Farmers Ins. Co. of Arizona v. Zumstein

• Decision Date: 25 October 1983
• Docket Number: CA-CIV,No. 1,1
• Citation: 675 P.2d 729,138 Ariz. 469
• Parties: FARMERS INSURANCE COMPANY OF ARIZONA, an Arizona corporation, Plaintiff- Appellee, v. Robert Clair ZUMSTEIN, individually and as natural father and next friend of John Hetrick Zumstein, a minor; Donna Zumstein, John Hetrick Zumstein, a minor, Joseph Cook, personal representative and surviving spouse of Audrey Laverne Cook, deceased; and Donna L. Mason, Defendants-Appellants. 5916.
• Court: Arizona Court of Appeals

Page 729

675 P.2d 729

138 Ariz. 469

FARMERS INSURANCE COMPANY OF ARIZONA, an Arizona corporation, Plaintiff- Appellee, v. Robert Clair ZUMSTEIN, individually and as natural father and next friend of John Hetrick Zumstein, a minor; Donna Zumstein, John Hetrick Zumstein, a minor, Joseph Cook, personal representative and surviving spouse of Audrey Laverne Cook, deceased; and Donna L. Mason, Defendants-Appellants.

No. 1 CA-CIV 5916.

Court of Appeals of Arizona Division 1.

Oct. 25, 1983.

Reconsideration Denied Dec. 20, 1983.

Crampton, Woods, Broening & Oberg by Jan E. Cleator, Curtis D. Ensign, Phoenix, for plaintiff-appellee Napier & Jones, P.C. by Robert E. Jones, Jr., Phoenix, for defendant-appellant Zumstein

Smith, Howard & DeRoon by Ronald L. Dunham, Phoenix, for defendants-appellants Cook and Mason.

OPINION

JACOBSON, Chief Judge.

This appeal presents the question of whether there is a factual dispute that a "non-owned automobile" used by the insured was "furnished or available" to him for regular use so as to be excluded from coverage under an automobile liability policy.

This action was instituted by appellee Farmers Insurance Company (Farmers) seeking a declaratory judgment that no coverage existed in favor of the named insureds, appellants Zumsteins, for damages and injuries sustained by Cook and Mason as a result of an automobile accident in which John Zumstein was driving a pickup owned by his employer, Kenneth Kissam. All parties moved for summary judgment. The sole issue to be determined by the court under these motions was whether the pickup driven by John Zumstein was "furnished or available for regular use," by him so as to be excluded from coverage under Farmers' policy. The trial court entered judgment in favor of Farmers and a timely appeal was taken to this court.

The facts are not in material dispute. Farmers issued an automobile liability policy insuring a 1969 Ford Mustang owned by Robert Zumstein. Mr. Zumstein's son, John, was also a named insured under that policy. John lived with his parents and was employed by Kenneth Kissam, who operated a janitorial service out of his home. Kissam owned several vehicles, one of which was a 1966 Dodge pickup truck. On October 27, 1979, John was driving the pickup when it collided with a vehicle in which appellants Cook and Mason were riding. Cook and Mason filed a complaint against the Zumsteins claiming that the negligence of John resulted in the death of Cook and injury to Mason.

John had been hired by Kissam to clean office buildings during the evening hours. Kissam told John that extra money could be earned by working during the day as well. John worked every night and many days--averaging 60 hours a week. Kissam told John upon hiring that he would be responsible for his own transportation and for transporting the cleaning supplies to each location. Initially, John used his parent's Mustang for this transportation. As previously mentioned, Farmers provided insurance coverage on the Mustang.

The Mustang broke down sometime in September, 1979 and was inoperative for about two weeks. When the Mustang first became inoperative, Kissam allowed John to drive the pickup for work purposes. Although the Mustang became operational, approximately two weeks later, John continued to use the pickup until the time of the accident some six weeks later. John retained the only set of keys to the truck with the understanding that he would keep the truck at his parents' home when not in use and Kissam could call John to get the keys when he, Kissam, needed the truck. On one occasion, Kissam used the truck for 2 weeks and John found other transportation.

John drove the pickup between ten and forty miles a day. He would drive to Kissam's residence to get the cleaning equipment and would proceed to the various jobsites. After completing his duties, John would take the equipment back to the Kissam residence, but would continue to drive the pickup. John was instructed not to use the pickup for anything but business purposes, however on several occasions he used the pickup for personal purposes.

