Burstein v. Prudential Property & Casualty Insurance

claim renders his unreviewable on the merits); Buehl, Commonwealth v. (holding appellate

that an court will not consider

the merits of supported by contentions not

either the record or a statement 1923).

in accordance with Rule there- We

fore Knighten’s conclude that challenge to validity guilty plea of his is waived on

appeal.

¶ 22 Knighten also contends that imposed sentence on the second de

gree felony robbery charge was illegal. , PCRA,

Under sentencing

claim that cognizable is that the sen imposed greater

tence than the lawful 9543(a)(2)(vii). §

maximum. Pa.C.S.A.

Knighten’s years sentence of one to ten

within the lawful maximum because the ,

crime robbery section

3701(a)(l)(iv) felony is a of the second de

gree punishable by a maximum sentence of years.

not more than ten See 18 Pa.C.S.A. 3701(b); 106(b)(3).

§ 18 Pa.C.S.A.

Thus, Knighten’s claim is cognizable

under the PCRA.

¶ 23 Order affirmed.

Sid BURSTEIN and Doreen

Burstein, Appellees,

PRUDENTIAL AND PROPERTY

CASUALTY INSURANCE

COMPANY, Appellant.

Superior Pennsylvania. Court of

Argued June 1999.

Filed Nov. McEWEN, Judge, President

Before KELLY, POPOVICH, CAVANAUGH, JOHNSON, ELLIOTT, FORD STEVENS, and LALLY- SCHILLER GREEN, JJ.

SCHILLER, J.: Property Appellant, Prudential Company, appeals Casualty Insurance in the from an order dated June Philadelphia of Common Pleas of County. We affirm hold non-owned car” exclusion used policy under the void as of this facts case.

FACTS: 4,1998, September Sid Appellees, On Burstein, returning

and Doreen and a when a mo- speeding dinner movie their torcyclist struck automobile. automobile, Mr. being driven time, at had Burstein been employer; Mrs. Bur- Mrs. Burstein her passenger stein was seat when Bur- Although occurred.1 Mrs. accident primarily busi- vehicle for stein weekly paid a purposes, ness she $25.00 allowing her to drive fee her and husband personal Mrs. Burstein’s em- it for use.2 types of notify did not her of the ployer compa- purchased he had for the vehicle, give option ny nor did he her change coverage. Stipulated ¶¶ Facts, 12,14. at ¶3 accident,. recov- After Appellees in- negligent motorcyclist’s ered not, how- Appellees were surance carrier. injuries ever, fully for their compensated motorcy- limits of because proved inadequate. insurance clist’s Craven, ap- Philadelphia, Charles W. such, claim for Appellees submitted a As pellant. underinsured poli- Frank, Philadelphia, appel- employer’s insurance Milton J. Mrs. Burstein’s Appellees It was that time that cy. at lees. the com- opinion Appellees drove note the trial indicate 1. We that both court panel night question pany and our Memorandum indicate vehicle on driving How- the vehicle. parked Mrs. Burstein the end of it was chance because ever, according stipulated to to the facts driveway, thereby blocking their parties, operating the Mr. Burstein was vehicles. at the the accident. time of were informed that the employer’s policy violates the Commonwealth, did not include underinsured of this motorist cov- our standard of erage. Appellees plenary review is presents therefore filed a claim said issue question law for our determination. benefits under See personal generally Phillips v. A-Best policy; Appellees Products 124, 130, 1167, vehicles, 542 Pa. three motor 665 A.2d 1170 all insured single policy Appellant that provided

