In the case of Nationwide Affinity Ins. Co. of America v. Fong, No. 2:19-cv-02119-CFK (E.D. Pa. April 28, 2020, Kenney, J.), the court upheld the regular use exclusion, despite the holding in Gallagher.
Jessica Fong was involved in a motor vehicle accident, wherein she was operating a vehicle she owned and which she and her husband insured with Allstate. It is undisputed that Jessica owned the vehicle and that it was available for her regular use. Jessica and her husband had rejected underinsured motorists benefits under their Allstate policy. Jessica and her husband lived with Jessica’s parents. Jessica then presented a claim for underinsured motorists benefits through her parents’ Nationwide policy. Jessica was a “listed driver” on her parent’s Policy with Nationwide.
In his Opinion, Judge Chad F. Kenney of the Eastern District Court of Pennsylvania upheld Nationwide’s reliance upon the regular use exclusion. The court noted that the injured daughter’s claim under the Nationwide policy was for injuries that she suffered while occupying a motor vehicle that the injured daughter owned and which was available for her regular use, and which was not insured under the Nationwide policy. The court noted that the language of the regular use exclusion was not ambiguous and that the plain language of that exclusion clearly applied to bar coverage under the Nationwide policy for any UIM coverage to the injured daughter.
The court also noted that the regular use exclusion was not void on policy grounds. Moreovoer, the court noted that the regular use exclusion had been previously upheld by the Pennsylvania Supreme Court’s holding in the case of Williams v. Geico, 32 A.3d 1195, 1209 (Pa. 2011). In Williams, the Court also held that the regular use exclusion was not void as against public policy.
Notably, Judge Kenney held that the Pennsylvania Supreme Court’s separate decision regarding the household exclusion in the case of Gallagher v. Geico “does not affect Williams’s precedent, as the facts of Gallagher (which voided the household vehicle exclusion) are wholly distinguishable to the facts in the instant matter, as conceded by the Defendants.”
Questions regarding this issue can be directed to David R. Friedman.
