Lead Opinion
OPINION
This is a discretionary appeal from the December 29, 2008 Superior Court order, which affirmed the trial court’s grant of summary judgment to Appellee, GEICO Government Employees Insurance Company (“GEICO”). We granted review to address whether the “regular-use” exclusion contained in a personal automobile insurance policy is valid to preclude payment of underinsured motorist (“UIM”) benefits to a police officer injured in the course of employment while operating a police vehicle for which the officer did not have the ability to obtain UIM coverage. In light of our precedent and in consideration of Pennsylvania’s Motor Vehicle Financial Responsibility Law (“MVFRL”),
The facts are undisputed. Appellant Robert C. Williams (“Williams”) has been a Pennsylvania State Police Trooper since 1994. On June 23, 2004, Williams was seriously injured in an automobile accident while operating a Ford Crown Victoria owned and maintained by the Pennsylvania State Police.
At the time of the accident, Williams maintained a personal automobile insurance policy with GEICO. Appellant’s policy included UIM coverage with limits of $50,000 per person and $100,000 per accident with stacking available. Williams sought to recover UIM benefits from GEI-CO for the June 23, 2004 accident. GEI-CO denied coverage, citing the regular-use exclusion contained in the policy, which provided:
When This Coverage Does Not Apply:
9. When using a motor vehicle furnished for the regular use of you, your spouse, or a relative who resides in your household, which is not insured under this policy.
GEICO’s Motion for Summary Judgment and Brief in Support, 1/26/07, Ex. C at 19.
On May 19, 2006, Appellant instituted a civil action
GEICO filed a motion for summary judgment in the declaratory judgment action, which the trial court consolidated with the petition to compel arbitration. Thereafter, the trial court granted GEI-CO’s motion for summary judgment, finding that the regular-use exclusion precluded Appellant’s recovery. The court also denied Appellant’s petition to compel arbi
The Superior Court affirmed in an unpublished memorandum. Williams v. Geico Gov’t Employees Ins., No. 931 WDA 2007,
This Court granted Appellant’s petition for allowance of appeal, limited to whether public policy requires permitting a police officer to recover UIM benefits under his personal automobile insurance policy, when the recovery would be otherwise precluded by the policy’s “regular use” exclusion.
The Pennsylvania Association for Justice (“PAJ”)
GEICO responds that we have previously approved of the regular-use exclusion in similar circumstances and that no valid reason exists to invalidate the exclusion generally. GEICO also contends that although the legislature has seen fit to afford police officers and other first responders special protections under the law, it specifically decided not to require their private insurers to provide UIM coverage while first responders operate their work vehicles. Therefore, GEICO submits, we should not infringe on the legislature’s prerogative to enact such a policy. Finally, GEICO argues that we previously rejected Appellant’s broad reading of the MVFRL in Burstein.
The Pennsylvania Defense Institute (“PDI”) submitted an amicus curiae brief in support of GEICO. PDI suggests that Pennsylvania law has consistently recognized the regular-use exclusion and its applicability to the instant facts beginning with Burstein and continuing through Superior Court opinions including Brink. PDI also contends that Trooper Williams’ status as a police officer should not exempt him from existing law. PDI concedes, however, that the legislature retains the prerogative to allow first responders to recover benefits from their private automobile insurance policies if injured in a work vehicle. Finally, PDI refutes Appellant’s argument regarding the conflict between the exclusion and the MVFRL, noting that a plethora of decisions by this Court and the Superior Court have all recognized the validity of exclusions to the mandatory offering of UIM coverage.
In the instant ease, we must determine whether the regular-use exclusion, as applied to a state trooper, is void as against a public policy that favors protecting first responders. The issue presented is purely legal; thus our scope of review is plenary and our standard of review is de novo. Generette v. Donegal Mut. Ins. Co.,
In construing a policy of insurance, we are required to give plain meaning to a
Generally, a clear and unambiguous contract provision must be given its plain meaning unless to do so would be contrary to a clearly expressed public policy. When examining whether a contract violates public policy, this Court is mindful that public policy is more than a vague goal which may be used to circumvent the plain meaning of the contract. As this Court has stated:
Public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term “public policy” is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy[.] ... Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the Court should not assume to declare contracts ... contrary to public policy. The courts must be content to await legislative action.
