IN THE COURT OF APPEALS OF TENNESSEE

AT MEMPHIS

February 19, 2009 Session

WAYNE B. GILLARD v. JAMES A. TAYLOR, ET AL.

Direct Appeal from the Circuit Court for Shelby County

No. CT-001065-04 Rita L. Stotts, Judge

No. W2008-00937-COA-R9-CV - Filed March 18, 2009

Police officer who was injured while driving his patrol car brought this action against his automobile

insurer to recover uninsured motorist benefits under his personal policy. The trial court denied

insurers’ motion for summary judgment, finding that the regular use exception found in the policy

was ambiguous. The insurance company appeals. We reverse and remand.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Reversed and

Remanded

J. STEVEN STAFFORD, J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S.

and HOLLY M. KIRBY, J., joined.

Gary H. Nichols, Michael R. Flynn, Memphis, TN, for Appellant, Nationwide Insurance Company

Eugene A. Laurenzi, Memphis, TN, for Appellee, Wayne B. Gillard

OPINION

The relevant facts of this case are undisputed. Appellee Wayne Gillard began working as a

police officer for the City of Memphis in August of 1999. On April 21, 2002, Officer Gillard was

assigned to patrol the 221 Ward in a 1998 Crown Victoria police cruiser (the “Cruiser”) owned by st

the City of Memphis. The record indicates that Officer Gillard would drive the Cruiser whenever

it was assigned to him, which was approximately sixty percent of the time. If Officer Gillard was

not assigned the Cruiser, he would be assigned another cruiser from the fleet.

On April 21, 2002, during his shift, Officer Gillard’s Cruiser was involved in a three-car

accident, which was caused by Defendant James Taylor. At the time of the accident, Mr. Taylor was

uninsured. As a result of the accident, Officer Gillard sustained injuries to his neck. The City of

Memphis paid Officer Gillard’s medical expenses in the amount of $41,000, and also paid Officer

Gillard his regular salary while he was recuperating.
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Following the accident, Officer Gillard gave notice under the uninsured motorist coverage

provision of a Nationwide Insurance Company (“Appellant”) policy. This policy was held by Officer

Gillard’s wife’s uncle, Purnell Blackwell. Officer Gillard was a named insured on Mr. Blackwell’s

policy. Nationwide denied coverage to Officer Gillard on grounds that his use of the City of

Memphis Cruiser constituted a “regular use” and was therefore excluded from coverage under the

Nationwide uninsured motorist policy. 

On February 25, 2004, Officer Gillard filed a personal injury lawsuit against Mr. Taylor, and

a declaratory judgment action against Nationwide. The declaratory judgment action gives rise to the

instant appeal. Nationwide answered the complaint on May 4, 2004, and the trial court issued an

order severing the declaratory judgment action from the personal injury suit against Mr. Taylor. 

On May 1, 2006, Nationwide filed a motion for summary judgment in the declaratory

judgment action. Officer Gillard filed a response in opposition to Nationwide’s motion on May 31,

2006. The first hearing on the motion for summary judgment was held on February 23, 2007. The

parties were given an opportunity to file supplemental memoranda of law in support of their

respective positions on the summary judgment motion. A second hearing was held on April 5, 2007.

At this hearing, the trial court again requested more research and advised that judgment would be

reserved until further hearing. On June 3, 2007, the parties were again before the court for a hearing

on the motion forsummary judgment. On August 14, 2007, the trial court entered its order, denying

Nationwide’s motion for summary judgment. On August 24, 2007, Nationwide filed a motion for

interlocutory appeal, which motion the trial court granted by order of November 16, 2007. This

Court granted Nationwide’s Tenn. R. App. P. 9 application for interlocutory appeal on May 2, 2008.

Nationwide raises two issues for review as stated in its brief:

1. Whether the trial court erred in denying the motion for summary

judgment of Nationwide by holding as a matter of law that the regular

use exclusion contained in the Nationwide uninsured motorist

insurance policy is ambiguous.

2. Whether the trial court erred in holding as a matter of law that the

offset provision contained in the Nationwide insurance policy is not

applicable to this case.

It is well settled that a motion for summary judgment should be granted when the movant

demonstrates that there are no genuine issues of material fact and that the moving party is entitled

to a judgment as a matter of law. See Tenn. R. Civ. P. 56.04. The party moving for summary

judgment bears the burden of demonstrating that no genuine issue of material fact exists. See Bain

v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). On a motion for summary judgment, the court must take

the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable
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inferences in favor of that party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847

S.W.2d 208 (Tenn.1993), our Supreme Court stated:

Once it is shown by the moving party that there is no genuine issue

of material fact, the nonmoving party must then demonstrate, by

affidavits or discovery material, that there is a genuine, material fact

dispute to warrant a trial. In this regard, Rule 56.05 provides that the

nonmoving party cannot simply rely upon his pleadings but must set

forth specific facts showing that there is a genuine issue of material

fact for trial.

