Policy’s ‘Regular Use’ Exclusion Barred Coverage for Collision

By Don R. Sampen, published, Chicago Daily Law Bulletin, September 23, 2025

The 1st District Appellate Court recently applied the “regular use” exclusion in an auto policy to affirm the denial of coverage for the user of a vehicle who was not its owner.

The case is Safeco Insurance Co. of Illinois v. Martinez, 2025 IL App (1st) 230750-U. The insurer, Safeco, was represented by Nicolaides Fink Thorpe Michaelides Sullivan LLP of Chicago. The Law Office of Kenneth A. Fishman P.C., of Chicago represented the injured claimant, Dianara Martinez.

In 2016, Kevin Nielson, driving a Nissan Altima, rear-ended another vehicle, which in turn struck yet another vehicle in which Martinez was a passenger. Martinez sustained serious injuries as a result.

The Altima was owned, not by Nielson, but by his wife with whom he was living, and it was insured by Progressive Insurance Company. Nielson owned a separate vehicle, a Chevrolet Avalanche, which was insured by Safeco, and he was the only driver listed on the policy.

As a result of the accident, Progressive paid its $25,000 policy limit to Martinez. Martinez also demanded payment under the Safeco policy, but Safeco denied coverage based on the “regular use” exclusion in the policy. Thus, while the Safeco policy stated that it provided coverage generally to the insured (i.e., Nielson) with respect to the use of any auto, the policy excluded coverage for the use of any vehicle, other than the Altima, which was owned by Nielson or “furnished or available for [Nielson’s] regular use.”

Martinez sued Nielson and reached a settlement that included payment of the Progressive policy limit plus the payment of an additional $475,000, but also included an assignment of Nielson’s rights against Safeco, and Martinez’s covenant to seek payment of the $475,000 only from Safeco.

In the meantime, Safeco filed this declaratory action seeking a determination of its coverage obligations under the policy. After reaching her settlement with Nielson, Martinez answered the Safeco complaint and filed a counterclaim seeking coverage. Safeco eventually moved for summary judgment, which the trial court granted, and Martinez took this appeal.

Analysis

In an opinion by Justice Cynthia Y. Cobbs, the 1st District affirmed. In reaching that decision, Cobbs relied on the affidavits of Nielson and his wife to the effect that, while the wife was the sole owner of the Altima, which was involved in the accident, and Nielson the sole owner of the Avalanche, on which Safeco had coverage, the couple shared use of the vehicles.

Nielson thus drove the Altima to work two days a week and did not need his wife’s permission to use it. There were also no limitations placed on when he could use the vehicle.

Cobbs observed that, while the policy did not define “regular use,” the phrase was a common one, was not ambiguous and did not contravene public policy.

Rather, Cobbs wrote, the purpose of the exclusion was to prevent an insurance company from being subjected to additional risk without receiving an appropriate premium. The meaning of the term “regular use,” moreover, depended on the particular facts and circumstances of each case.

Cobbs cited several cases in which the exclusion was analyzed and applied, and found that the most significant factor in determining whether it applied was not the frequency of use, but rather the availability of the use of a vehicle. Here, Nielson and his wife stated in their affidavits that they considered their vehicles to be shared, and there were no restrictions on how often Nielson could use the Altima. He therefore had “regular use” of the vehicle.

Cobbs also examined several cases where the exclusion was found not to be applicable, but in each such case she observed there were restrictions placed on the borrower’s use of the car.

Martinez challenged the Nielsons’ affidavits as “collusive,” arguing that Safeco intimidated the Nielsons into providing them with the threat of raising their premiums.

Cobbs, however, found these arguments unsupported in the record and constituting pure speculation. She also observed that, while Martinez complained about the absence of adequate discovery, Martinez had not filed the requisite Supreme Court Rule 191(b) affidavit seeking to take more discovery. In any event, any failure to conduct and complete discovery on Martinez’s part was due to her own lack of diligence.

The court thus affirmed summary judgment in favor of Safeco.

Key Point

A standard exclusion in an automobile policy barring coverage for an insured’s “regular use” of an automobile not covered by the policy is not ambiguous and will be enforced based on the particular facts of each case.