This Court has further elaborated that:
It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring [that the contract is against public policy].
Eichelman,
In Eichelman, we also addressed the general policy underlying underinsured motorist coverage. We stated:
[U]nderinsured motorist coverage serves the purpose of protecting innocent victims from underinsured motorists who cannot adequately compensate the victims for their injuries. That purpose, however, does not rise to the level of public policy overriding every other consideration of contract construction. As this Court has stated, “there is a correlation between premiums paid by the insured and the coverage the claimant should reasonably expect to receive.” Hall v. Amica Mut. Ins. Co.,538 Pa. 337 , 349,648 A.2d 755 , 761 (2004).
Id. at 1010.
Moreover, in his Concurring and Dissenting Opinion in Colbert, then-Justice, now-Mr. Chief Justice Castille noted:
The overriding concern powering the decisions in Burstein, Eichelman, and the earlier cases is to ensure that both insurer and insured receive the benefit of what is statutorily required and contractually agreed-upon (consistently with statutory requirements) and nothing more. As this Court recognized in Ei-chelman, an insured should not be permitted to demand coverage for a risk for which coverage was not elected or premiums paid.
Colbert,
With this framework in mind, we review Appellant’s argument that applying
Appellant relies upon section 687 of the Heart and Lung Act, which applies to a wide variety of individuals Appellant recognizes as “first responders,” including state police troopers such as Appellant. 53 P.S. § 637.
We have stated that the Heart and Lung Act must be strictly construed because it varies the common law by imposing liability on employers regardless of fault for their employees’ injuries. City of Erie v. Workers’ Compensation Appeal Board (Annunziata),
Appellant also claims that section 108(m.l) of the Workers’ Compensation Act demonstrates a legislative intent to provide special protection to first responders.
If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe’s occupational disease arose out of and in the course of his employment, but this presumption shall not be conclusive.
77 P.S. § 413.
Finally, Appellant contends that the Emergency Medical Services Act (“EMSA”) demonstrates added protection for first responders.
Appellant asks us to weigh the alleged unanimous public policy evident in the above-referenced statutes against the overriding public policy concerns we have recognized underlying the MVFRL— namely, cost containment. See Generette,
Moreover, to the extent that we can glean a coherent public policy from these individual statutory provisions,
Even if those statutes could be read to provide some general “protection” for first responders, as Appellant suggests, he has failed to establish any unanimity of opinion that private insurers should provide coverage for unknown risks that may arise out of their insureds’ employment simply because an insured may be a police officer. Appellant does not cite to any provisions that place a burden on private entities such as GEICO in these situations. Therefore, we decline to hold that such unanimity exists.
Having found that there is no unanimity of opinion favoring expanding the scope of a first responder’s private UIM insurance, we must determine whether the regular-use exclusion, applied to a police officer injured in the line of duty, is so against the public health, safety, morals, or welfare to warrant invalidating the contractual provision on public policy grounds. Eichelman,
Even if we were to find that the statutes reflect the public policy suggested by Appellant, we could not conclude that it requires invalidating the regular-use exclusion. Appellant asks us to weigh the protection of first responders against the recognized scheme of cost containment un
In addition to analyzing the overall policies, however, our final determination of whether the exclusion complies with public policy is dependent on the factual circumstances of each case. Colbert,
Sid and Doreen Burstein were injured in an automobile accident while operating a vehicle owned by Mrs. Burstein’s employer and provided to her as a benefit of employment. The Bursteins recovered benefits from the tortfeasor involved in the accident but were not fully compensated for their injuries. Accordingly, they attempted to recover UIM benefits from her employer’s insurer. The Bursteins discovered that the employer waived UM/UIM coverage on the policies. They then sought UIM benefits from their own insurer, Prudential, which denied coverage based on the regular-use exclusion.
