Superior Court Reviews Duty of Uninsured Motorist Plaintiff To Report the Accident To the Police

In its recent non-precedential decision in the case of Pummer v. Engelbrecht, No. 252 EDA 2024 (Pa. Super. Dec. 30, 2024 Bowes, J., Nichols, J., and Sullivan, J.) (Op. by Nichols, J.) (Bowes, J. concurring), the court addressed whether an uninsured motorist carrier must show prejudice before its denial of a UM claim due to the failure of the injured party to report the accident to the police.

In this case, the Pennsylvania Superior Court reviewed the rules surrounding the notice requirements following an uninsured motorist accident. 

The court noted that an uninsured motorist vehicle is defined under the Vehicle Code as (1) a motor vehicle for which there is no liability coverage, (2) a motor vehicle for which liability coverage has been denied by the insurance company, or (3) an unidentified motor vehicle (a hit and run motor vehicle) that causes an accident resulting in an injury, provided that the accident is reported to the police or proper governmental authority and the claimant notifies his or her insurance company within thirty (30) days, or as soon as practicable thereafter.

The Pennsylvania Superior Court cited to other cases that confirm that the notice requirement is to prevent fraud in this area of automobile insurance claims.

The Pummer court reviewed the jurisprudence in Pennsylvania as to whether or not a carrier must show prejudice in order to support a denial of uninsured motorist coverage claim based upon the fact that the claimant did not report the accident to the police.

The Superior Court noted that the most recent precedent on this case from the Supreme Court held that whether prejudice is required must be addressed on a case-by-case basis. In this regard, the court noted that a carrier can show prejudice where an insured’s delay in reporting the accident results in an inability on the part of the carrier to thoroughly investigate the claims presented.

The Pummer court noted that there can be a distinction in hit and run cases between those cases where the driver causing the accident is never identified and where the hit and run driver is identified. 

In Pummer, where the hit and run driver turned out to be a driver that was identified, the court concluded that the absence of police report being generated for the accident was not fatal to the Plaintiff’s uninsured motorist claim.

One the factors relied upon by the court in this case was the fact that the injured party was a passenger in an Uber vehicle and, as such, did not have any duty to obtain the identity of the tortfeasor driver. Moreover, the court in this case emphasized that the injured party did make numerous efforts to attempt to gather information on the identity of the tortfeasor driver through requests made to the Uber driver and that driver’s carrier.

As such, the Superior Court found that the trial court erred when it granted the UM carrier’s Motion for Summary Judgment on the basis that the Plaintiff failed to report the subject accident to the police. The appellate court overruled the trial court and denied the motion on the basis that there were issues of fact that precluded summary judgment.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.

Chester County Court Addresses Post-Koken Issues of Note

Levels of Coverage in Question

In the case of Crook v. Erie Insurance Exchange, No. 2014-00867-TT (C.P. Chester Co. June 14, 2024 Binder, J.), the court addressed various Preliminary Objections filed by a carrier in a Post-Koken uninsured (UM) motorist litigation.

Among the issues raised by the second level UIM carrier defendant in this case involving two (2) levels of UIM coverage was an argument that the claim against the second level UIM carrier was premature given that it was not clear as to whether or not the Plaintiff’s alleged damages would be fully covered by the first level of UM coverage.

The court emphasized that, while the second level of UM carrier was entitled to a credit for the policy limits under the first level UIM coverage, the Plaintiff was not required to exhaust the first level of UM coverage before pursuing the secondary coverage available from the second level UM carrier.

The court also addressed the separate issue of whether the Plaintiff properly also included a claim against the uninsured tortfeasor in this matter and whether that was an improper joinder.

The court reviewed cases on this issue involving permissive joinder of tort and UIM claims under Pa. R.C.P. 2229 and found that the same were indeed permitted. In this regard, Judge Binder elected to follow the approach enunciated by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Bingham v. Poswistilo, 24 Pa. D. & C. 5th 17 (C.P. Lacka. Co. 2011 Nealon, J.) and allowed the claims to proceed into discovery under the same caption.

Accordingly, the court overruled the objections to Joinder at this pre-trial stage of the case without prejudice to the rights of the parties to request a bifurcation at the trial of the tort and the UIM claims and/or to otherwise request limits on the disclosure of the identity or existence of insurance coverage at trial.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer Common Pleas Case Alert” (Nov. 6, 2024).

Federal Court Finds that Lyft Driver Able to Pursue Claim That Driver Was Owed Uninsured Motorist Coverage From Lyft

In the case of Ahtasham v. Lyft, Inc., No. 2:24-CV-01673-GJP (E.D. Pa. Pappert, J.), the Eastern District Federal Court ruled in favor with a Lyft driver in that driver’s contractual dispute with Lyft over the availability of $1million dollars in uninsured motorist coverage.

According to the Opinion, Lyft filed a Motion to Dismiss a lawsuit brought by a Lyft driver who claimed that he was entitled to uninsured motorist coverage following a motor vehicle accident.

The court determined that the terms of service agreement and a promise in a driver guidebook was a binding contract between Lyft and one of its drivers who was the Plaintiff at issue in this case.

According to the Opinion, the guidebook promised Lyft drivers that “‘we’ve got you with our $1million insurance policy,’” and that “‘there are four coverages included in our insurance policy.’” including underinsured/uninsured (UM/UIM motorist coverage).

In the Opinion, it was indicated that the Plaintiff claimed he was denied coverage by the UM carrier after he was in an accident with an uninsured driver. Coverage was denied even though Lyft previously allegedly informed the Plaintiff that he and his car would be insured.

According to the Opinion, prior to the accident, Lyft had waived the UM/UIM coverage for its Pennsylvania drivers, without informing them.

The Plaintiff filed suit against Lyst seeking entitlement to uninsured motorist benefits, as well as claims of breach of contract, fraudulent misrepresentation, violations of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, and negligent misrepresentation.

In his Complaint, the Plaintiff additionally sought a declaratory judgment that Lyft had a duty to provide him with up to $1 million dollars in uninsured motorist coverage.

The breach of contract claim revolved around the parties’ alleged agreement and the driver guidebook, which Lyft argued was not part of its contract with the Plaintiff.

The court concluded that the agreement’s interpretation, including whether it incorporated references to the guidebook’s UM/UIM coverage promise, was governed by California law as that was where Lyft maintained its principal place of business.

The Plaintiff claimed that the driver’s agreement and the guidebook, when considered together, constituted his contract with Lyft that he relied upon. The Plaintiff more specifically asserted that he relied upon the provision and the guidebook that “in the event of an accident…our UM/UIM coverage will apply up to $1million per accident.”

Lyft attempted to argue that this representation was barred as a matter of law by the parol evidence rule. 

The court found that the parol evidence rule did not serve to exclude evidence that is offered to explain any ambiguity or to otherwise assist in the interpretation of the terms of an alleged agreement. 

The court noted that, where it is decided by the court that the language of a contract is ambiguous or fairly susceptible of more than one interpretation, extrinsic evidence relevant to prove any of the possible meanings is admissible to assist in the determination of the term of the contract. 

