Article: The Appellate Ladder Looks Inviting For Plaintiffs

The below article of mine appeared in the July 24, 2025 edition of the Pennsylvania Law Weekly and is republished here with permission.

Expert Opinion

The Appellate Ladder Looks Inviting for Plaintiffs


July 24, 2025

By

Daniel E. Cummins

Recent decisions from the Pennsylvania Supreme confirm that plaintiffs continue to a pendulum shift in their favor. Over the past year, the Pennsylvania Supreme Court was beginning to show signs of moderation relative to their previous line of trailblazing decisions that overturned years of precedent in a plaintiff-favorable manner.

However, with its recent decisions, the Pennsylvania Supreme Court has again expanded the rights of injured parties to recover and have even telegraphed to the plaintiffs bar how to secure additional victories in the future.

Recent Decisions by Pa. Supreme Court to Expand Ability to Recover

For nearly the past decade, the Pennsylvania Supreme Court has issued one decision after another in favor of plaintiffs' causes. The plaintiffs bar has been repeatedly successful in convincing the court to overturn decades-long precedent that previously favored defendants.

For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Pennsylvania Supreme Court overruled the then-12-year-old Pennsylvania Commonwealth Court decision in Fagan v. Department of Transportation, 946 A.2d 1123 (Pa. Cmwlth. 2006), to hold that PennDOT should only be immune from suit in guide rail claims in limited circumstances. Prior to Cagey, PennDOT was largely protected from any liability exposure relative to accidents involving guide rails. This decision expanded the ability of parties injured in highway accidents to include PennDOT in the lawsuit in the effort to seek an additional compensation.

In 2018, the Pennsylvania Supreme Court also expanded the ability of injured parties to seek recoveries by handing down another significant reversal of long-standing precedent. In the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Supreme Court liberalized the ability of injured parties to seek recoveries from governmental agencies.

The Supreme Court in Balentine overturned 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1). This ruling expanded the number of cases that would therefore fall within the scope of the exception to immunity. In other words, the ruling by the Pennsylvania Supreme Court allows more injured parties to seek a recovery against negligent governmental agencies.

A recent example of the Pennsylvania Supreme Court actually going too far in overturning long-standing defense-favorable precedent can be seen in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019). In Gallagher, the Pennsylvania Supreme Court overturned 20 years of precedent and held that the household exclusion found under automobile insurance policies was completely unenforceable as a matter of law across the board.

The Pennsylvania Supreme Court reiterated its plaintiffs-friendly stance on the household exclusion in the case of Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. 2021). In Donovan, the court reaffirmed its previous decision in Gallagher v. GEICO and again held that plaintiffs need not worry about the household exclusion provision as it was invalid and, therefore, unenforceable.

The Gallagher decision threw the lower state and federal courts into a tizzy of conflicting decisions on whether the household exclusion should still be found to be enforceable under different factual scenarios.

Thereafter, without overtly acknowledging that the Gallagher decision went too far, the Pennsylvania Supreme Court walked back Gallagher’s complete eradication of the enforceability of the household exclusion in the case of Erie Insurance Exchange v. Mione, 289 A.3d 524 (Pa. 2023). In Mione, the Pennsylvania Supreme Court limited the Gallagher decision to its facts and agreed that the household exclusion did indeed remain valid and enforceable in at least certain circumstances.

The Pennsylvania Supreme Court also recently expanded the right of injured parties to recover in arbitration matters. In 2022, the court promulgated a new Rule that amended Pennsylvania Rule of Civil Procedure 1311.1, which applies to appeals from courthouse arbitration proceedings. Under the new Rule 1311.1, the Pennsylvania Supreme Court increased the maximum limit on the amount of money that a plaintiff can recover in money damages at trial on appeal from an arbitration award.

Under the old rule, that limit was set at $25,000. Under the new rule, the maximum limit has been changed to “an amount equal to the jurisdictional limit for compulsory arbitration of the judicial district in which the action was filed.” In most counties in Pennsylvania, the arbitration jurisdictional limit is $50,000. As such, the Pennsylvania Supreme Court essentially doubled the amount of money injured parties can potentially recover at trials following an appeal from an arbitration.

Recent Decisions That Limited Certain Defenses

In recent years, in addition to expanding avenues of recoveries for injured parties, the Pennsylvania Supreme Court has also benefited plaintiffs by limiting the scope of a wide variety of defenses in civil litigation matters.

In the case of Graham v. Check, 243 A.3d 153 (Pa. 2020), the plaintiffs were successful in convincing the Pennsylvania Supreme Court to limit the application of the sudden emergency doctrine. With this decision by the Pennsylvania Supreme Court, it is likely that the application of the sudden emergency doctrine will no longer be automatically applied in dart-out pedestrian cases, particularly where a plaintiff darts out within a crosswalk.

The Pennsylvania Supreme Court has also limited venue defenses by liberalizing the rules governing where a plaintiff may file their lawsuit.

In another the limitation of venue defenses, the Pennsylvania Supreme Court, in the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021), the Pennsylvania Supreme Court ruled that, given that the internet is available essentially everywhere, an internet defamation case may be filed anywhere in Pennsylvania, thereby allowing the plaintiffs to file such claims in the most liberal courts in Pennsylvania if they deem that appropriate.

Back in 2022, the Pennsylvania Supreme Court undid a 20-year-old Rule of Civil Procedure and approved plaintiffs-favorable amendments to the medical malpractice venue rules. Under the new medical malpractice litigation venue rules, plaintiffs now have wider options in terms of where they can file their medical malpractice lawsuits.

Hints at Moderation

In three recent decisions, all of which were expected to result in plaintiffs-favorable rulings, the Pennsylvania Supreme Court somewhat surprisingly went the other way.

As noted above, in the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Pennsylvania Supreme Court limited its previous decision in Gallagher v. GEICO on the household exclusion to the facts of that case. The court in Mione instead held that the household exclusion could still be enforced under limited circumstances.

Another example of a recent Pennsylvania Supreme Court decision that seemed to signal moderation was the case of first impression of Franks v. State Farm Mutual Automobile Insurance, ___ A.3d ___ No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.). In Franks, the court addressed issues of the stacking of UIM coverage in the automobile insurance personal injury actions. The court ruled that an insurance company is not required to secure another written waiver of stacked coverage from an insured in certain circumstances and rejected the plaintiff’s argument to the contrary.

Also, in a 2024 decision that was surprising to some, the Pennsylvania Supreme Court upheld the continuing validity of the regular use exclusion in the case of Rush v. Erie Insurance Exchange, ___ A.3d ___, 77 MAP 2023 (Pa. 2024).

Not So Fast

Despite hints at moderation, other recent cases again confirm that the overall orientation of the Pennsylvania Supreme Court is to favor plaintiff’s causes in most civil litigation matters.

This is confirmed, in part, by the court’s decision in the case of Brown v. City of Oil City, 294 A.3d 413 (Pa. 2023). With this decision, the Pennsylvania Supreme Court greatly expanded the ability of plaintiffs to bring lawsuits against construction contractors for personal injuries sustained at a construction site. The court in Brown allowed such claims to be brought even if the contractor had completed his or her work on the property years before.