The Bursteins sued Prudential, claiming the regular-use exclusion violated public policy. A panel of arbitrators found that the exclusion violated public policy as to Mr. Burstein but not as to Mrs. Burstein. Following a de novo trial, the trial court held the regular-use exclusion violated public policy as to both. Prudential appealed, and the Superior Court affirmed in an en banc decision. This Court granted allocatur on the issue of whether the regular-use exclusion was void as against public policy. Id.
On appeal, we recognized that the Bur-steins’ assertions of public policy necessarily competed with the policy concern underlying the MVFRL — the spiraling consumer costs of automobile insurance. Id. at 207-08. We specifically found that voiding the exclusion would frustrate the public policy of cost containment in the MVFRL because “the insurer would be forced to underwrite unknown risks that it has not been compensated to insure.” Id. at 208.
In dissent, Mr. Justice Saylor analyzed the development of the law regarding UIM benefits from the time Pennsylvania repealed the No-Fault Motor Vehicle Insurance Act and replaced it with the MVFRL and stated:
In my view, the specific question at the center of this appeal is whether the General Assembly intended to incorporate a fixed concept of portability into the statute, thus foreclosing the employment of geographic exclusions such as the [regular-use] exclusion.
Id. at 221 (Saylor, J., dissenting).
Following a thorough analysis of the development of UIM law and portability both in and outside Pennsylvania, Mr. Justice Saylor concluded that the General Assembly did not intend to incorporate such a fixed concept in the statute but that the Pennsylvania Insurance Department was to play a role in crafting regulations outlining the attributes of required UIM coverage. Id. Based on the Insurance Department’s regulations pertaining to the portability of UM coverage and despite its silence regarding UIM coverage, Mr. Justice Saylor opined that he would hold that the regular-use exclusion violated public policy reflected in the regulations. Id. at 231.
From a practical standpoint, Mrs. Burstein should have taken affirmative steps to determine whether the employer-provided vehicle was insured and, if so, with what types of coverage. This is especially glaring in view of Mrs. Bur-stein’s use of employer-provided vehicles for over eight years. Stipulated Facts at 2. Once she would have discovered the lack of UIM coverage, she would have had several options. First, she could have accepted the vulnerability of driving the vehicle without UIM coverage. While this may not have been the option preferred by Mrs. Burstein, this Commonwealth does not require UIM coverage. See 75 Pa.C.S. § 1731(a) (requiring the offer of UM and UIM motorist coverage, but declaring that such coverage is optional). Thus, tolerating the risk of injury from an underinsured motorist was a viable option for Mrs. Bur-stein. Second, she could have obtained UIM coverage for the vehicle in either of two ways: she could have negotiated with her employer for it to purchase UIM coverage on the vehicle; or, if the employer refused, there is no evidence of record suggesting that Mrs. Burstein could not have purchased the coverage herself. Lastly, if Mrs. Burstein could neither obtain the desired UIM coverage nor accept the risk of driving the employer-provided vehicle without UIM coverage, then she could have refused to drive the car.
Id. at 209-10.
