holding stacking of UM/UIM coverage did not apply to commercial fleet policies
How later courts described this case
- holding stacking of UM/UIM coverage did not apply to commercial fleet policies
- distinguishing Miller in the context of personal auto policies
Written by the judges who cited it.
The opinion
JOHNSON, Judge,
dissenting:
I join so much of the majority opinion as would affirm the trial court’s finding that plaintiff’s decedent is entitled to recover under the uninsured motorist insurance endorsement of the policy although he was not occupying an owned auto at the time of the accident. Estate of Rosata v. Harleysville Mutual Insurance Company, 328 Pa.Super. 278 , 476 A.2d 1328 (1984).
I dissent from that portion of the majority decision that would vacate that part of the trial court order which denies the stacking of coverages. The majority seeks to distinguish Miller v. Royal Insurance Company, 354 Pa.Super. 20 , 510 A.2d 1257 (1986) on the basis that “the cases declining stacking of coverage involve claimants who were claiming coverages only on the basis of occupying the insured vehicle, and thus were not truly class one insureds.” Majority opinion, at page 412.
The Miller court expressly stated that the trial court in the case before it had determined that Miller was a class one insured. The court further indicated that the issue before it was “whether a ‘class one’ insured may stack coverages under a fleet policy,” 354 Pa.Super at 23, 510 A.2d at 1258 , a question that had not been reached in Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328 , 473 A.2d 1005 (1984).
*416 The fact that the parties in the appeal before us may have stipulated that five vehicles were used by family members for personal purposes 1 would not be sufficient to permit stacking in my view, in the face of the clear holding in Miller that coverages under a fleet policy may not be stacked. Id., 354 Pa.Superior Ct. at 23, 510 A.2d at 1258 .
The majority seeks to distinguish Miller by referring to the unreasonable extension of potential liability arising from a potentially large number of vehicles and drivers under a commercial fleet policy. Yet it is exactly this distinction which was expressly rejected by our court in Miller .
I find the opinion of the distinguished trial judge, the Honorable Marion Finkelhor, to be completely dispositive of the only two issues on this appeal. Her reliance on Estate of Rosata and on Miller , as well as on Boris v. Liberty Mutual Insurance Co., 356 Pa.Super. 532 , 515 A.2d 21 (1986) is well founded. I would affirm the order granting summary judgment on the stacking issue.
Hence, this dissent.
. The stipulation, at paragraph 5 states merely that: “Five of these autos were personal for Mr. Lastooka, his wife and their three daughters."