{ "id": 9005714, "name": "TONYA McGUIRE, Plaintiff v. MOLLIE D. DRAUGHON, and NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendants", "name_abbreviation": "McGuire v. Draughon", "decision_date": "2005-05-17", "docket_number": "No. COA04-716", "first_page": "422", "last_page": "426", "citations": [ { "type": "official", "cite": "170 N.C. App. 422" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "390 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "140-41", "parenthetical": "using a Webster's dictionary definition of \"regular\" as \"steady or uniform ... in practice or occurrence; . . . returning or recurring at stated or fixed times or uniform intervals\" to support a finding that a recurring pattern of a vehicle's use constituted regular use" } ], "opinion_index": 0 }, { "cite": "326 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309385 ], "year": 1990, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0444-01" ] }, { "cite": "514 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "304" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11216253 ], "year": 1999, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0071-01" ] }, { "cite": "141 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "270" } ], "opinion_index": 0 }, { "cite": "264 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572083 ], "year": 1965, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0195-01" ] }, { "cite": "233 S.E.2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "615" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 714", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553403 ], "year": 1977, "pin_cites": [ { "page": "717" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0714-01" ] }, { "cite": "131 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1963, "pin_cites": [ { "page": "496-97" }, { "page": "498" }, { "page": "496" } ], "opinion_index": 0 }, { "cite": "259 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561393 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "552" }, { "page": "552" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0545-01" ] }, { "cite": "541 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "776" }, { "page": "776" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440177 ], "year": 2001, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0183-01" ] }, { "cite": "289 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "366" }, { "page": "366" } ], "opinion_index": 0 }, { "cite": "305 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569908 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "369" }, { "page": "369-70" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0366-01" ] }, { "cite": "504 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "577" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470258 ], "year": 1998, "pin_cites": [ { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0729-01" ] } ], "analysis": { "cardinality": 567, "char_count": 10676, "ocr_confidence": 0.758, "pagerank": { "raw": 3.3891976791212745e-07, "percentile": 0.8768179148668513 }, "sha256": "87deed06d34b54e273d6649f4c49e8617aeb412e5c3bcf35449643e3377d8265", "simhash": "1:e251ed7a059def6b", "word_count": 1770 }, "last_updated": "2023-07-14T16:44:47.676310+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and JACKSON concur." ], "parties": [ "TONYA McGUIRE, Plaintiff v. MOLLIE D. DRAUGHON, and NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendants" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nOn 6 October 2001, defendant Mollie Draughon was operating a 1993 Ford Explorer belonging to her mother-in-law, Betty Draughon, when she was involved in a collision with a motorcycle operated by plaintiff. Plaintiff was injured as a result of the collision.\nThe Ford Explorer belonging to Betty Draughon was insured by Travelers Indemnity Insurance Company, along with a 1988 Dodge Colt, also owned by Betty Draughon. The policy carried limits of liability of $50,000 per person. At the time of the accident, Mollie \u2022 Draughon and her husband, Theodore, owned two vehicles, a 1992 Suzuki and a 1988 Honda. Those vehicles were insured by Farm Bureau Mutual Insurance Company, Inc. (Farm Bureau) under a policy which had limits of $250,000 per person. The policy specifically excluded coverage for any other vehicle furnished for the Draughon\u2019s \u201cregular use,\u201d stating in pertinent part:\nB. We do not provide Liability Coverage for the ownership, maintenance or use of:\n1. Any vehicle, other than your covered auto, which is\na. owned by you; or\nb. furnished for your regular use.\nTravelers tendered its policy limits of $50,000 to plaintiff; Farm Bureau denied coverage based upon the exclusion in its policy. Plaintiff brought this action seeking a declaratory judgment that Farm Bureau provided coverage to Mollie Draughon for her liability to plaintiff. Defendant Farm Bureau filed its answer, denying that it provided coverage based upon the \u201cregular use\u201d exclusion in its policy. Farm Bureau subsequently moved for summary judgment.