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Patrick Rother and Daryl Rother v. Erie Insurance Exchange

October 18, 2012

PATRICK ROTHER AND DARYL ROTHER, APPELLEES
v.
ERIE INSURANCE EXCHANGE, APPELLANT



Appeal from the Order Entered September 26, 2011 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 14656-2008

The opinion of the court was delivered by: Bowes, J.:

BEFORE: BOWES, OTT, and STRASSBURGER,*fn1 JJ.

OPINION BY BOWES, J.:

Erie Insurance Exchange ("Erie") appeals from the grant of summary judgment in favor of Patrick and Daryl Rother ("Mother") in this declaratory judgment action involving the applicability of the regularly used, non-owned vehicle exclusion in Mother's personal vehicle policy. After careful review, we reverse the grant of summary judgment in favor of the Rothers and remand for the entry of summary judgment in favor of Erie.

Patrick Rother was severely injured in a motor vehicle accident on March 3, 2007, while he was driving his father's vehicle. At the time of the accident, Patrick was residing with his mother, Daryl Rother. He had recently acquired a job that was located ten miles from his mother's home and he did not own a car. His father permitted him to use one of his vehicles, a 1990 Nissan, to commute to work and for emergencies only. Patrick had been using the vehicle for those purposes for two weeks when he was involved in an accident with an intoxicated driver and was severely injured.

After recovering the liability benefits under the other driver's policy, Patrick and Mother commenced this action seeking a declaration that Erie was obligated to provide underinsured motorist coverage under Mother's policy. Erie maintained that the coverage was excluded by the regular use exclusion contained in the policy. Erie filed first a motion for judgment on the pleadings, and then a motion for summary judgment, both of which were denied. The Rothers filed a motion for summary judgment, which the trial court granted on September 26, 2011, finding the regular use exclusion inapplicable on the facts herein. Erie filed the within appeal on October 11, 2011, and presents the following question for our review:

I. Did the trial court err in determining that the regularly used, non-owned vehicle exclusion in a personal auto policy was not applicable to the claims of the plaintiff, Patrick Rother, for recovery of underinsured motorist benefits where his injuries arise out of the operation of a vehicle: (1) not owned by him or any resident relatives; and (2) used regularly by him to travel back and forth to work?

Erie's brief at 4.

In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof [. . .] establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will review the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.

Whether a claim for insurance benefits is covered by a policy is a matter of law which may be decided on a summary judgment motion.

Nordi v. Keystone Health Plan West Inc., 2010 PA Super 11, 989 A.2d 376, 379-80 (Pa. Super. 2010) (citations omitted).

Dixon v. Geico, 1 A.3d 921, 924-925 (Pa.Super. 2010). We may disturb the entry of summary judgment only where it is established that the court committed an error of law or abuse of discretion.

The policy provision at issue provides:

What We Do Not Cover - Exclusions This insurance ...


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