YOST & TRETTA, LLP - Attorneys at Law

SPRING 2008

RECENT CASE SUMMARIES INSURANCE COVERAGE

We have prepared the following compilation of insurance coverage decisions by the Pennsylvania courts during the last six months, which may be of interest to you. Please contact us if you have any questions or would like a copy of any of these decisions.

AUTO-UM/UIM/STACKING

In Everhart v. PMA Ins. Group, 938 A.2d 301 (2007), the Pennsylvania Supreme Court held that the Pennsylvania Motor Vehicle Financial Responsibility Law does not mandate the stacking of UM/UIM coverage under commercial fleet policies.

AUTO-UM/UIM/LIMIT OF COVERAGE

In Blood v. Old Guard Ins. Co., 934 A.2d 1218 (Pa. 2007), the Pennsylvania Supreme Court held that where the insureds lowered the limit of their liability coverage, the previously elected limit of uninsured/underinsured motorist coverage remained the same.

AUTO-UM/UIM-MOTOR VEHICLE

In Burdick v. Erie Ins. Group, 2008 Pa. Super. LEXIS 272 (Pa. Super. April 4, 2008), the Pennsylvania Superior Court held that, because a dirt bike qualified as a motor vehicle under the Motor Vehicle Financial Responsibility Law, an exclusion in uninsured motorist policy for vehicles designed for use primarily off road was invalid.

In Nationwide Mut. Ins. Co. v. Yungwirth, 940 A.2d 523 (Pa. Super. Ct. 2008), the Pennsylvania Superior Court held that an exclusion in an uninsured motorist policy for "[a]ny equipment or vehicle designed for use mainly off public roads except while on public roads" barred coverage for injuries sustained by insured while a passenger in an all terrain vehicle that was being driven off road.

AUTO-UM/UIM-WORKERS COMPENSATION LIEN

In Burke v. Erie Insurance Exch., 940 A.2d 472 (Pa. Super. 2007), the Pennsylvania Superior Court held that, where the claimant’s workers compensation insurer agreed to waive its subrogation lien, the claimant could not recover the amount of the workers compensation benefits in an underinsured motorist arbitration against the same insurer.

AUTO-EXCLUSION OF REGULARLY USED VEHICLE

In Brink v. Erie Ins. Group, 940 A.2d 528 (Pa. Super. 2008), the Pennsylvania Superior Court held that, where the insured police officer was injured while operating a policy vehicle in the course of his employment, an exclusion for claims arising out of operation of “regularly used” vehicle applied even though the insured did not regularly use the vehicle involved in accident, which was one of many fleet vehicles that insured used in the course of employment.

In Erie Insurance Exchange v. E.L., 941 A.2d 1270 (Pa. Super. 2008), the Pennsylvania Superior Court held that a "regularly used non-owned vehicle" exclusion did not apply to a claim for underinsured motorist benefits by the insured’s eleven year old daughter who was injured while a passenger in her brother’s car that was insured under another insurer’s policy.

BINDER

In MDL Capital Mgmt. v. Fed. Ins. Co., United States Court of Appeals for the Third Circuit, 2008 U.S. App. LEXIS 7134 (3d Cir. Pa. Apr. 2, 2008), the Court held that an endorsement listed only by title in a binder for an Investment Advisers Errors and Omissions policy could not be used to bar coverage where the actual wording of the endorsement was not included in the binder.

DUTY TO DEFEND

In Am. & Foreign Ins. Co. v. Jerry's Sport Ctr., Inc., No. 1098 MDA 2006, 2008 Pa. Super. LEXIS 990 (Pa. Super. Ct. May 5, 2008), the Pennsylvania Superior Court held that an insurer was not entitled to reimbursement of attorneys fees that it had incurred in defending its insured, even though it was ultimately determined that the insurer had no duty to defend.

HEALTH CARE INSURANCE-SUBROGATION

In Valora v. Pa. Employees Benefit Trust Fund, 939 A.2d 312 (Pa. 2007), the Pennsylvania Supreme Court held that an employee health care plan waived its contractual right to subrogation from the insured’s recovery in a medical malpractice action as a result of the plan’s lack of reasonable diligence in failing to assert the claim while the malpractice action was pending.

