dissenting.
We are interpreting an insurance policy that both the insured and the insurer agree was intended to provide coverage for ordinary use of an automobile, not use as a commercial carrier. The specific provisions involved are the exclusion for “carrying persons or property for a fee” and the recognized exception to that exclusion of a “shared-expense ear pool.”
I agree that it is not necessary for a car pool to maintain anything approaching detailed accounting in order to meet the standard for a “shared-expense car pool,” and that informal arrangements to share commuting transportation are to be encouraged. For that reason I would indulge a presumption that informal arrangements among people who commute to a common destination are within the car pool exception to the policy exclusion. However, the factors identified by the majority seem to me to go too far in permitting and even encouraging an enterprise in the underground economy. In particular, the fact that the operator of a bootleg commercial carrier chooses neither to pay taxes nor obtain a commercial driver’s license does not seem relevant to the car pool inquiry to me. Identifying these as factors favoring insurance coverage at the lower cost afforded to everyday drivers instead of the higher premium charged commercial carriers only encourages skirting the tax and motor vehicle laws.
I also think that “expense” means only depreciation and out of pocket costs, not compensation for driving that the driver would do in any event to get herself to work. The “opportunity cost” as described by the majority would be incurred by Riggins regardless of whether eleven others or no one rode with her. Maj op. at 777. The fact that Riggins was paid to drive while others slept or read would be called compensation for services by the tax authorities and most ordinary citizens. Reduction of the passenger charge by $5.00 per day for any of the passengers who drive confirms that this arrangement included a compensation component to Riggins as the usual driver. As such, this looks to me like any other service business that also furnishes the equipment needed to provide the service. As the majority notes, the Internal Revenue Service mileage allowances may or may not be controlling in other contexts, but they give us some idea of whether this was a profitable enterprise or not. And the idea they give me is that it was indeed profitable in the range of $2,000 to $4,000 per year.1
It seems to me the test of a shared-expense car pool where the passengers furnish something other than their own driving and vehicles from time to time (in this case $17.00 in cash per week) should be no more and no less than 1) do the participants think they are sharing expenses or something more and 2) is the consideration within a reasonable ballpark estimate of the actual costs of providing the transport including depreciation. Here the factors identified, in particular the fact that the arrangement contemplates compensation to Riggins as the driver, overcome the presumption that an informal arrangement is a “shared-expense ear pool.” It seems to me that the Court of Appeals for the Seventh Circuit correctly decided Gen. *779Accident Ins. Co. of Am. v. Gonzales, 86 F.3d 673 (7th Cir.1996) on the facts of that case, and in doing so pointed to several factors that distinguish it from this case. These include 1) Gonzales offered “rough estimations” and “passenger testimony’ that the five dollars per day from passengers at best covered only a portion of his expenses, 2) if Gonzales did not go to work the passengers took the bus or drove themselves in a vehicle other than the one owned by Gonzales, and 3) four to six people were transported by Gonzales in a vehicle that he used for his personal transportation as opposed to the eleven passengers transported by Riggins in a vehicle purchased specifically to engage in this commuter service. Id. at 679.
SULLIVAN, J., concurs.. If we assume an 82 mile round trip at the IRS allowed deductible of 28 cents per mile it "costs” about $6,000 to operate the van. (82 miles x ,28<t x 5 days x 52 weeks = $5,969.60) Receipts total over $9,700. (11 passengers x $17 per passenger per week x 52 weeks = $9,724) Even assuming the IRS is niggardly in its standard allowance, this still leaves ample room for a profitable operation.