Also, in its recent decision in the case of Steets v. Celebration Fireworks (Workers' Compensation Appeals Board), No. 3 MAP 2024 (Pa. May 30, 2025), the Pennsylvania Supreme Court overturned decades of precedent regarding whether specific loss benefits are payable after an employee’s death from causes related to a work injury. In this decision, the Supreme Court created new law and cleared the way for the estates of those individuals who died from work-related injuries to collect specific loss benefits.

Then, just last month, in the case of Jakmian v. City of Philadelphia, No. 266 EAL 2024 (Pa. June 11, 2025), the Pennsylvania Supreme Court denied an allowance of an appeal in a civil litigation matter, but Justice Kevin Dougherty issued a concurring opinion that invited plaintiffs to attempt to bring issues regarding the analysis of an exception to sovereign immunity back up the appellate ladder again so that the court could properly review the law on this topic.

In Jakmian, the plaintiff suffered injuries on a Philadelphia street after the front tire of her bicycle became stuck in a SEPTA trolley track that had been out of use for decades. The claims presented raised issues related to applicability of the real estate exception to the Sovereign Immunity Act.

In his concurring opinion, Dougherty seemed to signal that, if the issue were properly before the court, he would have ruled in a fashion that favored the injured party. However, he felt “constrained to agree that an allowance of an appeal is not warranted here.” Yet, Dougherty also wrote “nevertheless, I note my future willingness to explore the issues implicated herein if they arise in a more appropriate case.”

In the end, a review of recent jurisprudence in Pennsylvania confirms that the Pennsylvania Supreme Court is not only routinely ruling in favor of plaintiff’s causes but also seemingly inviting the plaintiffs bar to bring more issues up the appellate ladder for the court to consider. Now’s the time for the plaintiffs bar to get whatever important issues they can up to the Supreme Court as often as they can so as to make “good” law. Now is also the time for the defense bar and the carriers to resolve as many of those cases before they reach the Pennsylvania Supreme Court so as to avoid the creation of “bad” law.

Daniel E. Cummins is the managing attorney at Cummins Law where he focuses his practice on motor vehicle and trucking liability cases, products liability matters, and premises liability cases. He also serves as a mediator for the Federal Middle District Court and for Cummins Mediation. He is additionally the sole creator and writer of the Tort Talk Blog at www.TortTalkcom.

Reprinted with permission from the July 24, 2025 edition of the "The Pennsylvania Law Weekly © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Another Court Upholds The Validity of the Household Exclusion

In the case of Erie Insurance Exchange v. Kennedy, No. 10106 of 2024, C.A. (C.P. Lawr. Co. Jan. 27, 2025 Hodge, J.), the court granted a UIM carrier’s Motion for Judgment on the Pleadings and confirmed that a Plaintiff was barred from recovering UIM benefits under the subject policy based upon an application of the household exclusion. In so ruling, the court relied upon the case of Erie Insurance Exchange v. Mione, 289 A.3d 524 (Pa. 2023).

According to the Opinion, two (2) individuals were killed in a motorcycle accident. The motorcycle was insured by Progressive Insurance. Progressive denied coverage for UIM benefits.

The decedents were also insured under a policy issued by Erie Insurance Exchange that had an exclusion for damages sustained by any insured who occupied a vehicle owned by the insured but which was not insured for UIM benefits under the Erie Insurance policy.

The court found that the facts of the case fell under the case of Erie Insurance Exchange v. Mione.

The trial court otherwise noted that the household vehicle exclusion is not enforceable if the insured is seeking to stack the UIM coverage in question with UIM proceeds from another policy in order to circumvent the household vehicle exclusion. Here, however, there was no stacking of UIM coverage involved in the case and the carrier was found to have properly denied UIM coverage under the household vehicle exclusion.

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

Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (March 27, 2025).

Source of image:  Photo by Alex Dos Santos on www.pexels.com.

LINK For the Third Circuit's Decision on Household Exclusion in Mid-Century Ins. Co. v. Werley

 One of yesterday's Tort Talk blog posts was on the case of Mid-Century Ins. Co. v. Werley, No. 23-1822 (3d. Cir. Sept. 5, 2024 Krause, J., Chung, J., and Randell J.) (Op. by Rendell, J.), the Third Circuit Court of Appeals upheld the application of a household exclusion in a UIM case.  

The Link was not set up on that post -- the Link has been corrected below.  Judge Marjorie Rendell's name was incorrectly spelled and that has been corrected as well.

Here is the LINK to that decision.

Apologies for any confusion or consternation caused by these errors.

Excellent Overview on the Law on the Validity of Household Exclusion Provided by Third Circuit

In the case of Mid-Century Ins. Co. v. Werley, No. 23-1822 (3d. Cir. Sept. 5, 2024 Krause, J., Chung, J., and Randell J.) (Op. by Rendell, J.), the Third Circuit Court of Appeals upheld the application of a household exclusion in a UIM case.

In this Opinion, Judge Marjorie Rendell provides a thorough and excellent overview of the applicable law under Pennsylvania’s Motor Vehicle Financial Responsibility Law with regards to the availability of underinsured motor vehicle coverage and the process for rejecting the same and with regards to the stacking of such coverage.

In this case, a 15 year old Plaintiff, who did not have a driver’s license, was operating

 his family’s uninsured dirt bike offroad with several friends on private property. Another driver struck the Plaintiff while that other driver was driving a Jeep.

The driver of the Jeep paid out to the injured party the bodily injury limits available under that driver’s liability policy. The Plaintiff then sought UIM coverage under his parent’s own household automobile insurance policies. The family had two (2) such policies.

The court noted that intra-policy stacking had been validly rejected by the family. However, it was indicated that the family could not waive inter-policy stacking because one of the policies was a multi-vehicle policy that insured multiple vehicles.

The multi-vehicle policy contained a household vehicle exclusion. Under the family’s second household automobile insurance policy there was also a household exclusion but the carrier had determined that, under the separate and different language of that exclusion, that exclusion did not serve to exclude coverage.

As such, the carrier paid out UIM benefits under one of its policies but denied coverage under the second policy by virtue of the household exclusion.

In its Opinion, the Third Circuit provided a thorough overview of the recent Pennsylvania jurisprudence on the law of the validity of the household exclusion, including such cases as the Gallagher and Donovan cases in which there was a discussion regarding household exclusions, at times, acting as de facto stacking waivers and violations of 75 Pa. C.S.A. §1738.

The court noted that a crucial distinguishable fact involved in the case before it, as compared to the facts in the Gallagher and Donovan cases, was that, in the case before it, the injured party was driving an uninsured dirt bike whereas in the Gallagher and Donovan cases, the injured parties were operating insured motorcycles.

The Third Circuit additionally noted that the Pennsylvania Supreme Court has cautioned that the Gallagher case “should be construed narrowly.” [citations omitted] See Op. at 15. The Third Circuit predicted that the Pennsylvania Supreme Court would conclude that the collective logic of the previous cases of Gallagher, Donovan, Eichelman, and Mione is that a household vehicle exclusion is only valid if, (1) a policy insureds the vehicle involved in the accident, (2) that policy provides UIM coverage on that vehicle, and (3) the household vehicle exclusion of a second policy sought to stack on top of the first policy would exclude UIM coverage for that vehicle. See Op. at 20.

