The Pennsylvania Supreme Court issued a decision recently in Generette v. Donegal.  The Court, in a majority decision by Justice Baer (joined by C.J. Castille, Todd and McCaffery), reverses the Superior Court 5-4 en banc decision.

The Court holds that the Superior Court erred in concluding that the MVFRL provision relating to stacking and waiver applied to Generette, who was not an "insured" as defined by the MVFRL. Additionally, it holds that a portion of the "Other Insurance" clause in the Generette policy with Donegal is non-enforceable because it conflicts with the public policy of the MVFRL to provide "excess" rather than "gap" underinsured motorist coverage.  Justice Saylor filed a separate concurring and dissenting opinion and Justice Eakin a separate dissenting opinion.

This is a very confusing issue to the lay person and the written opinion certainly bears that out.  Just understand that it is a win for the good guys.  It has made a direct, positive result in one of the underinsurance claims being litigated here at Carroll & Carroll, P.C.

Thanks, as always, to Scott Cooper, Esquire for providing this information.

Attached is the link to the Pennsylvania Superior Court decision on October 10, 2008 in Nationwide Assurance Company v. Easley where the Superior Court affirms the trial court decision in Allegheny County which upheld 2 exclusions as they applied to preclude a cab driver from obtaining underinsured motorist coverage (UIM) on his personal policy for an accident which occured while he was driving a cab.

Calvin Easley(Easley) was injured while operating a Yellow Cab Taxi in Pittsubrgh.  He paid a lease fee for use of the taxi during a 24 hour period and had no choice over the taxi he received. He did not have a paying customer in the cab when he was injured by a third party in a car accident. He was driving home and was intending to return the cab the next day.

After settling the third party claim and then, since the taxi company did not provide UIM coverage, he made a claim on his personal policy for UIM coverage but was denied based upon 2 exclusions which denied him coverage for accidents occuring in a vehicle avaliable for his "regular use" and also for vehicles "used to carry persons or property for a charge".

The Superior Court decision by Judge Popovich finds that the fact Easley did not have a passenger with him at the time the accident occured does not render the "use for hire" exclusion invalid nor did the fact that he operated different taxis render the "regular used" vehicle exclusion invalid. The Superior Court affirms the trial court decision and upholds both exclusions.

Thanks to Scott Cooper, Esquire for providing this information.