both liability and underinsured motorist ¶ 6 particular policy exclusion in coverage. Appellant subsequently denied question provided Appellees were not coverage based on a policy exclusion for a entitled to recover underinsured motorist “regularly used non-owned car” not in- were using regularly sured policy.3 under their used, non-owned vehicle not insured under policy.4 their Appellees argue, and the suit, 4 Appellees thereafter filed trial court agreed, that because underin- on March panel of arbitrators sured per- follows the found that the exclusion violated son, vehicle, not the and because the Mo- policy applied when to Mr. Burstein but tor Vehicle Financial Responsibility Law upheld it in regard to Mrs. Burstein. (MVFRL)5 is to liberally construed to Appellees Both Appellant petitioned provide the possible coverage, fullest the trial court for a of the modification particular exception against pub- is void as arbitrator’s decision to respec- reflect their policy. Appellant, hand, lic on the other positions. tive The trial court found that claims that voiding such an exclusion the exclusion public policy violated in re- would not further public policy of this gard Appellees, to both thereby affirming it, Commonwealth but rather would hinder the arbitrator’s decision as to Mr. Burstein citing to public policy prior as well as reversing it as to Mrs. A Burstein. case law. panel divided of this Court affirmed the trial court’s decision. 7 In appeal deciding fol- a provision whether of an lowed. insurance contract should be held void as against public policy, we are mindful of the DISCUSSION: following: ¶ Appellant 5 raises one issue on “Public is to be ascertained appeal: whether the trial court erred in reference to the legal prece- laws and finding that the “regularly used non-owned dents and not general consider- car” exclusion in Appellees’ contained in ations of supposed public interest. As surance against public was void as ‘public policy’ the term vague, is there policy. We note at the outset that we will must be found definite indications in the reverse a trial court’s decision to vacate an law of the sovereignty justify to only arbitration award for an abuse of invalidation of a contrary contract as to discretion or error of law. Patton v. policy.... Only J.C. dominant Co., Penney 317, Ins. Pa.Super. 445 justify 665 action. (1995). However, A.2d 510 where plain the trial absence of a poli- indication of that court determines that a provision cy through long governmental practice 3. The Pennsylvania as follows: "We Hampton, the State v. 441 bodily injury you 382, 976, to 977-78, or a house- Pa.Super. appeal using hold resident a non-owned car not in- denied, 647, (1995) 666 A.2d 1056 part, sured regularly by you under this (stating provision that where a of a is contract or a household resident." unambiguous, applied clear and it will be as written). Appellees dispute do language that the exclusion, applied, would bar §§ 5. 75 Pa.C.S. 1701-1799.7. recovery of underinsured motorist cov- erage Appellant. See Insurance Co. of favor enactments, vailing policies are those which void- statutory or of violations standards, ing the exclusion. ethical or moral obvious should not assume declare in favor The first contrary ... public policy. contracts the exclusion is voiding The courts be content await must enacted in order to establish MVFRL was legislative action.” compensatory scheme underin a liberal 337, v. Ins. Pa. Hall Amica Mut. Marroquin v. protection, sured motorist 347-48, 755, (quoting Pa.Super. Mutual Benefit 49, States, Muschany United 324 U.S. (1991), 444, 591 and should 66-67, L.Ed. 65 S.Ct. provide greatest possi be construed (1945))(alterations original). claimants. Danko ble given policy “It so when Exch., v. Erie Ins. obviously 572, the public (1993), or 1219, Pa. 1222 538 A.2d aff'd “