Here, Appellant contends that he could not purchase separate UIM insurance for coverage while driving a state police vehicle, nor could he negotiate with the Pennsylvania State Police to provide such coverage to its employees. He also notes that the Commonwealth, as a self-insured entity, is not required to offer UIM coverage. 75 Pa.C.S. § 1787. Finally, Trooper Williams underscores that he was required to use a state police vehicle while on duty, and he was not permitted to use a state police vehicle in any personal capacity while not on duty. As such, Appellant argues that the facts are distinguishable
We have recognized that a party seeking to void an unambiguous provision in an insurance contract on public policy grounds bears a heavy burden. See Generette,
Moreover, we find Appellant’s reliance on the selected language in Burstein unpersuasive, as it is dicta. Our discussion of Mrs. Burstein’s practical options for achieving UIM benefits on her employer-owned vehicle was specific to the facts of her case. Burstein was decided on public policy grounds, and the key decisional language appears earlier in the opinion, wherein we stated:
Here, voiding the exclusion would frustrate the public policy concern for the increasing costs of automobile insurance, as the insurer would be compelled to underwrite unknown risks that it has not been compensated to insure. Most significantly, if this Court were to void the exclusion, insureds would be empowered to regularly drive an infinite number of non-owned vehicles, and receive gratis UIM coverage on all of those vehicles if they merely purchase UIM coverage on one owned vehicle. The same would be true even if the insureds never disclose any of the regularly used, non-owned vehicles to the insurers, as is the case here. Consequently, insurers would be forced to increase the cost of insurance, which is precisely what the public policy behind the MVFRL strives to prevent. Such result is untenable.
Id. at 208.
The crucial factors underlying Burstein and the instant case are identical — an employee injured while driving his employer-owned vehicle attempted to recover UIM benefits from his private insurer without compensating the insurer for that unknown risk.
Next, Appellant claims that the regular-use exclusion violates 75 Pa.C.S. § 1731 specifically with regard to subsections (c) and (c.l).
We recently addressed a similar argument involving the household exclusion to UIM coverage. In Erie Ins. Exchange v. Baker,
In the present case, Appellant’s argument similarly fails. The regular-use exclusion as applied here is neither an implicit waiver of coverage nor an improper limitation on the statutorily mandated coverage. Rather, it functions as a reasonable preclusion of coverage of the unknown risks associated with operating a regularly used, non-owned vehicle. Indeed, an alternative reasoning would stifle the policies underlying the MVFRL and UIM coverage because the cost for UIM coverage would necessarily increase, and employers would have an incentive to underinsure their motor vehicles with the knowledge that injured employees could collect UIM benefits under their personal policies. We find both of these outcomes repugnant to the policy underlying the MVFRL.
Moreover, to the extent that Appellant and the PAJ ask us to reconsider the holding in Burstein and find that the regular-use exclusion itself violates public policy due to the conflict with the MVFRL, their arguments are misplaced. To reinterpret 75 Pa.C.S. § 1731 to preclude long-standing exclusions to UIM coverage on public policy grounds would violate the canons of statutory construction. Commonwealth v. Mitchell,
[I]n ascertaining the legislature’s intent, “when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language.” 1 Pa.C.S. § 1922(4).... [A]s we have recognized, “[t]he failure of the General Assembly to change the law which has been interpreted by the courts creates a presumption that the interpretation was in accordance with the legislative intent; otherwise the General Assembly would have changed the law in a subsequent amendment.” Fonner v. Shandon, Inc.,555 Pa. 370 , [377-78],724 A.2d 903 , 906 (1999) (citation omitted); 1 Pa.C.S. § 1922(4).
Id. at 462 n. 20.
We decided Burstein in 2002. Since that time, the General Assembly has not amended section 1731 to preclude any of the long-standing exclusions to coverage. In that regard, it is clear that such exclusions are consistent with the legislature’s intent. See Baker,
Finally, Appellant claims that Appellee is disingenuous when it suggests that employers such as the Pennsylvania State Police can purchase UIM coverage. Appellant argues that the employer’s insurer would then decline coverage based on an exclusion for UIM coverage where workers’ compensation benefits are received. While we believe such a claim ordinarily would be too speculative to consider, we simply note that we address the issue in Heller v. PA League of Cities and Municipalities, - Pa. -,
In summary, we reaffirm the decision in Burstein, holding that the regular-use exclusion is not void as against public policy. A contrary decision is untenable, as it would require insurers to compensate for risks they have not agreed to insure, and for which premiums have not been collected. The order of the Superior Court is affirmed. Jurisdiction relinquished.
Chief Justice CASTILLE and Justices EAKIN and BAER join the opinion.
