INSURANCE-FINANCIAL RESPONSIBILITY LAW-UIM-EXCLUSIONS-REGULAR USE EXCLUSION

Jones v. Erie Ins. Exch., 2022 Pa. Super. LEXIS 379 (Pa. Super. September 7, 2022) (Murray, J.)  Trial court granted Erie’s motion for judgment on the pleadings on UIM claim based on regular use exclusion.  Appeal followed.  The question here is whether the “regular use” exclusion may not be enforced because to do so would conflict with the court’s decision in Rush v. Erie Insurance Exchange, 265 A.3d 794 (Pa. Super. 2021), and whether the “regular use” exclusion may not be enforced because it operates to limit the scope of underinsurance motorist coverage required by the law, and finally, whether the “regular use” exclusion is unenforceable because it is contrary to public policy.  Erie argues that Rush is contrary to Pennsylvania Supreme Court authority.  The Court found that the lower court erred in granting Erie’s motion for judgment on the pleadings.  Its right to succeed was not certain.  The case was reversed.  As was stated in the federal case, because the Superior Court and Rush held that the regular use clause of an insurance contract contravenes § 1731 of the Motor Vehicle Financial Responsibility Law, the court is bound by that decision.  Erie argues that there are two other cases that replace Rush.  After a thorough discussion of those other cases, Williams v. GEICO, 32 A.3d 1195 (Pa. 2011) and Burstein v. Prudential, 809 A.2d 204 (Pa. 2002) do not replace Rush.  Williams and Burstein held that the regular non-use exclusion is not void as against public policy.  The court finds that the Pennsylvania Supreme Court’s analysis in Williams clearly focused its analysis on whether the regular use exclusion in the UIM benefits insurance contract generally violated public policy and specifically the policy underlying the Financial Responsibility Law.  Black and Burstein determined that the regular use exclusion did not violate public policy.  In Jones, the court reviewed Burstein and revealed that the Supreme Court did not consider nor discuss whether regular use exclusion in UIM policy expressly conflicted with the Financial Responsibility Law.  Like Williams, the Burstein decision focused solely on whether the regular use exclusion violates public policy.  Neither Burstein nor Williams analyzed whether a regular use exclusion found in UIM portion of an insurance policy expressly violates a specific provision of the Financial Responsibility Law.  As discussed, the Williams analysis with respect to 1731 is dicta and not binding on the court.