health, safety, (1994). morals or welfare that ‘In A.2d 935 close doubt 649 in unanimity opinion cases, there a virtual is interpret the intent ful we must it, may regard to that a court constitute language of insur legislature and the in community itself the voice of the so coverage for the policies to favor ance ” declaring. positive, a There must be Donegal Mut. Ins. insured.’ Allwein v. well-defined, sentiment, public 364, 744, universal Co., 751 Pa.Super. 448 in deeply integrated (en denied, 660, the customs and banc), 546 Pa. 685 appeal people beliefs of the and in their convic- Ins. (quoting 541 Motorists A.2d just 524, tion is and in the right of what Pa.Super. 444 Companies Emig, v. (1995)). in public Only interest of weal.... 559, A.2d 566 664 cases, therefore, amay clearest ¶ public policy favor 10 The second alleged policy court make an public Appellees’ position is that it is in the ing judicial basis decision.” compa for insurance public’s best interest Genoe, 320, (quoting Id. Mamlin v. 340 Pa. provide to cov nies underinsured motorist (1941)) (alteration 17 A.2d (stating erage. Marroquin, supra at Moreover, original). a key focus decid considers under- that “this Commonwealth exclusion, to a uphold whether in the coverage to be insured motorist deny coverage operates to to an interest”). Underinsured injured party, is on factual circum protect an designed is to particular stances v. Paylor case. vehicle, of another negligent driver Ins. 536 Pa. Hartford injury the insured and lacks who causes to (1994). 1234, 1235 compen to adequate insurance note, however, 8 We that we are not injuries. those Ei the insured for sate called this case to decide whether upon Co., 551 Pa. Nationwide Ins. chelman v. engrained (1998); is so in our concept Paylor, supra; 711 A.2d 1006 rises customs and beliefs that it to Wolgemuth Harleysville Mut. (en banc), public policy; Appellant level of both A.2d 1145 denied, that are Appellees public policies cite to appeal universally accepted passage well-defined and Prior to the Rather, MVFRL, duty it is the were re this Commonwealth. motor vehicle drivers weigh competing carry of this motorist cover quired those uninsured covera and determine not underinsured motorist age interests result, involved As an individual prevails ge.6 the circum- which interest in a accident was better pre- a motor vehicle presented. We find that the stances place § Pennsylvania No-Fault Mo- 1009.101. had in Act, P.S. tor Vehicle Insurance position injured by negligent statutory language driver key MVFRL this concept; than evidences who uninsured rather one who language clearly contemplates a situation had insurance but whose limits company which an insurance inadequate. attempt rectify provide inequity, legislature passed injured coverage for an insured who is MVFRL, insurers requiring to offer un- using a vehicle not covered under coverage. derinsured motorist 75 Pa.C.S. policies. one of its When an individual is 1781(a).7 Appellees precisely accident, injured in a motor type of who underinsured individuals mo carrier com tortfeasor’s insurance must designed protect— torist pensate inju that individual for his or her aby individuals tortfeasor with generally §§ ries. See 1701- inadequate coverage. insurance 1799.7. If the tortfeasor’s limits are inadequate, the individual is also entitled 11 Finally, we to recover underinsured motorist coverage find persuasive most is that underinsured carrier, personal his or her first-party motorist coverage provided that the individual did not waive necessarily therefore per follows the coverage. the insured cov Where son, Wolgemuth, not the supra. vehicle. ered providing more than one This means if purchases that an individual however, coverage, underinsured motorist coverage, underinsured motorist that indi specifically the MVFRL the states that protected negligent vidual policy covering the motor vehicle involved inadequate coverage regard drivers with first, pay the accident must followed less the vehicle in which he or she “policy covering the a motor happens injured. to be We have stated in respect involved in the accident to with “ past ‘[ojrdinarily, a passenger the injured persdn the is an insured.” a one-car accident involving added).8 1733(a)(2) (emphasis someone else’s car ... would be able to voiding This Court “regular finds that the recover motorist underinsured benefits un ly car” used non-owned exclusion under his or her der own underinsured motorist the facts of case afore this furthers the ” coverage.’ (quoting Myers Id. at 1150 public policies providing mentioned State Farm Mut. Auto. greatest coverage possible Appel- to the (Minn.1983)). lees, by compensating injuries N.W.2d them for enacted, vehicle, required cifically company 7. first MVFRL and When all cover the carry automobile drivers to both uninsured seemingly regard any policy without to exclu- coverages. and underinsured It motorist “[t]he sion. Section 1733 further states that subsequently amended in 1990 to eliminate insurer a claim first whom is asserted mandatory requirement. this The MVFRL process ... shall claim currently requires to offer both unin- insurers wholly responsible.... The insurer there- coverages sured underinsured pro rata after entitled to recover contribution coverage by but makes of such other insurer....” 