\nThe evidence before the trial court showed that Mollie and Theodore Draughon live next door to Betty Draughon, Theodore\u2019s mother, in Lewisville, North Carolina. Their two houses are on a single lot that measures an acre and a half, with a shared driveway between the houses. Betty Draughon regularly drove the 1988 Dodge Colt; the 1993 Ford Explorer had belonged to her husband, Billy Draughon, prior to his death in November, 1999. Betty Draughon stated in her deposition that she had only driven the Explorer once or twice, and when it was not being used, it was parked between her house and her son\u2019s house in the shared driveway.\nIn 1998, Mollie and Theodore Draughon\u2019s son took the 1988 Honda away with him to college, leaving them with one car, the 1992 Suzuki, between them. When they needed a second car, they used the Explorer. Betty paid the property taxes on the Explorer and kept the title and other vehicle records, but the Explorer was available for the Draughons\u2019 use at any time. Betty placed no restrictions on its use, and the Draughons did not have to seek her permission before driving it. The Draughons had one set of keys and two spare keys for the Explorer, and they paid for the Explorer\u2019s gas and emissions inspections. Mollie stated in her deposition that she could not close the front driver\u2019s side door of the Explorer without assistance. However, she also testified that from November of 1999 to October of 2001 she drove the Explorer an average of two to three times per week. Theodore verified this estimate in his deposition. Mollie stated she used the Explorer to run errands, to drive Betty to various places, and occasionally to drive to work. Mollie and Theodore Draughon also used the Explorer for most trips out of town because it was larger and more reliable than their Suzuki. Indeed, the accident giving rise to this litigation happened when Mollie and Theodore were using the Explorer to vacation in Myrtle Beach, South Carolina.\nThe trial court granted Farm Bureau\u2019s motion for summary judgment. Plaintiff appeals.\n\u201cThe standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law.\u201d Bruce-Terminex Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). The burden is upon the moving party to show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982); N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2003). If the moving party satisfies its burden, the burden shifts to the non-movant to set forth specific facts showing there exists a triable issue of fact. Lowe, 305 N.C. at 369-70, 289 S.E.2d at 366.\nThe only issue presented by this appeal is whether defendant Draughon\u2019s use of the Explorer constituted \u201cregular use\u201d according to North Carolina law. First, plaintiff argues there were genuine issues of material fact which should have been presented to a jury as to whether Mollie Draughon\u2019s use of the vehicle was such as to be \u201cregular.\u201d We disagree.\nIn response to an interrogatory asking her to describe the \u201cfrequency of [her] use of the vehicle,\u201d Mollie Draughon stated she \u201c[occasionally used [it] for trips and taking Betty Draughon places.\u201d In her deposition, however, Mollie Draughon said she used the Explorer an average of two to three times per week to run errands, go to work, and take Betty Draughon places. Plaintiff contends these answers are inconsistent and therefore present genuine issues of material fact regarding the frequency of defendant\u2019s use of the vehicle and her credibility as a witness. We disagree.\nDefendant Draughon stated in her deposition that by \u201coccasionally\u201d she meant two to three times per week. Thus, by her own definition of \u201coccasional,\u201d her response to the interrogatory and her deposition testimony are not inconsistent, but are actually corroborative of each other. Because these statements can be readily reconciled, the trial court did not err in finding no conflict between them. The facts in this case, therefore, are not in dispute. When the facts of a case are undisputed, construction and application of an insurance policy\u2019s provisions to those facts is a question of law. Nationwide Mut. Ins. Co. v. Walters, 142 N.C. App. 183, 189, 541 S.E.2d 773, 776 (2001). Because the trial court was only required to apply the law to the undisputed facts in this case, this case is appropriately resolved by summary judgment.