INTENTIONAL HARM

In Allstate Indem. Co. v. Batzig, United States Court of Appeals for the Third Circuit, 2008 U.S. App. LEXIS 5806 (3d Cir. Pa. Mar. 18, 2008), the Court held that, where action was brought against insureds and their son arising out of the son’s murder of the decedent, an exclusion for bodily injury “intended by any insured person” barred coverage for both the son and the parents, even though the claim asserted only negligence on the part of the parents.

OCCURRENCE

In Donegal Mut. Ins. Co. v. Baumhammers, 938 A.2d 286 (Pa. 2007), the Pennsylvania Supreme Court held that the alleged negligence of the insureds in failing to prevent their son from shooting and killing several persons constituted a single “occurrence”.

In Millers Capital Ins. Co. v. Gambone Bros. Dev. Co., 941 A.2d 706 (Pa. Super. Ct. 2007), the Pennsylvania Superior Court held that claims against the insured construction contractor/developer by homeowners who alleged that defective stucco exteriors and windows caused water damage to the interior of the homes did not arise out of an “occurrence”.

RESIDENT RELATIVE

In Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958 (Pa. Super. 2007), the Pennsylvania Superior Court held that, where evidence showed that insured’s grandson was a transient and stayed only sporadically at her home, he was not a “resident relative”, regardless of his intent.

SEPARATION OF INSUREDS

In Estate of Neff v. Alterra Healthcare Corp., United States Court of Appeals for the Third Circuit, 2008 U.S. App. LEXIS 6705 (3d Cir. Pa. Mar. 28, 2008), the Court held that a “Separation of Insureds” provision of a general liability policy did not preclude the application of an abuse or molestation exclusion to a claim arising out of the abuse of a patient by the insured’s employees.

SUCCESSOR OF INSURED

In Henkel Corp. v. Hartford Accident & Indem. Co., United States Court of Appeals for the Third Circuit, 2008 U.S. App. LEXIS 6496 (3d Cir. Pa. Mar. 27, 2008), the Court held that the policy did not provide coverage for defense costs incurred by a successor to the insured in actions in which neither the insured nor the successor were named as defendants.

If you have questions about any of the above decisions or would like a copy of any opinion, please contact us.