75 Pa.C.S. contrast, optional. insured In the MVFRL 1733(b). Appellant have Inasmuch as requires all maintain insureds to cov- provide been motor- underinsured erage on the vehicles own. See 75 Pa. coverage Appellees ist had Burstein's Mrs. 1786(a). §C.S. employer purchased underinsured motorist coverage coverage proved and that had also According language to the in section inadequate, query employer’s whether 1733(a)(2), employer if Mrs. Burstein’s had coverage failure to offer Mrs. Burstein such or, purchased coverage underinsured motorist least, notify company coverage very this at vehicle and that her that proved inadequate, Appellees gives would have also Appellant had waived been entitled underinsured been to recover motor- right employer. As that is not to sue the issue personal policy Court, ist from their with questions presented one of the to this Appellant; recovery this would be mandated however, we address it. cannot despite spe- did the fact that their gener See underlying MVFRL. inadequate tortfeasor had caused who Hall, 648 A.2d at 761 supra recover coverage, by allowing ally them to coverage they had is a correlation there direct (noting paid specifically paid premiums between Appellant. should rea claimant and the receive). expect to Because sonably hand, on the other ar- Appellant, pre likelihood an increase voiding violates gues the exclusion miums, argues that this Court Appellant Commonwealth, used non- uphold should legislature’s goal in enact- namely that the car” exclusion. spi- “the ing the to alleviate MVFRL ralling cost of automobile insur- consumer adopt Appellant’s If we were and the increase in the ance resultant however, this Court would never be logic, driving of uninsured on number motorists to find an exclusion void the basis able public highways.” Paylor, supra at Exclusions policy. that it violated Eichelman, at 1235. See also preclude an insured from by their nature supra. Ap- The insurance issued recovering type of insurance cov- a certain vehi- pellees covered certain non-owned uninsured, liability, it be erage —whether cars, cars, replacement additional cles— situation or underinsured —in Appellant cars. asserts and substitute effectively limit costs. Void- and therefore willing that most insurance companies necessarily makes insur- getting to assume the risk an insured companies provide more ance vehicles, involving an accident of these anticipated, creating thereby pos- than raising premiums, without the use because sibility premiums. of an increase risk infrequent of these vehicles and the has, however, voided specifically fact, injury slight. Ap- is therefore past despite exclusions policy pellant acknowledges that the associ- cost pre- in possibility of an increase insurance actually ated with such a risk into built Marroquin, supra at 293 miums. See premiums charges. it currently (voiding family against car as exclusion ¶ However, frequency oper- case). policy under the facts of the public increases, ating the the risk vehicle so does ¶ Furthermore, at upon a closer look injured by an be we by Appellant, cited Voiding par- underinsured motorist. impaired by it find that would not be void- in every ticular exclusion insurance in To alleviate the exclusion this case. essentially require compa- would insurance insurance, the legisla- cost of spiralling provide nies to motorist cov- underinsured encourage MVFRL to ture drafted the erage by company all cars used their purchase drivers to insur- motor vehicle coverage insureds never when was mo- pool of insured increasing discussed, contemplated paid by the or ance— cost of necessarily reduce the insured, torists would many companies a risk insurance encouraging insurance. One method Appellant argues would substantial. deem by was de- purchase insurance drivers companies are not because insurance involved to those who were nying benefits they per- a risk willing insure substantial, who not have insur- in an accident but did likely ceive as most result “ ‘the MVFRL therefore has premiums, which ance.9 The would be an increase registered all owners of clearly contrary requiring to the effect of use, motorcycle, cycle, way motor-driven example, 1714 of the MVFRL 9. For section following: type specifically pedalcycle states or like motorized registered title under this currently registered to be An motor owner of respon- party vehicle who does not have cannot recover benefits. financial first added). sibility operator occupant (emphasis or an high- recreational vehicle not intended for vehicles to share the burden of insur- vehicles simply purchasing an insurance ance before they can obtain the benefits covering only one vehicle. Eichel ” man, Windrim v. coverage].’ supra Nationwide 1010; [of at Win 711 A.2d at Co., drim, supra 641 A.2d at 1158. This Co., Allen v. Erie Ins. (quoting rationale suggests that an exclusion will be upheld provides when it 840-41 an incentive to (1987)). purchase individuals to insurance. Upholding Moreover, used non- providing individuals an judi- owned car” the case sub incentive to insure their vehicles has been ce, however, would not have the basis of the holdings two recent Appellees incentive for insur- Pennsylvania Supreme Court In cases. Appellees ance. obtained liability both Eichelman v. Nationwide Insurance all supra, party waived underin- of the vehicles that they paid owned and sured motorist person his per week to allow them to $25.00 drive al but later tried to recover such Mrs. company Burstein’s car personal benefits from two policies —one use. Appellees trying were not to avoid maintained by his mother and the other responsibility purchasing insur-. husband.10 Windrim v. Nation her anee or to deceive their company wide Insurance supra, plaintiff into providing coverage bargained for. injured by was a hit-and-run driver while To contrary, Appellees acted full operating an uninsured vehicle and tried to MVFRL, accordance obtaining recover uninsured motorist benefits from both and underinsured motorist cases, his policy. mother’s In both our coverages on all three of they the vehicles Supreme upheld family car exclu owned. sion clause which stated that the insurer provide would not regard 19 In company vehicle, to the umnsured/underinsured to an insured who Appellees were not operating a vehicle injured while