Tuesday, October 2, 2012

Regular Use Exclusion Upheld (Again)

In its September 25, 2012 decision in the case of Adamitis v. Erie Insurance Exchange, No. 893 EDA 2010 (Pa. Super. Sept. 25, 2012 Stevens, P.J., Lazarus, J. and Colville, J.) (Opinion by Stevens, P.J.), the Pennsylvania Superior Court again affirmed the validity and enforceability of the regular use exclusion in an underinsured motorist coverage benefits case involving alleged injuries sustained by the Claimant while driving at work. 

The Superior Court took this appeal from an agreed upon non-jury trial in Philadelphia County.   At the trial court level, the trial court judge entered a judgment order in favor of Erie and against the injured party insured.  

By way of background, this matter arises out of a motor vehicle accident that occurred on October 7, 2005.   At that time, the Claimant was working as a bus driver.  While working in the course and scope of his employment, the Plaintiff was involved in a motor vehicle accident with an allegedly underinsured motorist.  

After resolving his claims against the underinsured tortfeasor motorist, the Claimant sought UIM coverage from Erie.   At the trial court level, the Plaintiff testified that, when his UIM claim was rejected by Erie, that was the first time he knew or became aware of the regular use exclusion clause.

The Claimant previously had a UM/UIM policy with another carrier under his originally purchased policy in 2001.  It was agreed between the parties, however, that the subject Erie Insurance policy that was in effect on the date of the accident did contain the regular use exclusion clause. 

Under that clause, it was stated that Erie need not provide UM/UIM coverage “for bodily injury to you or a resident arising from the use of a ‘non-owned motor vehicle or a non-owned miscellaneous vehicle which is regularly used by you or a resident, but not insured for Uninsured or Underinsured Motorists Coverage under the policy.’”  

The Claimant alleged that he never received Erie’s notice with regards to the addition of that exclusion to the policy.   Erie offered evidence in support of its claim that the provision of notice documents to its Erie customers is an automated, computer-driven process.   Based upon the testimony of the Erie Insurance witness, the court found that the Claimant did indeed receive the notice of the addition of the regular use exclusion to the Erie policy.

Accordingly, applying the language of the regular use exclusion to the facts of the case, the Superior Court upheld the trial court’s decision in favor of Erie Insurance.  

Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.

 I send thanks to Attorney Suzanne Tighe of the Wilkes-Barre office of Thomas, Thomas, & Hafer for bringing this case to my attention. 

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