The court noted that, in this matter, the agreement contained two provisions that indicated that the guidebooks promised to provide Lyft drivers with uninsured and underinsured motorist coverage was part of the contractual relationship between the drivers and the company.

Overall, the court found that the Plaintiff’s allegations that Lyft breached the guidebook’s clear promise of UM/UIM coverage was sufficient to plausibly state a claim for breach of contract.

The court also rejected arguments by Lyft that a disclaimer in the guidebook prevented the guidebook from being interpreted as it was being interpreted by the court.

In the end, the federal court judge from the Eastern District denied Lyft’s Motion to Dismiss the lawsuit brought by this Lyft driver who claims that he is entitled to uninsured motorist coverage under a Lyft Insurance policy.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


I send thanks to Attorney Jimmy Kunnell of the Feasterville-Trevose, PA law firm of Kunnell Law for bringing this case to my attention.


See also: Article “Federal Judge Sized With Lyft Driver In Contractual Dispute Over $1M Uninsured Motorist Coverage” By Riley Brennan of The Legal Intelligencer (Sept. 13, 2024).

Judge Mannion of Federal Middle District Court Addresses Continuing Validity of the Regular Use Exclusion and Makes Predictions

In the case of Dayton v. The Automobile Insurance Co. of Hartford, CT, No. 3:20-CV-01833-MEM (M.D. Pa. April 23, 2024 Mannion, J.), the court addressed the issue of whether “regular use” exclusion provision in a motor vehicle insurance policy is unenforceable as contrary to Pennsylvania law under a 75 Pa. C.S.A. §1738 analysis.

Judge Mannion predicted that the Pennsylvania Supreme Court would find that the regular use exclusion does not violate §1738 of Pennsylvania’s Motor Vehicle Financial Responsibility Law.

According to the Opinion, this lawsuit arose out of a motor vehicle accident during which the Plaintiff was injured while driving his employer’s truck. 

The Plaintiff sued after he was not allowed to stack his personal automobile coverage limits on top of the separate insurance policy issued by a different insurance company that his employer had for the truck that the Plaintiff had been driving at the time of the accident.

The carrier in this case had denied the Plaintiff’s claim for additional UIM benefits based upon a regular use exclusion which precluded any coverage when injuries were sustained by an insured while occupying a non-insured vehicle that was available for the insured’s regular use.

The court rejected the Plaintiff’s arguments under the Gallagher v. Geico line of cases under which the Plaintiff attempted to argue that the regular use exclusion, like the household exclusion, operates as a impermissible de facto waiver of stacking under certain circumstances.

In addition to noting that the scope of the Gallagher decision had been limited by recent decisions by Pennsylvania Supreme Court, including in the case of Erie Insurance Exchange v. Mione, Judge Mannion also noted that, earlier this year, the Pennsylvania Supreme Court had upheld the regular use exclusion as enforceable in the case of Rush v. Erie Insurance Exchange under a 75 Pa. C.S.A. §1731 analysis.

Judge Malachy E. Mannion
M.D. Pa.

The court noted that the separate §1738 analysis was not addressed in the Rush case. In this regard, Judge Mannion found that the Erie Insurance Exchange v. Mione by the Pennsylvania Supreme Court was instructive and “dictates the prediction that the Pennsylvania Supreme Court would conclude that a regular use exclusion which does not deprive an insured of stacked UIM coverage does not violate §1738.” 

In this case, the court found that the Plaintiff did not have any insurance policy under which §1738 would require stacking of the UIM coverage provided in his personal policy with the insurance company at issue in this case and that, therefore, that policy’s regular use exclusion does not deprive the Plaintiff of stacked coverage and, therefore, did not violate §1738.

Accordingly, the Plaintiff’s arguments that the regular use exclusion violated the MVFRL were rejected by the Court, the regular use exclusion was enforced, and the Defendant carrier was granted summary judgment in this case.

Anyone wishing to review a copy of this decision may click this LINK.


Source: Article – “Federal Court Predicts How Pa. Supreme Court will Address Unanswered Question About Regular Use Exclusion.” By Riley Brennan, the Legal Intelligencer (April 26, 2024).

Pennsylvania Supreme Court Upholds Validity of Regular Use Exclusion

On January 29, 2024, the Pennsylvania Supreme Court issued its long-awaited, much anticipated decision in the Regular Use Exclusion case of Rush v. Erie Insurance Exchange, No. 77 MAP 2022 (Pa. Jan. 29, 2024)(Maj. Op. by Donohue, J.)(Concurring Op. by Wecht, J.).

The Pennsylvania Supreme Court has ruled that, as presented in this case, the Regular Use Exclusion contained in motor vehicle insurance policies does not violate the express language of Pennsylvania's Motor Vehicle Financial Responsibility Law [MVFRL].

The Plaintiff in Rush was a police officer who was injured in a motor vehicle accident while driving his police vehicle.  

The Plaintiff recovered the liability limits from the tortfeasor's policy and the UIM limits on the police vehicle.

The Plaintiff then sought to obtain additional recoveries from the Erie Insurance policies that covered his personal vehicles at home.  Erie Insurance relied upon a Regular Use Exclusion contained in the policy to deny coverage on the UIM claim.

The trial court and the Superior Court had ruled, in part, that the Regular Use Exclusion violated the provisions of the MVFRL, and in particular, the terms of 75 Pa.C.S.A. Section 1731.  

More specifically, the lower courts had held that the Regular Use Exclusion conflicted with the language of Section 1731's mandate of the provision of UIM coverage to insureds by limiting the scope of the coverage provided by Section 1731 by precluding coverage if an insured is injured while using a motor vehicle that the insured regularly uses but does not own.

As noted, in its decision, the Pennsylvania Supreme Court reversed the lower courts' decisions and upheld the validity and enforceability of the Regular Use Exclusion.

In so ruling, the Pennsylvania Supreme Court pointed to prior decisions it had rendered repeatedly upholding the validity of the Regular Use Exclusion.  The Court found the Plaintiff's arguments in this case to be a mere recitation of at least one of the same arguments that had been previously rejected by the Court relative to the validity of the Regular Use Exclusion.

The Supreme Court rejected the Plaintiff's argument that UIM coverage must be provided in all circumstances regardless of which vehicle the injured party was located in at the time of the accident.  The Court noted that, to accept such an argument would render all exclusions invalid.  The Supreme Court rejected this argument.

The Supreme Court also rejected the Plaintiff's reliance upon the Pennsylvania Supreme Court's decision in  Gallagher v. GEICO for the proposition that the Regular Use Exclusion should be eradicated across the board just as the Household Exclusion had been eradicated in Gallagher as a allowing for a de facto waiver of stacked coverage when the MVFRL required the carrier to secure a written waiver of coverage from its insureds.

In this Rush v. Erie Insurance Exchange case, the Pennsylvania Supreme Court confirmed that it had clarified and narrowly limited its Gallagher decision in its more recent decision in the case of Erie Insurance Exchange v. Mione.  See Op. at p. 31-32.  In Mione, the Court had confirmed that the Household Exclusion remained valid and applicable except possibly in cases where the insured was attempting to stack coverage under 75 Pa.C.S.A. Section 1738.

