INSURANCE-FINANCIAL RESPONSIBILITY LAW-LIABILITY COVERAGE-REGULAR USE EXCEPTION

Burton v. Progressive Advanced Ins. Co., 2023 U.S. Dist. LEXIS 46793, 2023 WL 2577237 (M.D. Pa. March 20, 2023) (Mannion, D.J.) Joyce Frisbie was involved in a motor vehicle accident for which she was responsible. Burton sued. Frisbie was insured by Progressive. The policy provided $250,000 per person/per accident subject to an exclusion that the covered insured person for bodily injury or property damage other than a covered auto for which this coverage has been purchased. The only auto listed for Ms. Frisbie was a Honda Civic. However, at the time she was driving her brother’s Tahoe. The Tahoe was insured by an Erie policy, which provided $100,000 per person. Frisbie assigned her rights to pursue claims against Progressive. Plaintiff sued Progressive, but the court found that the regular use exception applied, even though it would not apply for underinsurance. With the above undisputed facts in mind, before the court are the parties’ cross motions for summary judgment. In their motion, citing to Rush v. Erie Ins. Exchange, 2021 PA Super 215, 265 A.3d 794 (Pa.Super. 2021), and this court’s decision in Evanina v. First Liberty Ins. Corp., 587 F. Supp. 3d 202, 2022 WL 584499 (M.D.Pa. 2022), the plaintiffs argue that the regular use exclusion is unenforceable as it limits the scope of liability coverage that the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”) requires. As the defendant argues, however, both Rush and Evanina were underinsured (“UIM”) claims cases, wherein the regular use exclusion was found to be unenforceable as being contrary to §1731 of the MVFRL which governs the scope of UIM claims. This case does not involve a UIM claim and, by extension, §1731 does not apply. Instead, this case involves a claim for liability coverage. Without any supporting authority, the plaintiffs ask this court to extend the holdings of Rush and Evanina to their liability claim. The plaintiffs have provided, and the court has found, no support under Pennsylvania law to do so. The plaintiff’s motion for summary judgment will be denied on this basis. Given the facts of record, the court finds that the Tahoe was available for Ms. Frisbie’s regular use at the time of the accident and therefore the plaintiffs cannot recover against the defendant. On this basis, the defendant is entitled to summary judgment.