In the Northampton County Common Pleas case of Rush v. Erie Insurance Exchange, No. C-48-CV-2019-1979 (C.P. Northampton. Co. Oct. 1, 2019 Baratta, J.), the court denied a Motion for Judgment on the Pleadings filed by Erie on the Regular Use Exclusion issue.
In Rush, a police officer Plaintiff was injured in the course and scope of his employment and recovered the liability coverage from the tortfeasor and the UIM coverage under the policy that covered the police vehicle. The Plaintiff then sought to recover UIM benefits under his own personal Erie policy which provided for stacked UIM coverage. Erie Insurance denied the claim and asserted the regular use exclusion which has been continually upheld by various courts of the Commonwealth over the past two decades. Erie filed a Motion for Judgment on the Pleadings asserting that Plaintiff is not entitled to underinsured motorist coverage on his Erie policy due to the regular use exclusion provision in the policy. Erie relied upon the case of Burstein v. Prudential, 809 A.2d 204 (Pa. 2002) and other multiple other related cases.
The Plaintiff opposed the Motion and cited, in part, to the rationale from the case of Gallagher v. Geico, 201 A.3d 131 (Pa. 2019) in which the Pennsylvania Supreme Court invalidated the family car exclusion. In Rush, the trial court denied Erie’s Motion for Judgment on the Pleadings and noted that the recent Gallagher case “creates a substantial question of law such that Erie’s right to prevail is not so clear that judgment on the pleadings would be appropriate in this matter.” The Court more specifically noted that the Plaintiff set forth “a cognizable claim that the [carrier’s] application of the regular use exclusion to deny the request for underinsured motorist coverage is in contravention of public policy.”
Questions regarding this case and the evolving issue of the issues presented herein can be directed to David Friedman.