\nWhen a liability policy does not define the term \u201cregular use,\u201d no \u201cabsolute definition\u201d can be established, and a determination of coverage under the policy must be based on the particular facts and circumstances of that case. Id. at 188, 541 S.E.2d at 776 (quoting Whaley v. Insurance Co., 259 N.C. 545, 552, 131 S.E.2d 491, 496-97 (1963)). In Whaley, our Supreme Court set out two factors for analyzing whether the use of a vehicle constitutes regular use: (1) the availability of the vehicle to the insured, and (2) the frequency of its use by the insured. Whaley, supra at 554, 131 S.E.2d at 498.\nIn this case, the evidence established that Betty Draughon \u201cfurnished\u201d the vehicle for Mollie and Theodore\u2019s use by leaving it in the shared driveway between their houses and placing no restrictions on its use. She did not require them to ask her permission before using it, and she did not drive it herself. She allowed them to take it out of town, the Draughons possessed three keys for the Explorer, and the vehicle was clearly available for Mollie\u2019s use on almost any given day for a period of nearly two years, regardless of whether she needed assistance to close the driver\u2019s side door. The fact that Betty Draughon retained possession of the title is of no consequence to the issue of whether the car was unavailable to Mollie. \u201cWhere an insured driver has the unrestricted use and possession of an automobile, the certificate of title for which is retained by another, the car is \u2018furnished for the regular use of\u2019 the insured driver.\u201d Gaddy v. Insurance Co., 32 N.C. App. 714, 717, 233 S.E.2d 613, 615 (1977). Because Betty in no way restricted Mollie\u2019s use of the vehicle, we find no genuine issue of material fact regarding the availability of the Explorer for Mollie\u2019s use.\nPlaintiff contends, however, that the frequency of Mollie\u2019s use of the Explorer does not constitute \u201cregular use\u201d under our case law. Our Supreme Court has established that the regular use exclusion does not apply to the \u201ccasual,\u201d \u201coccasional,\u201d or \u201cinfrequent\u201d use of another vehicle, see Whaley, 259 N.C. at 552, 131 S.E.2d at 496; Whisnant v. Insurance Co., 264 N.C. 195, 199, 141 S.E.2d 268, 270 (1965), and plaintiff argues that our case law is drifting towards a definition of regular use as meaning daily use. Mollie\u2019s use of the Explorer, however, was consistent as well as continuing. Both Mollie and her husband estimated that she drove the Explorer an average of two to three times per week for almost two years. \u201cThe rules of construction of insurance contracts are well established. Language must be given its ordinary, plain meaning unless a word is ambiguous.\u2019 \u201d Strickland v. State Farm Mut. Auto. Ins. Co., 133 N.C. App. 71, 72, 514 S.E.2d 304, 304 (1999). The plain meaning of \u201cregular\u201d does not imply \u201cdaily,\u201d and we decline to create such a bright line rule. See N.C. Farm Bureau Mutual Ins. Co. v. Warren, 326 N.C. 444, 448, 390 S.E.2d 138, 140-41 (1990) (using a Webster\u2019s dictionary definition of \u201cregular\u201d as \u201csteady or uniform ... in practice or occurrence; . . . returning or recurring at stated or fixed times or uniform intervals\u201d to support a finding that a recurring pattern of a vehicle\u2019s use constituted regular use). Mollie\u2019s consistent and recurring use of the Explorer was sufficient to satisfy the frequency prong of the analysis. The trial court properly applied both the availability and frequency prongs to the facts of this case and properly granted summary judgment in defendants\u2019 favor.\nThe order from which plaintiff appeals is affirmed.\nAffirmed.\nJudges HUDSON and JACKSON concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Wallace and Graham, P.A., by Marc P. Madonia, for plaintiff - appellant.", "Caudle & Spears, PA., by C. Grainger Pierce, Jr. and L. Cameron Caudle, Jr., for defendant-appellee North Carolina Farm Bureau Mutual Insurance Company." ], "corrections": "", "head_matter": "TONYA McGUIRE, Plaintiff v. MOLLIE D. DRAUGHON, and NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendants\nNo. COA04-716\n(Filed 17 May 2005)\nInsurance\u2014 automobile \u2014 regular use exception\nMollie Draughon\u2019s use of her mother-in-law\u2019s automobile was within the \u201cregular use\u201d exception of an insurance policy issued by defendant-Farm Bureau to Mollie Draughon, and summary judgment was correctly granted for Farm Bureau on the question of Farm Bureau\u2019s coverage of Ms. Draughon\u2019s automobile accident. \u201cRegular\u201d use does not imply daily use.\nAppeal by plaintiff from judgment entered 13 January 2004 by Judge Albert Diaz in Mecklenburg County Superior Court. Heard in the Court of Appeals 21 March 2005.\nWallace and Graham, P.A., by Marc P. Madonia, for plaintiff - appellant.\nCaudle & Spears, PA., by C. Grainger Pierce, Jr. and L. Cameron Caudle, Jr., for defendant-appellee North Carolina Farm Bureau Mutual Insurance Company." }, "file_name": "0422-01", "first_page_order": 452, "last_page_order": 456 }