Michele Burton v. Progressive Advanced Insurance Co

• Court: Court of Appeals for the Third Circuit
• Decided: August 6, 2024
• Docket: 23-1574
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 23-1574 ________________

MICHELE BURTON, Individually and as assignees of Joyce Frisbie; ROBERT BURTON, Individually and as assignees of Joyce Frisbie,

Appellants

v.

PROGRESSIVE ADVANCED INSURANCE CO ________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D. C. No. 3-21-cv-01522) District Judge: Honorable Malachy E. Mannion ________________

Submitted under Third Circuit L.A.R. 34.1(a) on May 7, 2024

Before: PORTER, MONTGOMERY-REEVES and ROTH, Circuit Judges

(Opinion filed August 6, 2024) ________________

OPINION* ________________

ROTH, Circuit Judge

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Michele and Robert Burton appeal the District Court’s order granting summary to

Progressive Advanced Insurance Company. We will affirm.

I. Factual and Procedural Background

Joyce Frisbie was driving her brother’s Tahoe—which he was letting her use while

her Civic was out of commission—when she caused a car accident that injured Michele

Burton. At the time of the accident, Erie Insurance insured her brother’s Tahoe,1 while

Progressive insured Frisbie’s Civic. Progressive’s policy provided $250,000 in liability

coverage, subject to certain terms and conditions. In relevant part, the policy excluded

“bodily injury or property damage arising out of the ownership, maintenance or use of any

vehicle owned by [the policyholder] or furnished or available for [the policyholder’s]

regular use, other than a covered auto for which [the policy] has been purchased.”2 Frisbie

reported the accident to Erie, who reported it to Progressive. After investigating,

Progressive concluded that the Tahoe “was furnished and available for [Frisbie’s] regular

use” and therefore excluded from liability coverage.3

Burton and her husband sued Frisbie for negligence in state court, where Erie

defended Frisbie. Following a bench trial, the Burtons were awarded a $320,871.30

verdict, $100,000 of which was paid for by Erie.4 Frisbie then assigned her rights to pursue

1 Erie’s policy provided $100,000 in liability coverage. 2 Appx. 842 (the “regular use” exclusion). The policy defined “covered auto,” in relevant part, as follows: (1) “any auto [] shown on the declarations page for the coverages applicable to that auto”; (2) “any additional auto”; or (3) “any replacement auto[.]” Appx. 839. The only auto listed on Frisbie’s declarations page was her Civic. 3 Appx. 903. 4 As Progressive had denied Frisbie coverage for the accident, Progressive paid nothing. 2 any claims against Progressive to the Burtons. The Burtons subsequently sued Progressive,

giving rise to the instant case.5

In moving for summary judgment, the Burtons made two arguments. First, citing

the Pennsylvania Superior Court’s decision in Rush v. Erie Exchange6 and the Western

District of Pennsylvania’s decision in Evanina v. First Liberty Ins. Corp.,7 they argued that

Progressive’s “regular use” exclusion is unenforceable because it limits the scope of

liability coverage required by the Pennsylvania Motor Vehicle Financial Responsibility

Law (MVFRL). Second, they argued that even if the exclusion is enforceable, it did not

apply because Frisbie’s use of the Tahoe was only temporary as it would stop when her

Civic was repaired. The District Court disagreed on both counts and awarded summary

judgment to Progressive.8 The Burtons appealed.

5 The Burtons sued Progressive in state court but Progressive removed the case on diversity grounds. 6 265 A.3d 794, 795 (Pa. Super. Ct. 2021) (in “case of first impression, hold[ing] that the ‘regular use’ exclusion conflicts with the MVFRL and is unenforceable”), rev’d, 308 A.3d 780 (Pa. 2024). 7 587 F. Supp. 3d 202, 208-209 (M.D. Pa. 2022) (predicting that the Pennsylvania Supreme Court would find “the regular use exclusion is contrary to [] the MVFRL and therefore invalid and unenforceable” based on the Superior Court’s decision in Rush). 8 Burton v. Progressive Advanced Ins. Co., 2023 WL 2577237, at *4-5 (M.D. Pa. Mar. 20, 2023). 3 II. Analysis9

The Burtons raise the same two arguments on appeal. They fail here as they did

before the District Court.

First, while this appeal was pending, the Pennsylvania Supreme Court reversed the

Superior Court’s decision in Rush, holding that the “regular use” exclusion in underinsured

motorist coverage does not violate the MVFRL and is valid and enforceable.10 As a result,

the Burtons’ argument as to why Progressive’s “regular use” exclusion is unenforceable

rests entirely on what is no longer good law.11

Second, we agree with the District Court that Frisbie’s use of her brother’s Tahoe

was “regular use” excluded from liability coverage under Progressive’s policy.

Pennsylvania courts have unanimously concluded that the term “regular use” is

unambiguous12 and defined as “a principal use as distinguished from casual[,] incidental .

9 The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291. Our review of a district court’s order granting summary judgment is plenary. See Pittsburgh Mailers Union Loc. 22 v. PG Publ’g Co. Inc., 30 F.4th 184, 186 (3d Cir. 2022). “We . . . review the facts in the light most favorable to the party against whom summary judgment was entered.” Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996). 10 See Rush v. Erie Ins. Exch., 308 A.3d 780, 802 (Pa. 2024). 11 Nor does Evanina help the Burtons’ case, as Evanina predated the Pennsylvania Supreme Court’s decision in Rush and rested on a prediction that the court would come out the other way. See Evanina, 587 F. Supp. 3d at 208-209; see also Rush, 308 A.3d at 799-800 (rejecting Evanina’s prediction). 12 See Nationwide Mut. Ins. Co. v. Shoemaker, 965 F. Supp. 700, 703 (E.D. Pa. 1997), aff'd sub nom. Nationwide Ins. Co. v. Shoemaker, 149 F.3d 1165 (3d Cir. 1998) (noting that “every Pennsylvania state court to have considered the question has come to that conclusion” and collecting cases). 4 . . [or] occasional” use.13 It is immaterial that Frisbie planned to stop using her brother’s

Tahoe once her Civic was back up and running. What matters is that Frisbie was the

Tahoe’s principal operator while it was on loan to her.14 It is undisputed that her brother

gave her unqualified use of the car.15 She kept it at her house full-time and used it on a

near-daily basis to get to work, run errands, and the like. Given these undisputed facts, the

District Court correctly concluded that the Tahoe was available for Frisbie’s “regular use”

at the time of the accident, and as a result, barred the Burtons from recovering against

Progressive.

III. Conclusion

We will affirm the District Court’s order granting summary judgment to

13 Crum and Forster Personal Ins. Co. v. Travelers Corp., 631 A. 2d 671, 673 (Pa. Super. Ct. 1993) (internal citations omitted). 14 See, e.g., Shoemaker, 965 F. Supp. at 706 (concluding that a granddaughter’s “temporary but nonetheless principal employment of her grandmother’s car” on a daily basis over a three-week period qualified as “regular use”). 15 See id. (identifying “(1) blanket permission to use the car . . . and (2) an available set of keys” as “two important indicia of regular use”). 5