Superior Court Upholds Application of Regular Use Exclusion

In the case of Erie Insurance Exchange v. Russo, No. 1138 MDA 2024 (Pa. Super. July 22, 2025 Murray, J., King, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the court affirmed the trial court’s decision in a declaratory judgment action brought by the UIM carrier denying UIM coverage through the application of the regular use exclusion present in the Plaintiff’s automobile insurance policy.

This matter arose out of a motor vehicle accident that occurred during the course and scope of the Plaintiff’s employment. At the time of the accident, the Plaintiff was operating a vehicle that had been supplied by his employer.

After recovering UIM benefits under his employer’s policy, the Plaintiff sought UIM benefits under his personal automobile insurance policy. 

The personal automobile insurance carrier filed this declaratory judgment action and asserted that the regular use exclusion supported a denial of the requested coverage.

The trial court had otherwise ruled that there was no “stacked” underinsured motorist coverage available on the Plaintiff’s personal automobile insurance policy atop of the UIM benefits recovered under the Plaintiff’s employer’s vehicle policy.

The appellate court affirmed the trial court’s finding that the Plaintiff was not an “insured” under the employer’s policy for purposes of the Motor Vehicle Financial Responsibility Law. As such, the Plaintiff could not “stack” benefits under his personal automobile insurance policy in any event.

The Superior Court emphasized that merely receiving UIM coverage for injuries sustained as an occupant in a first priority vehicle does not make one “an insured” under that vehicle’s policy such that the person would then be entitled to stack one’s personal automobile policy UIM coverage.

Accordingly, the appellate court ruled that, because the Plaintiff was not entitled to stack his personal policy UIM coverage with the UIM coverage he received from his employer’s policy, the Plaintiff could not establish any error in the trial court’s declaration that there existed no UIM coverage available to the Plaintiff under his personal automobile insurance policy.

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


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (Aug. 13, 2025).

Federal Court Addresses Whether Nationwide's "One Product" Policy is a New Policy or a Renewal Policy

In the case of McGuire v. Nationwide Aff. Ins. Co. of America, No. 2:23-CV-01347-NR (W.D. Pa. March 6, 2025 Ranjam, J.), the court denied the carrier’s Motion for Reconsideration of the court’s previous decision relative to a UM/UIM coverage issue.

With this decision denying the carrier’s Motion for Reconsideration, the court maintained its previous position on whether Nationwide’s “One Product” policy was a new policy or a renewal of a prior policy.

In the court’s eyes, several of the “clarifications” in the One Product policy amounted to changes that reduced the amount of coverage from the prior policy. In light of this, the court ruled that the One Product policy could not be considered to be a “renewal” policy.

Rather, the court found that the purchase of a One Product policy amounted to the purchase of a new policy and that, therefore, under Pennsylvania law, Nationwide was required, as with any other purchase of UM or UIM coverage, to provide its insureds with a new stacking waiver form to execute under 75 Pa. C.S.A. §1738(c).

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

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

Superior Court Addresses When Auto Insurance Carrier Must Present Insured With New UIM Coverage Selection Forms

In the case of Goodville Mut. Cas. Co. v. McNear, No. 861 MDA 2023 (Pa. Super. Feb. 26, 2025 Nichols, J., King, J., and Sullivan, J.), the court affirmed a trial court decision that an insurance company was not obligated to obtain new UIM coverage selection forms whenever an insured added vehicles to their policy.

According to the Opinion, back in 2012, the insured initially signed an election form for less than full UIM coverage. More specifically, the insured selected benefits of $50,000.00 per person, $100,000.00 per accident stacked across three (3) vehicles covered by the policy.

The insured then renewed their policy ever six (6) months and, between 2012 and 2018, the added and removed vehicles, with policy covering as many as four (4) and as few as two (2) vehicles.

The carrier did not obtain new limited UIM election forms whenever the insureds added vehicles to the policy. The court also noted that the insureds never affirmatively requested any changes to their benefits.

By the year 2018, the insured’s policy again covered three (3) vehicles. In 2018, one of the insureds was involved in an accident.

