Liability for Skiing Accident Found to be Barred by Signed Waiver and Under the Skier's Responsibility Act

The case of Lin v. Shawnee Mountain Ski Resort, No. 4031-CV-2022 (C.P. Monroe Co. Dec. 11, 2024 Williamson, J.), the court granted the Defendant ski resort’s Motion for Summary Judgment in a case arising out of a skiing accident at the resort.

According to the Opinion, the Plaintiff was relatively a novice at skiing.  As part of the ski rental process at the resort, the Plaintiff executed a release or waiver document.

After some time on the “bunny slope,” the Plaintiff and her friend went to ski on other trails on the mountain. 

At some point during the day, when coming down one of the other trails, the Plaintiff came all the way down the hill and was unable to slow or stop allegedly due to icy conditions and missed crashing into the ski racks situated outside of the lodge but skied into the lodge itself. The Plaintiff, who was wearing a helmet, went head first through a glass window of the lodge. 

The Plaintiff alleges that, as a result of the collision, she suffered a broken pelvis and multiple stomach lacerations which have resulted in considerable scarring.

The Plaintiff sued on various theories of negligence. In part, the Plaintiff alleged that the lodge was located too close to the bottom of the trail, that the Defendants failed to provide some sort of stopping mechanism in front of the ski racks in the lodge, and that the Defendants should have installed safety glass in the lodge's windows. The Plaintiff additionally alleged that the trail she came down was mislabeled as a easier or beginner's slope.

The Defendants filed a Motion for Summary Judgment asserting that the Plaintiff’s inability to stop and result an accident where inherent risks of skiing which is deemed to be an assumed risk under the Pennsylvania Skier’s Responsibility Act.

In the alternative, the Defendants alleged that the Plaintiff's claims were barred by the release that the Plaintiff signed at the time she rented the ski equipment.

The Defendants also requested summary judgment on the punitive damages claims asserted.

Judge David J. Williamson of the Monroe County Court of Common Pleas granted the Defendants’ Motion for Summary Judgment, holding in pertinent part, that the Plaintiff’s negligence claims were barred by both the Skier’s Responsibility Act and the liability waiver that the Plaintiff had signed before commencing her skiing activities.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Jan. 29, 2025).

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).

Pennsylvania Supreme Court Rules No New UIM Waiver Forms Required When a Change Is Made to an Existing Auto Insurance Policy

In the case of Franks v. State Farm Mut. Auto. Ins. Co., No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.), the court ruled that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived through a waiver form executed by the insured, did not require the insurance carrier to secure a renewed expressed waiver of stacked coverage under §1738(c).

At the lower level, the Pennsylvania Superior Court had described the issue in this case as one of first impression.    

By way of background, according to the Pennsylvania Supreme Court's Opinion, the injured parties purchased automobile insurance from State Farm in 2013 for their two (2) vehicles.

The Plaintiffs included underinsured motorist coverage in their policy but completed a form rejecting stacked UIM coverage in compliance with §1738(d)(2) of the Motor Vehicle Financial Responsibility Law (“MVFRL”).

The court noted that, absent any such waiver, stacked coverage would have been the default.

Thereafter, under the history of the insurance policy in question, the Plaintiffs removed one of the original vehicles and added a third vehicle to the policy in 2014. The Plaintiffs again rejected stacked UIM coverage at that point.

The Plaintiffs made another change to the automobile insurance policy in 2015 under which they removed the other of the original insured vehicles and replaced it with a different vehicle. No additional form rejecting stacked UIM coverage was offered or sought to be completed on the occasion of the removal of the last vehicle.

The court emphasized that the ongoing premiums paid by the Plaintiffs reflected the lower rate for non-stacked UIM coverage on the vehicles under the policy.

Thereafter, one of the Plaintiffs was injured in the motor vehicle accident. After pursuing a claim against the tortfeasor, the Plaintiffs pursued a UIM claim against State Farm. The parties disagreed on what the available limits would be.

The Plaintiffs argued that, with the last change to the policy, there was no valid waiver of stacked UIM coverage secured by the carrier and that, as such, the Plaintiffs were entitled to default stacked coverage under Pennsylvania law.

The Superior Court had ruled in favor of the insurance company.