Justice SAYLOR files a concurring opinion.
Justice BAER files a concurring opinion.
Justice TODD files a concurring opinion in which Justice McCAFFERY joins.
Notes
. 75 Pa.C.S. § 1701 et seq.
. As the Commonwealth is a self-insured entity, the Department of General Services is the insurer.
. The record does not indicate the ultimate resolution of that separate litigation but states only that Stickley "did not have sufficient insurance coverage available to reimburse [Williams] for the injuries and damages that he sustained.” Appellant’s Petition to Compel Arbitration, 7/21/06, at ¶ 5.
. The Superior Court panel herein stated that "left with a blank slate on this issue, we would conclude that the distinctions noted in footnote 7 of Brinks [sic] are sufficient distinguishing circumstances to invalidate the application of the policy exclusion to the facts in this case.” Williams, No. 931 WDA 2007, at 6. The Brink court discussed our prior decision in Burstein v. Prudential Property & Cas. Ins. Co.,
The [Supreme] Court, in effect, said that the employee has the responsibility to inquire as to the extent of UIM coverage provided by the employer on its provided vehicles. Once the employee determines that the employer does not have the hoped-for coverage, the [Supreme] Court said the employee has one of three options: (1) the employee can drive without the UIM coverage (because Pennsylvania does not require it); (2) the employee can attempt to obtain UIM coverage by either negotiating with the employer to provide it or privately purchasing coverage; or (3) the employee can refuse to drive an employer-provided vehicle.
The Burstein options may not be available to police officers. Unlike private sector employees, police officers may not be able, as members of a union, to make such inquiry of an employer, to try to negotiate with the employer or to refuse to drive the municipality-provided police vehicles. Further, private purchase of UIM benefits may not be a realistic option because such insurance may not be available.
We decline to do more than make the above observations. While the issue is better addressed by the legislative or the executive branch, we do observe that the facts of Burstein are different from the facts in this case.
Brink,
. We note that in our order granting allowance of appeal, we rephrased the question on appeal and assumed that Appellant could not have obtained UIM coverage for his police vehicle. See Williams v. Geico Government Employees Ins. Co.,
. In his brief, Appellant discusses the distinctions between his circumstances and those in Burstein before addressing the public policy concern. For ease of discussion, we address the general public policy concerns first.
. Formerly known as the Pennsylvania Trial Lawyers’ Association.
. Act of June 28, 1935, P.L. 477 §§ 1-2, as amended, 53 P.S. §§ 637-638.
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.1; 2501-2626.
. Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 etseq.
. Act of August 18, 2009, P.L. 308, as amended, 35 Pa.C.S. § 8101 etseq.
. Other enumerated beneficiaries include "enforcement officers and investigators for the Pennsylvania Liquor Control Board, parole agents, corrections officers, psychiatric security aides, drug enforcement agents, policemen, firemen, and park guards.” 53 P.S. § 637.
. Section 108(m.l) is codified at 77 P.S. § 27.1(m. 1) and states:
(m. 1) Hepatitis C in the occupations of professional and volunteer firefighters, volunteer ambulance corps personnel, volunteer rescue and lifesaving squad personnel, emergency medical services personnel and paramedics, Pennsylvania State Police officers, police officers requiring certification under 53 Pa.C.S. Ch. 21 (relating to employees), and Commonwealth and county correctional employes, and forensic security employes of the Department of Public Welfare, having duties including care, custody and control of inmates involving exposure to such disease. Hepatitis C in any of these occupations shall establish a presumption that such disease is an occupational disease within the meaning of this act, but this presumption shall not be conclusive and may be rebutted. This presumption shall be rebutted if the employer has established an employment screening program, in accordance with guidelines established by the department in coordination with the Department of Health and the Pennsylvania Emergency Management Agency and published in the Pennsylvania Bulletin, and testing pursuant to that program establishes that the employe incurred the Hepatitis C virus prior to any job-related exposure.
