In
the case of Petra v. Pennsylvania Nat’l
Mut. Ins. Co., No. 505 MDA 2018 (Pa. Super. Jan. 16, 2019 Ott, J.,
McLaughlin, J., Ford Elliot, P.J.E.) (Non-precedential Op. by McLaughlin, J.),
the court ruled that an exclusion in an auto insurance policy precluded
coverage of a motorcyclist’s claims for injuries he suffered when he collided
with another driver’s motorcycle. The
court found that the motorcyclist was “occupying” the motorcycle even after
colliding with the car and becoming separated from his motorcycle.
According
to the Opinion, the Plaintiff was operating his motorcycle when he was involved
in an accident with another car and was ejected from the motorcycle and hit the
ground. No other vehicles were involved in the accident.
The
Plaintiff insured his motorcycle under a policy under which he had rejected
uninsured and underinsured motorist coverage.
At
the time of the accident, the Plaintiff motorcyclist also owned a minivan that
was insured with Penn National Insurance Company.
The
Plaintiff sued Penn National to recover UIM benefits under that policy that
separately covered the Plaintiff's minivan.
The
case came before the court by way of a Motion for Summary Judgment.
Under
the Penn National policy issued to the Plaintiff’s minivan, it was provided
that the policy would not provide UIM coverage for bodily injury sustained by
the Plaintiff while “occupying,” or when struck by, any motor vehicle you owned
which is not insured for this coverage under this policy. The policy defined “occupying” to mean “in,
upon, getting in, on, out or off.”
The
Plaintiff argued that the exclusion in the Penn National policy did not
preclude coverage because he was not “occupying” a non-insured motor vehicle,
i.e., his motorcycle, at the time he was injured. Rather, the Plaintiff asserted that some of
his injuries were sustained while he was in physical contact with the
motorcycle and some other injuries occurred after he became separated from the
motorcycle, i.e., when he was not occupying the motorcycle.
The
court rejected the argument that the Plaintiff was not occupying his motorcycle
at the time he was injured. The Superior
Court noted that “[s]egmenting the accident under [the Plaintiff’s] analysis
would create an absurd result.” The
court additionally found that the argument put forth by the Plaintiff was “not
persuasive.”
Pointing
out that the Plaintiff had stipulated that this matter involved a single
accident and that there were no intervening or superseding accidents, the
Superior Court ruled that, construing the “unambiguous terms” of the exclusion
in the Penn National policy supported a conclusion that the Plaintiff suffered
bodily injury while occupying his motorcycle, a vehicle not covered by the
policy. The court concluded that the
Plaintiff occupied his motorcycle from the moment of impact with the
tortfeasor’s vehicle, through the ejection, and until his body came to a rest
on the ground.
As
such, the Plaintiff was determined not to be entitled to recover UIM
benefits.
As
a parenthetical, it is noted that this decision was decided before the
Pennsylvania Supreme’s Court’s decision invalidating the household exclusion
in the case of Gallagher v. Geico. It remains to be seen what, if any impact
the Gallagher decision will have upon
this case or the court's decision.
Source: “Court: Motorcyclist as
‘Occupying’ Motorcycle Even After Colliding with Car” by Steven A. Meyerowitz, The Legal Intelligencer (Feb. 1, 2019).
UPDATE: In September of 2019, the Pennsylvania Supreme Court vacated and remanded the Superior Court's above January 16, 2019 decision in light of the Pennsylvania Supreme Court's decision in Gallagher v. GEICO.
On remand, however, another Superior Court panel ruled, in an October 31, 2019 decision that the Plaintiff had failed to preserve a challenge under the Gallagher decision and, therefore, waived that issue. Click this LINK to view that decision.
Thereafter, on March 24, 2020, the Pennsylvania Supreme Court decline to grant allocatur in the case a second time.
UPDATE: In September of 2019, the Pennsylvania Supreme Court vacated and remanded the Superior Court's above January 16, 2019 decision in light of the Pennsylvania Supreme Court's decision in Gallagher v. GEICO.
On remand, however, another Superior Court panel ruled, in an October 31, 2019 decision that the Plaintiff had failed to preserve a challenge under the Gallagher decision and, therefore, waived that issue. Click this LINK to view that decision.
Thereafter, on March 24, 2020, the Pennsylvania Supreme Court decline to grant allocatur in the case a second time.
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