On this appeal, the Supreme Court ruled that the Superior Court did not err when this Superior Court held that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived, did not require a renewed express waiver of stacked coverage pursuant to §1738(c).

The basic rationale of the Court was that Section 1738 requires insurance companies to secure a new written waiver of UIM coverage whenever an insurance policy is purchased.  Here, there was a change made to an existing policy.  No new policy was purchased.  As such, there was no requirement under the law for the carrier to secure a new waiver form.    

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

Issues of Fact Preclude Entry of Summary Judgment in Case of Slip and Fall Sustained by Ice Skater

In the case of Murphy v. Pines, No. 3:20-CV-00320 (M.D. Pa. Nov. 21, 2022 Saporito, M.J.), the court denied summary judgment after finding genuine issues of material fact existed on whether the Plaintiff, an experienced skater, was entitled to a recovery when she slipped and fell while skating on ice.  The court noted that the Plaintiff had never before skated on synthetic ice.   

In his Opinion, Judge Joseph F. Saporito, Jr., noted that, while falling while ice skating is an inherent risk of that activity, the risks of alleged damaged surfaces are not.  The court found that the issue of assumption of the risk was for the jury to decide under the conflicting facts presented in this case.   

The court also addressed the “no duty” rule.  While the court noted that the “no duty” rule precludes liability for injuries from risk that are common, frequent, expected, and inherent in a sporting activity, and while that rule can apply when the assumption of the risk doctrine does not, the court found that issues of fact in this case prevented the entry of summary judgment in favor of the Defendant.

Judge Joseph F. Saporito, Jr.
M.D. Pa.

Judge Saporito additionally addressed separate arguments raised relative to the scope and impact of the release that was signed by the Plaintiff prior to engaging in the ice skating activity at the facility.  

The court noted that the release language was boilerplate and was only located on a rental receipt.  The language was not conspicuous and was never explained to the Plaintiff or even brought to the Plaintiff’s attention.   As such, given these issues, the court ruled that the issue of whether the Release was effective to preclude a recovery would be left for the jury’s consideration. 

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention. 

Source of top image: Photo by Efrem Efre on www.pexels.com.

Court Rejects Carrier's Argument That Sign Down Forms Secured For One Policy Carried Over to Later Policy

In the case of Woloszyn v. Nationwide Prop. & Cas. Ins. Co., No. 10246 of 2022, C.A. (C.P. Lawr. Co. Oct. 6, 2022 Hodge, J.), the court denied a Defendant carrier’s Motion to Dismiss a Plaintiff’s bad faith insurance claim.

In this matter, which arose out of a motor vehicle accident, the Defendant carrier argued that it was not obligated to provide coverage because the carrier had secured a sign down form from the Plaintiff relative to the Plaintiff’s previous policy with the carrier. The carrier noted that the more recent insurance policy provided to the Plaintiff, which was in effect at the time of the accident, was just a rewriting of the previous policy. As such, the carrier asserted that the securing of another sign down form was not required.

The court in this matter disagreed with the carrier's argument and held that, under 75 Pa. C.S.A. §1731, the carrier was required to secure another sign down form and that, therefore, the Defendant’s argument that the old coverage limits transferred to the new policy failed as a matter of law.

The court noted that, while the Defendant carrier argued that the new policy simply assumed the sign-down provision of the Plaintiff’s previous policy, the court noted that the Defendants had failed to produce a signed copy of the previous rejection form indicating that the Plaintiffs understood that they were rejecting underinsured and uninsured motorist coverage.

Based upon these reasons, the court denied the Defendant’s Motion to Dismiss.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 22, 2022).

Content of UIM Waiver Form Upheld By Third Circuit (Not Precedential)

In the case of Keeler v. Esurance Insurance Services, Inc., No. 21-2449 (3d Cir. Oct. 18, 2022 Jordan, J., Porter, J., and Phipps, J.) (Op. by Phipps, J.) (marked “Not Precedential), the Third Circuit Court of Common Pleas affirmed a district court’s ruling in favor of the UIM carrier and found that the carrier was correct in its denial of coverage and that the Plaintiff’s bad faith claim was without merit.

According to the Opinion, this case involved a claim for UIM benefits related to a collision between a motorcycle and a motor vehicle.

