Evanina v. The First Liberty Insurance Corporation

• Court: District Court, M.D. Pennsylvania
• Decided: February 25, 2022
• Docket: 3:20-cv-00751
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

KATHLEEN EVANINA and : MICHAEL EVANINA, : CIVIL ACTION NO. 3:20-751 Plaintiffs : (JUDGE MANNION) v. : THE FIRST LIBERTY INSURANCE CORPORATION, :

Defendant :

MEMORANDUM

Pending before the court is the defendant’s motion for summary

judgment. (Doc. 33). Upon plaintiffs’ request (Doc. 46), oral argument was

heard on the matter. Based upon the materials submitted in relation to the

motion and the arguments made before the court, the defendant’s motion

for summary judgment will be DENIED.

By way of relevant background, the instant action arises out of a

motor vehicle accident which occurred on March 12, 2019. At the time of

the accident, plaintiff Kathleen Evanina (“Mrs. Evanina”) was driving a

2014 Ford Fusion which was owned by, registered to, and insured under a

policy of insurance issued to her employer, Revolutionary Home Health, Inc., by Philadelphia Indemnity Insurance Company (“Philadelphia 1 Indemnity”). Also in effect at the time of the accident was an automobile policy issued by defendant First Liberty Insurance Corporation (“First

Liberty”). The Declarations page for that policy identifies Mrs. Evanina and plaintiff Michael Evanina (“Mr. Evanina”) as the Named Insureds, and includes coverage for, among other things, underinsured motorist benefits

(“UIM”)1. In relation to the accident, Mrs. Evanina settled with the tortfeasor, Marc Sickmeier, and his insurance carrier, Infinity Insurance Company, for his bodily injury liability limits of $15,000. She then submitted a first-tier

UIM claim to Philadelphia Indemnity, which had issued the policy to her employer for the vehicle she was driving, and a second-tier UIM claim to First Liberty, her own insurer. First Liberty denied Mrs. Evanina’s second-

tier UIM claim based on the Regular Use Exclusion2 included within its policy.

1 “UIM coverage is triggered when the tortfeasor’s liability coverage is

not sufficient to cover the injuries incurred in an accident.” Rush v. Erie Ins. Exchange, ___ A.3d ___, 2021 WL 4929434 (Pa.Super., Oct. 22, 2021)

(quoting Generette v. Donegal Mut. Ins. Co., 957 A.2d 1180, 1189 (Pa. 2008)).

2 The First Liberty policy provides, in relevant part:

EXCLUSIONS 2 Plaintiffs filed the instant action in the Court of Common Pleas of Lackawanna County on November 21, 2019, against Philadelphia

Indemnity and First Liberty. Ultimately, the first-tier UIM claim was settled and Philadelphia Indemnity was dismissed from the action. With the dismissal of Philadelphia Indemnity, diversity jurisdiction was established

and the case was then removed by First Liberty to this court on May 7, 2020. Two causes of action are set forth in the plaintiff’s complaint against First Liberty. The first is a breach of contract claim resulting from the denial of Mrs. Evanina’s second-tier UIM claim under and pursuant to the First

Liberty policy. The second is a claim for loss of consortium brought by Mr. Evanina.

A. We do not provide Underinsured Motorists Coverage for “bodily injury” sustained:

* * *

2. By an “insured”, as defined in this endorsement,

while using, “occupying”, or when struck by, any non- owned motor vehicle that is furnished or made

available for your regular use, or the regular use of a “family member”, which is not insured for Underinsured

Motorists coverage under this policy. This includes a trailer of any type used with that vehicle.