On the night of the automobile collision with Cook and Mason, John finished work at about 10 p.m. He returned the cleaning equipment to Kissam's residence and proceeded to a friend's house. The two young men drove the pickup to purchase beer, returned to the friend's house and then drove to a midnight movie. From there they returned to the friend's house and after a few hours, John drove the pickup back to the Kissam residence to leave some keys he had earlier neglected to drop off. He then drove the pickup towards his residence, the accident occurring enroute.

Appellants Zumsteins, Cook and Mason (Zumstein) present three major issues for review: (1) whether the trial court erred in granting summary judgment because material issues of disputed fact exist as to whether the pickup was "furnished or available for regular use"; (2) whether the policy exclusion is ambiguous and (3) whether the doctrine of equitable estoppel gives rise to coverage under the facts presented here.

The "E-Z-Reader Car Policy" issued to Mr. Zumstein provided that Farmers would pay all damages the insured became legally obligated to pay because of bodily injury or property damage arising out of the ownership, maintenance or use of a private passenger car. The policy, however, excluded:

10. Bodily injury or property damage arising out of the ownership, maintenance, or use of any vehicle other than your insured car, which is owned by or furnished or available for regular use by you or a family member. (emphasis in original).

Our first inquiry, then, is whether the trial court correctly determined that there was no factual dispute that Kissam had made "available" or had "furnished" the pickup truck for John's "regular use" within the meaning of the exclusion contained in the policy.

This court has already had occasion to review a "furnished for the regular use" exclusion. ¹ In Travelers Indemnity Co. v. Hudson, 15 Ariz.App. 371, 488 P.2d 1008 (1971), we held that although the term "regular use" was undefined in the policy, the term denotes "customary use as opposed to occasional use or special use." Id. at 375, 488 P.2d at 1012. Depending on the context, the term can also mean "continuous use; uninterrupted normal use for all purposes; without limitation as to use." Id. We next looked to the facts of the case to determine whether the parties intended to "furnish" the car for a continuous purpose. We concluded in Travelers that the term "regular use" depends for its meaning upon the particular facts of each case and is susceptible to "no hard and fast rule." Keplinger v. Mid-Century Insurance Co., 115 Ariz. 387, 390, 565 P.2d 893, 896 (1977).

Applying these definitions to the undisputed facts of this case, we note that John drove the pickup almost every day for at least six weeks to each worksite. ² He had the only set of keys and had exclusive control and use of the truck but for exceptional occasions when Kissam arranged to use it. The pickup was kept at John's residence when not in use. While John was supposed to use the truck only for work, he was not required to obtain permission before each use. In fact, John did use the truck for personal purposes. Zumstein argues that these facts present a question of whether the use was "regular" in the sense that John used other means of transportation in addition to the pickup truck and Kissam furnished the truck only for business use.

Similar facts and arguments were presented to the appellate court of Illinois in Economy Fire & Casualty Co. v. Gorman, 84 Ill.App.3d 1127, 40 Ill.Dec. 468, 406 N.E.2d 169 (1980). There, Gorman, Jr. lived with his parents and worked part-time delivering prescriptions for his employer. His employer provided a car for him to use in making the deliveries, and the car was never furnished to him for his personal use. On one occasion he drove the car home rather than returning it to the store and his employer notified the police. Gorman, Jr. was involved in a one-car collision with his employer's vehicle after being employed only two months. On the evening of the accident, Gorman, Jr. drove the employer's car to a friend's home, stayed long past the hour his work was normally finished and then, in the course of giving a friend a ride home and on the way back to the store, became involved in a collision.

The Illinois court began its analysis by pointing out that:

[C]ourts have no difficulty finding 'regular use' where a car is available for someone's use at any time in his complete discretion. (Citation omitted.) However, an automobile need not be available to the driver for his unrestricted use at any time in order to be considered a vehicle furnished for his 'regular use.'

406 N.E.2d at 171.

In reaching its decision, the court reasoned that the employer had furnished the car to Gorman, Jr. on a regular basis because, irrespective of his actual use of the car at the time of the accident, the car was:

furnished to Gorman, Jr. for his expected use throughout each business day .... Obviously, his use was not 'incidental' and to have deemed his use of this vehicle to have been covered by his parents' liability policy would have greatly increased the exposure on that policy without a compensating premium. We consider his use of the vehicle to have been 'regular' as a matter of...