Here, in Rush v. Erie Insurance Exchange, the Supreme Court ruled that "[i]f the MVFRL does not require that UIM coverage follow the insured in all circumstances, then the MVFRL cannot be read to prohibit exclusions from UIM coverage."  See Op. at p. 36.  

As such, the Court ruled that the terms of the UIM insurance contract between the parties still controlled relative to the scope of the UIM coverage available, or not available, and that, therefore, the Regular Use Exclusion remained enforceable.  Id.

The Supreme Court in Rush also specifically held that the Regular Use Exclusion remained a permissible limitation of UIM coverage within the language of the MVFRL and that, "[w]ith decades of reliance by insureds and insurers, and no justification to allow this Court to depart from decades of established law," the Court would maintain its continued course on this issue "unless and until the General Assembly or the Insurance Department acts in a way that would suggest we do otherwise."  Id. at p. 36-37.

Ultimately, the Supreme Court overruled the lower court decisions and held that the Regular Use Exclusion remained valid and enforceable.

Anyone wishing to review the Majority's Opinion may click this LINK.  Justice Wecht's Concurring Opinion can be viewed HERE.

Source of image:  Photo by d koi on www.unsplash.com.

Court Grants Plaintiff What He Paid For In UIM Coverage Question Case

In the case of Erie Insurance Exchange v. Eachus, 2023 Pa. Super. 264 (Pa. Super. Dec. 12, 2023 Panella, P. J., Dubow, J., Sullivan, J.)(Sullivan, J.), the court affirmed the entry of summary judgment in favor of the insurance company in a case involving a dispute over the insured’s entitlement to certain uninsured and underinsured motorist benefits.

More specifically, the insured was asserting an entitlement to higher uninsured and underinsured motorist benefits under the policy even though the insured requested lower limits in signed documentation provided to the carrier.

The court affirmed the entry of summary judgment from the lower court and found that the insured had specifically requested and executed forms providing for lower uninsured and underinsured benefits. The court also noted that the Plaintiff paid a lower premium for the lower benefits as further evidence of the insured’s acceptance of the coverage provided.

Anyone wishing to review a copy of this decision may click this LINK.


Source “Court Summaries” by Timothy L. Clawges in the Pennsylvania Bar News (Jan. 15, 2024).

Wife Found to Be Bound By New Husband's Previous Execution of Stacking Waivers on UIM Policy

In the case of Golik v. Erie Insurance Exchange, No. 1110 WDA 2022 (Pa. Super. Aug. 7, 2023 Murray, J., McLaughlin, J. and Pellegrini, J.) (Op. by Murray, J.), the Pennsylvania Superior Court vacated a judgment entered by the trial court in favor of the Plaintiff on an issue involving the stacking of UIM benefits relative to a motor vehicle accident case.

According to the Opinion, the Plaintiff-wife joined her husband’s existing automobile insurance policy a year after the couple’s marriage in 2004. The husband had signed stacking waivers once previously in 1998 and again, subsequently, in 2004.

The Plaintiff-wife testified that she did not recall ever seeing or discussing any stacking waivers.

The Plaintiff-wife claimed that she was entitled to stacked benefits because she never signed or even heard about any stacking waivers relative to the insurance policy in question.

The trial court sided with the Plaintiff’s argument, holding that the signature of the policy’s first named insured alone was not enough to allow for a full execution of a waiver of stacked coverage. The trial court ruled that the carrier was required to provide each named insured with a chance to waive stacked coverage. In so ruling, the trial court did concede that there was no binding precedent addressing the issue presented.

On appeal, the Pennsylvania Superior Court determined that, although there was no case law on point, past rulings had suggested that a named insured, even when subsequently added to a policy, is presumed to have known about available options and is bound by the first named insured’s election of a lesser coverage, unless the insured takes affirmative steps to try to change the coverage.

Based upon the evidence in this case, the Superior Court ruled that the Plaintiff-wife had constructive knowledge of the waiver and was bound by her husband’s signature.

The Pennsylvania Superior Court further held that the plain language of §1738 of the Motor Vehicle Financial Responsibility Law only required notice to be provided to the named insured who purchased the policy.

Anyone wishing to review a copy of this decision may click this LINK.

Source: Article: “Pa. Superior Court Vacates $100K Award of Stacked UM/UIM Coverage for Woman Whose Husband Signed Waiver” By: Elisa Furman. Pennsylvania Law Weekly (Aug. 8, 2023).

ARTICLE: Pa. Supreme Court Completes U-Turn on Validity of Household Exclusion

Below is a copy of my recent article which was published in the March 30, 2023 edition of the Pennsylvania Law Weekly and which is republished here with permission: 


Pa. Supreme Court Completes U-Turn on Validity of Household Exclusion

March 30, 2023

By Daniel E. Cummins


Back in 2019, in the case of Gallagher v. GEICO Indemnity, 201 A.3d 131, 138 (Pa. 2019), the Pennsylvania Supreme Court ruled that the household exclusion, found in automobile insurance policies, violated Pennsylvania’s Motor Vehicle Financial Responsibility Law and was, therefore, not enforceable under any circumstance.

With its Gallagher decision, the Pennsylvania Supreme Court threw open the door for injured parties to seek uninsured (UM) and underinsured (UIM) motorists benefits coverage in a wide variety of new circumstances. The decision reversed 20 years of precedent and resulted in expensive litigation on the issue in many pending cases. Plaintiffs also revived old cases in which the household exclusion had been previously applied against them to preclude coverage. A class action lawsuit in this regard even developed.

Also, other injured parties began to pursue new uninsured and underinsured motorists claims which, prior to the Gallagher decision, might not have been paid out by insurance companies due to an application of the household exclusion. It is certainly possible that some of those claims were simply paid out by some carriers due to the complete eradication of the household exclusion by the Pennsylvania Supreme Court in Gallagher. Other carriers still attempted to assert the household exclusion and these cases were litigated with mixed results in the federal and state courts.

But not all justices on the Pennsylvania Supreme Court agreed with the Gallagher decision. In his dissenting opinion in Gallagher and again in his concurring opinion in Donovan, Pennsylvania’s “Great Dissenter,” Justice David N. Wecht, described the Gallagher decision as a “mistake” and noted that “the enormity of the court’s blunder quickly became apparent as state and federal courts struggled to apply (and make sense of) Gallagher’s reasoning.” See Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145, 1163 (Pa. 2021).

Now, in a recent spate of decisions, the Pennsylvania Supreme Court has retreated from its unduly expansive decision in Gallagher in which the court had noted that it had eradicated the household exclusion across the board. In the end, like a driver making a surreptitious U-turn and hoping no one was watching, the Pennsylvania Supreme Court has backpedaled on the issue.

As a result, the household exclusion has recovered from the death knell sounded by the Pennsylvania Supreme Court in the Gallagher decision and now instead remains a valid exclusion in Pennsylvania in most circumstances.

The Household Exclusion

Most automobile insurance policies contain a household exclusion. The basic premise of the household exclusion is that an insured is only permitted to recover uninsured (UM) or underinsured (UIM) motorist benefits under coverage that they have paid for by way of payment of premiums. In other words, the exclusion upholds the principle that you can’t get something for nothing.