The insureds covered the policy limits from the tortfeasor’s vehicle. The insured then filed a UIM claim. The carrier paid the UIM benefits of $50,000.00 stacked on the three (3) vehicles covered on the policy.

The insured disputed the amount paid and asserted that the addition of vehicles to their policy constituted “new purchases” coverage which required the carrier to obtain new UIM elections each time. The Plaintiffs attempted to assert that, because the carrier failed to obtain new UIM election forms, the carrier should be forced to pay full UIM benefits up to the bodily injury limits of their policy, i.e., $250,000.00 stacked across three (3) vehicles, or $750,000.00.

The carrier rejected that claim and commenced this declaratory judgment action. 

As noted, the Superior Court affirmed the trial court’s decision rejecting the Plaintiff’s arguments. The Pennsylvania Superior Court noted that 75 Pa. C.S.A. §1734 requires only that the carrier “issue” UIM coverage in the amount selected by a named insured in writing signed by a named insured.

The court also noted that 75 Pa. C.S.A. §1791 permits the carrier to rely upon the elections and notices regarding the availability of UIM benefits at the time of the application for original coverage.

Here, because it was undisputed that the insured had completed a “sign-down” form selecting limited UIM coverage, and given that neither named insured on the policy affirmatively reflected any change, in writing, to the UIM coverage, and given that the insureds did not object to any alleged defects in the §1791 notices they received at the time the insured applied for the coverage, the appellate court ruled that the original “sign-down” form remained effective at the time the Plaintiff was involved in the subject accident.

The court additionally noted that, pursuant to §1791, the insurance company was under no obligation to provide additional notices regarding the limited UIM benefits the insured had originally selected. In the end, the court ruled that, once the insured elected limited UIM benefits when applying for the original policy, the insurance company was entitled to presume that the insured selection remained effective until affirmatively changed by a named insured.

Accordingly, the Superior Court affirmed the entry of a declaratory judgment in favor of the carrier.

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (March 18, 2025).

Seismic Change Caused By Superior Court Decision That Allows Plaintiffs To Recover Liability and UIM Coverage From the Same Policy

The year 2025 is starting off with a Pennsylvania Superior Court decision that will cause a change of seismic propotions in automobile UM/UIM litigation going forward.

In the case of Erie Insurance Exchange v. Baluch, No. 2025 Pa. Super. 2 (Pa. Super. Jan. 2, 2025 Panella, P.J.E., Lane, J., and Stevens, P.J.E.)(Op. by Panella, P.J.E.), the Pennsylvania has ruled that, in certain circumstances a Plaintiff can recover both liability and UIM coverage from the same policy.

The appellate court framed the issue in this case as whether an insured is entitled to stacked UIM benefits although another household policy excludes vehicles that are insured under the policy from the definition of “underinsured motor vehicles.”

According to the Opinion, in April 2022, the Plaintiff, while riding as a passenger on a motorcycle, suffered serious bodily injury from a single vehicle motorcycle accident.

Two insurance policies issued by Erie were relevant to this case. The Plaintiff’s stepfather and mother were named insureds on a policy that covered the motorcycle and other vehicles (“Policy 1”). As a member of her parent’s household, the Plaintiff was an insured of Policy 1. Policy 1 provided $100,000 per person in liability coverage and $100,000 per person in uninsured motorist (“UM”) and UIM coverage.

The Plaintiff also had a separate policy for her personal vehicle (“Policy 2”). Policy 2 provided $100,000 in UM/UIM coverage.

The Superior Court noted that, “[i]mportantly,” under both Policy 1 and Policy 2 the insureds had selected stacking UIM coverage.

According to the Opinion, Erie paid out to the Plaintiff the $100,000 liability coverage from Policy 1 and $100,000 in UM/UIM coverage from Policy 2. However, Erie denied the Plaintiff’s claim seeking $100,000 in UM/UIM coverage from Policy 1 through stacking.

Under Policy 1, vehicles that are insured under the policy were excluded by the language of the policy from the definition of “underinsured motor vehicle.”  It is this exclusion that Erie relied upon to deny the Plaintiff UIM benefits from Policy 1.