Id. at 211 (citations omitted).

Summary judgment is only appropriate when the facts and the legal conclusions drawn from

the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26

(Tenn.1995). Because only questions of law are involved, there is no presumption of correctness

regarding a trial court's grant or denial of summary judgment. See Bain, 936 S.W.2d at 622.

Therefore, our review of the trial court's grant of summary judgment is de novo on the record before

this Court. See Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

In Naifeh v. Valley Forge Life Ins. Co., 204 S.W.3d 758 (Tenn.2006), the Tennessee

Supreme Court restated the following principles that guide our courts in the interpretation of an

insurance policy:

In interpreting an insurance contract, we must determine the intention

of the parties and give effect to that intention. Christenberry v.

Tipton, 160 S.W.3d 487, 494 (Tenn. 2005); Bob Pearsall Motors,

Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn.

1975). An insurance policy must be interpreted fairly and reasonably,

giving the language its usual and ordinary meaning. Parker v.

Provident Life & Acc. Ins. Co., 582 S.W.2d 380, 383 (Tenn.1979).

When there is doubt or ambiguity as to its meaning, an insurance

contract must be construed favorably to provide coverage to the

insured. Christenberry, 160 S.W.3d at 494. However, the contract

may not be rewritten by the Court. Id.; see also Tenn. Farmers Mut.

Ins. Co. v. Witt, 857 S.W.2d 26, 32 (Tenn.1993).

Naifeh, 204 S.W.3d at 768.

The policy at issue here reads, in relevant part, as follows:

COVERAGE EXCLUSIONS

This coverage does not apply to:
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* * *

4. Bodily injury suffered while occupying a motor vehicle:

a. owned by;

b. furnished to; or

c. available for the regular use of

you or a relative, but not insured for Auto Liability

coverage under this policy. It also does not apply to

bodily injury from being hit by any such motor

vehicle.

Tenn. Code Ann. §56-7-1201(a)(2) provides that any named insured may reject uninsured

motorist coverage. This provision of the Tennessee Code has been found to be valid and

enforceable. See, e.g., Weiss v. State Farm Fire & Cas. Co., 107 S.W.3d 503, 505 (Tenn. Ct. App.

2001). In Terry v. Aetna Cas. & Sur. Co., 510 S.W.2d 509 (Tenn. 1974), our Supreme Court held

that Tennessee’s uninsured motorist statutes do not provide for broad coverage, but effectuate a

limited and narrow purpose. Id. at 513-14. As discussed by our Supreme Court in Hill v.

Nationwide Mut. Ins. Co., 535 S.W.2d 327 (Tenn. 1976):

Authorities accepting the [narrow coverage theory] point out that

vehicular liability insurance is ordinarily written upon and follows

particular scheduled vehicles. It is not written upon named

individuals, and is not like general health or accident insurance

coverage. The liability policycovers a scheduled vehicle, and extends

its protection, through omnibus clauses, not only to the named

insured but to members of his family and other persons using the

vehicle with permission, subject to prescribed conditions and

exclusions.

Hill, 535 S.W.2d at 220 (footnote omitted). Moreover, this Court has held that a “regular use”

exclusion in insurance policies does not contravene public policy. Shepherd v. Fregozo, 175

S.W.3d 209, 217 (Tenn. Ct. App. 2005) (citing Sandoz v. State Farm Mut. Auto. Ins. Co., 620

So.2d 441 (La.App. 3 Cir.1993)).

In Shepherd, this Court addressed a factually similar situation to the one at bar, in which a

police officer was injured in an automobile accident while on-duty in his assigned cruiser. In

affirming the trial court’s grant of summary judgment in favor of the insurer on grounds that the

regular use exclusion was enforceable, the Shepherd Court stated:

 [T]he standard “regular use” exclusion “predates the advent of

uninsured motorist coverage, it being born and matured by cases

interpreting basically the same exclusionary language as to liability
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coverage. The Fourth Circuit Court of Appeals provides the readily

apparent purpose of the exception, which is standard in automobile

liability policies and in policies providing uninsured motorist

coverage.