Since the first condition was not satisfied in this case, the court found that the household vehicle exclusion was valid and enforceable.

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


I send thanks to Attorney Candace Edgar of the Camphill, PA office of Marshall Dennehey for bringing this case to my attention.

ARTICLE: Pa. High Court Shows Continuing Signs of Moderation With Regular Use Exclusion Holding

The below article of mine was published by the Pennsylvania Law Weekly on February 29, 2024 and is republished here with permission.

Daniel E. Cummins
Cummins Law

Pa. High Court Shows Continuing Signs of Moderation With Regular Use Exclusion Holding

February 29, 2024

By Daniel E. Cummins 

On Jan. 29, the Pennsylvania Supreme Court issued its long-awaited and 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.) and, in doing so, seemed to signal a possible continuing movement away from its previous penchant for advancing plaintiffs’ causes in personal injury matters and toward a more reasoned, moderate approach to civil litigation questions of law.

Over the past five years or so, the Pennsylvania Supreme Court had handed down decision after decision, along with important civil litigation rule changes, that all largely advanced plaintiffs’ abilities to recover more and more compensation in a wider variety of circumstances.

More specifically, the Pennsylvania Supreme Court allowed for more liberal venue Rules of Civil Procedure for medical malpractice actions and also issued rules allowing for increased recoveries on appeals from personal injury arbitration proceedings. The court additionally issued decisions that seemed to relax venue rules for internet-based defamation claims (Fox v. Smith) and other types of personal injury claims. The Pennsylvania Supreme Court also issued decisions that expanded the plaintiff’s ability to recover from governmental entities (Cagey v. PennDOT and Balentine v. Chester Water Authority) and automobile insurance carriers (Gallagher v. Geico).

More recently, however, in 2023 the Supreme Court began to show signs of moderation with its decisions in the civil litigation arena. In the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Pennsylvania Supreme Court, without acknowledging that it was doing so, stepped significantly back from its previous effort in the Gallagher v. Geico case to eradicate the household exclusion found in automobile insurance policies as void and unenforceable across the board. In Mione, the court rejected the argument by the plaintiff that the Gallagher decision should be read as having served to invalidate the exclusion in all cases in Pennsylvania.

In another recent decision evidencing moderation on the part of the court, in the case of first impression of Franks v. State Farm Mutual Automobile Insurance, 292 A.3d 866 (Pa. April 19, 2023) (Op. by Mundy, J.), the court issued a decision that favored insurance carriers by ruling 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 another written waiver of stacked coverage from the insured under Section 1738(c).

Now, with its January, 2024 decision in the case of Rush, 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 at work. The plaintiff recovered the liability limits from the tortfeasor’s policy as well as the UIM limits that were available 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 that covered the plaintiff’s personal vehicles to deny coverage on the additional UIM claim.

The trial court and the Pennsylvania 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 requiring the provision of UIM coverage to insureds in that the exclusion limited 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 used but did not own.

As noted, in its Rush decision, the Pennsylvania Supreme Court reversed the lower courts’ decisions and upheld the validity and enforceability of the regular use exclusion.

In so ruling, unlike what it did in its Gallagher v. Geico decision on the validity of the household exclusion, the Pennsylvania Supreme Court pointed to prior decisions it had rendered in which it had repeatedly upheld the validity of the regular use exclusion. The court found the plaintiff’s arguments in this Rush case to be a mere recitation of at least one of the same arguments that had been previously rejected by the court in its prior decisions relative to the validity of the regular use exclusion.

The Pennsylvania Supreme Court rejected the plaintiff’s argument that the MVFRL required 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 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 instead 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 previously clarified and narrowly limited its Gallagher decision in its more recent decision in the case of Erie Insurance Exchange v. Mione.  

Here, in Rush v. Erie Insurance Exchange, the Supreme Court ruled that “if 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.” 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.  

The language utilized by the Pennsylvania Supreme Court seemed to indicate that it had heard the criticisms of some commentators regarding the apparent judicial activism of the court in favor of the plaintiff’s causes to the point where the court was arguably enacting changes in the law that would ordinarily come from the legislative branch of the court. In specifically holding that the regular use exclusion remained a permissible limitation of UIM coverage within the language of the MVFRL, the Pennsylvania Supreme Court wrote in Rush that, “with … no justification to allow this court to depart from decades of established law” that civil litigators had relied upon, the court held that it 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.” 

Ultimately, contrary to its previous penchant to chart new avenues of recovery for injured plaintiffs regardless of established judicial precedent on the books for decades, the Pennsylvania Supreme Court implicitly acknowledged the continuing validity of the doctrine of stare decisis by stating that it was “bound by our prior decisions” to overrule the lower court decisions and hold that the regular use exclusion remained valid and enforceable.

Having previously shown a willingness to make startling changes in the status quo of civil litigation jurisprudence, but now showing signs of moderation, it will be interesting to see where the Pennsylvania Supreme Court goes from here in its handling of personal injury civil litigation matters.

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.

Reprinted with permission from the February 29, 2024 edition of the Pennsylvania Law Weekly. © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Household Exclusion Upheld and Enforced By Superior Court Where Plaintiff Had Waived Stacking

In the case of Major v. Cruz and State Farm, 2024 Pa. Super. 26 (Pa. Super. Feb. 13, 2024 Bowes, J., Stabile, J., Pellegrini, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court addressed a household exclusion argument in a UIM case.

According to the Opinion, the Plaintiff was injured in a motor vehicle accident and settled the claims against the third party tortfeasor for $15,000.00.

At the time of the accident, the Plaintiff was operating her mother’s vehicle. That vehicle had $15,000.00 in UIM coverage. The Plaintiff secured that amount.

The Plaintiff then sought additional UIM recoveries on her own vehicle which had a $100,000.00 UIM policy limit.

According to the Opinion, the Plaintiff had rejected stacking on her own policy, which only had one (1) vehicle covered under it. State Farm denied the claim on that policy based upon a household exclusion contained within the policy.

The Plaintiff argued that the exclusion was not valid and that, at the very least, the Plaintiff should be allowed to recover $85,000.00 of that UIM coverage under a coordination of benefits provision contained in the same policy.

The Pennsylvania Superior Court held that the household exclusion remained valid in this case because the Plaintiff had rejected stacking under her own policy.

The court also found that, since the waiver of stacking in this case was valid, the Plaintiff could not make a valid challenge to the validity of the household exclusion under the circumstances presented in this case.

The Pennsylvania Superior Court also ruled that the Plaintiff did not have a valid argument for a recovery of the requested $85,000.00 since the coordination of benefits provision as worded in the policy was not implicated in this case.

In the end, the appellate court affirmed the trial court's decision to uphold the application of the household exclusion and the finding that the Plaintiff was not entitled to UIM coverage as a result under the State Farm policy.

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

Source of image:  Photo by Matt Hudson on www.unsplash.com.

