{ "id": 4166303, "name": "NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, INC., Plaintiff v. DEBREILLE MORGAN AND MICHAEL E. BREEDLOVE, EXECUTOR FOR THE ESTATE OF NORA BREEDLOVE, Defendants", "name_abbreviation": "North Carolina Farm Bureau Mutual Insurance v. Morgan", "decision_date": "2009-04-21", "docket_number": "No. COA08-1206", "first_page": "503", "last_page": "507", "citations": [ { "type": "official", "cite": "196 N.C. App. 503" } ], "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": "649 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639168 ], "year": 2007, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0382-01" ] }, { "cite": "612 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632828 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "430", "parenthetical": "citation omitted" }, { "page": "431", "parenthetical": "declining to accept a bright line rule that equates \"regular\" with \"daily,\" but rather finding that non-owners driving the vehicle two or three times per week for almost two years satisfies the frequency prong" }, { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0428-01" ] }, { "cite": "141 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "parenthetical": "not finding \"regular use\"" } ], "opinion_index": 0 }, { "cite": "264 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572083 ], "year": 1965, "pin_cites": [ { "parenthetical": "not finding \"regular use\"" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0195-01" ] }, { "cite": "390 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "139", "parenthetical": "finding a van was available to the non-owner where she retained the keys and routinely kept the van in her driveway overnight between trips, even though \"she was not permitted to use the van for personal business or pleasure\"" } ], "opinion_index": 0 }, { "cite": "326 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309385 ], "year": 1990, "pin_cites": [ { "page": "445", "parenthetical": "finding a van was available to the non-owner where she retained the keys and routinely kept the van in her driveway overnight between trips, even though \"she was not permitted to use the van for personal business or pleasure\"" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0444-01" ] }, { "cite": "198 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "parenthetical": "holding that continued possession and unrestricted use constitutes \"regular use\"" } ], "opinion_index": 0 }, { "cite": "19 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551836 ], "year": 1973, "pin_cites": [ { "parenthetical": "holding that continued possession and unrestricted use constitutes \"regular use\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0198-01" ] }, { "cite": "203 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1974, "pin_cites": [ { "page": "651" }, { "parenthetical": "not finding \"regular use\"" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 208", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555135 ], "weight": 2, "year": 1974, "pin_cites": [ { "parenthetical": "not finding \"regular use\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0208-01" ] }, { "cite": "541 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2001, "pin_cites": [ { "page": "776-77" }, { "page": "777" }, { "parenthetical": "not finding \"regular use\"" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440177 ], "weight": 2, "year": 2001, "pin_cites": [ { "parenthetical": "not finding \"regular use\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0183-01" ] }, { "cite": "131 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1963, "pin_cites": [ { "page": "552" }, { "page": "496-97" }, { "page": "545" }, { "page": "498", "parenthetical": "emphasis omitted" } ], "opinion_index": 0 }, { "cite": "259 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561393 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0545-01" ] }, { "cite": "361 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739573 ], "year": 2007, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0519-01" ] }, { "cite": "170 N.C. App. 422", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9005714 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "424-25", "parenthetical": "citation omitted" }, { "page": "426" }, { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0422-01" ] } ], "analysis": { "cardinality": 525, "char_count": 9836, "ocr_confidence": 0.739, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1361399834507726 }, "sha256": "22cc5e2e27e469052cfaff2e172105d8a8e6561912ef58ac3204b4e319b3594a", "simhash": "1:9935402b046b3e8a", "word_count": 1635 }, "last_updated": "2023-07-14T15:08:58.268450+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STEELMAN concur." ], "parties": [ "NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, INC., Plaintiff v. DEBREILLE MORGAN AND MICHAEL E. BREEDLOVE, EXECUTOR FOR THE ESTATE OF NORA BREEDLOVE, Defendants" ], "opinions": [ { "text": "BRYANT, Judge.