The great weight of authority is in accord with the interpretation of

this provision by JudgeChestnut in Aler v. Travelers Indemnity Co.,

D.C.Md., 92 F.Supp. 620, 623, where he said:

This case involved the construction and application of

the so-called “drive other automobiles” clause of the

present standard automobile liability policy. The

general purpose and effect of this provision of the

policy is to give coverage to the insured while

engaged in the only infrequent or merely casual use of

an automobile other than the one described in the

policy, but not to cover him against personal liability

with respect to his use of another automobile which

he frequently uses or has the opportunity to do so....

Shepherd, 175 S.W.3d at 212 (citing Campbell v. Aetna Cas. & Sur. Co., 211 F.2d 732, 736 (4th

Cir.1954)). 

The Shepherd Court did much of the work of accumulating and analyzing the relevant case

law on regular use exceptions to uninsured motorist coverage, and we quote it extensively:

Further expositive of the “regular use” exclusion in its applicability

to the case at bar are those cases where an employer provides a fleet

of vehicles which may be randomly assigned to a particular employee.

In City of Jackson v. Freeman-Howie, Inc., 239 Miss. 84, 121 So.2d

120, the Supreme Court of Mississippi held:

The proof clearly shows that insured's employer

furnished for the regular use of insured a truck, either

one of about ten, although insured did not regularly

use any particular one of the fleet of ten trucks. Two

or three trips a week were made by insured as driver

of one of the ten trucks of his employer, and he made

other trips as helper on one of the trucks. It cannot be

said that insured's use of the employer's trucks was

other than regular use.
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The question narrows to this: Does the term “regular

use” in the exclusionary clause refer to one specific

automobile? As stated, the obvious purpose of the

exclusionary clause is to limit the extension of

medical payments coverage to casual or infrequent use

of occupancy of automobiles other than the one

defined in the policy, in this case the insured's

Chevrolet. It is regular use of other automobiles that

brings the exclusionary clause into operation, and if

insured's employer assigns him one specific

automobile for regular use or a number of

automobiles, any one of which may be assigned for a

particular trip, the result is the same. An automobile

is furnished insured “for regular use” in either event.

We know of no authority holding to the contrary.

Moore v. State Farm Mutual Automobile Ins. Co., 239 Miss. 130,

121 So.2d 125, 126-27 (1960).

While Tennessee courts have not dealt specifically with a case

involving the “regular use” exclusion as it relates to uninsured

motorist coverage, this Court has made it clear as to liability coverage

that the “regular use” exclusion is applicable and enforceable.

 [United Servs. Auto. Ass'n v. Couch, 643 S.W.2d 668 (Tenn. Ct. App.1982)]....

* * *

In sister jurisdictions, a body of law has developed under the “regular

use” exclusion as it relates to police vehicles available for regular use

to policemen.... In O'Brien v. Halifax Ins. Co. of Massachusetts,

141 So.2d 307, Plaintiff was a police officer employed by Ormond

Beach, Florida, and was insured as to his personal automobile by the

Defendant insurance company. In his work as a police officer,

Plaintiff was expected to and did use whichever one of four

city-owned cars was assigned to him. While driving one of such

vehicles, he was involved in an accident and sustained various

personal injuries. He sued his private insurance company for medical

benefits under his policy of insurance. The trial court, applying the

“regular use” exclusion, directed a verdict for the defendant, and the

District Court of Appeals of Florida, relying on Moore v. State Farm

Mutual Auto. Ins. Co., 239 Miss. 130, 121 So.2d 125 (1960)

affirmed the judgment.
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The holding in the Moore case that an exclusionary

clause involved in that case, identical to that in the

instant case, is not ambiguous when read in

conjunction with the general coverage clause, appears

to represent the majority opinion in this country, as

pointed out by the Louisiana Court of Appeals in an

exhaustive discussion of this area of the law in Leteff

v. Maryland Casualty Co., 91 So.2d 123 (1956)....

O'Brien v. Halifax Ins. Co. of Mass., 141 So.2d 307, 308

(Fla.Dist.Ct.App.1962).

Galvin v. Amica Mutual Ins. Co., 11 Mass.App.Ct. 457, 417 N.E.2d

34 (1981) is a case that on its facts closely parallels the case at bar.

Galvin was a Boston police officer who owned a personal vehicle

insured by Amica Mutual Insurance Company. His policy included

uninsured motorist coverage. While on duty and operating his police

cruiser, he was involved in a collision.... He brought suit against

Amica under his uninsured motorist coverage, and the insurer denied

coverage under the “regular use” exclusion in the policy. The

particular cruiser that Galvin was driving was one of a pool of twelve

or more Boston police cruisers which could have been assigned to

Galvin at random on any given duty shift....

