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Plaintiff’s Claim for UIM Coverage Denied Based upon Regular Use Exclusion in Insurance Policy

By on December 11, 2020 in Coverage with 0 Comments

Plaintiff Edward Siemietkoski sought underinsured motorist (UIM) benefits from Geico Insurance Company (Geico) due to injuries suffered in an automobile accident with defendant Charlie Velasquez-Flores. Geico denied Plaintiff’s claim based on the “regular use” exclusion contained in his insurance policy. This exclusion restricts coverage “where an insured has sustained bodily injury while occupying a vehicle furnished for the regular use of the insured.” The question in Siemietkoski v. Velasquez-Flores, 2020 N.J. Super. Unpub. LEXIS 1438 (App. Div. July 17, 2020) was whether the exclusion was properly applied to this claim.

Plaintiff, an Atlantic County park ranger, was involved in an automobile accident while operating an Atlantic County owned truck during the course of his employment. According to Plaintiff’s testimony, his employer had a pool of vehicles. While the employees generally used one vehicle, they could use any vehicle in the pool.

On the day of the accident, Plaintiff drove his personal vehicle to his job site. The keys to the available County vehicles were kept on a board, which he could pick up. He was not permitted to take the vehicle home at the end of his shift.

Defendant Velasquez-Flores was insured under a “basic” policy which mandated no minimum bodily injury coverage but a policy holder could elect to purchase coverage in the amount of $10,000 dollars. Plaintiff was personally insured by Geico that included both uninsured (UM/UIM) coverage. Plaintiff filed a claim under his UM/UIM coverage but this claim was denied by Geico.

Thereafter, Plaintiff filed an Amended Complaint against the Defendant Velasquez-Flores and Geico, among others. In Count Three, he requested a judgment under his policy’s UM coverage for injuries, losses and damages arising from the accident. The complaint was later amended to include a request for benefits under his UIM coverage.

At the trial court level, Geico filed a motion for summary judgment, on the basis that “Atlantic County furnished for the regular use of the plaintiff a vehicle that he could use at such times as he desired during working hours. He had a general right to use a County vehicle whenever he worked.” Based upon these proofs, the trial court determined that the “use exclusion in this policy would prohibit or it would exclude the UIM coverage in this case.”

This decision was appealed to the Appellate Division which examined the language in the insurance policy. It noted that the Geico insurance policy included coverage for uninsured and underinsured motorist’s coverage. There was no dispute that the tortfeasor’s vehicle was underinsured because he only had a basic policy of insurance, while Plaintiff’s policy included coverage of $50,000/$100,000 for each person/each occurrence in coverage. However, Geico had denied coverage under exclusion six, which excluded UIM coverage for “bodily injuries sustained by an insured while occupying a motor vehicle not owned by, and furnished for the regular use of the insured when involved in an accident with an underinsured motor vehicle.”

Plaintiff argued that he was not using a vehicle for which he had personal or regular unrestricted use because he could not use it outside the scope of his employment. Further, it remained on County property at all times and his ability to use the vehicle was not unrestricted. Also, he did not have the same vehicle every day.

The Appellate Division noted that under New Jersey case law the term “regular use” is not limited to situations where the vehicle is used for both business and personal use nor based on the frequency of use. The question was not whether the Plaintiff was frequently using the vehicle but whether it was furnished for his regular use.

Based upon the case law, the Appellate Division was satisfied that the exclusion did apply. The Court noted that Plaintiff had a general right to use the County vehicle while on the job and the County vehicle was not used occasionally, but daily. Further, the Court noted that the application of this exclusion was not limited to situations where only one vehicle was assigned. Additionally, the court recited the fact that no one denied that the vehicle was furnished by Plaintiff’s employer for use during his work hours and, during that time, the vehicle’s use was not restricted for business purposes.

Accordingly, the Appellate Division found that “[t]hese are exactly the characteristics that other courts have found to constitute a vehicle “furnished” for the “regular use” of the insured.” Hence, the Appellate Division did affirm the trial court’s decision in favor of Geico and upheld the trial court’s order granting Summary Judgment as to Geico.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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