The 'Regular Use' Exclusion: Why Your Family's UM Coverage May Not Protect You Near Your Own Car

Published March 23, 2021 · Ohio Appeals Courts

A young woman lives with her grandmother. Grandma carries good auto insurance with $100,000 in uninsured motorist coverage. The granddaughter has her own car with only the state-minimum liability coverage. One afternoon, as she reaches for her own car door, an uninsured driver hits her.

Most families would assume Grandma's policy protects her. On March 4, 2021, an Ohio appeals court held that it did not. The case is Washington v. Evans, 2021-Ohio-587 (10th Dist.), and it is a sharp reminder that the most expensive insurance mistakes are made long before the crash.

The facts

On February 24, 2017, Jazmine Washington was struck by an uninsured driver on Piedmont Avenue in Columbus. She was living with her grandmother, whose State Farm policy listed one car and carried $100,000 in uninsured motorist (UM) coverage and $5,000 in medical payments coverage. Ms. Washington had separately leased a 2008 Mercury Mountaineer, insured with minimum liability coverage only. That coverage included no UM and no medical payments coverage.

At her deposition, she testified that she had walked around the rear of the Mercury intending to get in and drive to pick up her children. She was facing the car, almost at the driver's door, and reaching for the handle when she was hit. She heard the tires at the last moment and turned to push off the car, but it happened too fast to run.

She made a UM claim under her grandmother's policy as a resident relative. State Farm denied it.

The exclusion

Ohio law allows insurers to write certain exclusions into UM coverage. One of the most important is the "regular use" or "owned but unlisted vehicle" exclusion. R.C. 3937.18(I)(1) permits a policy to exclude coverage for injuries suffered while the insured is "operating or occupying" a vehicle owned by, furnished to, or available for the regular use of the named insured or a resident relative, if that vehicle is not identified in the policy.

The grandmother's policy contained that exclusion. Everyone agreed Ms. Washington was a resident relative, and everyone agreed the Mercury was hers and was not listed on Grandma's policy. The entire case came down to one word: was she "occupying" the Mercury? The policy defined "occupying" as "in, on, entering, or exiting."

What the court decided

The Tenth District, in a unanimous decision written by Judge Sadler, held that she was "entering" the car and therefore "occupying" it. The court affirmed summary judgment for State Farm.

The opinion is careful, and in fairness it recognizes the rules that usually favor policyholders. Exclusions are read narrowly and apply only to what is clearly intended to be excluded. Ohio courts have read "occupying" generously when the question is whether to grant coverage, finding people "occupying" a vehicle while standing 20 feet away or walking back from setting flares. The court said those broad tests should not be turned around to expand an exclusion.

But it concluded that reaching for the handle of your own car, intending to get in and drive away, is entering the car under any reading. The court wrote that "we cannot create ambiguity where none exists," and it rejected the argument that she had to be touching the car. It distinguished a Ninth District case in which a man struck several feet from his stalled car was running away from it, not toward it.

Because the coverage denial was correct, the court also held that her bad-faith claim against State Farm failed.

Why this result is hard, and who it hurts

This is a bad outcome for an injured person, and there is no point dressing it up. A few seconds and a few feet separated a $100,000 UM claim from nothing.

The exclusion falls hardest on exactly the households that need coverage most: young adults living with parents or grandparents, families with an older second car insured at state minimums to save money, and anyone who drives a vehicle "regularly available" to them but owned by someone else in the home. Ohio requires drivers to carry only $25,000 in bodily injury liability coverage, and UM coverage is optional. When the second car has no UM, the exclusion can leave a family member with no UM coverage at all for crashes involving that car, including the moment they are getting into it.

How to protect your family

The fix is simple, and it costs far less than most people think.

• Put UM/UIM coverage on every vehicle in the household. If the second car had carried even modest UM coverage of its own, this case would have looked very different. Our guide chapter on using your own insurance explains how UM and UIM coverage work and why they are the coverages that protect you from someone else's bad choices.
• List every household vehicle with your agent, or make sure each one has its own policy with matching UM limits. That includes cars driven by adult children and leased vehicles.
• Understand who counts as a resident relative. We explained how household coverage works in our 2016 post on resident-relative coverage. Living under the same roof can extend a policy to you, and its exclusions follow just as closely.
• Read the definitions. "Occupying," "your car," "non-owned car," and "regular use" decide claims. A five-minute policy review is free.

Paths that remain after an uninsured crash

Even when a regular-use exclusion applies, look at every option:

• Other policies. A spouse's policy, a policy covering a vehicle you were not occupying, or an employer's policy may apply depending on the facts.
• The facts of the moment. Washington turned on testimony that she was reaching for the handle with the intent to drive. Where someone is walking past a car, standing in a driveway, or retreating from it, the exclusion may not apply, and courts read exclusions narrowly.
• The at-fault driver. An uninsured driver is still personally responsible, though collection is often difficult.
• Health insurance and medical coverage. These keep treatment going while liability is sorted out.

Our hit-and-run and uninsured driver page covers more of these avenues, and our post on road rage and UM coverage explains when an insurer's denial of coverage can actually make the other driver "uninsured."

What this means for you

If you or a family member was hit by an uninsured driver and an insurer has cited a regular-use or "occupying" exclusion, do not assume the denial is the last word. Have every household policy reviewed, because coverage often turns on details the adjuster will not volunteer. And if you have not been in a crash, pull out the declarations pages for every car at your address this week. Our UM/UIM claims page explains what to look for.