The Superior Court disagreed with the carrier’s position, as well as the trial court’s position, that the resolution of the issue presented was controlled by Wolgemuth v. Harleysville Mut. Ins. Co., 535 A.2d 1145 (Pa. Super. 1988) (en banc) and Newkirk v. United Servs. Auto. Ass’n, 564 A.2d 1263 (Pa. Super. 1989).

The Superior Court noted that the Wolgemuth and Newkirk decisions stand for the proposition that liability coverage and primary underinsured motorist (“UIM”) coverage cannot come from the same, single policy. The Superior Court in this Erie Insurance v. Baluch case emphasized that the Wogelmuth and Newkirk cases addressed only a single insurance policy, not any issues of stacked coverage between two or more policies.

The Superior Court distinguished this Erie Insurance v. Baluch case by noting that this Baluch case involved secondary UIM coverage on another vehicle in the household that was stacked on top of the primary UIM coverage from a separate policy that actually covered the vehicle/motorcycle that was involved in the accident.

The Superior Court reasoned that when an insured has their own motor vehicle insurance policy that provides stacked UIM coverage, under Pennsylvania’s Motor Vehicle Financial Responsibility Law, they are entitled to stack UIM coverage from other household policies unless they expressly choose to waive stacked coverage. See 75 Pa.C.S.A. § 1738(a).

In this regard, the Superior Court cited favorably to the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019) and related cases as precedent that prevents an automobile insurance carrier from having policy language that acts as a de facto waiver of stacked coverage where the MVFRL requires carriers to secure written waivers of stacked coverage from its insureds.

Here, the Superior Court found that the insured Plaintiff elected and paid for stacked UIM coverage under her own separate policy. As such, Erie Insurance Exchange’s limited definition of “underinsured motor vehicle,” in the eyes of this Superior Court panel, acted as a disguised waiver of UIM coverage and the Court therefore found the exclusionary language under the policy to be invalid as conflicting with the requirements of the MVFRL relative to UIM coverage.

Accordingly, the Superior Court ruled that, because Erie’s policy provision prevented the Plaintiff from recovering stacked UIM benefits for which she paid, and given that the trial court had erred in concluding that the present case was controlled by Wolgemuth and Newkirk, the Superior Court reversed the trial court’s decision and entered a ruling in favor of the Plaintiff.

In the end, the Superior Court reasoned that, under Pennsylvania law, an injured party should be entitled to receive the coverage for which they paid. Here, the Plaintiff paid for stacked coverage and, in the eyes of this panel, was entitled to such coverage.

Anyone wishing to review this Opinion may click this LINK.

I send thanks to Scott Cooper, Esq. of the Harrisburg, PA law firm of Schmidt Kramer, as well as Adam T. Wolfe, Esq. and Ally Sholley, Esq. of the Enola, PA law firm of Shollenberger, Januzzi & Wolfe for bringing this notable decision to my attention.

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.

Carrier Faulted For Improperly Denying Stacked UIM Coverage

In the case of McGuire v. Nationwide Affinity Ins. Co., No. 2:23-CV-1347-NR (W.D. Pa. Sept. 11, 2024 Ranjam, J.), the Western District Court addressed stacking issues relative to a UIM claim.

The parties agreed that the insured on the policy, who was the father of the injured party, had waived stacking coverage on that policy.

However, the injured party argued that the waiver at issue had applied to an earlier policy, and not the policy that he sought coverage under for the subject accident.

Nationwide disagreed and asserted that the operative policy was merely a “renewal” of the prior policy to which the stacking waiver already applied.

After comparing the two (2) policies, the court concluded that the operative policy of insurance was not a “renewal” policy.  Accordingly, the court granted Plaintiff’s Motion for Summary Judgment and held that Nationwide had breached its contract by denying stacking based on his father’s prior waiver.

Given that the Plaintiff had effectively withdrawn his bad faith claim, the court granted Nationwide’s Motion relative to that claim only.

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

I send thanks to Attorney Anthony Gianetti of the Pittsburgh office of Swartz Culleton, P.C., for bringing this case to my attention.