(Doc. 33-2). 3 First Liberty has moved for summary judgment on the breach of contract claim. Summary judgment should be granted when “the pleadings,

the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Brethren Mut. Ins. Co. v. Triboski-

Gray, 584 F. Supp. 2d 687, 691 (M.D.Pa. 2008); Fed.R.Civ.P. 56(c). A fact is “material” if proof of its existence or nonexistence might affect the outcome of the suit under the applicable law. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue is genuine “if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Summary judgment is to be entered “after adequate time for discovery and upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In determining whether the defendant is entitled to summary

judgment in this diversity action, the court must apply the substantive law of Pennsylvania. See Nationwide Mutual Ins. Co. v. Buffetta, 230 F.3d 634, 637 (3d Cir. 2000). If the issue raised before this court has not been

4 resolved definitively by the Pennsylvania Supreme Court, this court must predict how the Pennsylvania Supreme Court would resolve the issue. Id.

In doing so, pertinent opinions of the Pennsylvania intermediate appellate courts may be disregarded only where there exist “‘other persuasive data that the highest court of the state would decide otherwise.’” Id. (quoting

West v. AT & T Co., 311 U.S. 223, 237 (1940)). First Liberty seeks summary judgment arguing that the Regular Use Exclusion in its policy precludes coverage in this case, since Mrs. Evanina was operating a non-owned motor vehicle that was furnished or made

available for her regular use and which was not insured for UIM under the First Liberty policy. In both its briefing and at oral argument, First Liberty argues that the Pennsylvania Supreme Court case of Williams v. GEICO,

32 A.3d 1195 (Pa. 2011) is controlling. To this extent, First Liberty argues that the Williams court has held that the regular use exclusion is unambiguous and does not violate public policy. In considering First Liberty’s argument, the issue addressed in

Williams is distinct from the one before the court in this matter. In Williams, the Pennsylvania Supreme Court indicated that the specific issue it was addressing was “whether the regular-use exclusion, as applied to a state

5 trooper, is void as against a public policy that favors protecting first responders.” Williams, 32 A.3d at 1199. That particular issue is not before

this court. Moreover, directly relevant to the decision in this case, as discussed in submitted supplemental authority and at oral argument, is the

Pennsylvania Superior Court’s recent decision in Rush v. Erie Ins. Exch., ___A.3d ___, 2021 WL 4929434 (Pa. Super., Oct. 22, 2021). In Rush, the insureds sought a declaratory judgment that the regular use exclusion of UIM coverage was unenforceable against one of the insured, who was

injured while operating a police vehicle. The trial court granted the insureds’ summary judgment motion holding that the regular use exclusion violated Pennsylvania’s Motor Vehicle Financial Responsibility Law

(“MVFRL”), 75 Pa.C.S. §§1701-1799.73, and was, therefore, unenforceable.

3 “[T]he MVFRL is comprehensive legislation governing the rights and

obligations of the insurance company and the insured under liability insurance policies covering motor vehicles.” Rush, at *2 (quoting Sayles v.

Allstate Ins. Co., 219 A.3d 1110, 1124 (Pa. 2019)). The provisions of the MVFRL are mandatory and where insurance contract provisions go against the provisions of the MVFRL, the contract provisions will be found unenforceable. Id. (citations omitted). 6 The insurer appealed the trial court’s grant of summary judgment raising the issues of whether the trial court erred in (1) invalidating the

regular use exclusion and (2) in granting summary judgment and declaring that the regular use exclusion is repugnant to and violates the provisions of the MVFRL. On appeal, the Pennsylvania Superior Court held “in this

case of first impression” that the regular use exclusion, in fact, conflicts with the provisions of the MVFRL and is unenforceable. Rush, 2021 WL 4929434 at *1. In doing so, the Superior Court noted that §1731 of the MVFRL governs the scope of UIM coverage in Pennsylvania and

mandates coverage when three requirements are met: (1) the insured suffered injuries arising out of the maintenance or use of a motor vehicle; (2) the insured is legally entitled to recover damages from the at-fault

underinsured driver; and (3) the insured has not rejected UIM coverage by signing a valid waiver. Rush, 2021 WL 4929434, at *3 (citing 75 Pa.C.S. §1731). As to the first requirement, the Superior Court emphasized that the scope of coverage under §1731 is broadly defined as it requires UIM

coverage whenever an insured suffers injuries “arising out of . . . the use of a motor vehicle” and does not consider who owns the vehicle or the frequency with which the insured uses it. Id. (citing §1731(c) (emphasis