More specifically, the household exclusion typically applies to a scenario where an insured in a household owns multiple motor vehicles. After that insured in involved in an accident, that injured party sues the driver who caused the accident and then turns to his or her own automobile insurance policy covering the vehicle that was involved in the accident for UIM benefits. That insured then also attempts to also recover UM/UIM benefits under another automobile insurance policy or policies issued by the same or different insurance companies that cover other vehicles in the same household which vehicles were not involved in the accident.

The household exclusion works to prevent the carriers covering the other noninvolved vehicles in the household from having to pay out UIM benefits to the injured party. The rationale is that the carrier that issued the policy on the other vehicle in the household was not paid a premium to provide coverage for injuries that resulted when the injured party was occupying a different vehicle from the same household.

‘Seismic’ Change in the Law

In what was called a “seismic” change in the law, the Pennsylvania Supreme Court held in Gallagher v. GEICO Indemnity, 201 A.3d 131, 138 (Pa. 2019), that the household exclusion, which the court noted was allegedly “buried in an amendment” to the policy, was invalid and unenforceable. In the Gallagher decision, the Supreme Court deviated from decades of precedent upholding the validity of the household exclusion and instead ruled that the household exclusion violated Pennsylvania’s Motor Vehicle Financial Responsibility Law and was, therefore, not enforceable.

More specifically, in Gallagher, the Supreme Court wrote “we hold that the household vehicle exclusion violates the MVFRL; therefore, these exclusions are unenforceable as a matter of law.” The exclusion was found to be in violation of the MVFRL the household exclusion was viewed by the court as impermissibly operating as a de facto waiver of stacked UM or UIM coverage when the MVFRL required insurance companies to actually secure written waivers of UIM coverage from its insureds.

In the Gallagher decision, the Pennsylvania Supreme Court did not limit its decision to the facts before it. As such, the decision was read as an eradication by the Pennsylvania Supreme Court of the household exclusion across the board. See Gallagher, 201 A.3d at 139 n. 8. (“As in every case, we are deciding the discrete issue before the court and holding that the household vehicle exclusion is unenforceable because it violates the MVFRL.”).

In so ruling, the majority in Gallagher, in seemingly regrettable language, noted, “We recognize that this decision may disrupt the insurance industry’s current practices; however, we are confident that the industry can and will employ its considerable resources to minimize the impact of our holding.”

Expressing his disagreement with the majority opinion in Gallagher and foreshadowing his own later majority opinion in the Mione case, Wecht issued a strong dissenting opinion in the Gallagher decision.

Wecht noted that the majority in Gallagher “upended the court’s well-established precedent” that had upheld the household exclusion. Wecht scoffed at the fact the “majority’s parting wisdom to Pennsylvania insurers is simply that they should use their ‘considerable resources’ to mitigate the damage that the court inflicted” in the Gallagher decision.

Wecht confirmed that the Gallagher decision was rife with incomplete and flimsy logic regarding an alleged de facto waiver of coverage and noted that the decision would only serve to result in an increase of the cost of automobile accident insurance which was “the very outcome that the General Assembly sought to avoid when it enacted the MVFRL.”

In his later concurring opinion in the Donovan case, a chagrined Wecht confirmed that “Gallagher was a mistake, but we must all live with it now.”

Wecht also cautioned his fellow jurists on the Supreme Court that unfortunate decisions like Gallagher would leave the court unnecessarily “destined to remain in the exclusion-umpiring business for the foreseeable future.”

As wisely predicted by Wecht his dissenting opinions in Gallagher and again in his concurring opinion in Donovan, the Gallagher decision unfortunately threw automobile law in Pennsylvania into a tizzy and resulted in expensive litigation on the issue, including a class action.

While most federal courts obediently followed the Gallagher decision as the new, expansive law of the land that eradicated the household exclusion in Pennsylvania, some state trial court and Superior Court judges instead chose to more specifically apply the elements of the doctrine of stare decisis. Those other more astute judges who applied the doctrine of stare decisis, thereby limited the Gallagher decision to its specific facts and otherwise ruled that the household exclusion remained enforceable in certain circumstances distinguishable from those facts presented in the Gallagher case.

In an apparent move not to run afoul of the Pennsylvania Supreme Court’s decision in Gallagher, certain Pennsylvania Superior Court panels listed their post-Gallagher decisions upholding the household exclusion as “nonprecedential.” See Erie Insurance Exchange v. Colebank, No. 1244 WDA 2021 (Pa. Super. 2022); see also Erie Insurane Exchange v. Sutherland, No. 1113 WDA 2020 (Pa. Super. 2021).

However, in Erie Insurance Exchange v. Mione, 253 A.3d 754 (Pa. Super. 2021), the case that would eventually work its way up to the Pennsylvania Supreme Court, the Pennsylvania Superior Court published its decision in which it distinguished the Gallagher decision and upheld the insurance company’s application of a household exclusion. But, before the Pennsylvania Supreme Court would decide the Mione case, it would first reaffirm its finding that the household exclusion was unenforceable in another decision.

Pennsylvania Supreme Court Decision Reaffirms That Household Exclusion Is Invalid

In Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. 2021), the Pennsylvania Supreme Court doubled down on its finding that the household exclusion was invalid by reaffirming its previous decision in Gallagher v. GEICO and again ruling that plaintiffs need not worry about the household exclusion provision as it was invalid as violative of Pennsylvania’s MVFRL and, therefore, unenforceable.

In Donovan, while still ruling that the household exclusion was invalid, the Pennsylvania Supreme Court attempted to quietly began its retreat from its overly expansive “blunder” of a decision in Gallagher without acknowledging it was doing so. See Donovan, 256 A.3d at 1163 (Wecht, J., Concurring)

More specifically, although the majority in Gallagher had both almost gleefully presented its decision as eradicating the household exclusion across the board and told the insurance industry to use its considerable resources to figure it out, in Donovan, the court instead attempted to say (with a straight face) that it had instead only ruled in Gallagher that the household exclusion was only “unenforceable as applied to the facts of Gallagher.”

Regardless of the Pennsylvania Supreme Court’s refusal to acknowledge its reluctant retreat from its expansive language in Gallagher relative to the household exclusion and all of the confusion and litigation that came from the Gallagher decision as a result, the court still came to the same conclusion as to the invalidity of the household exclusion in the Donovan case. More specifically, the Supreme Court in Donovan noted that, while the household exclusion was found to be unenforceable in Gallagher where the insured did not execute a waiver of stacking, the exclusion was also unenforceable under the facts of Donovan as well where the waiver signed by the insured was found to be deficient and, therefore, invalid.

In the end, the Donovan court again stated that, in either case, the household exclusion cannot operate as a de facto waiver of stacked coverage where the MVFRL requires insurance companies to secure written waivers of stacking from its insureds. Wecht concurred in the Donovan result but felt compelled to again note that the “flimsy” de facto waiver rationale behind the majority’s decisions on the household exclusion “ignore binding precedent” and was “at odds with the text of the MVFRL.”

 
Pennsylvania Supreme Court Reverses Course

In the Pennsylvania Supreme Court’s most recent pronouncement on the issue in the case of Erie Insurance Exchange v. Mione, No. 89 MAP 2021 (Pa. Feb. 15, 2023), the court unanimously fell into line behind an opinion written by Justice David N. Wecht and held that the household exclusion is indeed valid and enforceable in certain circumstances.

