"Available for Regular Use" Defined

In the case of GEICO Indemnity Company v. Brian Walker, et al, Case Number 4D20-764 (Fla. 4th DCA May 12, 2021), Florida’s Fourth DCA held that a vehicle to which the driver had been given open permission without restriction to use was not covered because it was “available for regular use” under the policy language. Hence, there was no coverage with GEICO for the accident.

Facts of the Case

This case involved a single car accident of a 1992 Porsche where both the driver and the passenger died. The vehicle was owned by the driver’s stepfather. Prior to the accident, driver’s stepfather had given the driver open permission over the course of 10 years to drive the vehicle any time he liked even though the stepfather owned it.

The stepfather’s testimony included the following:

• he had given the vehicle to the driver to use and take care of
• the driver had kept the vehicle for ten years
• the driver had his own set of keys
• the stepfather never restricted the driver’s use of the vehicle
• the driver had freedom to use the vehicle
• how often the driver could use the vehicle was subject to the driver’s discretion

As a result, GEICO took the position that the 1992 Porsche was not covered under its policy because it had been furnished for or was available for regular use by the driver and was not listed on the driver’s GEICO policy. This included a vehicle that was “ready for use, readily obtainable, and accessible for use that is usual, normal, or customary.”

Analysis

With that being the testimony, it is expected that GEICO would litigate this issue hoping to get out of coverage as they did. The unfortunate part is that they did get out of coverage, but the result may very well have been different if the facts had been different. In particular, the fact that the 1992 Porsche was kept (assuming at the driver’s home) for 10 years is a big consideration on whether something is available for regular use or not. On the other hand, if the vehicle had been only periodically shared from time to time then the result very easily could have been different (and should be different if those were the facts).

However, there was still insurance on this case because the stepfather insured his vehicle through Allstate. It appears that Allstate paid their policy limits and set up an estate as they should. It is unclear whether Allstate would have had any coverage defenses.

This is a case where you wish that the facts were different but the truth is the truth.

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