COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
 
                      COUNTY OF CUYAHOGA
 
                           NO. 82512
 
 
GUY PICKERING, et al.        :
                             :
    Plaintiffs-appellants    :
                             :          JOURNAL ENTRY
    vs.                      :               and
                             :             OPINION
NATIONWIDE MUTUAL INSURANCE  :
COMPANY                      :
                             :
    Defendant-appellee       :
                             :
 
 
DATE OF ANNOUNCEMENT
OF DECISION                  :    JULY 31, 2003
 
CHARACTER OF PROCEEDING      :    Civil appeal from Cuyahoga
                             :    County Common Pleas Court
                             :    Case No. 460209
 
JUDGMENT                     :    AFFIRMED.
 
DATE OF JOURNALIZATION       :
 
APPEARANCES:
 
For plaintiffs-appellants:   STEPHEN S. VANEK
                             Attorney at Law
                             Friedman, Domiano and Smith Co.
                             1370 Ontario Street
                             600 Standard Building
                             Cleveland, Ohio 44113-1701
 
For defendant-appellee:      TIMOTHY D. JOHNSON
                             JEFFREY G. PALMER
                             Attorneys at Law
                             Weston, Hurd, Fallon, Paisley &
                               Howley
                             2500 Terminal Tower
                             50 Public Square
                             Cleveland, Ohio 44113-2241
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                               -2-
 
 
KENNETH A. ROCCO, A.J.:
 
     Plaintiffs-appellants, Guy and Gail Pickering, appeal from a
 
common pleas court order granting summary judgment in favor of
 
their automobile insurance provider, Nationwide Mutual Insurance
 
Company ("Nationwide"), on appellants' claim for underinsured
 
motorists'coverage.    Appellants urge that the common pleas court
 
erred by finding that the policy excluded coverage because Guy
 
Pickering was occupying a vehicle made available for his regular
 
use and not insured for liability coverage under the Nationwide
 
policy when the collision occurred. We find no error in the
 
court's decision, so we affirm.
 
                 FACTUAL AND PROCEDURAL HISTORY
 
     Appellants originally filed this action on January 22, 2002.
 
They filed an amended complaint, with leave of court, on August 1,
 
2002. The amended complaint alleged that, on August 7, 2000, Guy
 
Pickering was injured in an automobile accident on West Pleasant
 
Valley Road in the City of Parma, Ohio as a result of the
 
negligence of Alan A. Orenich. Orenich      's insurer, Farmers
 
Insurance Company, tendered to Guy Pickering the sum of $47,500,
 
which  substantially   exhausted  the   $50,000   policy  limits.
 
Appellants claimed that their own automobile insurance carrier,
 
Nationwide Mutual Insurance Company, had refused to provide
 
underinsured motorist coverage in bad faith. In addition, they
 
claimed that their homeowner's insurance policy, issued by Ohio
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                               -3-
 
Casualty Group, was a motor vehicle liability insurance policy
 
under which they were entitled to underinsured motorist coverage.
 
Finally, appellants claimed they were entitled to underinsured
 
motorist coverage under the policy of commercial general liability
 
insurance issued to Gail Pickering's employer.
 
     Each of the insurers moved for summary judgment in its favor.
 
The court granted each of these motions. In granting Nationwide's
 
motion, the court stated:
 
     "Motion for summary judgment of deft Nationwide Mutual
 
Insurance Company filed 10/1/02 is granted. Pltf 's motion for
 
summary judgment against deft Nationwide filed 10/31/02 is denied.
 
The court finds and declares that plaintiff is not entitled to UM
 
coverage under the Nationwide policy pursuant to the policy's
 
<available for regular use' exclusion.  Plaintiff was occupying a
 
vehicle made available for his regular use when the accident
 
occurred. The term occupying as used in the exclusion encompasses
 
all occupants of a vehicle whether passengers or drivers."
 
     Appellants have appealed only the judgment in favor of
 
Nationwide.   They do not challenge the rulings in favor of the
 
other insurers.
 
                        LAW AND ANALYSIS
 
     The parties agree that, at the time of the collision, Guy
 
Pickering was operating a mail truck in the course of his
 
employment with the United States Postal Service ("USPS"). At
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                -4-
 
deposition, Pickering testified that he drove a USPS truck five
 
days per week as part of his employment. He said he had used the
 
same truck for two years before this accident, unless there was a
 
problem with it. The substitute who delivered the mail on Guy
 
Pickering's day off used the same truck. According to Pickering,
 
"[t]he vehicle goes with that route."
 
     The uninsured motorists coverage endorsement of Nationwide's
 
policy provides in pertinent part:
 
     "We will pay compensatory damages, including derivative
 
claims, which are due by law to you or a relative from the owner or
 
driver of an uninsured motor vehicle because of bodily injury
 
suffered by you or a relative. Damages must result from an
 
accident arising out of the:
 
     "1. ownership;
 
     "2. maintenance; or
 
     "3. use;
 
of the uninsured motor vehicle.
 