\nFarm Bureau appeals from an order entered 13 June 2008 in Wake County Superior Court which denied Farm Bureau\u2019s motion for summary judgment and granted summary judgment in favor of defendants Debreille Morgan (Morgan) and Michael E. Breedlove, executor for the estate of Nora Breedlove. For the reasons stated herein, we affirm.\nOn 14 July 2006, Nora Breedlove was involved in a two vehicle collision with Morgan on Capital Boulevard in Wake County. At the time of the collision, Breedlove was driving a car owned by Ellsworth Whitaker who was riding in the front passenger seat. Morgan filed a negligence action against Breedlove.\nWhitaker\u2019s auto insurance carrier was Allstate Insurance Company. Breedlove maintained auto insurance coverage with Farm Bureau. Morgan requested that Farm Bureau participate in the settlement of the personal injury claim against Nora Breedlove\u2019s estate; however, Farm Bureau asserted that its policy did not provide coverage for the allegations made by Morgan against Breedlove.\nOn 4 January 2008, Farm Bureau initiated this action for declaratory judgment to determine whether its auto insurance policy provided coverage for the claims alleged by Morgan against Breedlove. Morgan filed her answer on 30 January 2008 and Michael Breedlove, as executor of Nora Breedlove\u2019s estate, filed an answer on 3 March 2008. Both defendants requested that the trial court rule that the terms of the Farm Bureau policy covered Morgan\u2019s claims against Breedlove.\nOn 28 March 2008, Farm Bureau moved for summary judgment, and the motion was heard by the Honorable James E. Hardin on 12 June 2008. Judge Hardin entered an order on 13 June 2008 which denied Farm Bureau\u2019s motion and entered summary judgment for defendants. Farm Bureau appeals.\nThe sole issue on appeal is whether the trial court erred by granting defendant\u2019s motion for summary judgment based on the \u201cregular use\u201d exclusion contained in Breedlove\u2019s auto policy.\nSummary judgment is proper \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1 Rule 56(c) (2007).\n\u201cWhen the facts of a case are undisputed, construction and application of an insurance policy\u2019s provisions to those facts is a question of law. 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.\u201d See McGuire v. Draughon, 170 N.C. App. 422, 424-25, 612 S.E.2d 428, 430 (2005) (citation omitted). A trial court\u2019s grant of summary judgment is reviewed de novo. Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007).\nIn Whaley v. Great American Ins. Co., 259 N.C. 545, 131 S.E.2d 491 (1963), our Supreme Court stated that \u201cregular use\u201d does not have an \u201cabsolute definition\u201d and \u201c[e]ach case must be decided on its own facts and circumstances.\u201d Id. at 552, 131 S.E.2d at 496-97. When evaluating whether the conduct falls within the \u201cregular use\u201d exception of the insurance policy, the Court held that \u201ccoverage depends upon the availability of the [vehicle] for use by [the non-owner] and the frequency of its use by [the non-owner].\u201d Id. at 545, 131 S.E.2d at 498 (emphasis omitted).\nIn Nationwide Mut. Ins. Co. v. Walters, 142 N.C. App. 183, 541 S.E.2d 773 (2001), this Court found that the non-owner made \u201cregular use\u201d of the vehicle based on the test set forth in Whaley. In Nationwide the facts relied on by the Court were as follows: the non-owner kept the vehicle at his house; the non-owner drove the vehicle to the exclusion of all others daily for eight weeks; the non-owner used the vehicle to drive the owner to work and drive the owner\u2019s children to school; the non-owner was responsible for putting gasoline in the vehicle; and the non-owner did not have to give the car back to the owner during the eight weeks. Id. at 189, 541 S.E.2d at 776-77. We went on to note that although there was evidence the non-owner used the vehicle only with the permission of the owner and to the benefit of the owner, the facts did not negate the availability of the vehicle to the non-owner. Id. at 189, 541 S.E.2d at 777.\nIn Nationwide Mut. Ins. Co. v. Bullock, 21 N.C. App. 208, 203 S.E.2d 650 (1974), this Court, using the Whaley availability and frequency analysis, found that the non-owner made \u201cregular use\u201d of a vehicle where she used the vehicle to transport the owner to medical appointments and to run errands for the owner, used the vehicle to drive herself to and from work, usually received permission from the owner to use the vehicle for trips made for her personal benefit, kept the vehicle at her residence, and paid for gasoline and oil for the vehicle. Id. at 209-10, 203 S.E.2d at 651. See also Devine v. Aetna Casualty & Surety Co., 19 N.C. App. 198, 198 S.E.2d 471 (1973) (holding that continued possession and unrestricted use constitutes \u201cregular use\u201d).\nHere, Breedlove\u2019s auto policy barred coverage for \u201cthe ownership, maintenance or use-of... [a]ny vehicle, other than your covered auto, which is . . . furnished for your regular use.\u201d However, the policy does not define \u201cregular use.