Wednesday, October 9, 2019

Regular Use Exclusion in Automobile Insurance Policies Under Attack

In the case of Rush v. Erie Insurance Exchange, No. C-48-CV-2019-1979 (C.P. Northampt. Co. Oct. 1, 2019 Baratta, J.), the court denied a Motion for Judgment on the Pleadings filed by the carrier with respect to a Regular Use Exclusion issue.

According to the Opinion, a police officer Plaintiff was injured in the course and scope of his employment and recovered the liability coverage from the tortfeasor and the UIM coverage under the policy that covered the police vehicle.

The Plaintiff then sought to recover UIM benefits under his own personal Erie stacked policy. Erie Insurance denied the claim and asserted the regular use exclusion. The carrier relied upon the case of Burstein v. Prudential Property and Cas. Ins. Co., 809 A.2d 204 (Pa. 2002) and other related cases.

The Plaintiffs opposed the Motion and cited, in part, to the rationale from the case of Gallagher v. Geico, 201 A.3d 131 (Pa. 2019) in which the Pennsylvania Supreme Court invalidated the household exclusion.

In this Rush case, the trial court denied the carrier’s Motion for Judgment on the Pleadings and noted that the recent Gallagher case “creates a substantial question of law such that Erie’s right to prevail is not so clear that judgment on the pleadings would be appropriate in this matter.”  The Court more specifically noted that the Plaintiff set forth "a cognizable claim that the [carrier's] application of the regular use exclusion to deny their request for underinsured motorist coverage is in contravention of public policy."

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Scott B. Cooper of the Harrisburg, PA law firm of Schmidt Kramer, P.C. for bringing this case to my attention.

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