Most notably, in the Mione case, the Supreme Court unanimously rejected the plaintiff’s arguments that the high court’s 2019 ruling in Gallagher v. Geico should be interpreted to broadly invalidate all household exclusions in all cases across the board in Pennsylvania. In Mione, the court wrote, “We reiterate today that the holding in Gallagher was based upon the unique facts before us in that case, and that the decision there should be construed narrowly.”

Although the Pennsylvania Supreme Court had definitively stated otherwise in the Gallagher decision, Wecht confirmed in the Mione decision that the Pennsylvania Supreme Court “continues to reject the view that household vehicle exclusions are ipso facto unenforceable.”

In the case of Erie Insurance Exchange v. Mione, the court addressed the enforceability of two household vehicle exclusions in a pair of automobile insurance policies. The distinguishing fact in this case was that the vehicle that the injured party was operating at the time of the accident did not even have UM or UIM coverage. As such, there was no stacking issue implicated and, therefore, there was no need to conduct the analysis of whether any valid stacking waivers had been secured from the insured in writing. Thus, there was no danger of the household exclusion even acting as a de facto waiver of stacked coverage in this case.

In the end, whereas the Pennsylvania Supreme Court had previously repeatedly and broadly ruled that household exclusions are unenforceable, that court now held that household exclusions do indeed remain enforceable under Pennsylvania law in certain circumstances.

The Pennsylvania Supreme Court in Mione ultimately concluded that the lower courts along this case’s rise up the appellate ladder had correctly distinguished the Gallagher decision on the facts and had correctly enforced the household exclusions as contained in the insured’s automobile insurance policies. In the Mione decision, the injured party was precluded from obtaining UIM benefits that the injured party had not paid for and the goal of the MVFRL of containing rising automobile insurance costs was thereby furthered.

Implications of the ‘Mione’ Decision

The most important implication of the Mione decision is the confirmation that the household exclusion remains valid and enforceable in Pennsylvania in certain circumstances. Given that the exclusion may no longer be considered to have been eradicated across the board by the unfortunately worded Gallagher opinion, going forward, order has been restored by the Mione decision and each household exclusion case will again have to be considered against the more recent appellate precedent on the issue.

Also, prior to the Mione decision, it appeared almost certain that the regular use exclusion found in automobile accident cases was also on its way to being eradicated as a matter of course by the Pennsylvania Supreme Court under an argument that the regular use exclusion also allegedly acted as a de facto waiver of coverage. This was so based upon the Pennsylvania Supreme Court’s penchant for engaging in exclusion-umpiring and for legislating new law through its application of the “flimsy” de facto waiver rationale.

However, with Mione and the question of whether the de facto waiver rationale was of any continuing validity, the eradication of the regular use exclusion is no longer a certainty.

It remains to be seen how the Supreme Court will address the validity of that exclusion. That issue is currently pending before the court in the case of Rush v. Erie Insurance Exchange and a decision is expected to be handed down in that matter sometime later this year in what will hopefully be a tightly worded opinion providing clear appellate guidance limited to the facts before the court.

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

Pennsylvania Supreme Court Now Says That Household Exclusions Can Be Valid and Enforceable

In the case of Erie Ins. Exchange v. Mione, No. 89 MAP 2021 (Pa. Feb. 15, 2023) (Op. by Wecht, J.), the court addressed the enforceability of two (2) household vehicle exclusions in a pair of automobile insurance policies.  In the end, whereas the Pennsylvania Supreme Court previously ruled that household exclusions are unenforceable, that Court has now held that household exclusions do remain enforceable under Pennsylvania law in certain circumstances.

In its previous decision in the case of Gallagher, the Pennsylvania Supreme Court wrote “we hold that the household vehicle exclusion violates the MVFRL; therefore, these exclusions are unenforceable as a matter of law.”  Gallagher v. GEICO Indem. Co., 650 Pa. 600, 613, 201 A.3d 131, 138 (2019).

According to the Pennsylvania Supreme Court in this Mione decision, the courts below had held that the household exclusions were valid and enforceable and had cited to the Supreme Court’s previous decision in the case of Eichelman v. Nationwide Ins. Co., 711 A.2d 1006 (Pa. 1998).   

In this Mione case, the insureds contended that the lower courts had erred in applying Eichelman and argued that the Pennsylvania Supreme Court sub silentio overruled that decision in the Pennsylvania Supreme Court’s decision in Gallagher v. Geico, 201 A.3d 131 (Pa. 2019).   

Although the Pennsylvania Supreme Court in the previous case of Gallagher v. Geico, and again in the case of Donovan v. State Farm, attempted to eradicate the household exclusion across the board, in this decision of Erie Ins. Exchange v. Mione, the Pennsylvania Supreme Court rejected the insured’s arguments, distinguished its previous decision in Gallagher v. Geico and affirmed the lower court decisions that the household exclusions were valid and enforceable. 

In this Erie Ins. Exchange v. Mione case, Erie had asserted that the Gallagher decision as factually distinguishable because the insureds had waived UM/UIM coverage on the insured’s motorcycle policy, whereas the insured in Gallagher did not waive coverage.

The Pennsylvania Supreme Court in this Mione case accepted that argument and noted that the insureds in this case were not attempting to stack anything between the various automobile insurance policies available.   

The Pennsylvania Supreme Court in Mione noted that the insureds had not yet received any UIM benefits but that the insured’s theory was that one or both of the household policies that possessed could provide them with UIM coverage in the first instance as opposed to in conjunction with another policy.   The Pennsylvania Supreme Court found that the “problem” with that argument is that the policies at issue had valid household exclusions which, under the facts of this case, the Pennsylvania Supreme Court found, in a 6-0 decision, did not conflict with the MVFRL.   

In other words, unlike as was found in the Gallagher decision, the household exclusions in this Mione case did not act as de facto waiver of stacking.   In other words, because the insureds in this case were not attempting to stack UIM benefits from the other household policies on top of the UIM benefits from their motorcycle policy, the rules for waiving stacking in writing found under 75 Pa. C.S.A. §1738, which were the basis for the court’s decision in Gallagher, were not implicated.  See Op. at 9-10.   

Although, as confirmed above, the Pennsylvania Supreme Court decision in Gallagher attempted to phrase that decision as eradicating the household exclusion across the board and never limited the decision to the facts before the Court in that matter, in this Mione decision, Justice Wecht noted that the Court “reiterate[s] today that the holding in Gallagher was based upon the unique facts before [the court] in that case, and that the decision there should be construed narrowly.”  See Op. at 10.   [Bracket inserted here].

Although the Pennsylvania Supreme Court stated otherwise in the Gallagher decision, Justice Wecht also stated in the Mione decision that the Pennsylvania Supreme Court “continue[s] to reject the view that household vehicle exclusions are ipso facto unenforceable.”  See Op. at 12.   

In the end, the Pennsylvania Supreme Court in Mione ultimately concluded that the lower courts correctly distinguished the Gallagher decision from the facts in this case and correctly enforced the household exclusions contained in the insured’s automobile insurance policies.   