THE 2023 TORT TALK TOP TEN

THE 2023 TORT TALK TOP 10

10. Service of Process


There were many decisions handed down over the past year by trial and appellate court judges confirming that a case will be dismissed if a plaintiff does not make good faith efforts to complete service of original process on the actual defendant in the matter in accordance with the case of Lamp v. Heyman and its progeny. To access a number of these decisions as summarized on the Tort Talk Blog (www.TortTalk.com), use this Link: http://www.torttalk.com/search/label/Service%20of%20Process

9. COVID-19 Pandemic Coverage Issues Persists


Over the summer, the Pennsylvania Supreme Court issued an Order granting allocator to hear arguments in the case of MacMiles v. Erie Insurance Exchange and the case of Ungarean v. CNA and Valley Forge Insurance. In these two cases, the Superior Court reached opposite conclusions regarding whether insureds should be allowed business interruption insurance coverage for losses stemming from the COVID-19 pandemic. It remains to be seen which way the Court will go.


To review the Tort Talk post on COVID-19 business interruption coverage cases, click this LINK.

8. Household Exclusions

In the case of Erie Ins. Exchange v. Mione, No. 89 MAP 2021 (Pa. Feb. 15, 2023) (Op. by Wecht, J.), the Pennsylvania Supreme 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 the end, the Pennsylvania Supreme Court in Mione ultimately concluded that the lower court 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.


To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

7. Consent To Jurisdiction By Registering to do Business


In June of 2023, the Pennsylvania Supreme Court was overturned by the United States Supreme Court in the case of Mallory v. Norfolk Southern Railway Co., ___ U.S.___ (June 27, 2023) in a 4-1-4 plurality decision.

In Mallory, the United States Supreme Court upheld the Pennsylvania law requiring out-of-state companies that register to do business in Pennsylvania to agree to submit to jurisdiction in Pennsylvania courts on “any cause of action” filed against the company, even when the alleged injury occurred outside of Pennsylvania. The lower decision by the Pennsylvania Supreme Court was vacated and remanded.

Under a more recent Order, the Pennsylvania Supreme Court then punted on the issue and remanded the issue all the way back down to the trial court for consideration

To review the Tort Talk post on this case, click this LINK



6. Social Host Liability


In the case of Klar v. Dairy Farmers of America, Inc., No. 29 WAP 2022 (Pa. Aug. 22, 2023 Wecht, J.), the Pennsylvania Supreme Court held that an organization hosting an event at which alcohol was provided, but which organization was not a liquor licensee, could not be held liable for injuries caused by a guest who had become intoxicated at the event and was later involved in a motor vehicle accident.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

5. Workers Compensation – Employer Immunity


In the case of Franczyk v. Home Depot, Inc., No. 11 WAP 2022 (Pa. April 19, 2023) (Op. by Wecht, J.) (Todd, C.J, concurring), the Pennsylvania Supreme Court addressed immunity provided to employers in personal injury civil litigation matters given the employer’s exposure to worker’s compensation recoveries. The Pennsylvania Supreme Court confirmed that the worker’s compensation system is a compromise that, in exchange for a no-fault insurance system, employers are granted immunity from tort liability for workplace injuries. The court reiterated that, where worker’s compensation is available, such compensation is the exclusive remedy for an injured party against their employer.

The court found that the plain language of the exclusivity clause under the Worker’s Compensation Act barred this dog bite action that occurred at a workplace. None of the exceptions were found to apply.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.


4. Stacking Waiver Forms


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).

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.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.



3. The Dying Doctrine of Forum Non Conveniens


In the case of Brooks v. Griffy, No. 22-CV-3250 (C.P. Lacka. Co. Oct. 18, 2023 Nealon, J.), Judge Terrance R. Nealon of the Lackawanna County Court of Common Pleas addressed a Petition for Transfer under the doctrine of forum non conveniens and denied the same.

In his Opinion, Judge Nealon addressed the current status of the law regarding this doctrine and noted that the law had been chipped away at by recent decisions calling into question the continued validity of the arguments made under this doctrine, especially in light of the need to show that the jurisdiction chosen by the Plaintiff was oppressive and vexatious.

The court pointed to the continued use of advanced communication technologies in litigation matters, such as Zoom, has served to substantially lessen any burdens or hardships that may be associated with participating in any given litigation at any location.

As such, the Defendant’s Motion to Transfer the case to Montgomery County based upon the doctrine of forum non conveniens was denied.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK

2. Test for Proper Venue Revised


In the case of Hangey v. Husqvarna, No. 14 EAP 2022 (Pa. Nov. 22, 2023), the Pennsylvania Supreme Court held that a defendant company’s percentage of sales, in of itself, is no longer sufficient to determine whether or not a company has sufficient business in a particular jurisdiction for venue purposes. Accordingly, under yet another plaintiff-friendly decision by the Pennsylvania Supreme Court, a business that only derives a small portion of its revenue from a particular county in Pennsylvania may still be sued in that county.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

1. Punitive Damages

In its recent Pro-Plaintiff decision in the case of Bert Company v. Turk, No. 13 WAP 2022 (Pa. July 19, 2023) (Op. by Donohue, J.) [Numerous Concurring Opinions written by numerous Justices], the Pennsylvania Supreme Court considered United States Supreme Court precedent in addressing the constitutionality of an award of punitive damages by a civil jury in Pennsylvania.

More specifically, the court addressed the ratio calculation, that is, the appropriate ratio calculation measuring the relationship between the amount of punitive damages awarded against multiple Defendants who are found to be joint tortfeasors, and the compensatory damages awarded.

The Pennsylvania Supreme Court generally endorsed the per-Defendant approach as being consistent with federal constitutional principles that require consideration of a Defendant’s due process rights.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

What to watch for in 2024:

Keep an eye out for a decision from the Pennsylvania Supreme Court on the viability of the Regular Use Exclusion in the case of Rush v. Erie Insurance Exchange.

The Pennsylvania Supreme Court is also expected to issue a decision providing guidance for COVID-19 Business Interruption coverage cases.

ARTICLE: A Mixed Bag: Plaintiffs and Defendants Score Victories in Law Changes in 2023

The below article of mine providing a year-end review of the notable cases and trends in Pennsylvania civil litigation law appeared in the December 7, 2023 edition of the Pennsylvania Law Weekly:


A Mixed Bag: Plaintiffs and Defendants Score Victories in Law Changes in 2023

Pennsylvania Law Weekly
December 07, 2023

By Daniel E. Cummins

Daniel E. Cummins
Cummins Law
www.TortTalk.com

Here’s a look at the notable trends and decisions in Pennsylvania civil litigation law over the past year along with a review of anticipated decisions to keep an eye out for in the year ahead.

Consent to Jurisdiction by Registration to Do Business

Over the past year, the Pennsylvania Supreme Court was overturned by the U.S. Supreme Court in the case of Mallory v. Norfolk Southern Railway, ___ U.S.___ (June 27, 2023) in a 4-1-4 plurality decision involving the validity of Pennsylvania’s “consent by registration” statute.