The trial court entered judgment for the defendant, and the Court of

Appeals affirmed and stated the following:

Galvin's counsel contends that the language of the

regular use exclusion, “an auto ... regularly used by

you,” should be taken as referring only to a particular

vehicle and not to all the vehicles in a pool of vehicles

regularly available to the insured motorist. We do not

agree and see no ambiguity in the words used. A

heavy majority of the decision elsewhere interpret

such words (in closely similar policy language) as

treating all motor vehicles in a pool, any one of which

is available to the person insured, as within the regular

use exclusion. The authorities are collected in 13

Couch §§ 45:1050 to 45:1065, especially §§ 45:1055

and 45:1059 (1965 & Supp.1980). See Annot. 86

A.L.R.2d 937, especially § 7(b).
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One decision elsewhere upon the regular use

exclusion is very close on its facts to the present case.

See Kenney v. Employers' Liab. Assur. Corp., 5 Ohio

St.2d 131, 132, 134-135, 214 N.E.2d 219 (1966).

There, as in this case, a policeman was injured in one

of several cruisers available in a pool. The policeman

was not allowed to recover under his own policy. The

opinion (at 134-135) said, “[O]n the facts of this case,

we do not believe that the words ‘an automobile ...

furnished for the regular use’ of plaintiff are

ambiguous or can reasonably be interpreted so as not

to describe the cruiser in which plaintiff was riding at

the time of his injury.... In order to be excluded under

this exclusionary clause, an automobile need not be a

single particular automobile regularly furnished to the

named insured. Thus it is well settled that an

automobile will be excluded under such policy

provisions although it is only one of a group of

automobiles from which an automobile is regularly

furnished to the named insured by his employer....

Galvin v. Amica Mut. Ins. Co., 11 Mass.App.Ct. 457, 417 N.E.2d 34,

35-37 (1981). (footnotes omitted [and additional citations].).

Shepherd, 175 S.W.3d at 212-16.

In United Servs. Auto. Ass'n v. Couch, 643 S.W.2d 668 (Tenn. Ct. App.1982), United

Services Automobile Association issued a liability insurance policy to Ms. Couch on her vehicle.

Her son, who lived with her, was operating a non-owned vehicle, which was provided to him by his

employer, when he was involved in an accident. The trial court declared coverage, finding that the

son’s use of the work vehicle was not contemplated in the regular use exclusion of the policy. On

appeal, this Court reversed the trial court, finding that it was clear that the automobile driven by the

son was used by him in his work on a regular basis. This Court reasoned:

The issue of regularity hinges not so much upon the

regularity of the working time of the operator, but

upon the regularity with which the vehicle was

furnished or available. In the present case, it is

uncontroverted that the vehicle was regularly, i.e.,

constantly, available to the employees of Mr.

Canterbury, including William Couch, III, when he

was on duty. In this sense, the vehicle was regularly
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available to Couch within the meaning of the policy

exclusion.

Couch, 643 S.W.2d at 672.

In Murphy v. Chadwell, No. 02A01-9705-CV-00105, 1998 WL 117407 (Tenn. Ct. App.

Mar. 17, 1998), the plaintiff was injured when she was involved in an automobile accident with the

defendant, who was uninsured. Id. at *1. In Murphy, as in the case at bar, the plaintiff argued that

the term “regular use” was ambiguous and created a genuine issue of material fact. Id. at *4.

Although we noted that authority concerning the definition of “regular use ‘is scant,”’ relying upon

both Couch and Moore, we found that the term “regular use” as used in an uninsured motorist policy

is unambiguous. Id. at *5.

In the recent case of Hostottle v. Nationwide Mut. Ins. Co., No. 89036, 2007 WL 3203063

(Ohio Ct. App. 8 Dist. Nov. 1, 2007), the Ohio Court of Appeals addressed the meaning of the term

“regular use” in a Nationwide uninsured motorist insurance policy. Relying upon prior case law, the

Ohio Court noted that the term “regular use” has been defined as “frequent, steady, constant or

systematic.” Id. at *2. The Hostottle Court concluded that a police officer’s use of a police car

nearly every day he worked constituted regular use, so as to fall within the exception in the policy.

Id. at *4. Consequently, the court reversed the trial court’s denial of Nationwide’s motion for

summary judgment, seeking to have uninsured motorist coverage denied. Id.

In a recent Pennsylvania case, the Superior Court concluded that the term “regular use” in

an uninsured motorist policy was not ambiguous and that the words “suggest a principal use as

distinguished from a casual or incidental use.” Brink v. Erie Ins. Group, 940 A.2d 528, 532 (Pa.

Super. 2008). 