occupying a motor vehicle knew covered under- the insured or a relative that insured motorist as was the case Eichelman, was not insured for supra. uninsured/underin- Mrs. Burstein was sured motorist coverage under policy. never made aware of the types of insur- One of the main reasons for the Court’s ance which covered company holding both cases was that voiding the nor was she advised that employer her exclusion under those facts waived underinsured coverage.11 motorist would have had the allowing Further, effect of an even she had known that such family, entire living waived, household with coverage was she would not have automobiles, numerous to obtain underin- given option been to add it to her coverage sured motorist all of those employer’s policy.12 insurance We there- accident, owned, plaintiff At the time of the they specif- vehicles all of which were living at his mother’s residence. He claimed ically covered underinsured motorist cov- that he was entitled to recover underinsured erage, company rather than the vehicle. policies motorist benefits under the two be- cause each underinsured motorist argument 12. We are mindful of the that void coverage to the named insured and rela- provides this exclusion no incentive for tive who resided with the named insured. Id. employers purchase vehicles, coverage company for their since compelled 11. We are Appel- to note that had employees may their obtain such lees employer known that Mrs. Burstein’s personal under their policies insurance in cer coverage, waived underinsured motorist However, given tain situations. the fact that company decision to drive the vehicle would have, least, employers very have no incentive to been an such informed one. fact, known, exclusion, In possible had it even is with this they would have argument weight. chosen to drive one of the an little carries outset that I 2 merits mention at the find that cited It fore with the statement agree unable to am up- Appellant would not be furthered fol- that “underinsured in this case. See holding the exclusion UIM person, not the vehicle”. lows the A.2d at 1240 Paylor, supra at cover- optional insurance are now and UM (noting enforceability of the that “[t]he be, are may which ages dependent upon [family exclusion is car] be, an Allwein purchased by insured. presented circumstances the factual Co., 448 Donegal Mutual Insurance case”). each (1996)(en 744, 754 364, 671 A.2d sum, we find that this case banc). “first referred to as While often public policies voiding in favor of the ex- benefits,” and are UM UIM benefits party up- supersede clusion that which favors benefits”, cur- for the party “first true holding it. We therefore hold that under defines rent incarnation the MVFRL present an insured has facts—where benefits, “first benefits” as “medical party spirit and complied with both letter benefits, accidental death ben- income loss MVFRL and was not notified that 75 Pa.C.S. efits and funeral benefits.” regularly using vehicle he or she was benefits, § unlike UM party 1702. First not covered underinsured motorist cov- benefits, truly “follow the and UIM do erage policy provision denying under- insured”, provides —the the MVFRL because “regularly insured motorist for a party paid “[f]or benefits to be first non-owned car” is void as insured, [by] he named public policy. (2)[f]or insured; insured, an the named [by] policy covering the insured.” 75 CONCLUSION: 1713(a)(1) It § Pa.C.S. injured not an “in- when the claimant is ¶21 affirm the order Accordingly, we of insurance that sured” under 2, 1997, in dated June the Court Com- payable by party first benefits Philadelphia County, voiding mon Pleas in which the insurer of the vehicle car” used non-owned exclu- occupant. 75 Pa.C.S. claimant was an in Appellees’ sion 1713(a)(3). § against public policy. provides 1733 of the MVFRL Section recovery and UM priority UIM ¶ McEWEN, Judge, President files a party inverse which is the of first benefits Statement, Concurring Dissenting i.e., benefits, injured claimant must first an ELLIOTT, joined by J. and FORD vehicle in which he or she was look to the LALLY-GREEN, J. 1733(a)(1). “A occupant. ¶ CAVANAUGH,J., files a in- a motor vehicle not policy covering Opinion, joined by Dissenting respect POPOVICH volved in the accident JOHNSON, injured person JJ. is an insured”13 which the alternative, secondary an source UM/ McEWEN, Judge, concurring President by scheme benefits under the created UIM dissenting: the MVFRL. ¶4 agree 1 While I hasten to in the instant case appellees The majority properly the trial court dis- for each of that purchased UM/UIM Many, if and award- owned. regarded the exclusion at issue the three cars which insureds, most, litigat- claimants who have one UIM ben- not of the appellees, ed class efits, by way issue of entitlement I to this conclusion ed the proceed UM/UIM such entitlement to my that have claimed slightly path from benefits of a different on that solely the fact majority. coverages based colleagues of the learned 1733(a)(2). 75 Pa.C.S. they were members of the named insured’s non-owned car way must be used in the household and were in an by accident intended owner. This includes a involving a by poli car period up rented for a to 30 cy under which the resident relative The days. consecutive non-owned car sought cases, benefits. In such UM/UIM has the same as this repeatedly your Court has denied coverage cars insured with us. by reasoning that “the MVFRL was never (PART 5) WHO IS INSURED in a apply intended manner (INCLUDES IN A YOUR CAR SUB- family allow individuals and members who CAR) STITUTE owned several vehicles to cover You a and resident relative are insured age for one vehicle and recover unin using your while car or a substitute car sured underinsured motorist benefits covered under part. operating

