Name all Vehicles if You Want Coverage

Regular Use of an Auto Excluded if Not Listed on Declarations

People who buy auto insurance often try to save money by not identifying all vehicles owned and operated by the insureds. When a pick-up truck used mostly for farming operations and – as a result – not often on public roads was not listed on the policy even though regularly used by the insured and his son it ran afoul of an exclusion for vehicles used regularly by the insured.

In Nationwide Affinity Insurance Company, a Corporation v. Mark Pollman and Brent Ficke, No. A-18-973, Nebraska Court of Appeals (June 25, 2019) the Nebraska Court of Appeals was asked to resolve a suit brought by Nationwide Affinity Insurance Company (Nationwide) against Mark Pollman and Brent Ficke seeking declaratory relief determining that Pollman’s insurance policy with Nationwide did not cover losses from an automobile accident between Pollman and Ficke.

BACKGROUND

This insurance coverage dispute arose out of an automobile accident that occurred in Kansas. Pollman drove his father’s pickup along a Kansas road from one of his father’s farms to another. Ficke drove his car in the opposite direction along the same road. Pollman caused a head-on collision that resulted in significant injuries to Ficke. Ficke filed suit against Pollman in Kansas, and Pollman was found liable for Ficke’s injuries and ordered to pay damages in the total amount of $645,127.40.

Pollman had an insurance policy with Nationwide that listed four vehicles in its declarations. The pickup Pollman drove during the October 22, 2015, accident was not one of them.

The policy also listed several exclusions from liability coverage, including the following “regular use” exclusion: “B. We do not provide Liability Coverage for the ownership, maintenance or use of: … 2. Any vehicle, other than ‘your covered auto’, which is: a. Owned by you; or b. Furnished or available for your regular use.’” The policy defined “your covered auto” as “any vehicle shown in the Declarations.”

Nationwide attached a copy of Pollman’s insurance policy and the pleadings from the Kansas action to its complaint. Nationwide filed a motion for summary judgment. Although the pickup was usually used for hauling cattle, it was also used for chores around the farm. The pickup was kept at his father’s house, which was the site of one of his farming operations. Pollman kept a set of keys to the pickup at his house, and he could use the pickup whenever he needed it. Pollman’s father purchased the pickup for both his and Pollman’s use about 10 years.

Pollman testified he never used the truck for personal use. It was used to haul his father’s cattle and do his farm chores. In his affidavit, Pollman stated that his father always drove the pickup when cattle were being checked. Although the cattle needed to be checked every day, Pollman only rode without his father on a few occasions. Pollman almost never operated the pickup alone. On the day of the accident, Pollman was operating the vehicle for his father’s farming operation, moving a freezer from one farm location owned by his father to another.

Eventually the district court entered an order on Nationwide’s motion for summary judgment. The court found that Pollman’s insurance policy with Nationwide did not cover losses from the  accident due to the policy’s “regular use” exclusion. The court found that the uncontroverted evidence showed that Pollman’s father purchased the pickup for Pollman’s customary or reoccurring use. The court determined that Pollman’s admission that he had a key to the pickup in his house, that he could use it whenever he needed it for farm chores, and that he used it every two weeks was not consistent with a finding that he used the truck incidentally or occasionally. The court also determined that the “regular use” of a vehicle includes both driving and riding as a passenger.

ANALYSIS

The only issue presented in Nationwide’s declaratory judgment action was whether the policy’s “regular use” exception barred coverage of the losses from Pollman and Ficke’s accident.

Parties to an insurance contract may contract for any lawful coverage, and an insurer may limit its liability and impose restrictions and conditions upon its obligations under the contract if the restrictions and conditions are not inconsistent with public policy or statute. The language of an insurance policy should be read to avoid ambiguities, if possible, and the language should not be tortured to create them.

Pollman drove his father’s pickup to help with his father’s farming operation. The truck was stored at Pollman’s father’s house. His father bought the pickup almost a decade before the accident specifically so that he and Pollman could use it. Pollman could use the pickup for farm purposes whenever he needed it, and he kept his own set of keys to the pickup. The frequency of Pollman’s use varied, but he admitted to using the truck weekly or every two weeks. These facts convinced the Court of Appeals that Pollman’s use of the pickup was customary and recurring, and not occasional or incidental. The fact that Pollman did not use the pickup for his own personal purposes does not change the outcome.

ZALMA OPINION

The opinion, and the work of the parties, stated no reason why the pickup was not listed on the policy. Clearly it was used regularly on and off the farm and was purchased for the purpose of using it for farm operations. Failing to insure it to save a modest premium cost Pollman coverage and a need to pay a $645,127.40 judgment. Whatever premium saved by not listing the pickup was lost by the need to pay the judgment for the injuries caused and the Pollman family learned a very expensive lesson.


© 2019 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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