Kevin L. Connors, Esquire

In Rother v. Erie Insurance, the Pennsylvania Superior Court affirmed the applicability of the regularly-used, non-owned vehicle exclusion in the Plaintiff’s personal automobile insurance policy.


The Plaintiff, Patrick Rother, was injured in a motor vehicle accident, driving his father’s car, on March 3, 2007.  At the time of the accident, the Plaintiff was living with his mother, Daryl Rother; he was living there, as he had recently found a job close to his mother’s home, and he did not own his own car.

His father had given him permission to use one of his vehicles, to commute to work, and for emergencies.

Two weeks after moving in with his mother, he was severely injured in an automobile accident, caused by a drunken driver.

Recovering the other driver’s liability limits, the Plaintiff filed a Declaratory Judgment action against Erie, alleging that Erie was required to provide underinsured motorist coverage, under his parent’s automobile insurance policy.

Defending the claim, Erie contended that the sought-after UIM coverage was specifically excluded by the “regular use” provisions within its policy.

Both parties moved for Summary Judgment, with Summary Judgment being entered in favor of the Plaintiff, with the trial court finding that the “regular use” exclusion was not applicable.

Erie appealed the trial court ruling to the Superior Court, and the Superior Court, in an opinion authored by Justice Bowes on October 18, 2012, reversed the trial court, remanding the case back to the trial court, for judgment to be entered in favor of Erie, in reliance upon Erie’s “regular use” exclusion being a basis for Erie’s exclusion of UIM coverage to the Plaintiff.


Holding that coverage exclusions are typically very narrowly construed, the Superior Court nevertheless held that the “regular use exclusion” has been held to be enforceable, and not void as against public policy under Williams v. Geico, 32 A.3d 1195 (Pa. 2011).

The term “regular use” in the context of the exclusion, has also been found to be clear and unambiguous, in Brink v. Erie Insurance, 940 A.2d 528 (Pa. Super. 2008).

Finding the exclusion to be both enforceable and unambiguous, the key test in Rother was whether the Plaintiff’s “use” was “regular” or “habitual”.  Very simply, the “use” cannot be “casual”, or “incidental”, for the exclusion to have force and effect.

Finding that the Plaintiff’s use of the vehicle that he was operating when the accident occurred was “regular”, as it was not “temporary”, as it was also the only vehicle that the Plaintiff used, while commuting to work, that fact demonstrated a pattern of use that was regular and consistent, as well as being exclusive.  The same pattern also negated the inference of the Plaintiff’s use of the vehicle being “isolated, casual, or incidental”.

Holding that the “regular use” exclusion promotes the costs containment policy realized under the Pennsylvania Motor Vehicle Financial Responsibility Law, the Superior Court found that the “regular use” exclusion in Erie’s insurance policy was triggered by the Plaintiff’s “regular” use of the vehicle that he was operating when the accident occurred, such that the coverage exclusion should have resulted in the trial court granting Summary Judgment in favor of Erie, and not the Plaintiff.

A remand was ordered.


A September 25, 2012 ruling by the Superior Court, in Adamitis v. Erie, likewise affirmed the application of the “regular use” exclusion, as a grounds for excluding underinsured motorists coverage to an Erie insurer, who had sought UIM coverage and benefits, after the Plaintiff was injured while driving a bus for the Berks Area Reading Transit Authority (“Barta”), in the course and scope of his employment; the Superior Court, in its opinion authored by Justice Stevens, held that the “regular use exclusion” was enforceable, not against public policy, as well as being fully applicable to the Plaintiff’s “regular use” of the bus that he was operating, when the accident occurred.

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