The Plaintiff’s injuries allegedly exceeded the Defendant driver’s liability insurance coverage limit and, as such, the motorcyclist and his wife sought UIM benefits under their own motorcycle insurance policy issued by Esurance.

However, the record before the court confirmed that, when the Plaintiffs originally purchased that policy, they expressly waived UIM coverage in writing. As such, the carrier refused to pay.

The Plaintiffs sued and asserted that the waiver could not be enforced and that, as a result, they should be entitled to a bad faith recovery due to an alleged improper denial of coverage.

As noted, the court disagreed and found that the waiver of UIM coverage signed by the Plaintiff was proper and met the requirements of 75 Pa. C.S.A. §1731. The Third Circuit agreed with the district court’s finding that the UIM rejection form satisfied the prominent-type-and-location requirements in terms of the language of the waiver form.

The Third Circuit also agreed with the district court’s decision that any alleged violations of the renewal notice provision were not remediable through a civil action.

Note that the household exclusion was not at issue in this case because the Plaintiffs were trying to seek UIM benefits under their own motorcycle policy that covered the motorcycle that the Plaintiff was operating at the time of the accident.  In other words, the Plaintiffs were not attempting to recover UIM benefits under some other policy covering some other vehicle in the household.

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


I send thanks to Attorney Joseph Hudock of the Pittsburgh office of the law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C.

Pennsylvania Superior Court Addresses UIM Coverage Issues Regarding Discrepancies In the Policy Documents

In the case of Hartford Fire Ins. Co. v. Davis, No. 310 MDA 2021 (Pa. Super. May 9, 2022 Olson, J, Kunselman, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court overturned a trial court’s entry of summary judgment in favor of a carrier in a UIM arbitration matter on issues of whether or not the subject automobile insurance policy had certain UIM coverages available.

This case arose out of a motor vehicle accident that occurred back in 2005. The Plaintiff was injured while operating a vehicle owned by his employer.

The vehicle operated by the Plaintiff was insured by Hartford under a commercial automobile insurance policy. During the annual renewals of the policy up through the time of the Plaintiff’s accident, it has been the practice of the insurance company to obtain a UIM coverage rejection form for each policy term renewal. However, the carrier failed to do so for the policy in question.

At the time of the subject accident, a Pennsylvania UIM coverage endorsement was appended to the subject policy although the policy did not specify any limit of UIM coverage for Pennsylvania.

In entering summary judgment, the trial court found that the UIM policy issued by Hartford for the subject year of the accident did not specify a limit of UIM coverage for Pennsylvania and that, therefore, the coverage limit was $0 and the Pennsylvania UIM endorsement attached to the policy was a nullity. The trial court further held that the employer as effectively waived UIM coverage in Pennsylvania by executing a rejection of UIM protection form a few years before the accident.

On appeal, the Pennsylvania Superior Court found that the trial court erred in finding that the subject policy of insurance issued by the Hartford did not provide for UIM coverage at the time of the accident despite the fact that a UIM coverage endorsement was attached to the policy. The Pennsylvania Superior Court also agreed with the Plaintiff that the trial court had erred in concluding that the rejection of UIM protection form executed by the employer prior to the accident was applicable to the subject policy.

The Superior Court based its decision, in part, on 75 Pa. C.S.A. §1731, which mandates that an insurance company issuing a policy in the Commonwealth of Pennsylvania must provide UM/UIM coverage equal to the bodily injury liability coverage, unless the insured validly rejects UM/UIM coverage or validly requests lower limits pursuant to §1734.

Accordingly, where, as here, the subject policy of insurance provided $2 million dollars in liability coverage at the time of the accident, absent a valid and specific rejection of UIM coverage, the court found that the Pennsylvania UIM coverage limit in this case would also be $2 million dollars. Elsewhere in the Opinion, it was indicated that the Plaintiff had previously secured an Arbitration Award in excess of $2 million dollars on the case presented.

The trial court’s decision was vacated and the case was remanded for additional proceedings consistent with this Opinion.

