stating that the court had jurisdiction to review whether the “Who Is Insured” definition in the policy impermis-sibly narrowed and conflicted with the plain language of the MVFRL and, as such, was enforceable and void as against public policy
How later courts described this case
- stating that the court had jurisdiction to review whether the “Who Is Insured” definition in the policy impermis-sibly narrowed and conflicted with the plain language of the MVFRL and, as such, was enforceable and void as against public policy
- reiterating that a common law arbitration award is not reviewable for an error of law
- invalidating a policy which construed the term "motor vehi-ele” and “insured” more narrowly than permitted by statute
Written by the judges who cited it.
The opinion
CONCURRING OPINION BY
LALLY-GREEN, J.:
¶ 1 I agree with the Majority that the definition of “insured” contained in the Prudential policy is impermissibly narrow, because it conflicts with the broad definition of “insured” in the MVFRL. Prudential Prop. & Cas. Ins. Co. v. Colbert, 572 Pa. 82 , 813 A.2d 747, 751 (2003). Moreover, I agree with the Majority that the policy does not contain any separate and explicit exclusion that would arguably operate to bar recovery under the facts of this case. See, Majority Opinion at 1268. In my view, this analysis is all that is necessary to support a conclusion that judgment should be entered in favor of claimant Kristin Richmond. The remainder of the Majority’s analysis, particularly the discussion of whether a separate “motorcycle exclusion” would violate public policy, is, in my opinion, not necessary to the holding of the case and, therefore, is dicta.
¶ 2 Bearing in mind that my own views on the subject are also necessarily dicta, I believe that a properly formulated exclusion may indeed pass muster under Colbert . In that case, our ■ Supreme Court strongly suggested that UIM exclusions do not violate public policy so long as they “protect insurers against forced underwriting of unknown risks that insureds have neither disclosed nor paid to insure.” Colbert, 813 A.2d at 753, quoting, Burstein v. Prudential Prop. & Cas. Ins. Co., 570 Pa. 177 , 809 A.2d 204, 208 (2002). Stated another way, the relevant question is whether the exclusion protects insurers from being forced to pay “gratis coverage on a vehicle that the insurer never knew existed.” Id. at 754, 809 A.2d 204 . Such exclusions are valid because they serve the public policy of keeping the cost of insurance low. Id. at 754-755, 809 A.2d 204 .
¶ 3 The Majority expresses confidence that insurers may not write an exclusion which would “deny UIM coverage to its insureds any time they step into a motor vehicle that is not covered under their policy.” Majority Opinion at 1270. After considering our Supreme Court’s reasoning in Colbert , I do not share the Majority’s confidence that this is true. To the contrary, such an exclusion may be valid because it “protect[s] insurers against forced underwriting of unknown risks that insureds have neither disclosed nor paid to insure,” and precludes “gratis coverage on a vehicle that the insurer never knew existed.” Colbert, 813 A.2d at 753-754 . 10 So *1273 long as the insurer does not blatantly violate the MVFRL by defining terms such as “insured” and “underinsured motor vehicle” in ways that plainly conflict with that statute, 11 it would appear that insurers may bar recovery in a case such as this one with a carefully worded and explicit exclusion. Again, however, I agree with the Majority that no such exclusion exists in this case. Accordingly, I concur in part with the Majority’s reasoning, and concur in the result.
. The Majority argues that common exclusions such as the "regularly used, non-owned car” exclusion and the "other household vehicle” exclusion are valid because there is a high degree of risk in regularly driving such vehicles, while there is a relatively low risk in merely being a passenger in a non-owned, *1273 underinsured vehicle. Majority Opinion at 1271. First, it is not clear that this analysis holds under the facts of this case. One could plausibly argue that because Richmond does not own her own vehicle, (1) she is regularly a passenger in various unknown vehicles and (2) as a result, this scenario poses a similarly high degree of risk. In any event, it would appear that the proper analysis turns not on the degree of risk, but rather on simply whether the risk is unknown and uncompensated. Colbert .
. See, Colbert, 813 A.2d at 751 ; Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Corp., 567 Pa. 514 , 788 A.2d 955, 962-963 (2001) (insurer's definition of "underinsured motor vehicle” conflicted with the express terms of the MVFRL and was therefore invalid; as a result, the Court "declined to consider” public policy arguments).