# FILED
March 17, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE WESTERN SECTION A T JACKSON LORRIE BETTS MURPHY, Ind. and ) as Mother and next Friend of ) April Murp hy, ) ) Plaintiffs/Appellants, ) Shelby Circuit No. 70768 T.D. ) VS. ) Appeal No . 02A01-9705-CV- 00105 ) JESSICA R. CHADWELL and ) GUY ANDERSON, ) ) Defendants/Appellees. )
APPEAL FROM

THE CIRCUI T COURT OF SH ELBY COUN TY AT MEMPHIS, TENNESSEE THE HONORABLE KAY S. ROB ILIO, JUDGE

HARVEY L. G IPSON Memphis, Tennessee Attorney for Appellants

WARREN D. Mc

WHIRTER McWHIRTER & WYATT Memphis, Tennessee Attorney for Appellees

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . HOLLY KIRBY LI LLARD, J. Plaintiff/Appellant, Lorie Betts Murphy (“Plaintiff”) appeals the judgment of the trial2

court granting Defendant/Appellee’s, Mid-Century Ins urance Company (“Mid-Century”), motion for summary judgment. For reasons st ate hereinafter, we affirm the judg ment of the trial court.

Facts and Procedural His tory This case arises out of an automobile accident whic h occurred on October 1, 1994, at approximately 7:40 p.m. Plaintiff was operating a 1985 Chevrolet Camaro with h er 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 fat he r of Daughter and the ex-husband of Plaintiff. Plaintiff had the co nsent and permissi on of he r exhusband to drive the Camaro. On the day of the accident, Plaintiff was hea ding in a southerly direction on New Allen Road in Memphis, Tennessee. She arr ived at t he intersection of New Allen and Ridgemont Avenue. This intersecti on is control led by a stop sign. Plaintiff stopped and then proceeded through the inters ection. Defendant Jessica Chadwell was heading in an easterly directi on on Ridgemont Avenue when she allegedly failed to o bserve the stop sign thereby colliding w ith Plaintiff. As a result, P laintiff and Daughter

suffered v arious personal injuries. C hadwell was in the c ourse of her employment

with Defendant Guy Anders on at the time of the accident. Anderson prov ided
no insura nce for t he car C hadwel l was d rivin g. Plai ntiff filed suit for these personal injuries. Addition ally, Plaintiff filed a claim against Mid-Century which was serv

ed 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, Plain tiff was coveredby an insurance policy issued by Mid-Centuryfor her 1989 Ford Mustang. It is under this policy, specifically, under Pa rt II, Co verage C of the pol icy which pr ovides for unin sured mo

torist covera ge, that Plaint iff seeks recovery for bo

th herself and Daughter.
Mid-Centuryfiled a motion for summary judgment asserti ng that paragraph 4 of Part II entitled “additional definitions used in this part only” barred Plaintiff and Daughter fro m3

recovering under thi s policy. Particul arly, paragraph 4 pr ovides in part: Uninsured motor vehicl e, however, does not mean a vehicle: a. Owned by or furnished or availa ble for the regular use by you or any family member. Mid-Centurycontends that Plaintiff admits in her deposi tion that she used the car 3-4 times per week, and as

such, uses the car on a reg ular basis thereby dis qualifying the car as

an “uninsur ed motor vehicle” un der the po licy.

Q: Could you e stimate for me ho w m any time s a week you drove this particular

vehicle, the ‘85 Camaro? A: I’d say three to four in a week. Mid-Centuryfurther contends that Plaintiff admitte d that she used t he car on a regular basis. Q: Did you have a car that you used on a re gular basis other than this ‘85 Camaro? A: That is correct. M id-Centuryasserts that since the 1985 C amaro was available for the regular use o

f Plainti ff, the Camaro is not an “uninsur ed motor vehicle”

under the policy. Therefore, MidCenturyargues, ther

e is no insurance afforded for Plainti ff or Daughter under the uninsured motorist provi sion in this policy for this particular acci dent.

