Article by Daniel Twilla, Esq.
The Pennsylvania Supreme Court has held that the “regular use exclusion” is valid, enforceable, and can be applied in the context of uninsured and underinsured motorist coverage. In doing so, the Supreme Court reversed the Pennsylvania Superior Court’s decision that the regular use exclusion violates the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”). See Rush v. Erie Ins. Exch., No. 77 MAP 2022 (Pa. Jan. 29, 2024).
Prior to the Superior Court’s decision in Rush, the Pennsylvania Supreme Court had addressed the regular use exclusion on two occasions, and in both cases had found the exclusion to be valid and enforceable. See Burstein v. Prudential Prop. & Cas. Ins. Co., 809 A.2d 204, 210 (Pa. 2002); Williams v. GEICO, 32 A.3d 1195, 1208 (Pa. 2011). While the Superior Court in Rush attempted to distinguish Burstein and Williams and described the language in those cases as dicta, the Supreme Court disagreed and found the cases to be precedential.
Central to the Supreme Court’s holding is its finding that uninsured and underinsured motorist coverage is not “universally portable.” Rather, the MVFRL provides an order of priority for uninsured and underinsured motorist coverage, the first level of which involves the occupancy of the vehicle involved in the accident. The Supreme Court explained that “[o]nce it is decided that UIM coverage is not universally portable – given the express non-priority of an insured’s UIM policy coverage in Section 1733 and the contrary priority of coverage for first-party benefits – any argument that Section 1731 prohibits exclusions from coverage in the insurance contract must fail. If the MVFRL does not require that UIM coverage follow the insured in all circumstances, then the MVFRL cannot be read to prohibits exclusions from UIM coverage. Consequently, the insurance contract controls the scope of UIM coverage, and the ‘regular use’ exclusion is enforceable.”