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


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

Exculpatory Clause in Fitness Center's Membership Agreement Upheld

In the case of Milshteyn v. Fitness International, LLC, 2022 Pa. Super. 30 (Pa. Super. Feb. 18, 2022 Panella, P.J., Kunselman, J., and Stevens, P.J.E.) (Op. by Panella, P.J.), the Pennsylvania Superior Court found that the trial court properly granted summary judgment to a fitness facility in a Plaintiffs’ slip and fall action where the membership agreement signed by the Plaintiff was not found to be a contract of adhesion.

The court also found that the release in the agreement clearly foreclosed the Plaintiff from proceeding on the claim presented.

The court additionally found that the Plaintiffs’ claim for gross negligence found in an Amended Complaint constituted a wholly distinct claim from the claim presented in the original Complaint. The court noted that the Plaintiffs had attempted to add a claim of gross negligence after the expiration of the applicable statute of limitations in an effort to get around the release in the membership agreement given that a claim for gross negligence would not have been barred by the membership agreement. As such, the court stated that, in this context, the Plaintiff’s claims for gross negligence should be deemed to constitute a new cause of action.

As such, the appellate court affirmed the trial court’s entry of summary judgment.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 8, 2022).

Photo by Max Vakhtbovych from 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).

ADR Provision in Trampoline Park's Participation Agreement Upheld But Not Provision for Attorney's Fees

In the case of Wearing v. Lyon Tamer, LLC, d/b/a Defy Scranton, No. 20-CV-233 (C.P. Lacka. Co. Jan. 24, 2022 Nealon, J.), the court addressed the validity of an alternative dispute resolution clause contained in a participation agreement signed by the Plaintiff’s mother when the Plaintiff went to the Defendant’s trampoline park.

According to the Opinion, the Plaintiff filed this negligence action against a trampoline park operator for injuries suffered by the Plaintiff while using a trampoline as a minor allegedly without any supervision or oversight.

The Defendant trampoline park operator filed Preliminary Objections. 

With the Preliminary Objections, the Defendant sought to stay this litigation and compel the Plaintiff to submit to mediation and non-binding arbitration in compliance with the participation agreement executed by the Plaintiff’s mother as a condition for the minor to enter and use the trampoline park. 

The Defendant also sought to recover counsel fees and costs under a separate provision in the participation agreement which allowed the Defendant to recover such damages “to the extent permitted by law” in seeking to enforce the mediation and non-binding arbitration provision.

Judge Terrence R. Nealon
Lackawanna County

After reviewing the law of Pennsylvania regarding such agreements and applying the law to the terms of the participation agreement before him, Judge Nealon granted the Preliminary Objections seeking a stay of the tort action given that there was a valid agreement of the parties to participate in alternative dispute resolution. 

However, the court denied the request for attorneys’ fees and costs after finding that the provision in the participation agreement in this regard was unreasonably favorable to the trampoline park operator whose customers had no meaningful choice regarding the acceptance of that provision. The court found that that provision was unenforceable in this regard only due to this procedural and substantive unconscionability.

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

Source:  Photo by Matheus Costa on www.unsplash.com.

Fitness Center's Exculpatory Release Muscles Out Plaintiff's Claim

In the case of Urena v. L.A. Fitness, No. 20-964 (E.D. Pa. July 29, 2021, Schmehl, J.), Court granted summary judgment in a personal injury case arising out of an injury that occured at a fitness center.

The Court ruled that an exculpatory waiver agreement involving voluntary recreational activities is valid and enforceable. The Court found that the waiver did not implicate any public policy as private recreation does not implicate any public interest.

The Court additionally rejected the Plaintiff’s argument that the agreement was a contract of adhesion since the Plaintiff was under no compulsion to exercise at a gym.

Notably, the Court also ruled that a signed exculpatory clause can not be avoided by a signatory’s claim of an inability to understand English.

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


I send thanks to Attorney James M. Beck of the Reed Smith Law Firm from Philadelphia for bringing this case to my attention.

Source of Image:  Photo by Samuel Girven on Unsplash.com.

UIM Rejection Form for Commercial Auto Policy Found Valid

In the case of Eberly v. Firemen’s Ins. Co. of Washington, D.C., No. 5:20-CV-05471 (E.D. Pa. July 13, 2021 Leeson, J.), Judge Joseph Leeson of the Eastern District Federal Court granted a Defendant carrier’s Motion to Dismiss in a UIM case.