In response to Mid-Century ’s motion for summary judgment , Plaintiff proffered her affidavit wherein she stated that th e Camaro was not avail able to her for “regular use.” Plainti ff further contends that the term “r egular use” is not defined in the po licy and is ambiguous, thus, creating a genuine issue of material fact.
Additionally, Mid-C

entury contends

that Daughter should be bar red from recovery under a section of Part II entitl ed “Exclusions.” The s ection provides in par

t: This coverage sh all not ap ply to bod ily injury su stained by a person: 1. Whil e occupying any vehicle owned by you or a famil y m ember for which insurance is not afforded under this poli c y or through being struc

k by that vehicle. Mid-Centuryinterp rets th e term “ family member”

to mean fa mily me mber of the injured.4

In this case, Mid-Centur y argues, Daughter

was injured whil e occupying the vehicl e of a fami ly member, namely, h er Father , Joseph Murphy. Con sequentl y, Mid-Cent ury c ontend s that Dau ghter is ba rred from recovery un der this p rovision in the polic y.

Plainti ff argues that

the term “family member,” although defined, is still ambiguous. Specifi cally, Plaintiff argues that the term “family member” can be inte rpreted in two ways: (1) a family member of the insured; or (2) a family member of the injur ed person. Conseque ntly, Plaintiff charges that this dispute over the interpretation of the term “family member” creates a genuine is sue of material fact.

The trial court disagreed with Plaintiff and, consequently, granted Mid-Century’s motion forsummary judgment. Plaintiff appeals the judgment of the t rial court raising the follo win g issue to be considered by this court: whether the trial court properly granted summary j udgment in favor o f Mid-Cen tury Insur ance Com pany.

Law and Discussion This action to recover for per sonal injuries under

the uninsured motorist prov isions of an insura nce polic y i ssued by M id-Century to Plainti ff was dismissed on motion for summary judgment, the propriety of which is presented for our review. Cons

equently, our review is de novo with no presumption of corr ectness. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995).
Summary judgment is proper w hen there are nogenuine 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 summ ar y judgment, courts must t ake 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 counterv ailing evidence. Byrd v. Hall, 8 47 S.W.2d 208, 210-211 (Tenn. 1993). Summary judgment is only appropriate w hen the case can be decided on legal issues alone.5

As a matter of procedure, the moving party has the burden to show that there is no disputed, material fact creating a g enuine issue for trial. Payne v. Breuer , 891 S.W.2d 200, 202 (Tenn. 1994). When th e moving part y m akes such a showing th rough a motion properlysupported 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 is sue which must be resolved at trial. The nonmoving party may not rely

on allegations

made in the ple adings or conclusory remark

s unsupported by facts.

The part ies’ respective ri ghts and obligations ar e governed by their

contract of insurance whose terms are embodie d in the pol icy. As with any other contract, our responsibility is

to give effect to

the expressed intention of the par ties, Blaylock & Brown Constr., Inc. v. AIU

Ins. Co. , 796 S.W.2d 146, 149 (Tenn. Ct. App. 1990), by construing the policyfairly 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 ordi nary meaning. Tata v. Nichols , 848 S.W.2d 649, 650 (Te n n. 1993); Parker v. Provident Life & Accident Ins. Co. , 582 S.W.2d 380, 383 (Ten n. 19 79 ). We are not at liberty to rew rite an insurance policy simply because we do not favor its terms or becaus e its provisions pr

oduce h a rsh results. In the absenc e of fraud, overreach ing, or unc onscion ability, the courts must give effect to an insurance policy if its language is cl ear and its intent certain. Quintana v. Tennessee Farmers Mut. Ins. Co. , 774 S.W.2d 630, 63 2 (Tenn. Ct. App. 1989).