7 added)). The Superior Court agreed with the trial court that the regular use exclusion is unenforceable because it modifies the clear and unambiguous

requirements of the MVFRL. Specifically, the Superior Court found that the regular use exclusion limits the coverage required by §1731 in situations where an insured is injured while using a motor vehicle that the insured

regularly uses, but does not own. This, the court found, is contrary to the language of the MVFRL which requires UIM coverage in situations where an insured sustains injuries arising out of the “use of a motor vehicle.”4 As is the case here, the insurer in Rush relied upon Williams to argue

the regular use exclusion was valid and enforceable. In discussing Williams, the Superior Court noted that the only issue addressed in that case was “whether the regular-use exclusion, as applied to a state trooper,

is void as against a public policy that favors protecting first responders.” Id. In addition, the Rush court noted that, while “the [Williams] Court stated that a ‘regular use’ exclusion clause did not violate the express terms of

4 An application for reargument filed by Erie Insurance Exchange was denied in Rush on December 28, 2021. See Rush v. Erie Ins. Exch.,

Superior Court of Pennsylvania, Docket Number 1443 EDA 2020. On January 26, 2022, Erie Insurance Exchange filed a petition for allowance of appeal to the Pennsylvania Supreme Court. See Rush v. Erie Ins. Exch., Supreme Court of Pennsylvania, Docket Number 37 MAL 2022. 8 the MVFRL,” since that specific issue was not before the Pennsylvania Supreme Court on appeal, the statement on the matter is dicta and not

binding. Id. at **3-4 (citations omitted). Even further, the Superior Court provided that the Williams court relied upon Erie Ins. Exch. v. Baker, 972 A.2d 507 (Pa. 2008), which was abrogated by the Pennsylvania Supreme

Court in Gallagher v. GEICO Indemn. Co., 201 A.3d 131 (Pa. 2019).5 In Gallagher, the Pennsylvania Supreme Court addressed the validity of a household vehicle exclusion similar to the regular use exclusion. In that case, the insured, Brian Gallagher (“Gallagher”), had purchased and paid

higher premiums for stacked uninsured (“UM”) and UIM coverage on two policies, one covering his motorcycle and one covering his two automobiles.6 Gallagher was injured when his motorcycle collided with

5 In Dayton v. Automobile Ins. Co. of Hartford, CT, 2021 WL 5163221,

(M.D.Pa., Nov. 5, 2021), issued approximately two weeks after the Superior Court’s decision in Rush, this court cited Williams and courts within the

Third Circuit in disagreeing with the plaintiff that the state law in this area was unsettled. Dayton, at *3 (citations omitted). As indicated at oral

argument, however, the discussion of Williams in Dayton was in relation to the court’s consideration of the plaintiff’s motion for remand and the factors

set forth in Reifer v. Westport Ins. Corp., 751 F.3d 129 (3d Cir. 2014). The court at that juncture was not deciding the issue of whether the regular use

exclusion applicable in that case was unenforceable because it violates the MVFRL. As such, the language is merely dicta. 6 GEICO apparently required that the motorcycle be placed on a policy separate from the two automobiles. 9 another vehicle, which was underinsured. He filed a claim with GEICO attempting to recover under both of his policies. GEICO paid Gallagher

under the motorcycle policy, but denied coverage under the automobile policy based upon a household vehicle provision that was contained in the policy.7 GEICO provided that coverage was excludable because Gallagher

had sustained his injuries while operating his motorcycle, not the automobiles that were covered under the automobile policy. Gallagher argued that GEICO’s denial of his claim based upon the household vehicle exclusion was essentially an invalid waiver of stacking in violation of the

provisions of the MVFRL, which requires an express waiver of such coverage. While the trial court ruled in favor of GEICO on summary judgment

and the Pennsylvania Superior Court affirmed, the Pennsylvania Supreme Court ultimately vacated the Superior Court’s judgment and reversed the trial court’s order. In doing so, the Supreme Court noted that under the