This matter involved a commercial auto policy.  The Plaintiff challenged the UIM rejection form on the basis that the document did not contain a policy number and because the document did not indicate the authority of the signatory to execute the document on behalf of the commercial insured.     

The court found that the form executed by the Plaintiff rejecting equal UIM coverage under a commercial automobile insurance policy was valid where that form was signed by the corporate insured’s owner, who was the only individual who had ever acted as a signatory for the company. 

The court also found the form to be valid where the relevant policy number was listed in an attached schedule to the coverage forms.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 29, 2021).

Source of image: Photo by Andrea Piacquadio from Pexels.com.

Pennsylvania Supreme Court Rules Bike Race Exculpatory Release Invalid as to Municipality's Liability

In the case of Degliomini v. City of Philadelphia, No. 5 EAP 2020 (Pa. June 22, 2021) (Majority Op. by Doughterty, J.), Pennsylvania Supreme Court, in a 4-3 decision reversed a Commonwealth Court decision and ruled that an exculpatory release signed by a participant in a charity bike ride through the City of Philadelphia did not serve to immunize the city for allegedly breaching its duty to repair and maintain the public streets. 

According to the Opinion, this incident arose out of a twenty mile bike ride through the streets of Philadelphia. The injured party allegedly crashed into an unmarked and unbarricaded sink hole and was severely injured as a result.

Pennsylvania Supreme Court ruled that, because the release signed by the injured party would allow the city to give itself immunity for the claims presented, the release was found to prohibit what the Tort Claims Act expressly allowed and would impermissibly achieve for the city what Pennsylvania law plainly prohibited.

The Court ruled that the definitive policy to remove the shield of immunity for a municipality’s negligence in the maintenance or repair of dangerous street conditions for which a municipality has proper notice could not be set aside and rendered unenforceable by a contract between individuals. 

As such, the Majority of the Supreme Court found that the release at issue was invalid in this case because it contravened public policy.

Anyone wishing to review a copy of the Majority's decision may click this LINK.  The Dissenting Opinion by Chief Justice Baer can be viewed HERE.


Source: Article: “Pa. Justices: Release Can’t Shield Phila. From Suit Over Cyclist’s Crash,” Pennsylvania Law Weekly (June 29, 2021).

Source of image:  Photo by Quino Al on unsplash.com

Fitness Club's Exculpatory Clause Upheld to Defeat Plaintiff's Personal Injury Claim

In the case of Cifarelli v. RKKB Capital Partners Corp., No. 9626-CV-2019 (C.P. Monroe Co. March 1, 2021 Zulick, J.), the court granted a Defendant fitness facility’s Motion for Summary Judgment in a matter in which a Plaintiff fell while using a treadmill.

According to the Opinion, the Plaintiff was using a treadmill when the treadmill mat slipped off its track, causing the Plaintiff to fall and suffer injuries.   

The Plaintiff filed suit against the gym. In its Answer and New Matter, the gym raised a defense of a release. 

According to the Opinion, the Plaintiff had signed a membership agreement in which she agreed to release the fitness center from liability for injuries she suffered on the premises due to negligence.   

Judge Zulick noted that, in a number of cases involving fitness club agreements, the Pennsylvania appellate courts have consistently held that exculpatory provisions violate public policy only when they involved a matter of interest to the public or the state.   The court cited examples such as cases involving employer/employee relationships, public utilities, common carriers, and hospital. 

The court noted that the Plaintiff had signed a membership agreement for a gym or health club.  The court noted that the Plaintiff was free to refuse to sign the release and to look elsewhere for fitness activities.   

By signing the agreement, the Plaintiff agreed that she understood that she was giving up important legal rights and that the contract would be a full release of liability for injury.   

The court also rejected the Plaintiff’s attempt to get around the release by arguing reckless conduct.   While the court agreed that an attempt in a release to avoid liability for reckless conduct is not enforcement as a violation of public policy in Pennsylvania, the case at hand did not contain facts supporting a claim of reckless conduct.  

As such, the Defendant’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 (March 23, 2021). 

I also send thanks to Attorney Daniel D. Stofko of the Scranton, PA office of Margolis Edelstein for bringing this case to my attention.