Tennessee courts have similarly defined the term. In United Servs Auto Ass’n v. Couch, 643

S.W.2d 668 (Tenn. Ct. App. 1982), we stated:

Definitions of the word, “regular” include:

3a steady or uniform in course, practice or occurrence; not subject to

 unexplained or irrational variation; steadily pursued; orderly, methodical.

b (1) returning, recurring or received at stated, fixed or uniform 

 intervals, (2) functioning at uniform intervals,

4a constituted, selected, made or otherwise handled in conformity

 with established or prescribed usages, rules or discipline.

(Webster's Third International Dictionary, Unabridged.)
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Steady or uniform in course, practice or occurrence; not subject to

unexplained or irrational variation. [Rooney] Rodney v. City of

Omaha, 104 Neb. 260, 177 N.W. 166. Made according to rule, duly

authorized, formed after uniform type, built or arranged according to

established plan, law or principle. Merchant's Nat. Bank of Los

Angeles v. Continental Nat. Bank of Los Angeles, 98 Cal.App. 523,

277 P. 354, 361. Antonym of “casual” or “occasional.” Palle v.

Industrial Commission, 79 Utah 47, 7 P.2d 284, 290, 81 A.L.R.

1222.

(Black’s Law Dictionary Fourth Edition)

Couch, 643 S.W.2d at 671-72.

 Black’s Law Dictionary defines “regular use,” as used in an insurance policy context, to be

“[a] use that is usual, normal, or customary, as opposed to an occasional, special, or incidental use.”

Black’s Law Dictionary,1540-41 (7 th ed. 1999) . This definition succinctly states the meaning of

“regular use,” and comports with other definitions set out in the previously decided cases. Because

of its plain and simple language, we adopt the Black’s Law Dictionary definition of “regular use.”

The question now becomes whether Officer Gillard’s particular use of the Cruiser constitutes

“regular use” under the above definition. At his deposition, Officer Gillard testified, in relevant part,

as follows:

Q. How many times a month were you assigned that vehicle [i.e., the

Cruiser] in January, February, March, April of 2002?

A. I would say about 60 percent.

Q. If you weren’t assigned that vehicle were you assigned another

vehicle in the pool?

A. Yes.

Q. Was there any other particular vehicle that you were assigned?

A. No.

Q. Is there any general custom that takes place in the Memphis

Police Department regarding assignment of vehicles? What I mean

by custom is are they assigned on a seniority basis, on regularity of

use? Is there any custom whatsoever on assignment?
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A. They are assigned to a ward.

Q. On each day when you reported to work in 2002 were you

assigned some vehicle from that ward?

A. Yes.

Q. And that vehicle was provided to you by the City of Memphis?

A. Yes.

Q. And it was provided to you for your use [in] your employment as

a police officer?

A. Yes.

* * *

Q. Was there any day when you weren’t assigned to a vehicle.

A. No.

Q. Was that vehicle assigned to you only when you were on the

[job]?

A. Yes.

Q. Was the vehicle returned after each shift?

A. Yes.

From this testimony, we conclude that a reasonable jury could only find that Officer Gillard’s

use of the Cruiser meets the definition of regular use set out above. By his own testimony, Officer

Gillard was assigned a vehicle from the fleet every day that he was on duty. His use of a fleet

vehicle, therefore, was “usual, normal, [and] customary, as opposed to occasional, special, or

incidental.” Based upon our discussion above, the fact that Officer Gillard was assigned a different

vehicle approximately forty percent of the time, does not negate a finding of “regular use.” As stated

by this Court in Shepherd, “‘it is regular use of other automobiles that brings the exclusionary clause

into operation, and if insured's employer assigns him one specific automobile for regular use or a

number of automobiles, any one of which may be assigned for a particular trip, the result is the same.

An automobile is furnished insured ‘for regular use’ in either event. We know of no authority

holding to the contrary.’” Shepherd v. Fregozo, 175 S.W.3d at 213 (quoting Moore v. State Farm
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Mut. Auto. Ins. Co., 239 Miss. 130, 121 So.2d 125, 126-27 (1960)). Consequently, we find that the

trial court erred in denying Nationwide’s motion for summary judgment. 

Because we have determined that the Nationwide policy does not provide coverage to Officer

Gillard in this case, we decline to address Nationwide’s second issue.

For the foregoing reasons, we reverse the order of the trial court, and remand the case for

entry of an order granting summary judgment in favor of Nationwide. Costs of this appeal are

assessed against the Appellee, Wayne B. Gillard, for which execution may issue if necessary.

___________________________________ 

J. STEVEN STAFFORD, J.