. Appellant’s citation to 77 P.S. § 301(e) as the Occupational Disease Act actually is a section of the Workmen's Insurance Board Act that was repealed in 1996. Act of June 24, 1996, P.L. 350. Section 301(e) is contained in the Workers’ Compensation Act and codified at 77 P.S. § 413. We analyze Section 301(e) of the Workers’ Compensation Act accordingly.
. In his brief, Appellant cites to 35 P.S. § 693 l(j). That section was repealed in August 2009, effective February 16, 2010, and replaced with 35 Pa.C.S. § 8151.
. The holding in Annunziata casts doubt upon the policy of “protection” identified by Appellant, as we have stated unequivocally since 1957 that Heart and Lung Act benefits were not designed to protect first responders but rather to protect the municipality. Kurtz,
. Specifically, Mr. Justice Saylor relied on 31 Pa.Code § 63.2, which states:
(a) The extent of the coverage which shall be offered as "Uninsured Motorists Coverage" shall be at least that coverage contained in the sample form in Exhibit C, which is the National standard form for this insurance.
(b) An endorsement shall be issued by insurers to effect removal of an exclusion not listed in Exhibit C: Exclusions. A notice shall accompany each endorsement at the initial policy writing or at renewal which notice fully informs the insured of his right to reopen claims where a previous claim was denied under the exclusion on or after April 13, 1978.
(1) The endorsement and notice shall be submitted to the Bureau of Regulation of Rates and Policies for prior approval. Insurers or rating organizations on behalf of their members and subscribers shall make the filings not later than August 15, 1979.
(2) The following notice will be deemed to meet the requirements of this subsection:
On April 13, 1978, the Superior Court of Pennsylvania declared void an exclusion which denies Uninsured Motorists coverage when an insured is injured while occupying an uninsured motor vehicle owned by that insured. Accordingly, insurers cannot deny coverage solely by reason of that exclusion for claims made or pending on or after April 13, 1978. Contact your agent if you think you are entitled to payment as a result of this change to your policy as of April 13, 1978.
. Appellant selectively quotes from Burstein in support of his claim that the above paragraph was crucial to our holding therein. Appellant’s substitute brief at 12-13. As we conclude that this portion of Burstein was dicta, we have included the full quote herein.
. Appellant asks this Court to take judicial notice of the fact that GEICO's insurance application requires applicants to disclose their employer, and Appellant complied with that mandate. We decline to do so because: (1) the application was not part of the record on appeal; and (2) we consider such a position irrelevant, as mere notice to GEICO that Appellant is employed by the Pennsylvania State Police does not equate to accepting the risk of coverage in those circumstances. This is especially true given the increased risk of accident that corresponds with the specialized driving required of a police officer.
. As part of this argument, Appellant relies on cases from other jurisdictions that limit the scope of insurance exclusions. Appellant's substitute brief at 22. However, our analysis of the relied-upon authority demonstrates that these decisions relate to stacking of UIM benefits, which is not at issue in the present case.
. 75 Pa.C.S. § 1731 provides, in relevant part:
(c) Underinsured motorist coverage. — Un-derinsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles. The named insured shall be informed that he may reject underinsured motorist coverage by signing the following written rejection form:
REJECTION OF UNDERINSURED MOTORIST PROTECTION
By signing this waiver I am rejecting under-insured motorist coverage under this policy, for myself and all relatives residing in my household. Underinsured coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have enough insurance to pay for all losses and damages. I knowingly and voluntarily reject this coverage.
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(c.l) Form of waiver. — Insurers shall print the rejection forms required by subsections (b) and (c) on separate sheets in prominent type and location. The forms must be signed by the first named insured and dated to be valid. The signatures on the forms may be witnessed by an insurance agent or broker. Any rejection form that does not specifically comply with this section is void. If the insurer fails to produce a valid rejection form, uninsured or underinsured coverage, or both, as the case may be, under that policy shall be equal to the bodily injury liability limits. On policies in which either uninsured or underinsured coverage has been rejected, the policy renewals must contain notice in prominent type that the policy does not provide protection against damages caused by uninsured or underin-sured motorists. Any person who executes a waiver under subsection (b) or (c) shall be precluded from claiming liability of any person based upon inadequate information.