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Luzerne County Court Overturns Large UIM Arbitration Award From Back in the Day

In the case of Hartford Fire Insurance Co v. Davis, No.2822-CV-2007 (C.P. Luz.Co. Feb. 11, 2021 Gelb, J.), the court issued a decision on cross motions for summary judgment in a UIM case raising issues as to whether or not the subject policy had certain UIM coverage available.

According to the opinion, this matter arose out of a motor vehicle accident that occured back in 2005 when the plaintiff was allegedly injured while operating his employer's motor vehicle in the course and scope of his employment with Keystone Automotive Operations, Inc. .

Thereafter, the plaintiff pursued a UIM claim against Hartford Fire Insurance Company under an allegation that there was substantial UIM coverage available under that policy.

In 2007, the parties went through a Luzerne County UIM arbitration that resulted in an arbitration award in favor of the plaintiff in the amount of $2,930,000.00. 

Thereafter, Hartford filed a petition to vacate or modify the UIM award. A court order later modified that arbitration award down to 2,000,000.00 to reflect the purported policy limits of that insurance policy.


In her decision in this case, Judge Gelb noted that the prior court decision had not made a determination of whether or not the subject insurance policy did indeed provide for UIM coverage and, thirteen years after the subject arbitration had occured, that issue was before her on cross motions for summary judgment.

One of the issues raised in this matter were allegations of mistakes made by Hartford regarding the policy forms. In its granting of the carrier’s Motion for Summary Judgment, the court held that the alleged mistakes in the policy form did not automatically result in UIM coverage for the plaintiff.

The plaintiff also asserted that the UIM waiver form executed by Keystone contained language that was inconsistent with that mandated by the Pennsylvania Motor Vehicle Financial Responsibility Law, which according to the plaintiff, rendered the waiver void. In her decision, Judge Gelb, found that the additional language contained in the waiver form was a de minimis variation of the required statutory language and that this variation did not serve to void the waiver.

The plaintiff also asserted in this matter that Keystone Automotive violated the Motor Vehicle Financial Responsibility Law and Pennsylvania public policy by failing to advise its employees that it had waived UIM coverage on the policy covering the vehicles that the employees drove.

In the end, Judge Gelb found that the UIM waiver in the Hartford policy did not violate public policy and further found that the carrier’s failure to advise its employees regarding the waiver of the UIM coverage also did not violate the public policy of Pennsylvania. 

With its decision, the court ultimately vacated the arbitration award.


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

A Pennsylvania Superior Court Panel Applies the Household Exclusion Despite Gallagher v. GEICO

An apparent split of authority has developed within the Pennsylvania Superior Court on whether the Pennsylvania Supreme Court’s decision in Gallagher v. GEICO serves to eradicate the Household Exclusion across the board or is a decision that should be limited to its facts.

Tort Talkers may recall the recent November 18, 2020 decision by a panel of Superior Court Judges in the case of Erie Ins. Exch. v. Petrie in which that panel held that the Gallagher v. GEICO decision applies across the board and should not be limited to its facts at least in respect to 75 Pa.C.S.A. Section 1738.  The Tort Talk post on that case, which contains a link to that decision, can be viewed by clicking this LINK.

Now comes Erie Ins. Exch. v. King, No. 648 EDA 2020 (Pa. Super. January 13, 2020 Kunselman, J., King, J., Colins, J.)(Op. by King, J.), the Superior Court held that the household exclusion in an Erie Insurance Company’s policy was enforceable at least under the separate context of 75 Pa.C.S.A. 1731.

In King, the Plaintiff was operating a Peterbilt truck, in which Cora Labar (the niece of his girlfriend) was a passenger in the vehicle.

The truck was insured by a policy issued by Sentry Select and issued to “Night Train Express, Inc.” The two individuals in the truck were involved in an accident caused by an uninsured driver.

Both claimants made a claim for, and received, uninsured motorists (“UM”) benefits from the Century Select policy.

Both Plaintiffs then made a claim for UM benefits under a personal auto policy issued by Erie Insurance to King and his girlfriend.

The carrier denied coverage based upon (1) the fact that a form rejecting stacked UM coverage had been executed, and (2) under an application of the household exclusion.