\u201d\nAfter Whitaker\u2019s wife passed away, Breedlove and Whitaker became friends. Breedlove began to help Whitaker drive to various places around Raleigh and Durham because Whitaker was unfamiliar with the area and he was uncomfortable driving in traffic. By September 2005, Breedlove was driving Whitaker three or four times a week using Whitaker\u2019s car. Usually, Whitaker would drive his car and pick-up Breedlove at her house and then Breedlove would drive from there. Once in a while, Breedlove would drive her car to Whitaker\u2019s house and then they would drive from there. This driving arrangement was consistent until the accident in July 2006.\nAlthough Whitaker\u2019s vehicle may have been frequently used by Breedlove because she often drove it three or four times a week, this is not regular use as defined in our case law because the use fails the availability prong of Whaley. See McGuire, 170 N.C. App. at 426, 612 S.E.2d at 431 (declining to accept a bright line rule that equates \u201cregular\u201d with \u201cdaily,\u201d but rather finding that non-owners driving the vehicle two or three times per week for almost two years satisfies the frequency prong).\nWhitaker\u2019s vehicle was not regularly available to Breedlove. Breedlove did not have keys to the car, and she never drove the car without him being present. Further, Breedlove did not have permission to take Whitaker\u2019s car for her personal errands. The car was parked at Breedlove\u2019s house only once or twice when they came home late at night, but the remainder of the time, Whitaker\u2019s car was parked at his house. Whitaker took care of the maintenance of the vehicle: he would get the car inspected and put gas in it when needed. This arrangement is different from that in prior cases in which the court has found regular use. See McGuire, 170 N.C. App. at 425, 612 S.E.2d at 431 (finding that vehicle was available to the non-owner based on facts showing the vehicle was left in a shared driveway between the owner and the non-owner\u2019s houses, the owner did not require the non-owner to ask permission before using the vehicle, the owner did not drive the vehicle herself, the owner allowed the non-owner to take the vehicle out of town, and the non-owner possessed a key to the car); and North Carolina Farm Bureau Mut. Ins. Co. v. Warren, 326 N.C. 444, 445, 390 S.E.2d 138, 139 (1990) (finding a van was available to the non-owner where she retained the keys and routinely kept the van in her driveway overnight between trips, even though \u201cshe was not permitted to use the van for personal business or pleasure\u201d). See also Walters, 142 N.C. App. 183, 541 S.E.2d 773; and Bullock, 21 N.C. App. 208, 203 S.E.2d 650. Compare Whisnant v. Nationwide Mut. Ins. Co., 264 N.C. 195, 141 S.E.2d 268 (1965) (not finding \u201cregular use\u201d).\nFrom these undisputed facts, Breedlove\u2019s activities do not fall within the \u201cregular use\u201d exception of her auto policy. Accordingly, the trial court correctly entered summary judgment in favor of defendants, and we therefore affirm the order of the trial court.\nAffirmed.\nJudges ELMORE and STEELMAN concur.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Cranfill Sumner & Hartzog, LLP, by George L. Simpson, TV, for plaintiff-appellant.", "Anderson & Anderson, by Michael J. Anderson, for defendantappellee Debreille Morgan.", "Royster, Cross & Hensley, LLP, by Dale W. Hensley, for defendant-appellee Michael E. Breedlove, Executor of the Estate of Nora Breedlove." ], "corrections": "", "head_matter": "NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, INC., Plaintiff v. DEBREILLE MORGAN AND MICHAEL E. BREEDLOVE, EXECUTOR FOR THE ESTATE OF NORA BREEDLOVE, Defendants\nNo. COA08-1206\n(Filed 21 April 2009)\nInsurance\u2014 auto liability-regular use exception \u2014 inapplicability\nThe driver of a vehicle involved in an accident while the owner was a passenger did not have the \u201cregular use\u201d of the passenger\u2019s vehicle within the meaning of an exclusion in the driver\u2019s automobile insurance policy which barred coverage for the use of any vehicle other than the covered automobile \u201cfurnished for your regular use,\u201d although the driver drove the vehicle three or four times a week, where she never drove without the owner-passenger; the car was not regularly available to the driver and she did not keep the keys; she had no permission to take the vehicle for her personal errands; the car was almost always parked at the owner-passenger\u2019s house; and the owner-passenger took care of the maintenance of the vehicle.\nAppeal by plaintiff from judgment entered 13 June 2008 by Judge James E. Hardin in Wake County Superior Court. Heard in the Court of Appeals 11 March 2009.\nCranfill Sumner & Hartzog, LLP, by George L. Simpson, TV, for plaintiff-appellant.\nAnderson & Anderson, by Michael J. Anderson, for defendantappellee Debreille Morgan.\nRoyster, Cross & Hensley, LLP, by Dale W. Hensley, for defendant-appellee Michael E. Breedlove, Executor of the Estate of Nora Breedlove." }, "file_name": "0503-01", "first_page_order": 531, "last_page_order": 535 }