J-A05027-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL RAWL, AN INDIVIDUAL 

Appellant

v.

GEICO INDEMNITY COMPANY, A 

CORPORATION

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1086 WDA 2019

Appeal from the Order Entered July 1, 2019

In the Court of Common Pleas of Beaver County Civil Division at No(s): 

11435-2018

BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.: FILED JUNE 8, 2020

Michael Rawl appeals from the July 1, 2019 order granting summary 

judgment in favor of GEICO Indemnity Company, a Corporation (“GEICO”) in 

this declaratory judgment action. After review, we affirm. 

This is an underinsured motorist insurance (“UIM”) dispute arising out 

of an April 25, 2017 automobile accident in Brighton Township, Beaver County, 

Pennsylvania. Mr. Rawl and his insurer, GEICO, filed cross-motions for 

summary judgment based on the following stipulated facts: 

1. At all times hereto, plaintiff, Michael Rawl, was the named 

insured on a policy of insurance issued by GEICO Indemnity 

Company and providing $15,000 of underinsured motorist 

coverage with stacking.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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2. Michael Rawl insured three vehicles under the policy, so the 

applicable limits of underinsured motorist coverage are 

$45,000.

3. The policy contains an underinsured motorist amendment 

which contains a regular use exclusion which reads as follows:

When This Coverage Does Not Apply

9. When using a motor vehicle furnished for the 

regular use of you, your spouse, or a relative who 

resides in your household, which is not insured under 

this policy.

A copy of the insurance policy is attached to the 

Complaint as Exhibit 1 and is incorporated herein by 

reference.

4. On April 25, 2017, Michael Rawl was involved in a motor vehicle 

accident with Jessica Geier on Beaner Hollow Road in Brighton 

Township, Beaver County, Pennsylvania.

5. The accident was entirely the fault of Jessica Geier.

6. Michael Rawl sustained serious injuries as a result of the 

accident.

7. At the time of the accident, Jessica Geier was insured on a policy 

of insurance provided by Progressive Insurance Company with 

a limit of $50,000.

8. Progressive tendered its limit of $50,000 to Michael Rawl.

9. GEICO consented to the settlement and waived subrogation 

rights against Ms. Geier.

10. At the time of the accident, Michael Rawl was occupying a 

Dodge Ram van which had been rented by his employer, State 

Industrial Products, from Enterprise Rent-A-Car.

11. Michael Rawl was using the Dodge Ram rental van because 

his employer's regular work van was out of service on the date 

of the accident.
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12. The Dodge Ram rental van was insured by Travelers 

Insurance Company and provided $35,000 in underinsured 

motorist coverage, which Mr. Rawl has received.

13. Michael Rawl has made a timely demand to GEICO for 

underinsured motorist benefits.

14. GEICO has denied Mr. Rawl's claim based on the regular use 

exclusion contained in the underinsured motorist policy 

amendment as GEICO believes the Dodge Ram rental van in 

question was a temporary substitute vehicle for Mr. Rawl’s work 

van.

15. The Dodge Ram rental van was not part of the regular fleet 

of vehicles owned and operated by State Industrial Products.

16. Rawl picked up and rented the Dodge Ram rental van from 

Enterprise in Cranberry, Pennsylvania only one or two days 

before the subject accident occurred.

17. Rawl did not on any prior occasion operate that same Dodge 

Ram rental van for any purpose.

18. Rawl’s employer does not permit use of work vehicles for 

personal purposes or transportation of passengers.

Trial Court Opinion, 7/1/19, at 1-3. In addition to the foregoing stipulated 

facts, the trial court considered the facts admitted in the pleadings. 

