As was the case in Gallagher v. GEICO Indem. Co., 201. A.3d 131 (Pa. 2019), the Pennsylvania Superior Court’s decision in Rush v. Erie Insurance Exchange, 265 A.3d 794 (Pa. Super. 2021) has spawned legal uncertainty and questions about the application of the decision. In the case Burton v. Progressive Advanced Insurance Company, Judge Mannion of the Middle District of Pennsylvania recently clarified the application of the Pennsylvania Superior Court decision Rush v. Erie Insurance Exchange, 265 A.3d 794 (Pa. Super. 2021) to regular use exclusions in automobile liability policies.

In Burton, the claimant was insured under a Progressive automobile liability policy insuring her Honda Civic. A month before the collision, however, she began using her brother’s Chevrolet Tahoe regularly due to mechanical problems with her own vehicle. After an accident caused by the claimant was operating her brother’s Tahoe, Progressive denied the claim for liability coverage because of the regular use exclusion within the liability policy. The plaintiff filed a declaratory judgment suit against Progressive to seek a judicial declaration holding that the regular use exclusion in the Progressive liability policy was unenforceable.

The plaintiff’s first argument was that the Pennsylvania Superior Court’s decision in Rush invalidated the regular use exclusion in insurance policies in Pennsylvania. Specifically, in Rush the Pennsylvania Superior Court found that the regular use exclusion in an underinsured motorist benefits policy violated the Pennsylvania MVFRL. Quickly dismissing the argument, Judge Mannion noted that the specific statutory section of the MVFRL violated in Rush, 75 Pa.C.S. § 1731, relates only to UM/UIM coverage, not to liability coverage. Consequently, 75 Pa.C.S. § 1731 did not apply to that case, and so the Rush rationale did not apply to liability coverage. Judge Mannion found no other support for extending Rush to liability policies and denied the plaintiff’s motion for summary judgment. The exclusion barred coverage, accordingly.

The Burton decision can be found here.

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

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