid. See, e.g., Eichelman v. Nationwide Ins.

Co., 711 A.2d 1006 (Pa. 1998); Williams v. GEICO, 32 A.3d 1195 (Pa.

2011). In other words, there must be a nexus between premiums paid by the

insured and the coverage the claimant should reasonably expect to receive.

Hall v. Amica Mut. Inc. Co., 648 A.2d 755, 761 (Pa. 1994) (citation

omitted).

      As noted above, the Regular Use Exclusion in Appellant’s automobile

insurance policy states, in relevant part, that Appellee “do[es] not provide

[UIM c]overage for ‘bodily injury’ sustained . . . [b]y you while ‘occupying’ . .

. any motor vehicle you ‘own’ or any motor vehicle which is furnished or

available for your regular use. . . . “     Unitrin UIM Coverage Exclusions,

6/18/15, at 2 § A.1.

      Appellant claims that the trial court erred in granting Appellee’s Motion

for Summary Judgment pursuant to her automobile insurance policy’s Regular

Use Exclusion, arguing that there is a genuine issue of material fact as to

whether her use of the school bus constituted “regular use.” Appellant’s Brief

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J-A24025-19



at 17.   In an effort to distinguish the instant case from the myriad cases

upholding the applicability of regular use exclusions, Appellant emphasizes

that her use was not “regular” because her employer precluded her personal

use of the fleet vehicles and that she only drove the bus for five to 6 hours a

day. Appellant’s Brief at 14-16. Appellant’s claim fails.

      Numerous Pennsylvania courts, including the Pennslvania Supreme

Court, have upheld “regular use” exclusions to preclude UIM coverage. See,

e.g., Williams, supra (holding that a police officer injured while in the scope

of his employment was precluded from recovering underinsured motorist

benefits under his personal auto policy based on the “regular use” exclusion);

Adamitis v. Erie Ins. Exch., 54 A.3d 371 (Pa. Super. 2012) (upholding the

“regular use” exclusion against a bus driver who sought UIM benefits when he

was injured during the course of his employment); Brink v. Erie Ins. Grp.,

940 A.2d 528 (Pa. Super. 2008).

      This Court specifically held in Brink, that “an employee ‘regularly uses’

a fleet vehicle if he regularly or habitually has access to vehicles in that fleet[;]

[r]egular use of any particular vehicle is not required.” Id. at 535 (citation

omitted) (emphasis in original). In light of this rule, this Court found Officer

Brink’s use was “regular” under the policy exclusion as he was given access

by his police department to the fleet vehicles to perform his duties. This Court

noted that “[t]he fact that Officer Brink did not always use the particular

vehicle in which the accident occurred, or any other police vehicle on a daily

basis, does not govern whether a vehicle was ‘available’ to him at his

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J-A24025-19



employment.” Id. Accordingly, this Court affirmed the lower court’s decision

to grant the insurer’s Motion for Judgment on the Pleadings.

      Appellant’s efforts to distinguish her case from those cited above is

unavailing.   Just as in those cases, the Regular Use Exclusion here clearly

excluded coverage. It is undisputed that Appellant was injured while driving

a school bus, which she did not own.       It is also undisputed that Appellant

drove the particular bus in which she was injured about 80 percent of the

time, and that she had regular access to all vehicles in the fleet. Last, it is

undisputed that Appellant did not pay insurance premiums to Appellee to

compensate Appellee for the risk that Appellant would sustain an injury driving

a vehicle that she used regularly but that her personal automobile insurance

policy did not cover.

      Thus, just as the Pennsylvania courts rejected the efforts of the plaintiffs

in Williams, Adamitis, and Brink, to recover UIM benefits from their private

insurers whose issued policies included “regular use” exclusions, the instant

trial court, finding the facts of those cases analogous and relying on their

holdings, properly denied Appellant’s claim.       Appellant is, therefore, not

entitled to relief.

      Order affirmed.




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J-A24025-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/20




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