MICHELE BURTON, Individually v. Progressive Advanced Insurance Co

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1574
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MICHELE BURTON, Individually and as assignees of Joyce Frisbie;
ROBERT BURTON, Individually and as assignees of Joyce Frisbie,
Appellants
v.
PROGRESSIVE ADVANCED INSURANCE CO
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. No. 3-21-cv-01522)
District Judge: Honorable Malachy E. Mannion
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Submitted under Third Circuit L.A.R. 34.1(a)
on May 7, 2024
Before: PORTER, MONTGOMERY-REEVES and ROTH, Circuit Judges
(Opinion filed August 6, 2024)
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OPINION*
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ROTH, Circuit Judge
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Michele and Robert Burton appeal the District Court’s order granting summary to
Progressive Advanced Insurance Company. We will affirm.
I. Factual and Procedural Background
Joyce Frisbie was driving her brother’s Tahoe—which he was letting her use while
her Civic was out of commission—when she caused a car accident that injured Michele
Burton. At the time of the accident, Erie Insurance insured her brother’s Tahoe,1 while
Progressive insured Frisbie’s Civic. Progressive’s policy provided $250,000 in liability
coverage, subject to certain terms and conditions. In relevant part, the policy excluded
“bodily injury or property damage arising out of the ownership, maintenance or use of any
vehicle owned by [the policyholder] or furnished or available for [the policyholder’s]
regular use, other than a covered auto for which [the policy] has been purchased.”2 Frisbie
reported the accident to Erie, who reported it to Progressive. After investigating,
Progressive concluded that the Tahoe “was furnished and available for [Frisbie’s] regular
use” and therefore excluded from liability coverage.3
Burton and her husband sued Frisbie for negligence in state court, where Erie
defended Frisbie. Following a bench trial, the Burtons were awarded a $320,871.30
verdict, $100,000 of which was paid for by Erie.4 Frisbie then assigned her rights to pursue
1 Erie’s policy provided $100,000 in liability coverage.
2 Appx. 842 (the “regular use” exclusion). The policy defined “covered auto,” in relevant
part, as follows: (1) “any auto [] shown on the declarations page for the coverages
applicable to that auto”; (2) “any additional auto”; or (3) “any replacement auto[.]”
Appx. 839. The only auto listed on Frisbie’s declarations page was her Civic.
3 Appx. 903.
4 As Progressive had denied Frisbie coverage for the accident, Progressive paid nothing.

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any claims against Progressive to the Burtons. The Burtons subsequently sued Progressive,
giving rise to the instant case.5
In moving for summary judgment, the Burtons made two arguments. First, citing
the Pennsylvania Superior Court’s decision in Rush v. Erie Exchange6 and the Western
District of Pennsylvania’s decision in Evanina v. First Liberty Ins. Corp.,7 they argued that
Progressive’s “regular use” exclusion is unenforceable because it limits the scope of
liability coverage required by the Pennsylvania Motor Vehicle Financial Responsibility
Law (MVFRL). Second, they argued that even if the exclusion is enforceable, it did not
apply because Frisbie’s use of the Tahoe was only temporary as it would stop when her
Civic was repaired. The District Court disagreed on both counts and awarded summary
judgment to Progressive.8 The Burtons appealed.
5 The Burtons sued Progressive in state court but Progressive removed the case on
diversity grounds.
6 265 A.3d 794, 795 (Pa. Super. Ct. 2021) (in “case of first impression, hold[ing] that the
‘regular use’ exclusion conflicts with the MVFRL and is unenforceable”), rev’d, 308
A.3d 780 (Pa. 2024).
7 587 F. Supp. 3d 202, 208-209 (M.D. Pa. 2022) (predicting that the Pennsylvania
Supreme Court would find “the regular use exclusion is contrary to [] the MVFRL and
therefore invalid and unenforceable” based on the Superior Court’s decision in Rush).
8 Burton v. Progressive Advanced Ins. Co., 2023 WL 2577237, at *4-5 (M.D. Pa. Mar.
20, 2023).

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II. Analysis9
The Burtons raise the same two arguments on appeal. They fail here as they did
before the District Court.
First, while this appeal was pending, the Pennsylvania Supreme Court reversed the
Superior Court’s decision in Rush, holding that the “regular use” exclusion in underinsured
motorist coverage does not violate the MVFRL and is valid and enforceable.10 As a result,
the Burtons’ argument as to why Progressive’s “regular use” exclusion is unenforceable
rests entirely on what is no longer good law.11
Second, we agree with the District Court that Frisbie’s use of her brother’s Tahoe
was “regular use” excluded from liability coverage under Progressive’s policy.
Pennsylvania courts have unanimously concluded that the term “regular use” is
unambiguous12 and defined as “a principal use as distinguished from casual[,] incidental .
9 The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under
28 U.S.C. § 1291. Our review of a district court’s order granting summary judgment is
plenary. See Pittsburgh Mailers Union Loc. 22 v. PG Publ’g Co. Inc., 30 F.4th 184, 186
(3d Cir. 2022). “We . . . review the facts in the light most favorable to the party against
whom summary judgment was entered.” Olson v. Gen. Elec. Astrospace, 101 F.3d 947,
951 (3d Cir. 1996).
10 See Rush v. Erie Ins. Exch., 308 A.3d 780, 802 (Pa. 2024).
11 Nor does Evanina help the Burtons’ case, as Evanina predated the Pennsylvania
Supreme Court’s decision in Rush and rested on a prediction that the court would come
out the other way. See Evanina, 587 F. Supp. 3d at 208-209; see also Rush, 308 A.3d at
799-800 (rejecting Evanina’s prediction).
12 See Nationwide Mut. Ins. Co. v. Shoemaker, 965 F. Supp. 700, 703 (E.D. Pa. 1997),
aff'd sub nom. Nationwide Ins. Co. v. Shoemaker, 149 F.3d 1165 (3d Cir. 1998) (noting
that “every Pennsylvania state court to have considered the question has come to that
conclusion” and collecting cases).

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. . [or] occasional” use.13 It is immaterial that Frisbie planned to stop using her brother’s
Tahoe once her Civic was back up and running. What matters is that Frisbie was the
Tahoe’s principal operator while it was on loan to her.14 It is undisputed that her brother
gave her unqualified use of the car.15 She kept it at her house full-time and used it on a
near-daily basis to get to work, run errands, and the like. Given these undisputed facts, the
District Court correctly concluded that the Tahoe was available for Frisbie’s “regular use”
at the time of the accident, and as a result, barred the Burtons from recovering against
Progressive.
III. Conclusion
We will affirm the District Court’s order granting summary judgment to
Progressive.
13 Crum and Forster Personal Ins. Co. v. Travelers Corp., 631 A. 2d 671, 673 (Pa. Super.
Ct. 1993) (internal citations omitted).
14 See, e.g., Shoemaker, 965 F. Supp. at 706 (concluding that a granddaughter’s
“temporary but nonetheless principal employment of her grandmother’s car” on a daily
basis over a three-week period qualified as “regular use”).
15 See id. (identifying “(1) blanket permission to use the car . . . and (2) an available set of
keys” as “two important indicia of regular use”).

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