In November 2023 a Michigan Court of Appeals denied coverage to a ride-hailing driver whose rented vehicle was rear-ended whilst carrying a passenger for reward because the Under-Insured Motorist (“UIM”) benefits under the insurer’s policy excluded benefits for bodily injury sustained by any person when using “any vehicle that is owned by or available for regular use of you”.

The phrase “available for the regular use” was not defined in the policy and the court referred to the ordinary meaning in dictionaries. Even viewing the evidence in the light most favourable to the plaintiff, there was no genuine issue regarding the material fact that the vehicle was accessible for normal, recurring use by the insured from August 2019 until April 2020. Although the use of the vehicle was subject to the terms of the rental agreement, there was nothing to suggest the plaintiff had failed to comply with the rental agreement. The plaintiff had nearly unfettered, exclusive and continuous use of the vehicle as a driver for Lyft and for personal use for the span of approximately seven months. Indeed, the driver drove the vehicle about 30 hours per week, mostly as a Lyft driver, accruing nearly 35 000 miles in the period. This constituted recurring, normal use of the vehicle. The vehicle was therefore “available for regular use”.

The court rejected the claimant’s argument that he did not have sole dominion and control over the vehicle because that was in the hands of the owner and renter of the vehicle. If this argument were accepted it would mean that the reference to vehicles that are “owned by or available for the regular use” by the insured would require the insured to have absolute ownership or power over the vehicle when the policy did not impose any such requirement. The claim was rejected.

The same result should follow under South African law on similar facts.

[Duato v Mellon and Others, case no 362823 in the State of Michigan Court of Appeals]