. The “household exclusion” to UIM coverage excludes coverage for any damages sustained by the insured while operating or being struck by a vehicle owned by the insured or a relative living in the insured’s home who does not have UM/UIM coverage under the policy. In Baker, the claimant was injured in a motorcycle accident and sought UIM coverage from Erie Insurance Exchange, which provided coverage on three of the claimant's other vehicles but not the motorcycle.
. Section 1738(d) requires the use of a specific written waiver form to reject stacking of UM/UIM coverage, which is similar to the required written waiver form identified in 75 Pa.C.S. § 1731. See Note 21, supra.
. In this regard, we are troubled by the slippery slope, as Appellant proposes no reasonable limitation on the scope of "first responders” to whom a judicially-crafted exception to the regular-use exclusion would apply. PAJ goes further, advocating that the exclusion should never apply to any employees who drive fleet vehicles. These policy arguments are best left to the legislature instead of the courts.
Concurrence Opinion
concurring.
I join the majority’s holding and much of its reasoning. My modest differences are as follows.
First, I agree with the majority that there is a strong public policy favoring the protection of first responders. See Majority Opinion, op. at 1202-03. Even so, I agree with Appellee that such policy is not so overarching as to override rational contractual limitations on coverage provided by commercial insurers in the absence of specific legislative or regulatory guidance. See Brief for Appellee at 1. In this regard, I fully support the majority’s explanation that the critical issue in addressing geographic policy limitations lies in determining to what extent the General Assembly envisioned that coverage must be portable (or follow the insured outside the vehicle or vehicles listed on the policy). See Majority Opinion, op. at 1204-05. While I dissented in Burstein based on the belief
I would also once and for all abandon the rubric that cost containment was the overarching policy concern of the Motor Vehicle Financial Responsibility Law, since the act clearly retained the core remedial objectives of the prior regulatory scheme. See id. at 145-46 & n. 8,
. As I explained in my responsive opinion in Burstein, the observation that the offer of UM/ UIM coverage is mandatory does not answer the question of how far beyond insured vehicles the Legislature intended for the coverage to apply. See Burstein,
Concurrence Opinion
concurring.
Bound by stare decisis, I join the Majority Opinion, holding that the “regular use” exclusion does not violate public policy, even when applied to first responders. See, e.g., Erie v. Baker,
I write separately to applaud Justice Saylor in his concurring opinion in this case and Justice Orie Melvin in her Majority Opinion in Heller v. Pa. League of Cities, - Pa. -,
I recognize that the MVFRL was passed to control the spiraling auto insurance premiums paid by Pennsylvania drivers in the early 1980’s. Indeed, I appreciate the concerns of the insurance industry, vociferously expressed in nearly every brief it files with this Court, that any expansion of insurers’ risk of liability could lead us back to those spiraling premiums. Nonetheless, as with all exigencies, whether they be national (the economy), statewide (budget deficits), or local (transit woes), the reality is that they wax and wane. In considering the insurance industry’s rhetoric, I cannot help but observe that the industry appears to be awash in revenue. It is hard not to notice the industry’s spending on many discretionary activities, including incessant television advertising, the All-State Sugar
I additionally write to express my agreement with my colleagues that strong public policy exists favoring the protection of first responders, as evidenced by the numerous statutes providing important and necessary protections for our first responders, including the Heart and Lung Act, as detailed in the Majority Opinion. Maj. Op. at 1200-03. Nonetheless, I agree that any further protection in the form of automobile insurance benefits must come from the legislative branch and not this Court.
Accordingly, I join the Majority Opinion.
Concurrence Opinion
concurring.