7 The household vehicle exclusion in Gallagher provided “This coverage does not apply to bodily injury while occupying or from being struck by a vehicle owned or leased by you or a relative that is not insured for Underinsured Motorists Coverage under this policy.” Gallagher, 201 A.3d at 133.

10 MVFRL, “stacked UM/UIM coverage is the default coverage available to every insured and provides stacked coverage on all vehicles and all

policies.” Id. at 137 (citing 75 Pa.C.S. §1738(a)). Moreover, the Supreme Court provided that “the MVFRL makes clear that to effectuate a waiver of UM/UIM coverage, an insurer must provide the insured with a statutorily-

prescribed waiver form, which the named insured must sign if he wishes to reject the default provision of stacked coverage.” Id. (citing 75 Pa.C.S. §1738(d)). And further, with any waived stacked coverage, the insured’s premiums must be reduced to reflect the different cost of coverage. Id.

(citing 75 Pa.C.S. §1738(c)). The Pennsylvania Supreme Court found that the household vehicle exclusion is inconsistent with the unambiguous mandates of the MVFRL and “acts as a de facto waiver of stacked UIM

coverage provided for in the MVFRL, despite the indisputable reality that Gallagher did not sign the statutorily-prescribed UIM coverage waiver form.” Id. at 138. As such, the court found the household vehicle exclusion unenforceable as a matter of law. Id.

The Gallagher decision was followed by Sayles v. Allstate Ins. Co., 219 A.2d 1110 (Pa. 2019). In Sayles, the Pennsylvania Supreme Court held that provisions requiring that insureds submit to examinations by physicians

11 selected by the insurer as often as reasonably required were void as against public policy. Of note here is not the holding of the court, but Justice Baer’s

concurring opinion, which he stated was written to emphasize “what may be an unsettling trend among automobile insurance companies to attempt to circumvent clear statutory language through contrary policy provisions.”

Sayles, 219 A.3d at 1127-28. Justice Baer referenced the medical examination provisions involved in the Sayles case, which he provided clearly allowed insurers to circumvent §1796(a) of the MVFRL and, as a result, were found to be void as against public policy. Similarly, Justice Baer

referenced the household vehicle exclusion in the Gallagher case, which was found invalid and unenforceable because it conflicted with the unambiguous waiver mandates of §1738 of the MVFRL. Finally, Justice

Baer referenced the case of Generette v. Donegal Mutual Ins. Co., 957 A.2d 1180 (Pa. 2008), in which the Pennsylvania Supreme Court found “an ‘Other Insurance’ clause included in an insurance policy violated public policy as expressed in the MVFRL, requiring excess rather than gap

underinsured motorist coverage.” Sayles, 219 A.3d at 1128. Justice Baer completed his concurring opinion by stating: I write now to highlight that, given these multiple cases in which we have encountered insurance companies including policy 12 provisions inconsistent with the Legislature’s intent as set forth in the MVFRL, courts of this Commonwealth should be cognizant of this practice. Additionally, I respectfully suggest that the insurance industry should be more circumspect when it is tempted to “adjust” provisions of the MVFRL to its benefit notwithstanding contrary statutory provisions. Id. Subsequent to his concurring opinion in Sayles, now Chief Justice Baer authored the opinion in Donovan v. State Farm Mutual Automobile Ins. Co., 256 A.3d 1145 (Pa. 2021), in which the Pennsylvania Supreme Court reviewed three questions of law certified by United States Court of Appeals for the Third Circuit, including whether the household vehicle exclusion8 included in the policy at issue was enforceable following the court’s decision in Gallagher.9 The Pennsylvania Supreme Court held in the negative.