At trial, much of the discussi on focused o n the def inition of “uninsured motorist vehicle” under Part II paragraph 4 of the poli cy. This was done in order to illustr

ate that the 1985 Ca maro which Plaintiff was driving was not covered under the uninsured motorist provisions in the poli cy. 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 insure d. In this case, the6

“uninsured motor vehicle” wou ld be the 1985 Cavalier driv en by Chadwell and not the 1985 Camaro driven by Plaintiff-insured. It appears that the focus at trial should have been on the policy provisi on that would prevent c overage from attaching to a vehicle furnished for the regular use of Plaintiff. We need not be concerned w ith the definition of an “uninsured motor vehicle” under the facts in this case.

Under part five of the section entitle d “Definitions” in the policy, “Insured car” is defined as follows:

5. A n y other private pass enger car, utility

car, or utility t railer not owned by or furnished or available for regular use by you or a family member. (Emphasis added). This is the essential provisi on in determiningwhethe r or not Plaint iff is covered un der the terms of the policy

for the 1985 Camaro she w as drivin g 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 o f this po licy.

Plainti ff argues that “regular

use” is an ambiguo us term and , as such, creates a genuine issue of material fact sufficient to overcome Mid-Cent ury’s motio n fo r summary judgment. Tennessee authority concer ning the definition of “regul ar us e” is sc ant. Howe ver, as both parties point out, United Services Auto. Ass’n. V. Couch , 643 S.W.2 d 668 (Tenn. Ct. App. 1982), deals w ith the proper interpretati on of “regular use.” The United Services court looked to

decisions in other states to aid in determining the i nterpretation of “regular use.”

In Moore v. State Farm M utual 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 Mississip pi Supreme Court held this t o be regular use.

In Farm Bureau Mutual Auto mob ile I ns. 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 his7

employer

for insured and other employees of his federal agency. Insured had driv en a car from the same pool about fifty times in ten months, an average of five times per month. The trial court took the posi tion that use was more t han occa sional, hence it must be regular.

Addition ally, the United Services court looked at definitions of “regular” in Webster’s Third International Dictionar y. United Services Auto. Ass’n. v. Couch , 643 S.W.2d at 671. In doing so, they came to the conclus ion that the issue of regular ity centers around the regularity

with which a particular vehicle is furni shed or made available for the insured’s
use. Id. at 672. The court in United Services stated in relevant part : The obvi ous purpose of the “non-owned vehicle” coverage is to afford protection to the insured on occ asions when the insured is temporarily usi ng a vehicle n ot cove red by the policy. . . [t]he obvious purpose of the exclusion under discussion is to prevent abuse of the “non-owned” privilege by unne cessarilyburdening the insurer w ith liability w

hich ought to be covered by other i nsurance. . . [a]lso, the purpose of the exclusion is to denycoverage to the insu red while using a vehicle as to coverage of which he has an opportunit y to investigate. If a vehicle is not regularly availa ble to i nsured and if in sured us es a vehicle only on isolated occasions, it would not be expected that he inqui re as to the l i ability insurance on the v

ehicle.If, however, insured has available to him or use s a vehicle with any degree of regularity, it is expected that he would ascertain w he ther the vehicle is covered by liability i nsurance, an d, if not, would arrange for suitabl e protec

tion for himself

.

We find the term “regular use ” to be unambiguous. When employing the plain and ordinarymeaning of “re gular use,”we conclude that Plaintiff’s use of the Camaro was, undoub tedly, “regular.” There is no debate about the “degree of regularity” with which Plainti ff used the 1985 Camaro. It i s uncontrov erted 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 ki nd of regular use that the policy w

as designed to

exclude from coverage. As such, the 1985 Camaro is not an “insur ed car” under the

provisions of the policy. Consequentl y, Plaintiff and Daughter ar e prohibited from recovering under said policy. We conclude that the trial court was correct in granting

summary judgment for the1 W e find it unnecessary to add ress the excl usion provi sions discussed b y Mid-Centur

y in its brief concerning an ad diti onal gr ound to exclude coverage for Daughter. Such di scussion has become superfl uous. 8 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 affir med. Cos

ts are t axed to Plaint iff, forwhich execution may issue if necessary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

LILLARD, J.