In this declaratory judgment action, the trial court granted Erie judgment on the pleadings, and the Superior Court affirmed.

In this King case, the Superior Court determined that the claim did not involve stacking, as, under Generette v. Donegal Mut. Ins. Co., 957 A.2d 1180 (Pa. 2008), the Claimants were “guest passengers” in the Peterbilt truck, and therefore, the Century Select policy formed the first layer of UM coverage, and the Erie policy formed the second layer of UM coverage.

The Superior Court in King then explained that, as this case did not involve stacking, the Gallagher v. Geico case did not apply. Therefore the household exclusion was not found to be invalid, and, based upon an application of the household exclusion to the facts of this case, there was no coverage found to be due under the Erie Policy.

Update:  While the Pennsylvania Superior Court initially inexplicably issued this decision as a non-published and therefore non-precedential decision, that status was recently changed on February 5, 2021 and the decision was reissued as a published precedential decision.

Anyone wishing to review this case, may click this LINK.

I send thanks to Attorney Benjamin P. Novak of the Lancaster office of Fowler, Hirtzel, McNulty & Spaulding, LLP for bringing this case to my attention.

Western Federal District Court Rejects Household Exclusion Even Where Policies of Two Separate Carriers Involved

In the case of National General Insurance Company v. Sheldon, No. 1:19-CV-212 (W.D. Pa. Sept. 29, 2020 Bissoon, J.), the court addressed the validity of the household exclusion in a case arising out of an underinsured (UIM) motorist claim. 

The insured was injured in a car accident and settled the third party and a first level UIM claim.

He then sought UIM coverage on another household policy. The insurance company denied the claim based, in part, on the application of a Household Exclusion in the policy.

The carrier argued that the Pennsylvania Supreme Court’s decision in the case of Gallagher v. GEICO Indemnity Co., 201 A.3d 131 (Pa. 2019), was distinguishable because Gallagher involved the same insurance company on both policies at issue in that case. 

After reviewing the cases which have been decided since Gallagher, the District Court in this Sheldon case out of the Western Federal District Court of Pennsylvania found that this distinction is of no consequence. The Court held ultimately that the Household Exclusion was not valid in this case under the general analysis in the Gallagher decision in which it was held that the Household Exclusion is invalid as a de facto waiver of stacked coverage where Pennsylvania's MVFRL requires that an insured provide a written waiver of such coverage.

Anyone wishing to review this decision may click this LINK.

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

Link to Complete Copy of Plaintiff-Favorable Household Exclusion Decision

A few days ago, there was a Tort Talk post on the case of Donegal Mut. Ins. Co. v. Krautsack, No. CI-19-04904 (C.P. Lanc. Co. Aug. 28, 2020 Ashworth, J.), which was a plaintiff-favorable Household Exclusion decision that followed the rationale of the Gallagher decision.

The copy of the decision provided via the Link was missing pages from the Opinion.  Here is a LINK to a complete copy of the decision. 

I apologize for any confusion or consternation caused.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for securing a complete copy for me.

Plaintiff-Favorable Decision Out of Lancaster County Applying Gallagher v. GEICO Decision

Another Plaintiff-favorable Gallagher decision has been uncovered, this one out of the Lancaster County Court of Common Pleas.

In the case of Donegal Mut. Ins. Co. v. Krautsack, No. CI-19-04904 (C.P. Lanc. Co. Aug. 28, 2020 Ashworth, J.), the court granted the Plaintiff's motion for summary judgment and denied the carrier's cross-motion for summary judgment relative to issues surrounding the application of a household exclusion in an automobile insurance policy.

This case arose out of a motorcycle accident and a question of the application of a household exclusion contained in one of multiple policies in a household.

The Plaintiff argued that Gallagher should be read as eradicating the household exclusion across the board.  The carrier asserted that Gallagher should be limited to its facts and that the facts in Gallagher were distinguishable from the facts in this case.

This Lancaster County Court applied the Gallagher v. GEICO decision literally and noted that the Pennsylvania Supreme Court "unequivocally" held that household exclusions are unenforceable as a matter of law as they violate the requirements set forth in Pennsylvania's Motor Vehicle Responsibility Law that a carrier secure a written waiver or rejection of stacked UIM coverage for such waiver or rejection to be valid.

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

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