8 Substantially similar to other household vehicle exclusions, the particular exclusion at issue provided:

THERE IS NO COVERAGE FOR AN INSURED WHO SUSTAINS BOLDILY INJURY WHILE OCCUPYING A MOTOR VEHICLE OWNED BY YOU OR ANY RESIDENT RELATIVE IF IT IS NOT YOUR CAR OR A NEWLY ACQUIRED CAR.

Donovan, at *22.

9 The court decided as an initial matter that the §1738(d) waiver form signed by the insured was not a valid waiver of inter-policy UIM stacking in a multi-vehicle policy. 13 In Donovan, plaintiff Corey Donovan was injured in a vehicle covered by his own insurance policy. Corey Donovan recovered against his own

policy, as well as against the policy of his tortfeasor. However, the coverage of these policies was insufficient to satisfy his medical expenses. As a result, he attempted to stack UIM coverage from a State Farm policy

purchased by plaintiff Linda Donovan, his mother, to whom he was a resident relative. State Farm denied coverage to Corey Donovan based upon a household vehicle exclusion in Linda Donovan’s policy. Donovan, 256 A.3d

at 1147-49. However, unlike in Gallagher, the household vehicle exclusion in the Donovan case was not categorical, meaning it allowed for stacking under certain circumstances. Id. at 1147. Despite this difference, the

Donovan court held that “[w]hether the insured did not sign a waiver, as in Gallagher, or signed a deficient waiver as to inter-policy stacking, as in the case at bar, the result is the same: the policy defaults to inter-policy stacking of UM/UIM coverage.” Id. at 1160. As such, the Pennsylvania

Supreme Court held “as in Gallagher, the household vehicle exclusion

Donovan, at *22. 14 cannot be enforced to waive inter-policy stacking in regard to Linda’s Auto Policy as it does not comply with the requirements for waiver of stacking

under Section 1738(d).” Id. Thus, the Pennsylvania Supreme Court made clear that it is of no consequence whether insurance policy provisions categorically block UIM coverage stacking or only partially block UIM

coverage stacking, with different waiver requirements for each. The issue is not the extent of the restriction on stacking, but whether stacking was validly waived. Id. In considering the above, whether the regular use exclusion is

contrary to the provisions of the MVFRL and therefore invalid and unenforceable has not been definitively resolved by the Pennsylvania Supreme Court requiring this court to predict how the Pennsylvania

Supreme Court would rule on the issue. In Rush, the Pennsylvania Superior Court ruled on the issue and determined that the regular use exclusion is contrary to the MVFRL and is therefore invalid and unenforceable. Moreover, as discussed above, in a number of cases, the

Pennsylvania Supreme Court has considered and ruled upon the household use exclusion, which is a substantially similar exclusion to the regular use exclusion. In doing so, the Pennsylvania Supreme Court has

15 determined that the household use exclusion is invalid and unenforceable as it is inconsistent with the unambiguous requirements of the MVFRL.

Considering the trend of the Pennsylvania Supreme Court in its rulings on the household use exclusion, as well as now Chief Justice Baer’s concurring opinion in Sayles which highlights the “unsettling trend” among

insurance companies to attempt to circumvent the clear language of the MVFRL, in conjunction with the Pennsylvania Superior Court’s recent decision in Rush, this court predicts that the Pennsylvania Supreme Court will find the regular use exclusion is contrary to the unambiguous

provisions of the MVFRL and therefore invalid and unenforceable, as it did with respect to the household vehicle exclusion. As such, the defendant’s motion for summary judgment will be denied. An appropriate order shall

issue.

s/ Malachy E. Mannion

MALACHY E. MANNION United States District Judge

Dated: February 25, 2022 20-751-01