In Conti v. Erie Insurance Exchange, (Schuylkill County 09/25/20), Judge Russell upheld a “regular use” exclusion in the Erie policy. The plaintiff was operating a police vehicle during his employment as a police officer. He was responding to an accident scene when the third-party defendant tortfeasor ran a stop sign and struck his vehicle. The carrier for the tortfeasor tendered its limits. Conti then sought UIM coverage under his personal Erie auto policy. Erie asserted the “regular use” exclusion in the policy. The exclusion provided, “(t)his insurance does not apply to………11. bodily injury to ‘you’ or a ‘resident’ using a nonowned ‘motor vehicle’ or a nonowned ‘miscellaneous vehicle’ which is regularly used by ‘you’ or a ‘resident’ but not insured for Uninsured or Underinsured Motorists coverage under this policy.”
Judge Russell relied on the similar precedent from Williams v. GEICO, 32 A.3d 1195 (Pa. 2011) and found that the regular use exclusion in the Erie policy was clear and unambiguous and the Court upheld the exclusion. Judge Russell further declined to follow the Pennsylvania Supreme Court’s decision in Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019), which determined the “household vehicle” exclusion violated Section 1738 of the MVFRL by constituting a de facto waiver of stacked uninsured/underinsured motorist coverage. Judge Russell recognized that the Court in Gallagher had specifically limited its decision to the issue/exclusion before it and offered no opinion or comment on the enforceability of any other exclusion to UM or UIM coverage or to coverage in general.
Currently before the Pennsylvania Appellate Courts are multiple “regular use” cases to consider and decide. We anticipate that in the coming months, the Pennsylvania Supreme Court will decide on whether the “regular use” exclusion will remain valid or whether to reverse their previous holding in the Williams case.
Questions regarding this case or this evolving issue can be directed to David Friedman.
