The “regular use exclusion” is commonly included in all Pennsylvania auto insurance policies as a method to preclude benefits while operating vehicles an insured regularly uses or has access to but are not otherwise insured under the policy. The Pennsylvania Supreme Court previously reviewed and affirmed application of the exclusion in Williams v. GEICO Gov’t Emps. Ins. Co., 32 A.3d 1195 (Pa. 2011) and Burstein v. Prudential Prop. & Cas. Ins. Co., 809 A.2d 204 (Pa. 2002).

However, on October 21, 2021, a three-judge panel of the Pennsylvania Superior Court in Rush v. Erie Ins. Exch., 2021 PA Super 215, 265 A.3d 794, 795 (2021), reargument denied (Dec. 28, 2021), appeal granted, 281 A.3d 298 (Pa. 2022) found that the exclusion violates 75 Pa.C.S. § 1731. The Rush Court found that 75 Pa.C.S. § 1731 mandates that insurers provide insureds coverage when the insured satisfies three requirements: The insured must (1) have suffered injuries arising out of the maintenance or use of a motor vehicle; (2) be legally entitled to recover damages from the at-fault underinsured driver; and (3) have not rejected UIM coverage by signing a valid rejection form. Once satisfied, the Rush Court opined that insurers are only relieved of obligations for providing uninsured and/or underinsured benefits in auto insurance policies where the insured waives such coverage by executing a statutory prescribed waiver of UM/UIM benefits. Accordingly, the Rush Court found that the “regular use exclusion” violates 75 Pa.C.S. § 1731 by precluding recovery of uninsured and/or underinsured benefits without a statutory waiver.

The Pennsylvania Supreme Court granted review to weigh in on whether the “regular use exclusion” violates the statutory provisions of the Motor Vehicle Financial Responsibility Laws of Pennsylvania. Oral argument in Rush v. Erie Ins. Ex., 77 MAP 2022 (Pa. 2022) is set to proceed before the Supreme Court in Harrisburg, PA on May 23, 2023 with Glen Shikunov, Esquire of McCormick & Priore arguing before the Supreme Court on behalf of Erie Insurance Exchange.  

The Pennsylvania Supreme Court streams the audio portion of all arguments live on their YouTube channel, which can be found here. Oral arguments are likewise live streamed on the local network, PCN TV, and via their website with a subscription.

For additional questions, please contact Glen Shikunov, Esq. and/or Scott Tredwell, Esq.

This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.