I concur in the result reached by the majority. The Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”) expressly sets forth a remedial public policy to promote the recovery of damages for innocent victims of accidents by mandating that insurers offer uninsured motorist (“UM”) and underinsured motorist (“UIM”) protection to insureds. 75 Pa.C.S.A. § 1731(a). Prior decisional law, while somewhat distinguishable on the facts from the situation before us, has upheld a “regularly used, non-owned car” exclusion similar to that at issue in this appeal in light of our Commonwealth’s public policy supporting cost containment as expressed in the MVFRL. Burstein v. Prudential Prop. and Cas. Ins. Co.,
The question before our Court is whether this exclusion of UIM coverage is viola-tive of the public policy of our Commonwealth. As a general proposition, a court must give plain meaning to an insurance contract’s clear and unambiguous language unless to do so would be contrary to a clearly expressed public policy. Eichelman v. Nationwide Ins. Co.,
The MVFRL requires insurers to offer UM and UIM coverage to their insureds, and waiver of such coverage must be accompanied by signed statutorily-defined rejection forms. 75 Pa.C.S.A. § 1731(a), (c.l). Thus, by this mandate, the General Assembly has articulated a remedial public policy that promotes the recovery of damages for innocent victims of accidents from motorists who cannot adequately compensate such victims for their injuries. While the offer of such coverage is required, the purchase of UM/UIM coverage is optional. In the matter before us, we observe that GEICO limited the breadth of UM/UIM coverage by inserting certain exclusions into its policies. In particular, although State Trooper Williams purchased UIM coverage on his personal automobile policy, the policy contained a regular use exclusion which operates to preclude the UIM coverage he seeks herein. See Majority Opinion at 1197.
There also exists a public policy favoring cost containment that served as the foundation of the General Assembly’s 1990 amendments to the MVFRL and our decision in Burstein. We reasoned that this policy functioned to prevent insureds from receiving “gratis” coverage.
Nevertheless, since the turn of the 20th century, our legislature and courts have accorded special protections to emergency first responders, which confirms our Commonwealth’s public policy by safeguarding their rights as they endeavor to protect and serve our communities and our citizens. Indeed, our law is replete with examples of such special protections. The Heart and Lung Act, 53 P.S. § 637, enacted in 1935, provides full salary for temporary disability by certain emergency personnel.
While I acknowledge that our Court in Burstein found that cost containment was the “dominant” and “overarching” public policy underlying the MVFRL,
Accordingly, in the matter sub judice, we are faced with multiple significant policies — a remedial public policy to promote the recovery of damages for innocent victims of accidents, cost containment, and the protection of the health and safety of our Commonwealth’s emergency first responders. The strain between and among these valid policies is palpable, as the policy of protection of emergency first responders through the receipt of UIM benefits is in direct conflict with the principle of reducing automobile insurance costs.
As that is the case, I conclude it is the members of the General Assembly, and not the Justices of this Court, who must act to definitively resolve the tension between the remedial policy underlying the statute, the laudable goal of cost containment in automobile insurance, and the compelling policy of protecting the men and women who serve our citizenry each day from undercompensation when they are the innocent victims of accidents involving uninsured or underinsured motorists. In my view, emergency first responders should not be subjected to the consequences of driving a vehicle without UIM coverage in light of the intent of the MVFRL and the public policy in favor of protecting these brave men and women. Therefore, I urge the General Assembly to consider measures to ensure that these public servants are not vulnerable to inadequate compensation for injuries incurred in the performance of their critical duties — by, for example, requiring that public employers purchase UM/UIM coverage for emergency first responders in their employ, or mandating that automobile insurers be barred from excluding UM/UIM coverage for emergency first responders.
Justice McCAFFERY joins this concurring opinion.
. The majority’s suggestion that this statute was solely designed to "protect the municipality rather than the responder,” Majority Opinion at 10, is overstated and belied by our prior decisions which acknowledge mixed purposes for the passage of the Heart and Lung Act. See, e.g., Camaione v. Borough of Latrobe,