Anyone wishing to review a copy of this decision may click this LINK.

Source of image: Photo by Andrea Piacquadio on www.pexels.com.

Issues of Fact Preclude Summary Judgment In Uninsured Motorist Case on Question of Whether Hit And Run Accident Was Reported to Police

In the case of Smart v. Allstate Ins. Co., No. 2:21-CV-03910-WB (E.D. Pa. Jan. 12, 2023 Beetlestone, J.), the court denied the carrier’s Motion for Partial Summary Judgment relative to the Plaintiff’s breach of contract claims in this uninsured motorist hit and run accident case.

According to the Opinion, Allstate was seeking summary judgment on the grounds that the Plaintiff had not confirmed that he had notified both Allstate and the police about this hit and run accident immediately following the same.

According to the Opinion, while the Plaintiff and his attorney initially indicated that the accident was not reported to the police, thereafter, the Plaintiff clarified his response to indicate that the police were called immediately after the incident but did not respond.

The court denied the Motion for Partial Summary Judgment filed by the insurance company after finding that credibility issues relative to the Plaintiff rendered the questions presented to represent disputed issues to be decided by a jury.

Anyone wishing to review a copy of this decision may click this LINK.


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

Third Circuit: Unless An Automobile Insurance Carrier Issues a New Policy, No New UM/UIM Sign Down Forms Are Required

In the case of Geist v. State Farm Mut. Auto. Ins. Co., 49 F.4th 861 (3rd Cir. Sept. 29, 2022 Randel, C.J.), the Third Circuit Court of Appeals addressed the issue of when an automobile insurance carrier may be required to secure updated UM/UIM sign down forms.

In this matter, when the insured had purchased the State Farm policy initially, two (2) vehicles were insured under the policy and the necessary forms were executed. Thereafter, the insured added a third vehicle. At that point in time, the insured did not execute a request for UIM coverage limits below the bodily injury coverage limits.

Thereafter, an insured under the policy was involved in a motor vehicle accident. After settling the tort claim against the Defendant driver, that Plaintiff turned to State Farm for UIM coverage. A dispute arose over the amount of UIM limits available.

The Plaintiff asserted that she should be provided with higher limits because State Farm did not secure a sign down form when another vehicle had been added to the policy. When State Farm disagreed, litigation ensued and eventually resulted in this decision.

The Plaintiff asserted that she was owed higher coverage because State Farm had not followed the requirements of 75 Pa. C.S.A. §1731 and 1734 relative to the forms at issue.

The Third Circuit Court of Appeals, after reviewing the existing case law, ruled that no events in the years prior to the subject motor vehicle accident triggered the obligations under §1731 and 1734 because State Farm had never issued a new policy to the insured. As such, the court found that State Farm was not obligated to seek a new written election for lower UIM coverage limits under the policy.

Rather, the court ruled that the Pennsylvania Motor Vehicle Financial Responsibility Law only required carriers to seek elections of lower UIM coverage limits only when the carriers issue policies. State Farm was found to have satisfied their duties under the law when the secured the forms when the insured had executed the requisite forms when the policy was initially issued.

The court more specifically noted that both §1731 and 1734 expressly state that the requirements contained in those statutes apply, under §1731 when an insurance company is involved in the “delivery or issuance” of a “policy,” and §1734 applied when a carrier “issues a policy.”

The court in Geist went on to note that, once the carrier meets its obligations to secure the UIM sign down forms on a particular policy, the insurance company need not do anymore to fulfill its obligations under §1731 and 1734 during the life of that particular insurance policy.

Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  Photo by Olia Danilvoich on www.pexels.com.

UM Bad Faith Claim Dismissed Where No Breach of Contract Claim Present

In the case of Nye v. State Farm Mut. Auto. Ins. Co., No. 3:21-CV-01029 (M.D. Pa. March 30, 2022 Wilson, J.), the court addressed a Motion to Dismiss an uninsured motorist claim and bad faith claim.

With regard to the Plaintiff’s pleading of a claim for uninsured motorists benefits in the Complaint, the defense moved to dismiss given that the Plaintiff had failed to plead the identity of the tortfeasor driver and/or whether that driver was in fact uninsured.

The court found that there was sufficient information from which the Plaintiff could have made this determination and included it in the Complaint. As such, this portion of the Motion to Dismiss was granted but the Plaintiff was allowed leave to amend the Complaint to add the missing details.

With regards to the bad faith claim, the court first observed that there must be some predicate claim against the insurance policy even if the bad faith claim is a distinct claim. More specifically, the court stated that “there must be a predicate contract claim in order for a §8371 claim to proceed.” 

The court also noted that, while the predicate claim need not be tried together with the §8371 claim, the predicate cause of action must be ripe in order for a bad faith claim under §8371 to be recognized.

Given that the court had dismissed the breach of contract claim relative to the uninsured motorist claim due to the insufficiency of the pleading on that claim, the court found that the predicate cause of action otherwise required to accompany the §8371 bad faith claim was missing.

As such, the bad faith claim was also dismissed but without prejudice, in light of the court allowing the Plaintiff the right to file an Amended Complaint relative to the breach of contract claim.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Lee Applebaum, the writer of the excellent Pennsylvania New Jersey Insurance Bad Faith Case Law blog and partner at the Philadelphia law firm of Fineman Krekstein & Harris for bringing this case to my attention.

Plaintiff's UM/UIM Bad Faith Claim Based on Alleged Low Ball Offer Dismissed

In the case of Robinson v. Geico, No. 21-CV-05059 (E.D. Pa. March 4, 2022 Kenney, J.), the court denied a Plaintiff’s Motion to Amend a breach of contract Complaint to add a bad faith claim.

The Plaintiff is attempting to amend the Complaint to add a claim of bad faith by the carrier in its evaluation and alleged submission of a low ball settlement offer.

The court noted that the proposed Amended Complaint that was attached to the Motion to Amend only contained broad conclusory allegations related to an alleged bad faith claim and was devoid of any facts as to where any medical records would establish at least $50,000.00 worth of damages in the information that had been provided to defense counsel in support of the Plaintiff’s settlement demand in that amount.

As such, the court found that the proposed Amended Complaint failed to state a claim upon which relief could be granted for bad faith and, as such, the Motion to Amend was denied as futile.

In so ruling, Judge Kenney noted that the proposition that the failure to immediately concede to a demand for the policy limits cannot, without more, amount to bad faith on the part of an automobile insurance carrier.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order can be viewed HERE.

In a related decision in the same matter issued by the court five days after this one, the Court sua sponte dismissed the Plaintiff's UM/UIM case where the record confirmed that the subject policy only had $50,000 in limits, which amount of potential damages was less than the $75,000 amount necessary for federal court subject matter jurisdiction.  Click HERE to see that Opinion, and HERE to see the Court's companion Order.

I send thanks to Attorney Lee Applebaum, the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog and member of the Fineman Krekstein & Harris law firm in Philadelphia, for bringing this case to my attention.

Photo by Karolina Grabowska on www.pexels.com.

