dissenting.
I am unable to agree with the opinion of the majority and therefore I must dissent.
The majority reverses the trial court’s grant of motion for summary judgment on *306the basis that the terms “regular or frequent” are ambiguous. Appellant was unable to cite any cases so holding and the trial court was unable to find any. However, the majority manages to find one case interpreting the terms “regularly” or “frequently” as ambiguous. I do not agree that the terms are subject to differing definitions. As the court in Commercial Standard Ins. Co. v. Haley, 282 F.Supp. 16, 20 (S.D.Iowa 1968), stated:
“The Court does not feel that there is any room for judicial emasculation of the terms ‘regular’ or ‘frequent.’ The ordinary man would have no difficulty in interpreting words of such common usage. ‘Regular,’ as used in the context of the policy in question, connotes a uniform or recurring course of action or conduct. The term ‘frequent’ usually portrays the concept of ‘ “Often to be met with, happening at short intervals, often repeated or recurring, ‘as frequent visits.’ ” ’ Weaver v. National Fidelity Ins. Co., 377 S.W.2d 73, 75 (Ky.). Any ambiguities which could be said to be generated by the use of those terms in the policy derive from the fact that their inherent nature necessitates a factual consideration in each case to determine whether the use was ‘regular’ or ‘frequent.’ Ambiguities in that sense have apparently led some authorities to approach the factual application of the terms to the manner and extent of use of a commercial vehicle in a liberal spirit. See, e.g., Weaver, supra; Indiana Rolling Mill Bailing Corp. v. National Automobile and Cas. Ins. Co., 141 F.Supp. 831 (D.Ind.), aff’d. 240 F.2d 74 (7 Cir.); Bruins v. Anderson, 73 S.D. 620, 47 N.W.2d 493. But no court has found that the terms themselves need clarification.”
The majority states that even those courts which have held that the terms are not ambiguous have treated the issue as a question of fact for the trier of fact. While this may be correct in another factual setting, it is inapplicable here by reason of the fact that both parties filed motions for summary judgment. The effect of cross motions for summary judgment was raised at oral argument and subsequently briefed by counsel. Other than the statement “[n]or does the fact that both parties moved for summary judgment demonstrate that there is no material issue of fact,” the majority ignores this issue. Mr. Moss, like Mid-America, felt that the issue was one of law. The facts are undisputed. Indeed, even in his briefs on appeal Moss asserts that summary judgment should have been granted in his favor. It was not until oral argument with prompting from the court that counsel noted that there might be a factual issue involved. It was only when he lost on the law that he asserted there were factual issues. Undoubtedly, if Mr. Moss had prevailed on his theory, he would still be contending that the issue was' one of law not of fact. As the Supreme Court of Utah so succinctly stated in Mastic Tile Division of the Ruberoid Co. v. Acme Distributing Co., 15 Utah 2d 136, 389 P.2d 56, 57 (1964):
“Both sides laid the matter in the lap of the court by their mutual motions, and under the facts of this particular case unequivocally invited and authorized the court to decide the case by interpreting the documents. This the court did. Having done so in a case like this, where interpretation of the writings was the only issue, we do not think the court should be required to submit to the subsequent urging of the loser that although he took his chances without reservation, he must have another go at the case, — although it is conceivable that in some other and unusual case this might be so.”
There are many cases throughout the country discussing the effect of cross motions for summary judgment. One line of cases state the general rule that the fact that both parties move for summary judgment does not in itself establish that there is no genuine issue of fact. Casey v. Highlands Ins. Co., 100 Idaho 505, 600 P.2d 1387 (1979); Farmers Ins. v. Brown, 97 Idaho 380, 544 P.2d 1150 (1976); Eagle v. Louisiana and Southern Life Ins. Co., 464 F.2d 607 (10th Cir. 1972); McCown v. Humble Oil and Refining Co., 405 F.2d 596 (4th Cir. 1969). Another line of cases indicate that when both parties allege that there is no *307genuine issue as to any material fact they are then precluded from changing their position on appeal. State Welfare Div. v. Capital Convalescent Center, Inc., 92 Nev. 147, 547 P.2d 677 (1976); Wycoff Co. v. Public Service Comm’n, 15 Utah 2d 139, 389 P.2d 57 (1964) (where only the interpretation of the writings was in issue); McBean v. McBean, 371 S.W.2d 930 (Ct.Civ.App.Tex. 1963) (where both parties assert that there is no triable issue of fact the matter in controversy becomes one for the court to decide as a matter of law); Dell Publishing Co. v. Summerfield, 198 F.Supp. 843 (D.D.C. 1961) (by making cross motions the parties concede that the matter should be determined as a question of law). See also Goodman v. Strassburg, 139 So.2d 163 (Fla.App. 1962); Garrett Freightlines, Inc. v. United States, 236 F.Supp. 594 (D.Idaho 1964).
