Swarner v. Mutual Benefit Group, 72 A.3d 641

On Sept. 6, 2008 Rebecca Swarner (passenger) was ejected from her husband’s motorcycle after it collided with a pickup; her husband died at the scene. After ejection she landed in the travel lane and was run over by a second pickup driven by Howie.
The Swarners were married, lived together, and were named insureds on a Mutual Benefit auto policy that provided stacked UIM coverage; the motorcycle was insured by Progressive.
Tortfeasors’ liability limits and Progressive’s UIM tender were insufficient; Mutual Benefit denied additional UIM benefits invoking its household (owned-vehicle) exclusion, which bars UIM for bodily injury sustained by an insured while "occupying" a motor vehicle owned by the insured or resident relative that is not insured under the policy.
The parties stipulated to the material facts; Mutual Benefit moved for summary judgment arguing the exclusion applied because Swarner was still "occupying" the motorcycle when run over; Swarner cross-moved denying she was occupying the bike at the time of the second impact.
The trial court granted summary judgment to Mutual Benefit relying on Utica Mutual’s multi-factor test for “occupying.” The Superior Court reversed, concluding the policy’s defined term "occupying" is unambiguous and, construed narrowly for an exclusion, did not cover an insured lying in the roadway after ejection and subsequently struck.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the household (owned-vehicle) exclusion bars UIM recovery because Swarner was "occupying" the husband’s uninsured motorcycle when she was run over	Swarner: the policy defines "occupying" as "in; upon; or getting in, on, out or off," and she was not in/on or in the process of getting on/off the motorcycle when struck — exclusion inapplicable	Mutual Benefit: Utica Mutual’s four-factor test for "occupying" controls and supports applying the exclusion because injury was causally related to use of the motorcycle, she remained vehicle-oriented and was proximate to the motorcycle	The court held the Utica Mutual factors do not control when construing a policy exclusion; the contract definition of "occupying" is unambiguous, must be applied narrowly against the insurer, and does not cover an insured lying in the roadway after ejection and later struck — reversal and entry of summary judgment for Swarner

Utica Mut. Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (Pa. 1984) (adopted a multi-factor test to broadly define “occupying” for coverage purposes)
Allstate Fire & Cas. Ins. Co. v. Hymes, 29 A.3d 1169 (Pa. Super. 2011) (applied plain policy language of household exclusion to conclude exclusion covered injuries sustained while "on" motorcycle)
Donegal Mut. Ins. Co. v. Baumhammers, 595 Pa. 147, 938 A.2d 286 (Pa. 2007) (insurer bears burden to establish applicability of exclusions; exclusions construed strictly against insurer)
Mid-Century Ins. Co. v. Henault, 128 Wash.2d 207, 905 P.2d 379 (Wash. 1995) (declined to apply the broad Rau/Utica factors in construing an owned-vehicle exclusion; lying in roadway after ejection was not “occupying”)
McGilley v. Chubb & Son, Inc., 369 Pa.Super. 547, 535 A.2d 1070 (Pa. Super. 1987) (explained Utica Mutual’s rationale and distinguished contexts — statutory/coverage vs. exclusion/priority)