In Mallory, the U.S. Supreme Court upheld the Pennsylvania law requiring out-of-state companies that register to do business in Pennsylvania to agree to submit to jurisdiction in Pennsylvania courts on any cause of action filed against the company, even when the alleged injury occurred outside of Pennsylvania. The lower decision by the Pennsylvania Supreme Court was vacated and remanded.

The Pennsylvania Supreme Court thereafter punted on the issue under an order issued on Aug. 29, 2023, and remanded the question presented all the way back down to the trial court for consideration. Presently, the statute providing that a corporation’s registration to do business in Pennsylvania thereby subjects that corporation to Pennsylvania state court jurisdiction over personal injury lawsuits remains valid but subject to continuing attacks.

Test for Proper Venue Revised

Just last month the Pennsylvania Supreme Court continued its penchant for changing the law in a plaintiff-friendly way by revising the test for determining proper venue by rejecting the “percentage of revenue” venue defense.

In the case of Hangey v. Husqvarna, No. 14 EAP 2022 (Pa. Nov. 22, 2023), the court determined that venue was proper in Philadelphia County even though the only 0.005% of the defendant company’s national revenue was derived from that county. As such, the Pennsylvania Supreme Court held that a defendant company’s percentage of sales is no longer sufficient, in and of itself, to determine whether or not a company has sufficient business in a particular jurisdiction for purposes of proper venue.

Accordingly, under yet another plaintiff-friendly decision by the Pennsylvania Supreme Court, a business that only derives a small portion of its revenue from a particular county in Pennsylvania may still be sued in that county. This decision is expected to keep many more civil litigation matters in Philadelphia County.

The Dying Doctrine of Forum Non Conveniens

Over the past year a number of decisions have been handed down by the trial and appellate courts of Pennsylvania that call into question the continuing vitality of the doctrine of forum non conveniens. These numerous decisions are thoroughly researched and reviewed by Judge Terrence R. Nealon in his recent opinion in the case of Brooks v. Griffy, No. 22-CV-3250 (C.P. Lacka. Co. Oct. 18, 2023 Nealon, J.).

While a plaintiff’s choice of forum for a particular lawsuit is given great weight under Pennsylvania law, a defendant does have avenues to challenge the same. One such way is by the filing of a motion to transfer venue under the doctrine of forum non conveniens under Pa.R.C.P. 1006(d)(1).

Although the term forum non conveniens is Latin for “an inconvenient forum,” in order to prevail under such a motion to transfer, a defendant cannot simply show that the venue selected by the plaintiff is inconvenient, but rather must show that the forum vexatious and oppressive from the vantage point of the defendant and the involved witnesses.

In the case of Brooks v. Griffey, a plaintiff from Chester County, Pennsylvania, who was involved in an accident with a Lancaster County tractor-trailer driver in a Montgomery County accident, filed a lawsuit against the driver and his employer, which maintained its principal place of business in Idaho and had a single facility in Lancaster County, Pennsylvania, in the Lackawanna County Common Pleas Court.

The defendant driver and his employer filed a forum non conveniens motion seeking to transfer the case to Montgomery County pursuant to Pa. R.C.P. 1006(d)(1).

In his opinion, Nealon addressed the current status of the law regarding this doctrine and noted that the law had been chipped away at by recent decisions calling into question the continued validity of the arguments made under this doctrine, especially in light of the need to show that the jurisdiction chosen by the plaintiff was oppressive and vexatious.

Notably, Nealon, who presides in what is still apparently the only county Court of Common Pleas in Pennsylvania with an innovative local rule on the use of advanced communications technology (ACT) in court proceedings, pointed to the continued use of ACT in litigation matters as lessening the burdens of the participants. The court noted that the use of ACT, such as Zoom for depositions and minor court conferences, has served to substantially lessen any hardships that may be associated with participating in any given litigation at any location.

Nealon noted that the affidavits in support of the petition filed by the defendant did not support the granting of the motion. The court found that the defendants had not established that the defendants chosen forum was oppressive or vexatious. As such, the defendant’s motion to transfer the case to Montgomery County based upon the doctrine of forum non conveniens was denied.

Social Host Liability

Over the past year, the Pennsylvania Supreme Court considered the extent to which a host of an event at which alcohol is served may be held liable for the actions of an intoxicated guest, particularly when that intoxicated guest is an employee of the host.

In the case of Klar v. Dairy Farmers of America, No. 29 WAP 2022 (Pa. Aug. 22, 2023 Wecht, J.), the Pennsylvania Supreme Court revisited precedents from over a half of a century that have imposed civil liability arising from the provision of alcohol to visibly intoxicated persons with respect to persons and taverns licensed to engage in the commercial sale of alcohol, as compared against those same precedents that have limited the liability of social hosts.

In this Klar case, the Pennsylvania Supreme Court, in a defense-friendly decision, affirmed the decisions of the lower courts that held that an organization hosting an event at which alcohol was provided, but which organization was not a liquor licensee, could not be held liable for injuries caused by a guest who had become intoxicated at the event and was later involved in a motor vehicle accident.

COVID Issues Persists

In 2023, the COVID-19 pandemic fallout continued in the form of ongoing insurance coverage litigation involving business interruption coverage policies, virus exclusions and related issues.

Over the summer, the Pennsylvania Supreme Court issued an order granting allocator to hear arguments in the case of MacMiles v. Erie Insurance Exchange, and the case of Ungarean v. CNA and Valley Forge Insurance. In these two cases, the Pennsylvania Superior Court reached opposite conclusions regarding whether insureds should be allowed business interruption insurance coverage for losses stemming from the COVID-19 pandemic.

For those handling COVID-19 business interruption coverage issues, the Pennsylvania Supreme Court’s decisions in these matters is highly anticipated and will determine whether such claims for coverage are valid, thereby possibly ending the epidemic of these types of coverage cases.

Punitive Damages

In a pro-plaintiff decision in the case of Bert Co. v. Turk, No. 13 WAP 2022 (Pa. July 19, 2023), the Pennsylvania Supreme Court considered U.S. Supreme Court precedent in addressing the constitutionality of an award of punitive damages by a civil jury in Pennsylvania.

In the Bert case, the court reviewed the appropriate ratio calculation to be used by the courts to measure the relationship between the amount of punitive damages awarded against multiple defendants. The court declined to create a bright-line rule to determine when punitive damages are to be considered to be unconstitutionally excessive.

In this case, the jury had awarded $250,000 in compensatory damages as well as a total of $2.8 million dollars in punitive damages. The defendants asserted that this award went against U.S. Supreme Court precedent holding that punitive damages generally should not exceed 10 times the amount of a compensatory damages award.

The Pennsylvania Supreme Court determined that the defendants’ approach was an incorrect calculation. The Pennsylvania Supreme Court generally endorsed the per-defendant analysis of the ratio, instead of a per-judgment analysis, as being consistent with federal constitutional principles that require consideration of each defendant’s due process rights relative to the entry of punitive damages. According to a July 24 article by Pennsylvania Law Weekly litigation reporter, Aleeza Furman, titled “‘Sky’s the Limit’: Pa. Justices’ Punitive Damages Rulings Creates Uncertainty for Defendants,” commentators on the plaintiffs side of the bar view this decision as upholding the goals of punitive damages. In contrast, members of the defense bar noted that this decision opened a new door for unrestrained punitive damages awards while, at the same time, limiting the types of challenges a defendant can assert against such an award.

