Plaintiff Found to "Occupy" Motorcycle Even After Being Ejected From It During Accident (Non-Precedential Decision)

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 Jan. 16, 2019 Ott, J., McLaughlin, J., Ford Elliot, P.J.E.) (Non-precedential Op.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.  

Anyone wishing to review a copy of decision in the case of Petra may click this LINK. 

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.