Eastern District Court Magistrate Judge Reviews Validity of UM/UIM Stacking Waiver Forms

In the case of Gramaglia-Parent v. Travelers Home & Marine Ins. Co., No. 2:-20-CV-03480-TR (E.D. Pa. Dec. 30, 2021 Rice, Mag. J.), the court ruled that an inter-policy UM/UIM stacking waiver form was not invalid simply because it contained additional language in a separate instruction section that was superfluous to the language required by the Pennsylvania Motor Vehicle Financial Responsibility Law.

As such, the carrier’s Motion for Summary Judgment was granted.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 20, 2022).

Regular Use Exclusion Ruled Unenforceable by Pennsylvania Superior Court

In a case appellate first impression of Rush v. Erie Insurance Exchange, No. 1443 EDA 2020 (Pa. Super. Oct. 22, 2021 Bender, P.J.E., Dubow, J., and Stevens, P.J.E.), the Pennsylvania Superior Court affirmed a Northampton County Court of Common Pleas decision in a declaratory judgment action and held that the Regular Use Exclusion found in motor vehicle policies is unenforceable because it violates the Motor Vehicle Financial Responsibility Law (MVFRL).

The Regular Use Exclusion typically holds that a carrier need not provide UM or UIM coverage to a person who, unbeknownst to the carrier, is driving a vehicle that is regularly available for the use of that person.

In this Rush case, a police officer was injured while driving a police car that was regularly available for his use.

Outside of work, the Plaintiff police officer owned three vehicles at home which were covered by Erie Insurance.  The police officer had one Erie policy on one of the vehicles and another Erie policy that provided for stacked UIM coverage on the other two personal vehicles.

After securing a recovery against the drivers of the other vehicles in the accident, the police officer turned to Erie Insurance for UIM coverage under his personal vehicles.

Erie responded by asserting that the Regular Use Exclusion precluded coverage under the Erie Insurance policies because the police car that the Plaintiff was driving at the time of the accident was a vehicle that was regularly available for the Plaintiff's use.

The court noted that, absent the Regular Use Exclusion, there was no dispute that the Plaintiff police officer would have been entitled to the requested UIM coverage.

More specifically, the Plaintiff was injured in a car accident, he was legally entitled to recover from the underinsured tortfeasors, and Erie had never obtained a 75 Pa.C.S.A. Section 1731 written waiver or rejection of UIM coverage from the Plaintiff (rather, the Plaintiff had chosen to purchase stacked UIM coverage).

In ruling that the Regular Use Exclusion was unenforceable, the Superior Court agreed with the trial court's decision that the Regular Use Exclusion impermissibly limits the scope of UIM coverage required by Section 1731 by precluding coverage if an insured is injured while using a motor vehicle that the insured regularly uses but does not own.  

The Superior Court found that the Regular Use Exclusion conflicted with the broad language of Section 1731(c), which requires that UIM coverage to be afforded where an insured sustains injuries arising out of the "use of a motor vehicle."  See Op. at p. 7 [Emphasis in Opinion].

In other words, the Regular Use Exclusion was found by the courts in Rush to impermissibly limit Section 1731(c)'s mandate in favor of coverage to only those situations where an insured was injured in an accident involving a vehicle owned by the insured or only occasionally used by an insured.

Given that, in the eyes of the Rush Court, the Regular Use Exclusion conflicted with the clear and unambiguous language of Section 1731, the Exclusion was ruled unenforceable.

The Superior Court noted that, while it was affirming the trial court's decision, the Superior Court was doing so under a different rationale.  For a review of the trial court's decision which was based, in part, on an application of the rationale from the Gallagher v. GEICO Household Exclusion decsion as well as on an application of 75 Pa.C.S.A. 1734, please click this LINK to get to that Tort Talk post (which also has a Link to that trial court opinion).

Anyone wishing to review a copy of the Pennsylvania Superior Court's decision in Rush may click this LINK.

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

Source of image:  Photo by Ekaterina Bolovtsova from Pexels.com.

Uninsured Bad Faith Claim Dismissed But Right To Amend Granted

In the case of Brown v. LM Gen. Ins. Co., No. 21-2134 (E.D. Pa. June 7, 2021 Pratter, J.) (Mem. Op.), the court dismissed statutory bad faith claims asserted against an insurance company after finding that the Plaintiff’s allegations were insufficient, including the failure of the Plaintiff to cite facts to support allegations of an unreasonable delay or to prove entitlement for the full policy limit.

The carrier also moved to strike the references to “recklessness,” “wanton,” and “willful,” conduct in this motor vehicle accident case in which it was alleged that the tortfeasor driver had fallen asleep at the wheel.

According to the Opinion the tortfeasor driver lacked insurance coverage. As such, the Plaintiff filed an uninsured motorist claim against her own carrier.

The carrier denied the Plaintiff's request for the payment of the full stacked limits of her uninsured motorist coverage. The Plaintiff filed suit in response, asserting that the carrier had failed to obtain the additional waivers of stacked coverage when she added new vehicles to her policy, including the vehicle involved in the accident.

As noted above, the court granted the carrier’s Motion to Dismiss finding that the Plaintiff had failed to sufficiently detail the conduct of the carrier in order to support the claims presented.

The Plaintiff was granted the right to amend.

The court also noted that the Plaintiff’s allegations of willful, wanton, recklessness conduct by the carrier in the context of her breach of contract claim were not relevant. Yet, the court held that such adjectives could be relevant to her bad faith claim if the Plaintiff shows to amend that claim.

Anyone wishing to review a copy of this decision may click this LINK.  The companion Order can be reviewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 22, 2021).

Issues of Material Fact Exist On Whether Plaintiff Properly Reported Uninsured Motorist Accident to Police

In the case of Calestini v. State Farm Mut. Auto. Ins. Co., No. 3:19-CV-01995 (M.D. Pa. April 13, 2021 Saporito, M.J.), the court addressed a Motion for Summary Judgment filed by the carrier in an uninsured motorist case on the issue of whether or not the underlying motor vehicle accident had been properly reported to the police as required under the policy.

According to the Opinion, the Plaintiff did not report the accident to the police on the date of the incident. The Plaintiff did report the accident, in person, to his insurance agent within six (6) days of the accident.

The Opinion also confirms that Plaintiff’s counsel reported the accident to the police after meeting with his client, which was approximately 106 days after the accident.

The court denied the carrier’s Motion for Summary Judgment after finding that there genuine issues of material fact presented on the issue of whether the Plaintiff reported the accident to the police in light of the evidence that the Plaintiff had reported the incident to his insurance agent and in consideration of the Plaintiff’s alleged learning disability and associated issues.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James J. Conaboy, of the Scranton, Pennsylvania law firm of Abrahamsen, Conaboy & Abrahamsen for bringing this case to my attention.

Court Addresses Issues With Complaint in an Uninsured Motorist (UM) Claim

In the case of Kleinhans v. John Doe and Chubb Limited Ins. Co., et.al., No. CV-20-0678 (C.P. Lycoming Co. Oct. 2, 2020 Tyra, J.), the court addressed Preliminary Objections filed by an insurance carrier in a hit and run uninsured motorist case. 