while a vehicle which was not people using Other are insured while insured.” Insurance Co. the State Of your or a car substitute car covered Pennsylvania Hampton, 441 Pa.Super. part you give permis- under this if them (1995), appeal de sion use it. They must the car in use nied, 666 A.2d 1056 you the way intended. 5 Part appel- issued to IN A NON-OWNED CAR by appellant lees specifically provided cov- You and a resident relative are insured erage for: using a non-owned car. The UNDERINSURED MOTORISTS give owner must permission to use it. It COVERAGE way must used in intended you (see If have this the Dec- owner. larations), pay we up to our limit of HIT ABY MOTOR VEHICLE bodily injury covered You and a resident relative are insured (wheth- part under this when an insured an hit underinsured motor vehicle car) er or not occupying is struck pedestrian. while a an underinsured motor vehicle. Our LOSSES WE WILL NOT PAY FOR payment is based amount (PART 5) legally insured is to recover for entitled

bodily injury but could not collect from the owner or driver of the underinsured REGULARLY USED NON-OWNED

motor vehicle because: CARS The owner or driver is underinsured. bodily injury you We will not

or a using household resident a non- car part, not insured under this part premi- covers ears for you regularly or a household um charge for this coverage is shown on resident. the Declarations. Thus, by appellant issued ex- pressly provided for benefits UM/UIM ‡ ‡ $ insured, appellees, named OTHER NON-OWNED CARS operating even when non-owned car for CARS, purposes.14 exclusionary addition SUBSTITUTE we business will cover a non-owned car. The owner upon appellant clause which relies the give case, permission operates must to it. The instant preclude use which to specifically bodily anyone 14. at injury issue also exclud- We will not for to relative) (other ed for business-related uses as fol- you using than or a resident lows: any job. a non-owned car in business BUSINESS OR JOB