Stacking Waiver Forms

In what was considered to be a case of first impression, in Franks v. State Farm Mutual Automobile Insurance, No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.), the Pennsylvania Supreme Court issued a defense-favorable decision in holding that 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 Section 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, according to the Pennsylvania Supreme Court, there was no requirement under the law for the carrier to secure a new waiver form.

 
Household Exclusions

In the case of Erie Insurance Exchange v. Mione, No. 89 MAP 2021 (Pa. Feb. 15, 2023) (Op. by Wecht, J.), without admitting to the same, the Pennsylvania Supreme Court did an about face on the issue of the enforceability of household vehicle exclusions in automobile insurance policies. Whereas the Pennsylvania Supreme Court previously ruled in its decision of Gallagher v. GEICO that household exclusions are unenforceable across the board, in this more recent Mione decision from earlier this year, the court has now held that household exclusions do remain enforceable under Pennsylvania law in certain circumstances.

In its previous 2019 decision in the case of Gallagher, which was repeatedly described in the Law Weekly as resulting in a ‘seismic” change in the law, 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.” See Gallagher v. GEICO, 201 A.3d 131, 138 (2019). That unfortunate and flawed decision led to an unnecessary four years of upheaval and expensive litigation in this area of the law.

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 Insurance Exchange v. Mione, the Pennsylvania Supreme Court did an about face and distinguished and limited its previous decision in Gallagher v. GEICO and instead affirmed the lower court decision that the household exclusion was valid and enforceable.

In this Mione decision, Justice David Wecht noted that the court “reiterates 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.”

 
Service of Process

There were many decisions handed down over the past year by trial and appellate court judges confirming that a case will be dismissed if a plaintiff does not make good faith efforts to complete service of original process on the actual defendant in the matter in accordance with the case of Lamp v. Heyman and its progeny. To access a number of these decisions as summarized on the Tort Talk Blog (www.TortTalk.com), use this link: https://rb.gy/4t5nrk.

Statutory Caps

In the case of Freilich v. SEPTA, No. 327 C.D. 2022 (Pa. Cmwlth. July 6, 2023) [opinion not reported], the Pennsylvania Commonwealth Court rejected a plaintiff’s challenge to Pennsylvania’s liability caps for state agencies, such as SEPTA and PennDOT. In so ruling, the appellate court upheld a trial court order reducing a $7 million stipulated jury verdict entered by a jury against SEPTA to the $250,000.00 statutory liability cap required by Pennsylvania law under 42 Pa.C.S.A. Section 8528(b).

Indications are that plaintiffs’ attorney plans to appeal the case up to the Pennsylvania Supreme Court. It remains to be seen whether the Plaintiff-oriented Pennsylvania Supreme Court will continue its judicial activism in favor of plaintiff’s causes by changing the established law or will instead make a rare showing of judicial restraint and hold that any changes to this law should come from the legislative branch of the Pennsylvania government.

Fair Share Act

Trial courts continue to split on the validity and enforceability of the dicta in the decision of Spencer v. Johnson, 249 A.3d 529 (Pa.Super. 2021), which decision contains superfluous commentary indicating that the Fair Share Act may not apply in cases where the plaintiff is an innocent victim of an accident and not contributorily negligent. This issue can routinely come into play, for example, in medical malpractice cases where a plaintiff is under anesthesia or where a plaintiff is a guest passenger in a motor vehicle that is in an accident.

This past year, in the case of Ace v. Ace, No. 6242-CIVIL-2020 (C.P. Monroe Co. Jan. 12, 2023), Judge David J. Williamson issued an opinion in a nonjury trial arising out of a shooting incident. The court addressed the import of the dicta in the Spencer v. Johnson decision relative to the applicability of the Fair Share Act in a case in which no liability is assessed to a plaintiff.

Williamson then noted that “there has been a lot of confusion recently as to whether or not defendants are subject to joint and several liability for a judgment, regardless of their proportionate share of liability.” After reviewing the history of the Comparative Negligence Act and the Fair Share Act, Williamson asserted that “It makes more sense that the legislature would have enacted this measure in all cases of multiple defendants, even where the plaintiff has no contributory negligence.”

That being said, Williamson went on to review the contrary result noted in the dicta put forth by the Pennsylvania Superior Court in its Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021) decision. Williamson noted that the rationale of the Spencer court regarding Fair Share Act “appears as dicta in the Superior Court’s decision, as it was not the direct holding” of the Superior Court.

Despite noting earlier in his decision that the reasoning as contained in the Spencer decision was “absurd,” Williamson, apparently feeling compelled to do so, stated that he would “adhere to the dicta stated in Spencer in this particular case, and find joint and several liability without the application of the Fair Share Act as between both defendants” given that there was no finding of contributory negligence against the plaintiff in this case.

In contrast, another trial court judge found no fault with the validity of the Spencer v. Johnson decision. In the case of Tucchi v. Carroll, No. CV-2018-1794 (C.P. Northumb. Co. Jan. 24, 2023), a trial court judge ruled that, pursuant to Spencer v. Johnson, 249 A.3d 529, 559 (Pa. Super. 2021), that the Fair Share Act was inapplicable given that the minor plaintiff in this matter was not found to be contributorily negligent by the jury or, in other words, was an innocent plaintiff. In a footnote in his order, the judge noted that the Spencer decision “was a precedential holding of the Superior Court after an analysis of the Fair Share Act, and not “dicta” as contended by” the defendant.”

What to Watch for in 2024

As noted above, looking ahead to 2024, litigators are anticipating how the Pennsylvania Supreme Court will rule on the issue of coverage under business interruption policies as applied to the government ordered closures of businesses during the COVID-19 pandemic.

Auto accident litigators are anticipating a decision from the Pennsylvania Supreme Court on the validity of the regular use exclusion found in automobile insurance policies. Keep an eye out for a decision in the high court in the case of Rush v. Erie Insurance Exchange.

In terms of any other anticipated events in 2024, it is noted that on May 4, 2024, the Tort Talk blog, found at www.TortTalk.com and which is utilized by civil litigators as a resource for streamlined legal research on a wide variety of civil litigation topics, will celebrate 15 years of providing free updates on the law to both the bar and the bench.

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.

Article: Pennsylvania Supreme Court Shows Teasing Signs of Moderation

This article of mine was recently published in the Pennsylvania Law Weekly and is republished here with permission.

Pennsylvania Supreme Court Shows Teasing Signs of Moderation


June 01, 2023


By Daniel E. Cummins | June 01, 2023 at 11:34 AM

Over the past five years or so, the Pennsylvania Supreme Court has been issuing one decision after another, along with civil litigation rule changes, most, if not all of which, have greatly favored personal injury plaintiffs’ causes.

With these plaintiff-friendly decisions and rule changes handed down by the Supreme Court, there appeared to be no end in sight to the ability of the plaintiffs bar to continue to score drastic changes in the law in favor of efforts to secure compensation for injured parties.