I cannot say that in all cases cross motions for summary judgment will preclude the parties from later asserting that there is a triable issue of fact. This is so because by the filing of a motion a party concedes that no issue of fact exists under the theory he is advancing, but does not thereby concede that no issues remain in the event his adversary’s theory is adopted. Nafco Oil and Gas, Inc. v. Appleman, 380 F.2d 323 (10th Cir. 1967). The Fifth Circuit elaborated on this point in Schlytter v. Baker, 580 F.2d 848, 849 (5th Cir. 1978), in language that in my opinion reflects the current rule. There the court stated:
“As a general rule the filing by both parties of opposing motions for summary judgment will not warrant a court’s granting either party’s motion if, indeed, there exists a genuine factual dispute concerning a material issue. As explained in Stuart Plastering [Bricklayers etc. v. Stuart Plastering Co.] (512 F.2d 1017, 5th Cir. 1975) the rationale of this rule lies in the fact that each party may be basing its motion on a different legal theory dependent on a different set of material facts.
When the parties proceed on the same legal theory and on the same material facts, however, the basis for the rule disappears. Thus, in qualifying the general rule, this Court has said: Nonetheless, cross motions may be probative of the non-existence of a factual dispute when, as here, they demonstrate a basic agreement concerning what legal theories and material facts are dispositive.” (Citations omitted.)
A two-fold test emerges. Are the parties proceeding on the same legal theory and are they relying on the same set of material facts? This is precisely the situation involved here. Both parties in their motions assert that there is no genuine issue as to any material fact. Plaintiff-appellant asserts that the depositions and affidavits show that the trips were not violative of the radius endorsement. Defendant-respondent asserts, based on the same facts, that the trips were violative. Therefore, the parties having based their summary judgment motions on the same legal theory, the case was properly presented for decision by summary judgment.
Because the terms are unambiguous they will be construed in their ordinary meaning. This court stated in Thomas v. Farm Bureau Mut. Ins. Co. of Idaho, Inc., 82 Idaho 314, 318, 353 P.2d 776, 778 (1960), quoting with approval, Miller v. World Ins. Co., 76 Idaho 355, 357, 283 P.2d 581, 582 (1955):
“Policies of insurance, as other contracts, are to be construed in their ordinary meaning and where the language employed is clear and unambiguous, there is no occasion to construe a policy other than the meaning as determined from the plain wording therein. It is the function of the Court to construe a contract of insurance as it is written, and the Court by construction cannot create a liability not assumed by the insurer nor make a new contract for the parties, or one different from that plainly intended, nor add words to the contract of insurance to either create or avoid liability.” (Citations omitted.)
Based upon their ordinary meaning in interpreting the terms, “regular” or “frequent,” as used in this insurance policy, it is to be noted that the policy provided the exclusion would apply if Mr. Moss’s trips were regu*308lar or frequent. Therefore, with this case being submitted for decision to the trial court by each of the parties relying on the same set of facts and on the same legal theory, if the trial court could reasonably have found either of the above, that decision should be affirmed.
Each party urged upon the trial court a different method of determining what constitutes regular or frequent. The insured, appellant, urged that the court should compare the total trips made during the policy period with those outside the mileage radius; and the insurer, respondent Mid-America, urged that the court should analyze the time spent on the excess trips in relation to the total hauling time available to appellant. The trial court rejected both approaches as incomplete and adopted a combination of factors in making its determination. These factors were the number of trips outside the limit, the number of miles travelled on those trips, the time devoted to each trip, the interval between each trip and a comparison of the outside trips with the total number of trips made. This is a case of first impression in Idaho as far as what factors are to be used in applying the terms, regular or frequent.
The court of appeals for the fifth circuit in Pennsylvania Casualty Co. v. McCoy, 167 F.2d 132, 133 (5th Cir. 1948), elaborated some factors which it deemed helpful in the analysis of the facts.
“ ‘The term “regular” and the term “frequent” is each a relative term, depending upon the facts and circumstances. For instance, a fast-moving, lightly-loaded automobile is capable of making more frequent trips than a slow-moving, heavily-laden one, and what would be frequent trips for the latter might not be considered so frequent for the former vehicle. The distances of the trips would also enter into the question of frequency. Regularity might encompass the idea of a fixed time of departure and return — the idea of a regular run or schedule.’ ”
The court in Commercial Standard Ins. Co. v. Haley, 282 F.Supp. 16 (S.D.Iowa 1968), also took into account the intervals between trips, compared total trips to trips outside the radius and considered the distance and amount of time expended upon trips past the radius borders.