     "***
 
     "This coverage does not apply to:
 
     "***
 
     "3. Bodily injury suffered while occupying a motor vehicle:
 
          "a) owned by;
 
          "b) furnished to; or
 
          "c) available for the regular use of;
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                               -5-
 
you or a relative, but not insured for Auto Liability coverage
 
under this policy. ***"
 
     The court found that the mail truck was a vehicle "available
 
for the regular use of" Guy Pickering which was not insured for
 
automobile  liability  coverage   under  the   Nationwide  policy.
 
Therefore, the bodily injury he incurred while occupying the mail
 
truck was excluded from coverage under the terms of the Nationwide
 
policy.
 
     Appellants argue that Pickering 's use of the mail truck to
 
perform his duties for the USPS does not mean that the truck was
 
available for his regular use. We disagree. Appellant had
 
permission from his employer to use the same mail truck every day
 
to perform the duties of his employment. The USPS kept the truck
 
for appellant to use. Thus, the truck was, indeed, available for
 
his regular use. The fact that he did not have unlimited use of
 
the vehicle for both work-related and personal purposes is
 
irrelevant. See Kenney v. Employer's Liability Assurance Corp.,
 
Ltd. (1966), 5 Ohio St.2d 131.
 
     We find this case to be indistinguishable from Kenney in all
 
material respects. In Kenney, a police officer was injured while
 
riding in a police cruiser on duty. His personal automobile
 
insurance coverage provided that it did not apply "to bodily injury
 
*** sustained by the named insured *** while occupying an
 
automobile *** furnished for the regular use of *** the named
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                -6-
 
insured *** other than *** `an owned automobile'." The supreme
 
court held that, as a matter of law, the police cruiser was a
 
vehicle furnished for the regular use of the named insured, because
 
he was assigned to work in a police vehicle on 122 of 164 working
 
days. Therefore, the officer 's injuries were not covered by the
 
policy.
 
     The facts of this case even more strongly support a finding
 
that the appellants' injuries are excluded from coverage than did
 
the facts in Kenney.1 Here, Guy Pickering used a USPS vehicle
 
every day of his employment, not 75 percent of the time as did the
 
police officer in Kenney. Pickering used the same vehicle every
 
day; he did not get a different vehicle from a pool as the police
 
officer did. Therefore, we hold that, as a matter of law,2 at the
 
time Pickering was injured, he was occupying a vehicle available
 
for his regular use which was not covered by the Nationwide policy.
 
 
 
 
     1
     The   fact  that  this  case   involves uninsured motorists
coverage,  while   Kenney   involved   first-party   coverage,  is
irrelevant. In both cases, the court is construing an exclusion
from coverage. Cf. Ohio Cas. Ins. Co. v. Travelers Indemn. Co.
(1975), 42 Ohio St.2d 94. It is also irrelevant that the policy in
Kenney excluded coverage for an auto "furnished"for the insured's
regular use, while the exclusion at issue here refers to autos
"available" for the regular use of the insured. The USPS
specifically provided the postal truck for appellant to use in
performing his job duties, so the truck was both "furnished to"the
insured and "available for" his regular use.
 
     2
     The question whether an automobile is available for the
regular use of the insured may sometimes be a factual question.
Kenney, 5 Ohio St.2d at 134. In this case, however, it is not.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                               -7-
 
Accordingly, the common pleas court properly held that his injuries
 
were excluded from coverage and correctly granted summary judgment
 
for Nationwide.
 
     Affirmed.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                  -8-
 
     It is ordered that appellee recover of appellants its costs
 
herein taxed.
 
     The court finds there were reasonable grounds for this appeal.
 
     It is ordered that a special mandate issue out of this court
 
directing the common pleas court to carry this judgment into
 
execution.
 
     A certified copy of this entry shall constitute the mandate
 
pursuant to Rule 27 of the Rules of Appellate Procedure.
 
 
 
 
                                         ADMINISTRATIVE JUDGE
                                           KENNETH A. ROCCO
 
FRANK D. CELEBREZZE, JR., J. and
 
SEAN C. GALLAGHER, J.        CONCUR
 
 
 
 
N.B. This entry is an announcement of the court's decision. See App.R.
22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized
and will become the judgment and order of the court pursuant to App.R.
22(E) unless a motion for reconsideration with supporting brief, per
App.R. 26(A), is filed within ten (10) days of the announcement of the
court's decision. The time period for review by the Supreme Court of
Ohio shall begin to run upon the journalization of this court's
announcement of decision by the clerk per App.R. 22(E). See, also,
S.Ct.Prac.R. II, Section 2(A)(1).
 
.