The trial court granted summary judgment in favor of GEICO and denied 

Mr. Rawl’s motion for summary judgment, concluding that the regular use 

exclusion precluded UIM coverage under the policy. Mr. Rawl filed a timely 

appeal and complied with Pa.R.A.P. 1925(b). He presents five questions for 

our consideration:
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I. In utilizing the regular use exclusion to deny underinsured 

motorist coverage to Plaintiff (hereinafter “Rawl”), did the 

Lower Court err in concluding that an Enterprise rental van, 

having been operated by Rawl for only one or two days before 

the subject accident, was available for Rawl’s regular use as a 

fleet vehicle of his employer where said conclusion was

contrary to the Stipulation of Facts by the parties that the 

rental van was not part of the regular fleet of vehicles owned 

and operated by Rawl’s employer, that it was never available 

to Rawl on any prior occasion and Rawl had used the rental van 

for only one or two days before the subject accident and where 

there was no evidence of record that Rawl had ever previously 

used any Enterprise rental vehicle as part of his employment?

II. In utilizing the regular use exclusion to deny underinsured 

motorist coverage to Rawl, did the Lower Court err in 

concluding that the definitions in the liability section of the 

subject automobile insurance policy, which define regular use 

in the context of a rental vehicle, were inapplicable to the 

underinsured motorist coverage section definitions on the basis 

that the subject policy was not ambiguous as to the regular use 

exclusion and the "mutually exclusive" definitional sections 

(Page 16 of the Memorandum Opinion) where, to the contrary, 

the subject policy contained language expressly incorporating 

those definitions into the underinsured motorist coverage?

III. In utilizing the regular use exclusion to deny underinsured 

motorist coverage to Rawl, did the Lower Court err in 

concluding that the Enterprise rental van was simply a 

replacement for the “available” work vehicle and therefore 

available for Rawl’s regular use where said conclusion was in 

contravention of the express policy definition that a non -

owned auto, in the context of a rental vehicle, will only be 

considered as furnished for regular use when rented for more 

than 30 days and the subject Enterprise rental van had been 

rented only 1-2 days before the accident?

IV. In utilizing the regular use exclusion to deny underinsured 

motorist coverage to Rawl, did the Lower Court err in 

concluding that the Enterprise rental van was a “temporary 

substitute” for Rawl’s regular work van, relying upon the “plain 

and ordinary meaning” of those words rather than the express 

definition set forth in the subject policy, where the Lower Court 
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had concluded that the Enterprise rental van could not be a 

temporary substitute under the express definition in the 

subject policy (Pages 14-15 of the Memorandum Opinion) and 

absent any factual support that Geico actually denied the claim 

on that basis?

V. In utilizing the regular use exclusion to deny underinsured 

motorist coverage to Rawl, did the Lower Court err in 

concluding that Rawl “apparently argues that the rented van in 

question was a temporary substitute that would be included 

within the definition of insured motor vehicle for underinsured 

motorist coverage purposes . .” where said conclusion was 

directly contrary to the argument posited by Rawl, which was 

that that the rental van did not qualify as a temporary 

substitute under the express terms of the subject policy?

Mr. Rawl’s brief at 3-5.

We are reviewing the grant of summary judgment. The applicable law 

is well settled:

An appellate court may reverse the grant of a motion for 

summary judgment if there has been an error of law or an abuse 

of discretion. Since the issue as to whether there are no genuine 

issues as to any material fact presents a question of law, our 

standard of review is de novo; thus, we need not defer to the 

determinations made by the lower tribunals. Our scope of review, 

to the extent necessary to resolve the legal question before us, 

is plenary. We must view the record in the light most favorable 

to the non-moving party, and all doubts as to the existence of a 

genuine issue of material fact must be resolved against the 

moving party.

Millers Capital Ins. Co. v. Gambone Bros. Dev. Co., 941 A.2d 706, 712

(Pa.Super. 2007) (quoting Chanceford Aviation Properties, LLP. v. 