However, as noted below, a couple of recent decisions by the Pennsylvania Supreme Court have tempered this sense of futility for some.

The Pendulum Shift in Favor of Plaintiffs

Over the past several years, the great number of plaintiff-friendly decisions and rule changes issued by the Supreme Court has caused the pendulum of change in Pennsylvania civil litigation precedent to swing so far in favor of plaintiffs that it seems that celebrating plaintiffs attorneys should be ducking so as not to get hit by that pendulum as the good times roll on.

One result of these plaintiff-friendly decisions by the Supreme Court has been that injured parties have realized even wider avenues to secure money in civil litigation matters. Another result is that plaintiffs have been emboldened in their settlement postures with the confidence that, under the current climate, if any legal issues in their case have to go up the appellate ladder to the Supreme Court, the plaintiff will more than likely prevail.

In terms of plaintiff-favorable rule changes in personal injury civil litigation matters, the Supreme Court has expanded the Rules of Civil Procedure relative to the proper venue for medical malpractice actions. This, as expected, has led to an increase of the filings of such cases in Philadelphia County as compared to before.

Another plaintiff-friendly change in the venue rules was handed down by the Supreme Court by way of its decision in the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021). In the Fox decision, the plaintiff was successful in persuading the Supreme Court to rule that internet-based defamation claims can be filed in any county where the defamatory statements were viewed and understood as defamatory.

In another rule change, the Pennsylvania Supreme Court upped the maximum limit on the amount of money that a plaintiff can recover in money damages at trial on appeal from an arbitration proceeding.

Other recent plaintiff-friendly decisions by the Supreme Court have been described as resulting in “seismic” changes in decades-long Pennsylvania precedent. For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Supreme Court to overrule long-standing precedent that limited the liability exposure of PennDOT in personal injury matters. In Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Supreme Court again assisted the plaintiffs bar in generating additional potential lawsuits by overturning 30 years of precedent that had previously upheld governmental immunity in personal injury matters in a more expansive way.

Also, in almost gleeful language in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019), the Supreme Court overruled the 20 years of precedent that had previously and repeatedly upheld the validity of the household exclusion in the UIM context of personal injury automobile accident matter. As noted below, in a more recent decision on the validity of the household exclusion, that plaintiff-friendly ruling in Gallagher was found to be so inappropriately expansive in its effort to eradicate that exclusion across the board that even the high court acknowledged that it had to draw back on Gallagher a bit.

A Return to Moderation?

In two recent decisions, both of which were expected to result in plaintiff-favorable rulings, the Supreme Court surprised some with opinions that were not plaintiff-friendly.

In the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Supreme Court, without acknowledging that it had attempted to eradicate the household exclusion in UIM cases across the board in the Gallagher v. Geico case, rejected the argument by the plaintiff that the Gallagher decision should be read as having served to invalidate the exclusion in all cases in Pennsylvania. In Mione, the court instead 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.”

The court instead confirmed in the Mione decision that the Supreme Court “continues to reject the view that household vehicle exclusions are ipso facto unenforceable.”

This decision came as a welcome surprise to some and a hopeful harbinger that the court was stepping away from its penchant for decisions that resulted in seismic, plaintiff-friendly changes to long-standing precedent in Pennsylvania law.

In the other example of a recent Supreme Court decision that seemed to indicate that the court may be signaling a return to more balanced application of long-standing law, the court addressed issues of the stacking of UIM coverage in automobile insurance personal injury actions.

In the case of first impression of Franks v. State Farm Mutual Automobile Insurance, 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 another written waiver of stacked coverage from the insured under Section 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, the court found there was no requirement under a plain application of the applicable law for the insurance company to secure a new waiver form.

Might the above decisions by the plaintiff-friendly Pennsylvania Supreme Court be a signal that the pendulum had finally reached its apex and was going to start its descent back toward moderation relative to issues in personal injury civil litigation matters?

Not So Fast

On the heels of the above recent decisions indicating a possible step back toward at least moderate decisions in personal injury civil litigation matters, the Pennsylvania Supreme Court then recently issued yet another very plaintiff-friendly decision in the case of Brown v. City of Oil City, No. 6 WAP 2022 (Pa. May 16, 2023) (Op. by Todd C.J.)(Mundy, J., Dissenting). With this decision, the Supreme Court greatly expanded the ability of plaintiffs to bring lawsuits against construction contractors for personal injuries sustained on a property by allowing such claims to be brought even if the contractor had completed his work on the property years before.

In Brown, the plaintiff allegedly tripped and fell on deteriorated sections of concrete steps outside of a library, which steps had been replaced by a contractor years before the incident. The plaintiff sued the owner of the library as well as the contractors who performed work on the exterior stairs to the library.

The case went up the appellate ladder and the Pennsylvania Supreme Court addressed the scope of Section 385 of the Restatement (Second) of Torts, which is titled “Persons Creating Artificial Conditions on Land on Behalf of Possessor, Physical Harm Caused After Work Has Been Accepted.”

The issue before the court was whether Section 385 imposed liability upon a contractor to a plaintiff whenever the contractor, during the course of his or her work for a possessor of land, creates a dangerous condition on the land that injures the plaintiff, even though, at the time of the injury, the contractor was no longer in possession of the land, and the possessor of the land was aware of the dangerous condition.

After reviewing the law, the Supreme Court concluded that a contractor may indeed be subjected to liability to plaintiffs under Section 385 under such circumstances. Obviously, this decision is another one in which the Supreme Court once again increased the number of parties plaintiffs may sue and widened the scope of possible monetary recoveries for injured-party plaintiffs.

So You’re Saying There’s a Chance?

One benefit of the two recent moderate decisions issued by the Pennsylvania Supreme Court in the Mione case and the Franks case is that those decisions give rise to some uncertainty, however minimal, as to which way the Pennsylvania Supreme Court may rule on a personal injury civil litigation issue before it. While it appears that the Supreme Court will likely remain plaintiff-friendly for the foreseeable future, the two recent decisions in which the defense argument prevailed serves to restore some faith in a belief that a plaintiff-favorable decision on any given issue before the court may not be automatic.

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.

Judge Mannion of Federal Middle District Upholds Regular Use Exclusion in the Third Party Liability Coverage Context

In the case of Burton v. Progressive Adv. Ins. Co., No. 3:21-CV-01522-MEM (M.D. Pa. March 20, 2023 Mannion, J.), the court addressed cross-Motions for Summary Judgment based upon a regular use exclusion.

This matter arose out of a motor vehicle accident. At the time of the accident, the Defendant driver was insured by an automobile insurance policy issued by the Defendant, Progressive Advanced Insurance Company. Under that policy, there was a regular use exclusion that precluded coverage to any insured who was operating a vehicle that was furnished or available for an insured’s regular use but which was not covered under the Progressive policy.

In other words, under that provision, Progressive was precluding coverage for accidents involving a vehicle that was regularly available for the insured's use but for which the insured was not paying Progressive any premiums for any insurance coverage.    

More specifically, on the date of the subject accident, the Defendant driver was driving a vehicle that was owned by her brother and which was not covered under the Progressive policy.