YOST AND TRETTA, LLP




	SPRING 2008 RECENT CASE SUMMARIES INSURANCE COVERAGE We have prepared the following compilation of insurance coverage decisions by the Pennsylvania courts during the last six months, which may be of interest to you. Please contact us if you have any questions or would like a copy of any of these decisions. AUTO-UM/UIM/STACKING In Everhart v. PMA Ins. Group, 938 A.2d 301 (2007), the Pennsylvania Supreme Court held that the Pennsylvania Motor Vehicle Financial Responsibility Law does not mandate the stacking of UM/UIM coverage under commercial fleet policies. AUTO-UM/UIM/LIMIT OF COVERAGE In Blood v. Old Guard Ins. Co., 934 A.2d 1218 (Pa. 2007), the Pennsylvania Supreme Court held that where the insureds lowered the limit of their liability coverage, the previously elected limit of uninsured/underinsured motorist coverage remained the same. AUTO-UM/UIM-MOTOR VEHICLE In Burdick v. Erie Ins. Group, 2008 Pa. Super. LEXIS 272 (Pa. Super. April 4, 2008), the Pennsylvania Superior Court held that, because a dirt bike qualified as a motor vehicle under the Motor Vehicle Financial Responsibility Law, an exclusion in uninsured motorist policy for vehicles designed for use primarily off road was invalid. In Nationwide Mut. Ins. Co. v. Yungwirth, 940 A.2d 523 (Pa. Super. Ct. 2008), the Pennsylvania Superior Court held that an exclusion in an uninsured motorist policy for "[a]ny equipment or vehicle designed for use mainly off public roads except while on public roads" barred coverage for injuries sustained by insured while a passenger in an all terrain vehicle that was being driven off road. AUTO-UM/UIM-WORKERS COMPENSATION LIEN In Burke v. Erie Insurance Exch., 940 A.2d 472 (Pa. Super. 2007), the Pennsylvania Superior Court held that, where the claimant’s workers compensation insurer agreed to waive its subrogation lien, the claimant could not recover the amount of the workers compensation benefits in an underinsured motorist arbitration against the same insurer. AUTO-EXCLUSION OF REGULARLY USED VEHICLE In Brink v. Erie Ins. Group, 940 A.2d 528 (Pa. Super. 2008), the Pennsylvania Superior Court held that, where the insured police officer was injured while operating a policy vehicle in the course of his employment, an exclusion for claims arising out of operation of “regularly used” vehicle applied even though the insured did not regularly use the vehicle involved in accident, which was one of many fleet vehicles that insured used in the course of employment. In Erie Insurance Exchange v. E.L., 941 A.2d 1270 (Pa. Super. 2008), the Pennsylvania Superior Court held that a "regularly used non-owned vehicle" exclusion did not apply to a claim for underinsured motorist benefits by the insured’s eleven year old daughter who was injured while a passenger in her brother’s car that was insured under another insurer’s policy. BINDER In MDL Capital Mgmt. v. Fed. Ins. Co., United States Court of Appeals for the Third Circuit, 2008 U.S. App. LEXIS 7134 (3d Cir. Pa. Apr. 2, 2008), the Court held that an endorsement listed only by title in a binder for an Investment Advisers Errors and Omissions policy could not be used to bar coverage where the actual wording of the endorsement was not included in the binder. DUTY TO DEFEND In Am. & Foreign Ins. Co. v. Jerry's Sport Ctr., Inc., No. 1098 MDA 2006, 2008 Pa. Super. LEXIS 990 (Pa. Super. Ct. May 5, 2008), the Pennsylvania Superior Court held that an insurer was not entitled to reimbursement of attorneys fees that it had incurred in defending its insured, even though it was ultimately determined that the insurer had no duty to defend. HEALTH CARE INSURANCE-SUBROGATION In Valora v. Pa. Employees Benefit Trust Fund, 939 A.2d 312 (Pa. 2007), the Pennsylvania Supreme Court held that an employee health care plan waived its contractual right to subrogation from the insured’s recovery in a medical malpractice action as a result of the plan’s lack of reasonable diligence in failing to assert the claim while the malpractice action was pending. INTENTIONAL HARM In Allstate Indem. Co. v. Batzig, United States Court of Appeals for the Third Circuit, 2008 U.S. App. LEXIS 5806 (3d Cir. Pa. Mar. 18, 2008), the Court held that, where action was brought against insureds and their son arising out of the son’s murder of the decedent, an exclusion for bodily injury “intended by any insured person” barred coverage for both the son and the parents, even though the claim asserted only negligence on the part of the parents. OCCURRENCE In Donegal Mut. Ins. Co. v. Baumhammers, 938 A.2d 286 (Pa. 2007), the Pennsylvania Supreme Court held that the alleged negligence of the insureds in failing to prevent their son from shooting and killing several persons constituted a single “occurrence”. In Millers Capital Ins. Co. v. Gambone Bros. Dev. Co., 941 A.2d 706 (Pa. Super. Ct. 2007), the Pennsylvania Superior Court held that claims against the insured construction contractor/developer by homeowners who alleged that defective stucco exteriors and windows caused water damage to the interior of the homes did not arise out of an “occurrence”. RESIDENT RELATIVE In Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958 (Pa. Super. 2007), the Pennsylvania Superior Court held that, where evidence showed that insured’s grandson was a transient and stayed only sporadically at her home, he was not a “resident relative”, regardless of his intent. SEPARATION OF INSUREDS In Estate of Neff v. Alterra Healthcare Corp., United States Court of Appeals for the Third Circuit, 2008 U.S. App. LEXIS 6705 (3d Cir. Pa. Mar. 28, 2008), the Court held that a “Separation of Insureds” provision of a general liability policy did not preclude the application of an abuse or molestation exclusion to a claim arising out of the abuse of a patient by the insured’s employees. SUCCESSOR OF INSURED In Henkel Corp. v. Hartford Accident & Indem. Co., United States Court of Appeals for the Third Circuit, 2008 U.S. App. LEXIS 6496 (3d Cir. Pa. Mar. 27, 2008), the Court held that the policy did not provide coverage for defense costs incurred by a successor to the insured in actions in which neither the insured nor the successor were named as defendants. If you have questions about any of the above decisions or would like a copy of any opinion, please contact us. YOST AND TRETTA, LLP