The longstanding UM/UIM coverage exclusion for claimants operating regularly-used, non-owned vehicles is under scrutiny, again. Whether this exclusion will survive is becoming less clear as various Courts continue to reevaluate the issue, in light of the Gallagher v. GEICO decision.
In addition to the recent decision we summarized of Nationwide v. Fong, there have been multiple decisions that have upheld the Regular Use exclusion. These include: Nationwide Prop. and Cas. Ins. Co. v. Stuber, No. C-48-CV-2019-4957 (C.P. Northampt. Co. May 21, 2020 Sletvold, J.); Erie Insurance Exchange v. King, No. 6937-CV-2019 (C.P. Monroe Co. Jan. 27, 2020 Williamson, J.); and Barnhart v. Travelers, No. 2:19-CV-00523-MJH (W.D. PA Oct. 28, 2019, Horan, J). These cases all cite to the longstanding case law and precedent upholding this exclusion over more than two decades.
However, we noted another pending case in Northampton County of Rush v. Erie Insurance Exchange, No. C-48-CV-2019-1979. In October of 2019, the Motion for Judgment on the Pleadings on regular use had been denied. The matter later moved to cross motions for summary judgment which were recently decided. On July 2, 2020, Judge Baratta held that the regular use exclusion violated the PA MVFRL mainly under the rationale in the Gallagher matter. We anticipate that this decision will be appealed to the Superior Court.
Based upon the inconsistencies in the Courts, the issue will likely be further adjudicated in the Pennsylvania Superior and Supreme Courts in the months ahead. Forry Ullman will keep you apprised of all significant developments.
Please contact David R. Friedman with any further questions on this issue.