Appellant made thirteen trips outside the mileage limitation between January 1978, the date of the first trip, and July 1978, the date of the accident. Each trip took approximately three or four days and covered 1600 miles round trip. The trips were January 24, March 2, March 10, April 5, April 13, April 25, May 15, May 25, June 9, June 23, July 5, July 12, and July 21, approximately two trips per calendar month. Between January and July Mr. Moss had approximately 153 days hauling time. He made thirteen trips of four days each, which means he spent approximately 34% of his time hauling outside the mileage limitation. Over the last thirty days of that period, June 21 to July 23, he made four trips to Arizona, consuming a total of sixteen days which represents nearly 62% of his available hauling time during that time. The intervals between trips, as determined by subtracting from the number of days between trips, four days for the trips, were thirty-five, four, twenty-one, three, six, fourteen, five, eleven, nine, nine, three and five. Applying the definition of the term “frequent” as often repeated or occurring, appellant’s trips were “frequent.” The Kentucky case, Weaver v. National Fidelity Ins. Co., 377 S.W.2d 73 (Ky.1964), dealt with a 150 mile radius provision. In that case the insured made a total of 105 trips, 23 of which were beyond the mileage limitation. That court based its decision on the meaning of the term “frequent” and stated that “although the trucks were only used 22% of the time between the issuance of the policy and the date of the accident on trips over the 150 mile limit, the frequency of the trips was increasing with each month and in the month during which the accident occurred amounted to almost 42% of the total period.” Appellant’s trips were likewise increasing in frequency at the time of the accident. He was making two trips per month on the average and had made four in the thirty days preceding the accident, consuming approximately sixteen days. In its *309order the trial court stated that “both parties are seeking a factual determination as to whether the mileage limitation was violated.” After applying the factors discussed above, the court concluded that
“[b]ecause of the significant excessive mileage, the time consumed making the trips and the continuing business relationship taking him beyond the limitation, it appears to this Court that plaintiff did make ‘regular or frequent’ trips beyond the mileage limitation. However, even though plaintiff breached the conditions in the endorsement, it must be shown that the breach contributed to the loss or, in fact, made the risk more hazardous. The affidavit of Mr. Mordhorst points out that the coverage for the trips to Arizona would increase the premium because of the increased risk involved. He also pointed out that Arizona and California were each risk zones in which defendant would not insure. It is apparent that traveling almost three times beyond the mileage limitation twice a month did, in fact, increase the risk of loss for the defendant and consequently, the breach by plaintiff does result in an increased burden upon the defendant, a burden the defendant did not contractually accept.”
The trips of Moss were sufficient to constitute “frequent” in the eyes of the trial court. Even if others might have viewed these facts differently still it was for the trial court to resolve such conflict, which it did. The use by the trial court of the factors discussed are consistent with the factors used by the courts of other jurisdictions and I cannot say as a matter of law that the trial court erred in this regard.
In setting forth the factors to be used by the trial court to determine “frequency,” the majority states that the full time period from September must be used and fails to include the time consumed in making the trips as a factor. I disagree with both of these conclusions.
It is conceivable if not probable that the insured could avoid the mile limitation simply by planning his out of the limitation trips for the end of the policy period. An insured could spend the last months of the policy period making trips beyond the limitation as long as he made enough trips in the previous months so that in comparing the two figures the trips within the limitation were more numerous. Therefore, the result is that although an insured spends the majority of his time outside the limitation in the last months his trips cannot be characterized as “frequent.”
The other way the insured can avoid the exclusion is simply by making extended trips outside the radius. For example, the insured could take a one month, two month, or even six month trip outside the radius and still not be characterized as “frequent” so long as he made a sufficient number of trips within the limitation even if those trips are only three blocks. The majority ignores the fact that it takes a longer period of time to travel beyond 300 miles than it takes to travel within 300 miles. These results were not within the expectations of the parties when they contracted and yet under the majority’s reasoning are probable. Mr. Moss contracted for the mileage limitation and accepted the benefits of a lower premium, violated that provision and still seeks coverage. Any insured could do the same just by planning ahead.
In discussing the ambiguity of the contract terms the majority states: “By examining the policy Moss could not know that the thirteenth trip put him beyond the limit supposedly imposed by those terms.” In his deposition Moss testified that he was aware of the radius endorsement and that he asked the insurance agent what would happen if he had occasion to make a trip beyond the limitation and the insurance agent said if Moss called in he was sure it would be all right. Moss further testified that he did call in the first time but never checked in again. The obvious answer to the majority’s concern that Moss would not know when he was in violation of the provision is that he could call the insurance company just like he did the first time.
The parties contracted for insurance coverage within certain mileage limitations. *310Mr. Moss violated that provision but still feels that he should be covered. The opinion of the majority erodes the validity and enforceability of contracts in its desire to protect the little guy.
For the reasons set forth above I would affirm the judgment of the trial court.
BAKES, C. J., concurs.