Progressive’s insured, Frisbie, had been driving her brother’s vehicle for approximately a month while her own vehicle was experiencing mechanical issues. During this time, Frisbie had possession of her brother’s vehicle for seven days a week, 24 hours a day, and had parked it at her home. While operating her brother’s vehicle, she was involved in a motor vehicle accident in which she was at fault and injured a third party, Burton. 

Progressive investigated and determined that Frisbie’s use of her brother’s vehicle implicated the regular use exclusion. Burton sued Frisbie, and Progressive disclaimed liability coverage to Frisbie under its policy on the basis of Frisbie’s operating a vehicle furnished for her regular use at the time of the accident. 

Following a verdict in favor of Burton, Frisbie assigned her rights to pursue claims against Progressive to Burton who, in turn, filed a lawsuit against Progressive. The parties filed cross-motions for summary judgment. 

In her motion, Burton argued that the Pennsylvania Superior Court had abrogated the regular use exclusion in the case of Rush v. Erie Ins. Exch., 265 A.3d 794 (Pa. Super. Ct. 2021), and the regular use exclusion in this case limited the scope of liability coverage required by the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL). Progressive argued in response that the Rush court was considering a regular use exclusion in the context of an underinsured motorist claim and, thus, whether the exclusion was contrary to § 1731—the provision of the MVFRL that governs UIM claims. The court noted that Burton did not present any case law in support of extending Rush to abrogate the regular use exclusion in the context of liability claims—nor could it find any. As a result, the court refused to extend the Rush holding and denied Burton’s motion. The court also determined that Frisbie’s brother’s vehicle was furnished for her regular use and granted Progressive’s motion. Burton has filed an appeal to the Third Circuit.