Appeal No. 164 E.D. Appeal Dkt. 1985 from Order of Superior Court entered February 6, 1985, at No. 1787 Philadelphia, 1983, Affirming Order of Court of Common Pleas of Montgomery County, Civil Division,, entered August 23, 1983, at No. 80-20713; 343 Pa. Super. 602, 494 A.2d 475 (1985).
Andrew B. Cantor, Norristown, for appellant.
Marjorie C. Lawrence, Willow Grove, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion.
Appeal dismissed as having been improvidently granted.
LARSEN, Justice, dissenting.
I dissent to the majority's action in this case which affirms the Superior Court.
Appellant was injured while a passenger on a borrowed motorcycle driven by the insured, but not owned by him. The Superior Court held that appellant could not seek recovery from appellee insurance company under the terms of the insured's policy which provided coverage to him while driving his insured motorcycle or a "temporary substitute automobile." Automobile includes a motorcycle, and "temporary substitute automobile" is defined by the policy as:
"an automobile not owned by the named insured or any resident of the same household, while temporarily used with the permission of the owner as a substitute for an owned automobile when withdrawn from normal use for servicing or repair or because of its breakdown, loss or destruction . . . ."
Because the insured's owned motorcycle was not "withdrawn from normal use for servicing or repair or because of its breakdown, loss or destruction," the Superior Court, with Judge Del Sole dissenting, held that he was not covered by the policy. I agree with Judge Del Sole that the "temporary substitute automobile" provision is against public policy, and I would reverse the Superior Court.
I am troubled that the "temporary substitute automobile" clause, as interpreted by the lower courts and affirmed by this Court, may cause large numbers of persons paying for insurance to drive upon our highways without the protection that they believe their insurance affords both to them and to potential accident victims. Most people who procure insurance assume ...