Acadia Insurance v. Mascis
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 101
Docket:	Cum-00-443
Submitted
on briefs:	January 31, 2001
Argued:	May 16, 2001
Decided:	July 2, 2001	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

ACADIA INSURANCE COMPANY

v.

SAMANTHA MASCIS et al.

CLIFFORD, J.

	[¶1]  Acadia Insurance appeals from a summary judgment entered in
the Superior Court (Cumberland County, Delahanty, J.) in favor of Samantha
Mascis and Patrick Adams.  Acadia contends that Samantha was not insured
under its automobile liability policy because the vehicle Samantha was
operating at the time she was in an accident was "furnished or available" for
her "regular use" within the meaning of the policy's coverage exclusion and
that the court erred in concluding that the exclusion does not apply.  We
disagree with Acadia and affirm the judgment.
	[¶2]  The parties have stipulated to the relevant facts.  On December
1, 1996, Mary Levy Mascis and her boyfriend, Richard Pascucci, contracted
with Acadia Insurance Company for automobile insurance extending until
December 1, 1997.  Coverage extended to family members,{1} including
Mary's daughter, Samantha Mascis.  The policy contained the following
"regular use" exclusion:  "We do not provide Liability Coverage for the
ownership, maintenance or use of . . . [a]ny vehicle, other than 'your covered
auto,' which is . . . furnished or available for the regular use of any 'family
member.'"
	[¶3]  During the summer of 1997, Samantha had her learner's permit,
but was not yet a licensed driver.  Therefore, she could drive only when
accompanied by a licensed driver at least eighteen years old.  See
29-A M.R.S.A. § 1304 (1996 & Supp. 2000).  Samantha was then dating
nineteen-year-old Nathan Legere, who had his own vehicle and was insured.  
Samantha drove Legere's vehicle, with him accompanying her, three to five
times per week over a two-month period that summer in order to gain
driving experience.  She did not have keys to Legere's vehicle, Legere always
had to accompany her when driving, Legere's vehicle was never left in
Samantha's possession, and Legere drove a majority of the time when they
were together, but let Samantha drive when she wanted to.
	[¶4]  On the evening of September 19, 1997, Samantha, who was
sixteen years old at the time, was driving Legere's vehicle with Legere in the
passenger's seat and Samantha's brother, Dominic Mascis, and his friend,
Patrick Adams, in the backseat.  Samantha lost control of the vehicle and the
car went off the road, hitting four trees and a stone wall.  Adams was injured. 
Adams has asserted a claim against Samantha, but has not yet filed a lawsuit
against her.  Legere's insurance provides primary coverage for the accident,
but a question arose as to Acadia's duty to provide secondary coverage.
	[¶5]  Acadia examined Samantha under oath as the insurance contract
permits, and then filed a complaint against Samantha and Adams in the
Superior Court on June 17, 1999.  Acadia sought a declaratory judgment that
Samantha was ineligible for coverage pursuant to the regular use exclusion
because Legere's vehicle was furnished or available for Samantha's regular
use.  Samantha counterclaimed, and all parties moved for a summary
judgment and later stipulated to all material facts.
	[¶6]  In entering a summary judgment in favor of Samantha and
Adams, the Superior Court found the following factors relevant: "the age of
[Samantha] and her lack of a driver's license, lack of control over the
vehicle, the inability to use it without the presence of a licensed adult and
the apparent lack of authority to use it whenever she pleased . . . ."  The
court concluded that Acadia owed Samantha a duty to indemnify her for
Adams's potential claims according to the policy.  Acadia appealed.{2}
	[¶7]  Acadia contends that Samantha's use of Legere's vehicle comes
within the regular use exclusion and she is therefore ineligible for coverage
because:  (1) Legere's vehicle was furnished for Samantha's regular use in
that she used his car three to five times each week and had blanket
permission to use the vehicle, and (2) Samantha's use of Legere's vehicle
was therefore regular and her driving of that car became "habitual,
customary, usual, and frequent."
	[¶8]  In contrast, Samantha and Adams contend that Samantha's use
was not regular, and point to a list of indicia used by the United States Court
of Appeals for the Second Circuit to analyze this question.{3}  In analyzing
Samantha's use according to these factors, Samantha and Adams note that
the vehicle was never left in Samantha's possession and Samantha had to ask
Legere's permission each time before driving his car; she had to be
accompanied by a driver over eighteen; she did not have her own keys to his
car; her use was limited by many factors including the times that she saw
Legere and their social engagements; her use was limited to social purposes
and was therefore a casual use; and the Legere vehicle was not Samantha's
principal means of transportation.  Accordingly, they argue that Samantha's
mother could not reasonably have been expected to pay additional premiums
for Samantha's use of Legere's vehicle, Samantha's use of Legere's vehicle
was not a regular use within the exclusion.
	[¶9]  Summary judgment is properly granted if the party with the
burden at trial presents evidence that, without more, entitles her to a
judgment as a matter of law.  June Roberts Agency, Inc. v. Venture Props.,
Inc., 676 A.2d 46, 48 (Me. 1996).  We view the evidence in the light most
favorable to Acadia and review the grant of a summary judgment for errors of
law.  See Keyes Fibre Co. v. Lamarre, 617 A.2d 213, 214 (Me. 1992).  The
interpretation of an insurance contract exclusion and its applicability is a
matter of law and is reviewed de novo.  Maine Mut. Fire Ins. Co. v. Gervais,
1998 ME 197, ¶ 7, 715 A.2d 938, 940.  Insurance contract conditions and
exceptions are construed "strictly against the insurer and liberally in favor of
the insured."  Ray v. Blue Alliance Mut. Ins. Co., 594 A.2d 1110, 1111
(Me. 1991) (quoting Patrons-Oxford Mut. Ins. Co. v. Dodge, 426 A.2d 888,
891 (Me. 1981)).  
	[¶10]  In this case, because the material facts are not in dispute, the
issue is whether or not those facts exclude Samantha's use of Legere's
vehicle from policy coverage as a "regular use" as a matter of law.  Regular
use may be found even when restrictions are imposed on that use.  For
example, a finding of regular use was upheld when a sailor left his car in the
care of a friend while overseas even though some restrictions were imposed
on the friend's use of the car, such as no alcohol consumption before
driving.  Allstate Ins. Co. v. Gov't Employees Ins. Co., 263 A.2d 78, 79
(Me. 1970).  Because the driver was given both the right and the opportunity
to use the vehicle anytime, we concluded that an uncompensated risk was
created for the insurance company and that the friend's use of the vehicle
was therefore a "regular use."  Id. at 83.  
	[¶11]  In Allstate, we also stated that insurance exclusions should be
interpreted consistently with their obvious contractual purpose.  Id. at 81.  