Chanceford Twp. Bd. of Supervisors, 923 A.2d 1099, 1103 (Pa. 2007) 

(internal citations omitted)).
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Summary judgment is appropriate “when the record clearly shows that 

no genuine issue of material fact exists, and the moving party is entitled to 

judgment as a matter of law.” Summers v. Certainteed Corp., 997 A.2d 

1152, 1159 (Pa. 2010); see also Pa.R.C.P. 1035.2(1). Both parties alleged 

that there are no genuine issues of material fact. Thus, coverage was a 

question of law for the trial court. As with all questions of law, our scope of 

review is plenary and our standard of review is de novo. Rother v. Erie 

Insurance Exchange, 57 A.3d 116, 118 (Pa.Super. 2012)

As this case involves the interpretation of an automobile insurance 

policy, the following principles inform our review. “Insurance policies are 

contracts, and the rules of contract interpretation provide that the mutual 

intention of the parties at the time they formed the contract governs its 

interpretation.” Adamitis v. Erie Ins. Exch., 54 A.3d 371, 379-380

(Pa.Super. 2012). As with contracts generally, when the words of the 

agreement are clear and unambiguous, we ascertain the intent of the parties 

from the language used and give the words their plain meaning. A contract 

is ambiguous “if it is reasonably susceptible of different constructions and 

capable of being understood in more than one sense[,]” Insurance 

Adjustment Bureau, Inc. v. Allstate Ins. Co., 905 A.2d 462, 468 (Pa. 

2006), or “if its terms are subject to more than one reasonable interpretation 

when applied to a particular set of facts.” Kropa v. Gateway Ford, 974 A.2d 

502, 508 (Pa.Super. 2009). An ambiguity in a policy is construed in favor of 
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the insured “to further the contract’s prime purpose of indemnification and 

against the insurer, as the insurer drafts the policy, and controls coverage.” 

Erie Ins. Exchange v. Conley, 29 A.3d 389, 392 (Pa.Super. 2011). 

At issue herein is UIM coverage under the GEICO policy. UIM coverage 

is intended to protect innocent victims of motor vehicle accidents when they 

are injured by motorists who have insufficient insurance to fully compensate 

them. However, there are limitations upon this type of coverage. The GEICO 

policy contains a “regular use” exclusion that precludes insureds or other 

members of the household from collecting UIM benefits when they are injured 

in a motor vehicle furnished or available for their “regular use” and which is 

not insured under the GEICO policy. In pertinent part, the at-issue exclusion 

in the GEICO policy provides that UIM coverage does not apply “[w]hen using 

a motor vehicle furnished for the regular use of you, your spouse, or a 

relative who resides in your household, which is not insured under this 

policy.” GEICO policy, Amendment (01-15) to UIM Coverage, at 1. (emphasis 

in original). 

We note that a similar regular use exclusion was held to be unambiguous

in Crum & Forster Personal Ins. Co. v. Travelers Corp., 631 A.2d 671,

673 (Pa.Super. 1993). Furthermore, our High Court has ruled that a “regularuse” exclusion does not violate the Pennsylvania Motor Vehicle Financial 

Responsibility Law, 75 Pa.C.S. §1701, et seq. or public policy. See Williams 

v. GEICO, 32 A.3d 1195 (Pa. 2011). 
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In granting summary judgment in favor of GEICO, the trial court found 

the facts in Brink v. Erie Ins. Group, 940 A.2d 528, 535 (Pa.Super. 2008), 

analogous to the facts herein. In Brink, this Court held that a police officer’s 

use of a fleet vehicle was “regular” within the means of the exclusion even 

though the vehicle assigned to him to perform his job duties was not always

the particular vehicle in which the accident occurred. We reasoned that the 

term “regular use” meant that a vehicle was “available” for the insured’s use, 

and the vehicle need not be a particular vehicle. Herein, the trial court 

concluded that, as in Brink, [t]his rental vehicle was simply a replacement for 

the ‘available’ work vehicle.”

1

 Trial Court Opinion, 7/1/19, at 11. 