According to the record before court, the Defendant driver had her brother’s permission to be driving his vehicle at the time of the accident because she was having mechanical issues with her own vehicle. The Defendant driver noted that she had been driving her brother’s car for about a month or two before the incident. Other evidence in the case indicated that the Defendant driver was using the vehicle at issue on a daily basis and at her discretion.

Progressive denied coverage on the claims presented under an argument that the vehicle that the Defendant driver was operating was not covered under the Progressive policy and given that the vehicle that the Defendant driver was driving was allegedly furnished and available for her regular use and, therefore, fell under the regular use exclusion.

The Plaintiff cited the case of Rush v. Erie Insurance Exchange and asserted that the regular use exclusion should be deemed to be unenforceable under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL).

The Defendant attempted to distinguish the Rush case and other cases as being distinguishable as UIM cases which reviewed the regular use exclusion under §1731 of the MVFRL, which statute governs the scope of UIM claims.

Judge Mannion noted that this case did not involve a UIM claim and that, therefore, §1731 did not apply. Rather, this case involved a request for liability coverage by the Defendant driver.

The court noted that the Plaintiff was requesting the court to extend the holdings of the Rush case, and another case cited in this Opinion, to cover liability claims as well. Judge Mannion noted that there was no support under Pennsylvania law for the requested extension of the law of those decisions to this fact pattern. As such, the Plaintiff’s Motion for Summary Judgment was denied.

The court also rejected the Plaintiff’s more specific factual arguments that the type of use of the vehicle by the Defendant driver was not regular, but rather, was incidental or temporary while the Defendant driver’s car was being repaired. The court rejected this claim after reiterating that the record before the court established that the Defendant driver had free access to use the car at her discretion over an extended period of time.

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

Trial Court Follows Mione and Upholds Household Exclusion

In the case of Erie Insurance Exchange v. Burnsworth, No. 325-CV-2021 (C.P. Somerset Co. March 29, 2023 Geary, P.J.), the court upheld a household exclusion under an Erie Insurance policy and confirmed that the carrier did not have any obligation to provide underinsured motorist benefits to the Plaintiffs.

The court additionally found that the Plaintiff had no obligation to provide UIM benefits to the Plaintiff based upon the Plaintiff’s rejection of UIM coverage for the motorcycle involved in the subject accident.

At the time of the accident, the Plaintiffs were on a motorcycle when they were rear-ended.

That motorcycle was insured by Progressive Insurance Company. Under that policy, the Plaintiff had rejected UM and UIM coverage for the motorcycle.

The Plaintiff also had a separate automobile insurance policy with Erie Insurance that covered their automobiles. That policy had a household vehicle exclusion. The motorcycle was not insured under the Erie Insurance policy.

After settling the personal injury claim against the tortfeasor arising out of the accident during which the Plaintiffs were on their motorcycle, the Plaintiffs filed a claim for UIM benefits under their Erie Insurance policy that covered the other vehicles in their household.

Erie rejected the claim and filed this declaratory judgment action requesting that the court find that the Plaintiffs were not entitled to UIM benefits for the motorcycle accident given that the motorcycle was not covered under the Erie Insurance policy and given that the Plaintiff had rejected UIM coverage under the separate policy that covered the motorcycle.

The decision in this case was the result of a Motion for Judgment on the Pleadings filed by the carrier.

Judge Geary of the Somerset County Court of Common Pleas noted that, although the Plaintiffs were relying upon the case of Gallagher v. Geico, the Pennsylvania Supreme Court had recently resolved the same types of issues as presented in this matter in its decision in the case of Erie Insurance v. Mione, No. 89 MAP 2021 (Pa. Feb. 15, 2023).

Essentially, this trial court judge agreed with the Pennsylvania Supreme Court in Mione that the Plaintiffs are not entitled to UIM coverage in cases where UIM coverage cannot be stacked given that UIM coverage was rejected with respect to the vehicle involved in the accident.  The court found that, in this regard, the requirements under 75 Pa. C.S.A. §1738 regarding securing a waiver of stacking are “simply not implicated.” See Op. at 2. quoting Mione.

Judge Geary emphasized in this Erie v. Burnsworth Opinion that, as “made clear” by Pennsylvania Supreme Court in the case of Mione, “when an insured seeks UM/UIM benefits under a household policy but does not have UM/UIM coverage on the vehicle that he or she was occupying at the time of the collision…the household vehicle exclusion serves as an unambiguous preclusion of all UM/UIM coverage (even unstacked coverage) for damages sustained while operating an unlisted household vehicle."

In short, the court ruled that UIM coverage under the Erie policy could not be stacked onto the motorcycle because the motorcycle was not a covered vehicle under the Erie Insurance policy and given that the Plaintiffs had waived UM/UIM coverage for the motorcycle under the Progressive policy.

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


I send thanks to Attorney Joseph Hudock of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Rauch P.C. for bringing this case to my attention.

Source of image:  Photo by MateuszDach on www.pexels.com.

Eastern District Court Declines to Apply Household Exclusion in UIM Context

In the case of Mid-Century Ins. Co. v. Werley, No. 21-CV-5592 (E.D. Pa. March 30, 2023 Smith, J.), the Eastern District Federal Court addressed the issue of whether or not a household vehicle exclusion in an automobile insurance policy excluded UIM coverage for a Plaintiff in a motor vehicle accident matter.

In this case, Judge Edward G. Smith of the Eastern District Federal Court took into account, and distinguished the recent Pennsylvania Supreme Court decision in the case of Erie Ins. Exch. v. Mione, in which the Pennsylvania Supreme Court confirmed that the Household exclusion remains valid in certain scenarios.

In this matter, the injured party had UIM coverages available under other household policies.  However, he was on the family's dirt bike at the time of the accident.  The accident was allegedly caused by an allegedly underinsured motorist while the dirt bike was being operated in an off-road fashion.

The issue was whether, where the host vehicle (the dirt bike) was uninsured, was there any policy upon which the injured party could stack UM/UIM benefits?

The Court noted that it could find no case on point.

Here, the Court found that since insureds did not knowingly waive inter-policy stacking on the policy at issue, they were entitled to inter-policy stacking.

Judge Smith went on to state that he was also constrained to hold that enforcing the household vehicle exclusion in this case would have amounted to an impermissible de facto waiver of stacking in violation of the Pennsylvania Motor Vehicle Financial Responsibility Law.

As such, the court granted the injured party’s Motion for Summary Judgment, denied the carrier’s Cross-Motion for Summary Judgment, and entered a declaratory judgment in favor of the Plaintiffs and against the carrier. 

The court held that the carrier had a duty to provide UIM coverage under the applicable policy for injuries allegedly sustained in the underlying accident.

In the end, Judge Smith urged the General Assembly to reexaming the MVFRL stacking provisions in order to bring clarity to the recurring issues faced by the Courts in this context.    

Anyone wishing to review a copy of this decision may click this LINK.  Check out Judge Smith colorful opening lines of his Opinion.

The Court's companion Order can be viewed HERE


I send thanks to Attorney Peter F. Schuchman, Jr. of the Wyomissing, Pa law office of Kozloff Stoudt for bringing this case to my attention.

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.