The purpose of the [regular use provision] in an automobile
liability policy is to cover occasional or incidental use of other
cars without the payment of an additional premium, but to
exclude the habitual use of other cars, which would increase the
risk on the insurance company without a corresponding increase
in the premium.

Id.  An example of a regular use to which the exclusion would apply is when
one household uses two vehicles interchangeably but insures only one of the
vehicles.  Id. at 82.  That situation is not analogous to the facts presented
here because Samantha had neither an unrestricted right nor an unfettered
opportunity to drive Legere's vehicle.  Although no single factor is
dispositive in analyzing this question, a number of factors are relevant to its
determination.  See Amica Mut. Ins. Co. v. Franklin, 147 F.3d at 242. 
Samantha's ability to drive Legere's vehicle was strictly limited by his
permission and the time she spent with him.  The vehicle was not left in
her possession and she did not own a set of keys.  Furthermore, Mary
Mascis, Samantha's mother, could not have reasonably expected that she
would have to pay additional premiums for Samantha's use of Legere's
vehicle.  Given these factors and the liberal construction of insurance
policies in favor of coverage for the insured, Samantha's use of Legere's
vehicle did not rise to a level of regularity so as to remove it from the scope
of Acadia's coverage.  Accordingly, the Superior Court correctly determined
that Legere's vehicle was not furnished or available for Samantha's regular
use within the meaning of the exclusion.
	The entry is:
			Judgment affirmed.
                                                        
Attorney for plaintiff:

John S. Whitman, Esq., (orally)
Richardson, Whitman, Large & Badger, P.C.
P O Box 9545
Portland, ME 04112-9545

Attorneys for defendants:

Keith R. Jacques, Esq., (orally)
Sarah K. Hall, Esq.
Smith Elliott Smith & Garmey, P.A.
P O Box 1179
Saco, ME 04072
(for Patrick Adams)

Joel H. Thompson, Esq.
Preti, Flaherty, Beliveau, Pachios & Haley, LLC
P O Box 9546
Portland, ME 04112-9546
(for Samantha Mascis)

FOOTNOTES******************************** {1} . The policy defined "family member" as "a person related to you by blood, marriage or adoption who is a resident of your household." {2} . Although generally an insurer's duty to indemnify cannot be decided in a declaratory judgment action prior to trial because it is dependent on the facts actually established at trial, Am. Policyholders' Ins. Co. v. Kyes, 483 A.2d 337, 339 (Me. 1984), we nevertheless agree to decide the merits of this case because all parties have stipulated to the facts and are bound by that stipulation, therefore bringing this case within the very narrow exception to this general rule iterated in N. Sec. Ins. Co., Inc. v. Dolley, 669 A.2d 1320, 1321-23 (Me. 1996). Thus, this case is ripe for decision. {3} . These factors include: (1) blanket permission to use the car rather than having to ask permission for each use; (2) availability of a set of keys to the car; (3) continuous, steady, methodical use as opposed to occasional or special use; (4) the nature of the use (e.g. use for all purposes rather than solely business use); and (5) that the insured would reasonably have expected to pay an extra premium to cover the use of the car. Amica Mut. Ins. Co. v. Franklin, 147 F.3d 238, 242 (2d Cir. 1998).