According to the Opinion, the Plaintiff’s wife was finishing checking out in a retail store while the Plaintiff-husband went out to get the couple’s vehicle. When the wife came out of the store, she saw her husband laying on the ground surrounded by a puddle of blood. A bystander had already called 911 and the Plaintiff was taken to hospital by ambulance. The identity of the driver who allegedly struck the Plaintiff was never discovered and, according to the Opinion, the Plaintiff did not have any memory of the details of the accident.

The Plaintiff filed an uninsured motorist claim. The carrier filed Preliminary Objections to the Plaintiff’s claim for breach of contract, uninsured motorist benefits, medical payments, bad faith, and under the Unfair Trade Practices and Consumer Protection Law.

In part, the court rejected the UM carrier’s assertion that the Plaintiff’s Complaint failed in that the Plaintiff neglected to attach a copy of the police report to his Complaint. The court noted that, in uninsured motorist cases, Pennsylvania law requires that in order for the claim to proceed, the injured party must report the accident to the police or a proper governmental authority and notify his carrier within thirty (30) days of the accident, or as soon as practicably thereafter. See 75 Pa. C.S.A. §1702.

The court emphasized that the statute only requires that the Plaintiff report the accident to the police or another governmental agency as well as his carrier. There is no requirement in that statute that a police report be attached to the Complaint.

The court otherwise denied the Defendant carrier’s Preliminary Objections to the Plaintiff’s Unfair Trade Practices and Consumer Protection Law claims. After reviewing Pennsylvania law on the requirements of this type of claim, the court found that the Plaintiff only generally pled the claim and provided only legal conclusions as to the Defendant’s conduct and the Plaintiff’s reliance upon this conduct. As such, the court granted these Preliminary Objections but allowed the Plaintiff the right to amend the Complaint.

With respect to the Defendant’s assertion that the Plaintiff failed to attach a copy of the insurance policy to this Complaint which allege, in part, a breach of contract, the court found that the Plaintiff was required to do so. As such, these Preliminary Objections were granted but the Plaintiff was allowed the right to file an Amended Complaint with a copy of the insurance policy attached.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 24, 2020).

Motion To Bifurcate Coverage Question From Post-Koken UM Case Granted in Part and Denied in Part in Lackawanna County

In the Post-Koken UM case of Caridad v. Caridad, No. 2014-CV-6070 (C.P. Lacka. Co. Nov. 19, 2019 Bisignani-Moyle, J.), Judge Margie Bisignani-Moyle of the Lackawanna County Court of Common Pleas addressed a defendant carrier's motion to bifurcate a trial.

In this case, the defendant carrier was asserting as a defense in this breach of contract UM claim that there was no coverage due to the Plaintiff because the Plaintiff was not a resident of the insured's household at the time of the accident. 

In addition to arguing that bifurcation was not warranted under the case presented and would not support the interests of judicial economy, the Plaintiff argued that a  separate declaratory judgment action on the issue of coverage had not been filed and that, therefore, the coverage action was not in issue in this matter.

The defense countered with the argument that there was no breach of contract as there was no coverage under the policy in the first place.

The Court granted the motion to bifurcate in part and denied it in part.  The court granted the motion to bifurcate to the extent that the court ruled that the issue of residency and coverage would be addressed first.  Although the defense asserted that the coverage question was one of law for the court to decide, the court initially ruled that the coverage question would go to the jury.  The Court appeared to rule in this fashion as there were factual issues on the question of residency to be resolved.

Anyone wishing to review the Court's Order without Opinion may click this LINK.

Postscript:  At a more recent court conference after this Order was issued, the Court agreed to decide the coverage issue after securing and agreement of counsel for the Court to decide that issue.  However, the entire case settled before the bench trial on the coverage issue took place.

Eastern District Court Uses Its Discretionary Power to Punt UIM Issues Back to State Court

The Federal District Courts of Pennsylvania flexed their discretionary muscles in two recent cases in which they punted two cases back to the state court that involved novel and/or unsettled questions under Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL).

In the case of Lambert v. State Farm Mut. Auto. Ins. Co., NO.19-0816 (E.D. Pa. Oct. 16, 2019 Slomsky, J.) the Easter District Federal Court of Pennsylvania granted a motion to remand a Declaratory Judgment action involving underinsured motorist (UIM) benefit under Section 1738 of the MVFRL.

The Plaintiff originally filed the case in the Court of Common Pleas of Philadelphia County and State Farm removed it to federal court based upon diversity.

The Plaintiff then filed a motion to remand and argued that the case involved an unsettled and novel issue of Pennsylvania law such that the case should be remanded pursuant to the discretionary nature of the federal Declaratory Judgment Act. State Farm argued that even though the case involved primarily issues of state law, there was no indication the case involves unsettled and novel issues of state law.

The Court noted that the question involved in this case was whether the Section 1738 rejection of stacking form only involves the rejection of intra-policy stacking and not inter-policy stacking as well.

The District Court reviews the motion to remand under the applicable standard of review. The District Court first looked at whether there was a parallel state court proceeding. There was none but the Court noted that was not dispositive.

Then the District Court reviewed a “non-exhaustive” list of factors to be applies as set forth by the Third Circuit Court of Appeals in the case of Reifer v. Westport Ins. Co., 751 F.3d 129 (3d Cir. 2014). Applying of the Reifer factors, the Court found no impediment to request for a remand.

The District Court in Lambert ultimately found that the issue presented did involve an unsettled and novel area of the MVFRL and and as such remanded to case to the state court.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Scott B. Cooper of the Harriburg, PA law office of Schmidt Kramer for bringing this case to my attention.


In another case with a similar result, the District Court for the Eastern District of Pennsylvania also granted a motion to remand in Sherer v. Federated Mut. Ins. Co., NO.19-2530 (E.D. Pa. Oct. 22, 2019 DuBois, J.) involving a motion to remand a Declaratory Judgment action involving underinsured motorist (UIM) benefit under Section 1731 of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL).

The Plaintiff had filed the original case in the Court of Common Pleas of Philadelphia County and the carrier removed the matter to federal court based upon diversity.

The Plaintiff then filed a motion to remand and argued that the case involved an unsettled and novel issue of Pennsylvania law so the case should be remanded pursuant to the discretionary nature of the federal Declaratory Judgment Act.

The carrier argued that even though the case involves primarily issues of state law, there is no indication the case involves unsettled and novel issues of state law.

The issue more specifically involved whether the Section 1731 rejection of underinsured motorist coverage form is valid. Also, another potential issue was what obligation (if any) the Plaintiff's employer had to advise that there was no UIM coverage on the vehicle the Plaintiff was operating at the time of this accident.

In deciding the motion to remand, the District Court primarily reviewed whether there was a parallel state court proceeding currently pending.  The Court found that there no such parellel case but also noted that is not dispositive.

The District Court then looked to “non-exhaustive” list of factors to be applies as set forth by the Third Circuit in Reifer v. Westport Ins. Co., 751 F.3d 129 (3d Cir. 2014). 

Applying of the Reifer factors, the Court found that there was no impediment to remand. The District Court more specifically found that the issue presented is an unsettled and novel area of the MVFRL and that remand of the case to the state court was appropriate.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Scott B. Cooper of the Harriburg, PA law office of Schmidt Kramer for bringing this case to my attention.