Opinion
No. 53714–2013.
03-09-2015
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, v. Dwight FRECKLETON, Andrea Smith, Jamar Smith, Eiysha George and Progressive Preferred Insurance Company, Defendants.
Opinion
Upon reading the foregoing papers it is
ORDERED the motion is denied; and it is further
ORDERED the cross-motion is granted to the extent that the action is dismissed upon a finding that the car owned by the defendant, Jamar Smith, was not furnished or available to the defendant, Eiysha George for her regular or frequent use.
In an underlying action Dwight Freckleton sues for injuries allegedly suffered on March 5, 2009, when he was struck by a vehicle operated by the defendant, Eiysha George, and owned by the defendant, Jamar Smith.
In the present action plaintiff seeks judgment declaring that it is not required to provide insurance coverage in the underlying action for the defendant, Eiysha George, who is a relative of plaintiff's policy holder, Italas George. As is relevant here, the policy of insurance issued by plaintiff to Italas George covers a relative of the policy holder who is operating a car that is not owned by the policy holder as long as it is “not furnished or available for the regular use of” the relative. Plaintiff commenced this action seeking judgment that it owes no coverage to Eiysha George for the underlying accident because she was operating a vehicle which was not owned by the policy holder but which was made available for George's regular or frequent use.
The purpose of the provision at issue here “is to provide protection to the insured for the occasional or infrequent use of [a] vehicle not owned by him or her and is not intended as a substitute for insurance on the vehicles furnished for the insured's regular use * * * Whether a car has been furnished for regular use * * * is determined by the particular facts and circumstances in each case * * * Factors to be considered, however, include the general availability of the vehicle and frequency of its use” (New York Cent. Mut. Fire Ins. Co. v. Jennings, 195 A.D.2d 541, 542 [2d Dept 1993] ).
Here, plaintiff failed to demonstrate its entitlement to judgment as a matter of law. The deposition testimony of Eiysha George established that at the time of the accident she was driving a car owned by her then boyfriend, Jamar Smith, with whom she worked and attended community college. She testified that Smith ordinarily drove her to work and school, but that she drove Smith's car approximately once or twice a week between September 2008 and March 2009 after borrowing it from Smith on those days that Smith was not working or attending school with her. She further testified that the car was kept at Smith's house, and that on the days that she borrowed the car she would travel to Smith's house to get the keys and the car from Smith. Under these circumstances plaintiff failed to establish that Smith's car was available for George's regular use (New York Cent. Mut. Fire Ins. Co., supra; cf., Konstantinou v. Phoenix Ins. Co., 74 AD3d 1850 [4th Dept 2010] [driver lived at owner's residence and was given unrestricted access to non-owned vehicle]; Hartman v. State Farm Ins. Co., 280 A.D.2d 840 [2d Dept 2001] [non-owner used truck when ever he wished and drove it home almost every night]; Liverzani v. Amica Mut. Ins. Co., 214 A.D.2d 542 [2d Dept 1995] [non-owner regularly used vehicle for business and personal reasons, kept vehicle at his home and had his own set of keys]; Egle v. United Services Automobile Ass'n., 158 Ad2d 661 [2d Dept 1990] [vehicle available to non-owner for as long as he wished with no restrictions on its use]; Fed. Ins. Co. v. Allstate Ins. Co., 111 A.D.2d 146 [2d Dept 1985] [non-owner had permission of owner to use the car whenever he wished without restriction and without special authorization] ).
In opposition and in support of the cross-motion, the defendants demonstrated that Smith's car was not available to George for her regular use, and that George drove the car only on occasion (once or twice a week when Smith was not scheduled to work or attend class with her). Smith kept the keys and the car in his possession and drove it whenever he needed it. On the other hand, George could use Smith's car only after obtaining his permission and only after traveling to his house to get the keys and the car. Thus, the record demonstrates that Jamar Smith's vehicle was not available to Eiysha George for her regular use.
Accordingly, plaintiff is not entitled to a judicial declaration that it has no obligation to provide insurance coverage to Eiysha George and, as a result, the action is dismissed.