Mr. Rawl contends, however, that the trial court erred in concluding that 

his employer’s rental van that he only operated for one or two days prior to 

the accident was available for his regular use as a fleet vehicle. He maintains 

that this conclusion was “contrary to the Stipulation of Facts by the parties that 

the rental van was not part of the regular fleet of vehicles owned and operated 

by [Mr.] Rawl’s employer, and that it was never available to him on any prior 

occasion.” Mr. Rawl’s brief at 13. He also argues that he did not have regular 

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1 The trial court also cited Mishler v. Erie Ins. Exchange, 209 A.3d 544

(Pa.Super. Jan. 31, 2019), an unpublished memorandum of this Court. As 

such reliance violates Superior Court I.O.P. 65.39(B) (providing that, which 

exceptions inapplicable here, unpublished memorandum decisions filed prior 

to May 2, 2019 “shall not be relied upon or cited by a Court or a party”), we 

shall not consider it. 
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or habitual access to the rental van, and that his use of the vehicle on the day 

of the accident was purely incidental. 

We find no merit in Mr. Rawl’s argument. While the Joint Stipulation of 

Facts indicates that the rental van was not part of the fleet of Mr. Rawl’s 

employer, it also establishes that it was a replacement vehicle for a fleet 

vehicle that was being repaired. See Trial Court Opinion, 7/1/19, at 2-3. For 

purposes of regular use, the vehicle furnished need not be a particular vehicle. 

See Brink, supra at 535. We reached a similar conclusion in Nationwide 

Assur. Co. v. Easley, 960 A.2d 843, 848 (Pa.Super. 2008), holding that the 

regular use exclusion applied where a cab driver leased a vehicle on per diem

basis, selecting a vehicle from cab company’s fleet, and was injured in the cab 

during his commute home. The fact that he did not operate the same taxi 

each day did not invalidate the “regularly used, non-owned vehicle” exclusion

in his own policy.

2

 

The parties herein stipulated that the van was a vehicle rented by Mr. 

Rawl’s employer as a substitute for a fleet vehicle that was being repaired. 

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2 See also Calhoun v. Prudential General Ins. Company, 2005 U.S. Dist. 

LEXIS 44302 (M.D. Pa. 2005) (holding that state trooper “regularly uses” a 

fleet vehicle if he regularly or habitually has access to vehicles in that fleet, 

and the fact that he had not driven Unit 15 prior to the accident did not take 

it out of the regular use); Prudential v. Peppelman, 2003 U.S. Dist. LEXIS 

7650, *6-8 (E.D. Pa. 2003) (explaining that the regularity with which one 

operates a vehicle is of no consequence to enforcement of “regular use” 

exclusion; rather, availability of a vehicle from fleet controls); accord 

Prudential Property & Casualty Insurance Co. v. Armstrong, 2004 U.S. 

Dist. LEXIS 4918, *6-7 (E.D. Pa. 2004).
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They further stipulated that Mr. Rawl used an employer-provided vehicle to 

perform his employment duties. The fact that the van herein was a temporary 

replacement for an employer-owned fleet vehicle, and that Mr. Rawl had only 

used this particular vehicle once or twice before, does not take it outside the 

regular use exclusion as interpreted in Brink. Stated simply, it does not 

matter whether Mr. Rawl had regular use of a particular vehicle furnished by 

his employer, but whether he regularly used a vehicle supplied by his 

employer. 

Mr. Rawl contends that under the language in the instant policy, it is not 

only “regular use” which is determinative of the applicability of the exclusion. 

He maintains that the vehicle must be “furnished or available” for regular use. 

He argues that “[t]his implies an understanding with the owner of the vehicle 

that the insured could use the automobile of the other person at such times as 

he or she desired, if available.” Mr. Rawl’s brief at 19. It is his position, 

unsupported by any authority, that the vehicle was not “available” for his 

regular use because its use was restricted to employment-related purposes. 

