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Shepherd v. Fregozo6/13/2005
There is little factual dispute in this case. On February 4, 2002, Dennis R. Shepherd, a patrol officer with the Metropolitan Police Department since 1996, was on duty and driving his patrol car when he was struck from the rear by an automobile driven by the defendant, Ignacio Fregozo, and seriously injured. The patrol car which Shepherd was operating at the time of the accident was one of a fleet of twelve patrol vehicles maintained by the Department's Hermitage substation for use by patrolmen. These vehicles were assigned at random to various patrolmen, and the records of Metro for the 33 days prior to the accident indicate that Shepherd had used or operated eight of these patrol cars. Metropolitan Government of Nashville and Davidson County is self-insured and does not maintain uninsured or underinsured motorist coverage as to any of its patrol vehicles.
Nationwide Mutual Insurance Company had issued a policy of automobile insurance to Dennis and Elizabeth Shepherd as to their personal vehicles which was in effect on February 4, 2002. Because Fregozo was uninsured, Shepherd sought recovery from Nationwide under the policy's uninsured motorist provisions. Nationwide filed a motion for summary judgment, relying on various exclusions in its policy with particular reliance on the "regular use" exclusion of other motor vehicles under its uninsured motorist coverage. This exclusion provides:
USE OF OTHER MOTOR VEHICLES:
3. (b) This does not apply to losses involving a motor vehicle:
(1) Used in the business or occupation of you or a relative. However, it does apply to a private passenger auto used by you, your chauffeur, or your household employees;
(2) Owned, rented, or leased by an employer or an insured;
. . . (4) Furnished to you or a relative for regular use. Furnished for regular use does not include a motor vehicle rented from a rental company for less than twenty-eight (28) days.
The trial court granted the motion for summary judgment based on the "regular use" exclusion. Thereafter, Shepherd took a default judgment against Fregozo and recovered a judgment against him for $250,000 compensatory damages and $100,000 punitive damages. Fregozo neither appeared nor appealed, and following the final judgment, Shepherd appealed as to the summary judgment granted to Nationwide.
Standards governing appellate review on summary judgment are familiar and well-settled. Since only issues of law are presented and no disputed fact questions are involved, review on appeal is de novo with no presumption as to the correctness of any findings of the trial court. Gonzales v. Alman Const. Co., 857 S.W.2d 42 (Tenn.Ct.App.1993). The moving party on summary judgment has the burden of showing to the court that there are no disputed material facts creating a genuine issue for trial and that he is entitled to judgment as a matter of law. The court must take the strongest legitimate view of the evidence in favor of the non-moving party, allow all reasonable inferences in favor of that party, discard all countervailing evidence, and, if there is a dispute as to any material fact or if there is any doubt as to the existence of a material fact, summary judgment cannot be granted. Byrd v. Hall, 847 S.W.2d 208 (Tenn.1998); EVCO Corp. v. Ross, 528 S.W.2d 20 (Tenn.1975). Issues as to interpretation and application of unambiguous contracts are likewise issues of law, the determination of which enjoys no presumption of correctness on de novo appellate review. Doe v. HCA Health Services of Tenn., Inc., 46 S.W.3d 191, 196 (Tenn.2001).
The sole issue presented on appeal is "whether the Nationwide `regular use' uninsured m
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