Eberly v. LM Gen. Ins. Co., United States Court of Appeals for the Third Circuit filed August 1, 2024.
OPINION
SCIRICA, Circuit Judge
In this action for underinsured motorist (“UIM”) benefits, the sole issue on appeal is whether a “regular use” exclusion in plaintiff/appellant Cynthia G. Eberly’s policy issued by defendant/appellee LM General Insurance Co. (“LM General”) violates Pennsylvania’s Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A. §§ 1701 et seq. (“MVFRL”). We conclude that it does not, and so we will affirm.
Bryan Eberly was killed in a car crash. He was operating a vehicle owned and provided for his regular use by his employer. He was in the course and scope of his employment. He was privately insured for stacked underinsured motorist coverage, in the amount $250,000 per person, and insured two vehicles. His son, who resided with him, whos’ name was insured on another policy for non-stacked underinsured motorist coverage. Neither policy insured the vehicle Bryan was operating at the time of the accident. Both policies contained a provision excluding coverage for bodily injuries sustained when occupying another vehicle not insured. The court said that the Gallagher opinion is overstated and did not apply. In Gallagher, there were two policies purchased by the same insurer. So, the insurer was on notice of possible stacking. In contrast, in this case, LM General had no way of knowing that stacking might be sought. Second, the household vehicle exclusion in Gallagher operated two bar stacking between policies on all circumstances. Here, the Eberlys can access stacked coverage on their own cars, and their cars did not fit in any of the applicable exclusions to the coverage. Therefore here, the regularly used exclusion is neither an implicit waiver of coverage, nor an improper limitation on the statutorily mandated coverage. Case cited is Williams v. GEICO 32 Atlantic 3d. 1195 (Pa. 2011).
Accordingly, the regular use exclusion does not violate section 1738 of the MVFRL, and so the District Court did not err in granting LM General’s motion for summary judgment and denying Cynthia’s cross-motion.
