Skip to main content


Dayton v. Auto. Ins. Co. of Hartford, 2024 U.S. Dist. LEXIS 73356, 2024 WL 1745041 (M.D. Pa. April 23, 2024) (Mannion, D.J.).

The sole issue in this motion for summary judgment is whether a “regular use” exclusion provision in a motor vehicle insurance policy is unenforceable as contrary to Pennsylvania law.

Alan Dayton was injured in a collision while driving his employer’s truck. The payments he received from the other driver’s and his employer’s insurers did not fully cover his injuries, but his insurer denied additional underinsured motorist coverage for the accident based on this “regular use” provision, which excludes from coverage injuries sustained while occupying a non-insured vehicle available for the insured’s regular use. There is no dispute that this exclusion would apply here, but Dayton argues that it violates Pennsylvania law and is therefore invalid.

The F-150 was insured by Employers Mutual Casualty Insurance Company (“EMC”). (Doc. 24 ¶3; Doc. 27 ¶3). Plaintiff received payment from the other driver’s insurance company and from EMC. (Doc. 26 at 3-4). He also submitted a claim to Defendant for underinsured motorist (“UIM”) coverage benefits.

The MVFRL requires that UIM coverage be offered in any insurance policy. 75 Pa. Cons. Stat. §1731(a), (c). Purchase is optional, but the insured must reject such coverage by signing a waiver prescribed by law. Id. §1731(a), (c), (c.1). And any policy providing UIM coverage must operate by stacking unless the insured rejects stacked limits by signing a waiver. Id. §1738(a), (b), (d)(2).

“[I]nsurance contract provisions are invalid and unenforceable if they conflict with statutory mandates.” Rush, 308 A.3d at 790. Plaintiff in his brief in opposition does not specify which provision of the MVFRL the Regular Use Exclusion violates, but he relies primarily on the decisions in Rush v. Erie Insurance Exch., 2021 PA Super 215, 265 A.3d 794 (Pa. Super. Ct. 2021) and Evanina v. First Liberty Ins. Corp., 587 F. Supp. 3d 202 (M.D. Pa. 2022) (Mannion, J.).

Plaintiff opposes summary judgment on the sole ground that the Regular Use Exclusion, on which basis Defendant denied him coverage, is invalid and unenforceable. (Doc. 26). This argument rests on the Pennsylvania Superior Court’s decision in Rush, 265 A.3d 794, and this court’s prediction in Evanina, 587 F. Supp. 3d 202 (which was based on Rush and Gallagher).

A majority of the Pennsylvania Supreme Court in Rush has now reversed the Superior Court’s decision and concluded that regular use exclusions do not violate §1731 of the MVFRL. Plaintiff also maintains, based on Evanina and Gallagher, that the Regular Use Exclusion violates §1738. But Mione, which was decided after Evanina and clarified the scope of Gallagher, dictates the prediction that the Pennsylvania Supreme Court would conclude that a regular use exclusion which does not deprive an insured of stacked UIM coverage does not violate §1738. Because Plaintiff has no policy on which §1738 would require stacking of the UIM coverage provided in his Policy with Defendant, the Policy’s Regular Use Exclusion does not deprive him of stacked coverage and so does not violate §1738. Therefore, Plaintiff’s arguments that the Regular Use Exclusion violates the MVFRL must be rejected. Accordingly, that exclusion must be enforced, and Defendant is entitled to summary judgment. An appropriate order will issue.