Pennsylvania Superior Court Provides Ruling on Stacked UIM Coverage Issues

In the case of Baclit v. Sloan, No. 793 WDA 2023 (Pa Super. Aug. 16, 2024 Lazarus, P.J., Panella, P.J.E., and Beck, J.) (Op. by Beck, J.), the Pennsylvania Superior Court addressed an issue regarding UIM stacking and coverage in a case it labeled as a one of first impression.

The Plaintiff sustained injuries while aiding another driver who had been involved in a single car accident. The driver who had been involved in an accident had crashed into a retaining wall of a bridge.

The Plaintiff, who had been driving a vehicle owned by his mother, had stopped and gotten out of his vehicle to provide assistance.  While the Good Samaritan Plaintiff was assisting the injured driver of the other vehicle, the Plaintiff fell from the bridge retaining wall and suffered injuries that resulted in his death.

The liability carrier for the driver who had crashed into the bridge tendered its $100,000.00 limits to the Plaintiff’s estate.

The Plaintiff’s estate also recovered the UIM benefits available under the vehicle he was operating which was owned by his mother.

At the time of the incident, the Plaintiff’s decedent was also insured by Progressive relative to his separate motorcycle, which policy included $15,000.00 in UIM coverage. Progressive paid those limits in accordance with the terms of that policy.

At the time of his death, the Plaintiff’s decedent was also the owner of a trucking business. Under that trucking business, there was a commercial automobile insurance policy under which the company was the named insured and the Plaintiff's decedent was designated as a driver.

There was no waiver of stacking signed by the deceased under that policy. The decedent had paid the premiums for stacking.

Under the facts of this case, the insurance company  that covered the decedent's business had charged a premium for stacking when there was just one (1) vehicle on the policy.  That carrier then denied that stacking applied.  The Plaintiff asserted that this position by the carrier should have been viewed as an improper de facto waiver of stacking.

Both the trial court and the Superior Court cited to the Pennsylvania Supreme Court of Gallagher v. Geico and emphasized that the Plaintiff's decedent paid increased premiums to obtain stacked UIM benefits under the policy and, as such, reasonably expected to receive those benefits.

Here the Superior Court reasoned that, unless the Plaintiff's decedent was a named insured under the policy, that carrier’s limited definition who can constitute an “insured’ for purposes of collecting stacked UIM benefits under this single vehicle business automobile insurance policy would violate the Motor Vehicle Financial Responsibility Law. The court found that this was so given that the carrier, based on its argument, would be asserting a waiver of stacking despite the premium charged and paid, without having secured any signed waiver of such stacking coverage of the injured party.

Ultimately, the Pennsylvania Superior Court ruled that the decedent was an insured under the policy and was entitled to stacked UIM coverage.

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


I send thanks to Attorney Walt McClatchy of McClatchy Law in Philadelphia for bringing this case to my attention.

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.

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

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

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

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

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

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

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

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

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

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

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

Article: 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.

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.

Does The Issuance of a New Policy Number on an Automobile Insurance Policy Constitute the Creation of a New Policy?

In the case of Shea v. Nationwide Ins. Co. and Davis, No. 3:22-CV0-00494-MEM (M.D. Pa. April 6, 2023 Mannion, J.), Judge Malachy E. Mannion of the United States District Court for the Middle District of Pennsylvania adopted the Report and Recommendation of Chief Federal Magistrate Judge Karoline Mehalchick and ordered that this declaratory judgment action be remanded to state court for review by the state court.

The legal issue presented in this matter addressed “the novel question or whether or not the issuance of a new policy number constitutes the establishment of a new policy requiring new sign down forms.”

The court determined that this issue presented a novel and unsettled issue of state law. As such, under the factors set forth in the case of Reifer v. Westport Ins. Corp., 751 F.3d 129 (3d. Cir. 2014), the court decided to remand the case to the state court for a decision.  The case was remanded to the Luzerne County Court of Common Pleas.

Anyone wishing to review a copy of the Report and Recommendation of Judge Mehalchick and well as the decision of Judgment Mannion approving the Report and Recommendation may click this LINK.

Plaintiff's counsel in this case was Attorney Neil T. O’Donnell and Attorney Gerard Gaughan of the Kingston, PA law firm of O’Donnell Law Offices.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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