Regular use need not be unlimited use. As the foregoing employment 

vehicle cases illustrate, a vehicle available for an employee’s use in performing 

his employment duties is furnished or available for regular use. “Furnished or 

available” does not mean unfettered use at any time for any purpose. 

Mr. Rawl next claims that the trial court erred in concluding that the 

definitions in the liability section of the GEICO policy were “mutually exclusive” 
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of definitions in the UIM section of the document. He directs our attention to 

language in the UIM portion of the policy that incorporates definitions from 

the liability section of the policy. 

We agree with Mr. Rawl that definitions in the liability section of the 

policy generally applied to the UIM coverage. See GEICO policy, Section IV 

Underinsured Motorists Coverage, at 13. (“DEFINITIONS -- The definitions or 

terms in Section I [Liability] apply to this coverage. The following definitions 

apply only to this [UIM] coverage.). However, we do not read the trial court 

opinion as concluding that the liability definitions and definitions contained in 

the UIM coverage provisions were mutually exclusive. Rather, the trial court 

stated that some definitions apply to certain coverage situations that are 

mutually exclusive. We find no error in the court’s reasoning. The general 

policy definitions are incorporated into the various coverages, but do not apply 

on the facts in some coverage situations or are expressly superseded by more 

specific definitions in others.

3

 

Mr. Rawl’s third and fourth issues involve claims that the trial court erred 

in failing to give effect to the express terms of the policy. In his third issue, 

Mr. Rawl argues that the definition of “regular use” contained within the 

definition of a “non-owned auto” in the liability portion of the policy controls 

the meaning of “regular use” for purposes of UIM coverage. Since the rental 

____________________________________________

3 More importantly, Mr. Rawl fails to explain how the trial court’s allegedly 

erroneous view of the policy definitions led to an incorrect legal conclusion. 
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van Mr. Rawl operated at the time of the accident had only been rented for 

one or two days, i.e., not more than the thirty days that constituted regular 

use of a “non-owned auto,” he contends that this was not regular use for 

purposes of the regular use exclusion. See Appellant’s brief at 30.

We note first that Mr. Rawl misrepresents the policy language when he 

points to the definition of a “non-owned auto” and equates it to a definition of 

“regular use.” Regular use is not a defined term in the GEICO policy. The 

definition of a “non-owned auto” includes a vehicle that is “not owned by or 

furnished for the regular use of either the insured or a relative, other than a 

temporary substitute auto,” and a non-owned auto “rented or leased for more 

than thirty days will be considered as furnished for regular use.” GEICO policy, 

Section I, Liability Coverage, at 3. It certainly does not purport to 

circumscribe what constitutes regular use. 

Mr. Rawl argues further that since the employer placed restrictions on 

the use of the furnished vehicles for personal use or for the transportation of 

passengers, these vehicles were not available for regular use. He suggests 

that if GEICO sought to exclude UIM coverage to its insureds, it could have 

provided a more specific definition of regular use, but failed to do so. 

As noted above, regular use is an undefined term in the policy. Thus, 

we construe it based on the plain meaning of the words. For the reasons 

supra, Mr. Rawl’s use of his employer’s rental vehicle constituted regular use 

as construed through judicial decision. 
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Next, Mr. Rawl points to the definition of an “insured motor vehicle” for 

purposes of UIM coverage, and argues that the employer’s rental van could 

not be considered a “temporary substitute” because that definition applied

only to a vehicle that he owned. The definition reads:

3. Insured Motor Vehicle is a motor vehicle:

(a) Described in the declarations and covered by the bodily 

injury liability coverage of this policy;

(b) Temporarily substituted for an insured motor vehicle when

withdrawn from normal use because of its breakdown, 

repair, servicing, loss or destruction;

(c) Operated by you or your spouse if a resident of the same

household.

But the term insured motor vehicle does not include:

(i) A motor vehicle used to carry passengers or goods for hire 

except in a carpool;

(ii) A motor vehicle being used without the owner's permission; or

(iii) Under subparagraphs (b) and (c) above, a motor 

vehicle owned by or furnished for the regular use of an 

insured.

