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Shepherd v. Fregozo6/13/2005
e same. Thus we regard the decisions with respect to the regular use exclusion in "drive other cars" provisions and in other types of motor vehicle coverage as applicable to the similar regular use exclusion under the uninsured motorist provisions.
The precise question does not appear to have been decided in Massachusetts. It seems to have been tacitly assumed in Reliance Ins. Co. v. Robertson, 7 Mass App. ------, 390 N.E.2d 739 (1979), that the uninsured motorist coverage (in the liability policy there discussed insuring the automobile owned by a State police officer) would allow recovery by that officer in circumstances closely similar to those now before us. That case, however, arose under a policy form somewhat different from that now before us. In any event, the point now presented was not there raised or considered. We thus must seek guidance from decisions in other jurisdictions.
Galvin's counsel contends that the language of the regular use exclusion, "an auto . . . regularly used by you," should be taken as referring only to a particular vehicle and not to all the vehicles in a pool of vehicles regularly available to the insured motorist. We do not agree and see no ambiguity in the words used. A heavy majority of the decision elsewhere interpret such words (in closely similar policy language) as treating all motor vehicles in a pool, any one of which is available to the person insured, as within the regular use exclusion. The authorities are collected in 13 Couch §§ 45:1050 to 45:1065, especially §§ 45:1055 and 45:1059 (1965 & Supp.1980). See Annot. 86 A.L.R.2d 937, especially § 7(b).
One decision elsewhere upon the regular use exclusion is very close on its facts to the present case. See Kenney v. Employers' Liab. Assur. Corp., 5 Ohio St.2d 131, 132, 134-135, 214 N.E.2d 219 (1966). There, as in this case, a policeman was injured in one of several cruisers available in a pool. The policeman was not allowed to recover under his own policy. The opinion (at 134-135) said, " n the facts of this case, we do not believe that the words `an automobile . . . furnished for the regular use' of plaintiff are ambiguous or can reasonably be interpreted so as not to describe the cruiser in which plaintiff was riding at the time of his injury . . . . In order to be excluded under this exclusionary clause, an automobile need not be a single particular automobile regularly furnished to the named insured. Thus it is well settled that an automobile will be excluded under such policy provisions although it is only one of a group of automobiles from which an automobile is regularly furnished to the named insured by his employer." To similar effect (as to a pool of police vehicles) are Commercial Ins. Co. v. Gardner, 233 F.Supp. 884, 886-888 (E.D.S.C. 1964), and O'Brien v. Halifax Ins. Co., 141 So.2d 307, 308 (Fla.App.1962). Other decisions relating to motor vehicle pools or fleets (closely analogous to those involving police officers) include: Voelker v. Travelers Indemn. Co., 260 F.2d 275, 277-278 (7th Cir.1958); Farm Bureau Mut. Auto. Ins. Co. v. Marr, 128 F.Supp. 67, 68-71(D.N.J. 1955); Bringle v. Economy Fire & Cas. Co., 169 N.W.2d 879, 881-884 (Iowa 1979); Winterwerp v. Allstate Ins. Co., 277 Md. 714, 716-721, 357 A.2d 350 (1976); Moore v. State Farm Mut. Auto. Ins. Co., 239 Miss. 130, 133-135, 121 So.2d 125 (1960); Davy v. Merchants Mut. Cas. Co., 97 N.H. 236, 238-239, 85 A.2d 388 (1952); Venters v. Selected Risks Ins. Co., 120 N.J.Super. 549, 552, 295 A.2d 373 (1972); Ruggiero v. Globe Indem. Co., 66 Misc.2d 948, 951, 323 N.Y.S.2d 292 (Civ.Ct.N.Y.1971); International Serv. Ins. Co. v, Walther, 463 S.W.2d 774, 776 (Tex.Civ.App.1971); Quesenberry v. Nichols, 208 Va. 667, 669, 672-674, 1
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