693 (and by approved the was “regular for a vehicle case drafted non-owned Commissioner) preclude, to resident”, Insurance ly by you or a household premium by an only of one payment the in applicable appellees not because were then at- which could insured household jured using by a vehicle owned Mrs. multiple for vehi- to claim tempt only of employer, Burstein’s because policy. the not insured under cles the use” the “regular of non-owned risk, course, implicated under the of is not by appellants. “regular for This exclusion learned of this case. As our specific facts ly specifically designed used” vehicles was Judge Joseph A. Del Sole noted colleague prevent multiple a with to household vehi Surety Casualty in McKuhn Aetna being purchase cles to a from able Co., 483, 175, 444 177 Pa.Super. only single with benefits for UM/UIM (1995), is that we Pecorara teaches “what yet vehicle and collect benefits UM/UIM issue to the conduct at to see are examine vehicles, of the not when contemplated by it is the exclusion. We involved in an coverages, ask was meant must whether the exclusion ‘abuse prevents “[T]he accident. protect against to the risk occasioned by precluding family and his the insured the Having the conduct.” examined con- regularly driving two or more cars issue, ” at I do hesitate to find that duct of price policy.’ for the Crum and the facts inapplicable the exclusion is to Forster v. Travelers Personal Insurance Co. I this Court. Thus con- presently before 671, 428 631 orp., Pa.Super. C A.2d majority. of the cur the result (1993), Highlands quoting Ins. Co. v. ¶ Moreover, in contradiction of direct Co., Underwriters Universal Insurance argument of I am unable to appellant, 171, 176, 154 Cal.App.3d Cal.Rptr. any support find in the record (1979). effect of a decision proposition ¶ 6 This Court in v. Erie In Pecorara at invalidating the clause issue this Court Exchange, surance instant case precise under the facts (1991), observing A.2d prin settled an increase the cost car would cause ciple gener that exclusions to insurer’s UIM and UM benefits are insurance.15 strictly al constructed first which are mandato party benefits insurer, found that an exclusion benefits, separate, optional reg ry, but are MVFRL, policy, pursuant issued to separate subchapter ulated applicable by any of the vehicle use 1731-1738; §§ MVFRL. See: 75 by an person “employed automobile busi v. Amica Insurance Hall Mutual ness”, was because au inapplicable “[t]he 337, 348, 760-761 Pa. tomobile exclusion was business intended coverages by in are marketed UM/UIM risk, encompass specific a risk which providing “personal companies as surance the present did not exist under circum insured and members protection” it stance coincidental [where majority, by family. The of his or her employee the driver was an of an automo herein invalid finding the clause issue business].” bile of this circumstances under the that, case, pro upon appellant 7 Thus it is that same ratio- simply requiring nale, appellees attempt risk specific I would find that vide appellant and for at issue in the instant ed which the exclusion minority that the coverages option- are now bers Since UM/UIM MVFRL, al, as noted in the current comprehend I at a how an embodied am loss to Nationwide sepa- Supreme Court in Windrim v. optional, our in the costs of such increase rately coverages result an in- Insurance billed could (1994), re- coverages is cost-containment of crease in the cost of coverages preclude or reduce quired an increase in and thus cause or contribute to illegally on the uninsured vehicles illegally number of uninsured motorists number course, highways. agree, mem- I state. 694 appellant

which appellees paid premiums.16 vides Thus, I concur in specified decision to the in several the affirm instances. by distinguished Judge order entered the majority application 5 The errs its Mary D. Colins. policy by explicit of public ignoring pro- supreme