GEICO Policy, Section IV UIM Coverage Amendment (01-15) at 1 (emphasis

added). 

Mr. Rawl maintains that GEICO asserted that the rental van was a

temporary substitute for Mr. Rawl’s work vehicle. However, he alleges that in 

denying the claim, GEICO did not rely on the plain and ordinary meaning of 

the term temporary substitute “in contravention of the express definition of a 
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temporary substitute as set forth in the subject policy.” Mr. Rawl’s brief at 

32. He contends that when one reads the foregoing UIM definition of an 

“insured vehicle,” which includes “a vehicle temporarily substituted or an 

insured motor vehicle when withdrawn from normal use because of its 

breakdown, repair, servicing, loss or destruction,” together with the liability 

definition of a “temporary substitute auto” for purposes of an “owned auto,”

the definition is ambiguous. Id. at 33-34. He suggests, without any analysis, 

that if the “ambiguous” provisions were construed in his favor, he would be 

entitled to coverage. Id. at 34.

As the trial court noted, Exhibits 8 through 10 to Mr. Rawl’s complaint,

in conjunction with number 14 of the joint stipulated facts, confirm that GEICO 

denied the claim based on the “regular use” exclusion. After Mr. Rawl disputed 

that the van was “furnished for regular use” since his regular work van was 

being repaired, GEICO responded that “the van was a replacement vehicle for 

the van . . . Mr. Rawl uses for work that is furnished for his regular use.” See 

Complaint, Exhibit 10 (GEICO correspondence dated Nov. 20, 2017). Thus, 

when it denied coverage, GEICO did not describe the rental van as a 

“temporary substitute” as defined in the policy.

We note, however, that the parties stipulated that “GEICO has denied 

Mr. Rawl's claim based on the regular use exclusion contained in the 

underinsured motorist policy amendment as GEICO believes the Dodge Ram 

rental van in question was a temporary substitute vehicle for Mr. Rawl’s work 
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van.” Joint Stipulation of Facts No. 14. The trial court, in arriving at its 

conclusion that the regular use exclusion applied, ascribed the plain and 

ordinary meaning to the foregoing words used in the stipulation. 

We find no error in this regard as “temporary substitute vehicle” is not 

a defined term in the policy. The employer’s rental van was not a “temporary 

substitute auto” as defined in the liability section of the policy because it was 

not a substitute for a vehicle owned by Mr. Rawl. It was not a “substitute 

motor vehicle” as defined in the UIM coverage section because, although Mr. 

Rawl was operating the van, it was not insured under Mr. Rawl’s policy and 

it was regularly used. We find no ambiguity. 

Finally, Mr. Rawl takes the trial court to task for allegedly misconstruing 

his argument that the “rental van did not constitute a ‘temporary substitute’

under the express terms of the subject policy.” Mr. Rawl’s brief at 34. 

Unfortunately, we find this claim to be both cryptic and undeveloped. Mr. 

Rawl does not reiterate for our benefit the substance of his argument to the 

trial court, discuss pertinent authorities, or explain why it matters to our 

disposition. See Pa.R.A.P. 2119(a), (b).

Our rules require that a litigant must set forth developed argument in 

his brief to this Court. Incorporating by reference claims advanced below is 

an “unacceptable manner of appellate advocacy.” See Commonwealth v. 

Edmiston, 634 A.2d 1078, 1092 n. 3 (Pa. 1993). We are “not obliged to root 

through the record and determine what arguments, if any . . . were forwarded 
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below, nor are we obliged to fashion an argument on [a litigant’s] behalf.” 

Pines v. Farrell, 848 A.2d 94, 97 n.3 (Pa. 2004). This alleged error merits 

no relief. 

For the foregoing reasons, Mr. Rawl has provided no reason for us to 

disturb the trial court’s grant of summary judgment in favor of GEICO.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/8/2020