nouncements from the court re- ¶ 9 garding public FORD ELLIOTT and LALLY- pertains as it to the GREEN, JJ., join Responsibility Motor Vehicle Financial Concurring (MVFRL). Law There not Dissenting many, Statement. competing policies to weighed be and bal- CAVANAUGH, J., dissenting: another, anced one rather a single applica- which informs ¶11 respectfully dissent from the result of By tion the MVFRL. engaging majority. the reached I would hold analysis which nu- posits the existence of the used car” non-owned public policies, majority merous trans- in appellees’ policy exclusion of insurance juridical gresses precept prece- is not of public policy violative should supreme may dent created court applied part of of insur- disregarded by not be this court. See ance under which the Burstein’s seek 453, Shaffer, Commonwealth v. 557 Pa. recover underinsured motorist benefits. 6, (1999); n. 734 A.2d 840 Commonwealth 224, Randolph, v. Pa. 718 A.2d ¶ 2 important is It observe at the (1998). that the present outset claim is asserted by the Bursteins under own insur- ¶ 6 legislative “The concern for in- ance policies and that the ex- therefore creasing cost of insurance is clusion under an in- consideration is from policy that is to be by statutory advanced they surance contract themselves interpretation of the MVFRL. This re- purchased for an agreed premium. Assembly’s departure flects General of ‘maximum principle from feasible ¶ 3 I note that exclusion at issue is restoration’ embodied the now defunct challenged not on basis other than its Paylor No-Fault Act.” v. Hartford application in public poli- consideration of cy. The Bursteins do contend that the (1994). Rump Accord v. Casualty Aetna language ambiguous, unclear or or that 339, 345, Surety Pa. injured the vehicle which were (1998); Bauer, Donnelly used one or regularly both of them. Pa. Thus, only proper consideration of ¶ 4 further I note that under terms public policy is whether an exclusion clause purchased by of the policy the Bursteins legislative afoul of the “concern for runs Prudential, coverage spiraling consumer cost of automobile bodily injury by an who sustained insured insurance and the resultant increase is “hit” an underinsured motor vehicle driving number uninsured motorists who is pedestrian while Id. public highways.” (one using a substitute car tem- borrowed porarily) or a car own- non-owned with the The purpose protecting innocent (not used). permission regularly er’s victims underinsured motorists who Thus, narrow pertain- our review is a adequately compensate cannot the victims legitimacy regularly to the injuries for their does not rise to the level every car public policy overriding non-owned the context pro- an insurance explicitly consideration of contract construction. Ei charged by appellees by appellant surely As all vehicles reflected the actu- benefits, underwriting the fee al risk. UM/UIM there- majority. compelled, I am v. Nationwide chelman (em fore, (1998) to dissent. phasis supplied).17 ¶ JOHNSON, JJ„ and 12 POPOVICH ¶8 support not its majority The does Dissenting Opinion. join this the sole by applying public

rationale premi- cost of insurance containment inqui- it to confine its properly ums. Were domain into to the limited

ry public likelihood, containment, it, in all

of cost validity of the exclusion uphold issue. policy in favor 9 There exists no FLYNN, Appellee, Michael mandatory underinsured motorist cover- requires, The MVFRL since the

age. amendments, coverage be AIRLINES, AMERICA WEST sale, pur- it need be offered for not Appellant. regularly chased. The exclusion for Pennsylvania. Superior Court apparent cars on its face non-owned in the clearly policy. worded Argued 1999. Oct. knew, known, should have Bursteins Nov. Filed they were for underin- paying for the sured motorist automobile injured. they which concept portability 10 The of under-

insured motorist is rooted an

interpretation Here, policy provides at issue. portability

for limited to instances of an hitting the insured pedestrian a while the he is using other non-

insured is substitute or subject This

owned car. premiums paid the Bursteins.

They premium for underin- did injury sustained

sured motor occupied regularly them while

used non-owned car. cover use require To an insurer to subject unambiguous to an

exclusion, expect- may certainly almost increase in the cost of give

ed to rise violative of insurance.

automobile policy. This is result reached restoration” (concept of "maximum feasible Auto 17. See v. State Farm Mutual also Frazier Pa.Super. jurispru- longer Pennsylvania mobile Ins. exists in no Exchange, Jeffrey v. Erie Ins. MVFRL). applying dence banc) (1993)(en

Case Details

Case Name: Burstein v. Prudential Property & Casualty Insurance

Court Name: Superior Court of Pennsylvania

Date Published: Nov 29, 1999

Citation: 742 A.2d 684

Court Abbreviation: Pa. Super. Ct.