United States District Court, W.D. Pennsylvania, Pittsburgh.
OPINION AND ORDER
MARILYN J. HORAN JUDGE
Mary Barnhart (''Barnhart") brings the within
action against Defendant, The Travelers Home and Marine
Insurance Company ("Travelers"), for Declaratory
Relief (Count I), Assumpsit (Count II), and Class Action
Allegations (Count III), because Travelers denied
Underinsured Motorists ("UIM") Benefits based upon
a "regular use exclusion" in its policy. Travelers
moves to dismiss the Complaint pursuant to Fed.R.Civ.P.
12(b)(6). The parties provided briefs (ECF Nos. 3, 16, and
17), argued before the Court, and the matter is now ripe for
following reasons, Traveler's Motion to Dismiss will be
15, 2015, Barnhart was injured while a passenger on a
motorcycle operated by her husband, William Barnhart. (ECF
No. 1 -2 at ¶ 4). William Barnhart owned the motorcycle
and insured it through Progressive Insurance Company.
Id. at p. 27. Barnhart recovered the liability limits
against the tortfeasor's liability policy. Id.
at ¶¶ 5-6. Barnhart avers that her injuries and
damages exceeded the liability limits of the tortfeasor's
policy, thus she is entitled to UIM benefits under her
Travelers's automobile policy. Id. at ¶ 7.
She submitted an underinsured (UIM) claim under the policy
that she and her husband had purchased from Travelers to
cover two automobiles. Id. at ¶¶ 5-6 and
p. 14. On March 15, 2019, Travelers denied Barnhart's
claim for UIM Benefits based upon the "regular use
exclusion" contained within the Barnhart's policy.
Id. at ¶ 8. The Traveler's policy excludes
UIM Coverage for bodily injury as follows:
[Travelers does] not provide Uninsured Motorists Coverage or
Underinsured Motorists Coverage for "bodily injury"
1. By you while "occupying" or when struck by, any
motor vehicle you own or that is furnished or available for
your regular use which is not insured for this coverage under
this policy. This includes a trailer of any type used with
(ECF No. 1-2 at p. 18). Barnhart's Complaint avers that
the "regular use exclusion" is unenforceable
pursuant to the Pennsylvania Supreme Court's recent
ruling in Gallagher v. GEICO, 201 A.3d 131 (Pa.
Standard of Review
reviewing a motion to dismiss, pursuant to Federal Rule of
Civil Procedure 12(b)(6), the court must "accept all
factual allegations as true, construe the complaint in the
light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff
may be entitled to relief." Bid v. Thompson,
740 F.3d 118, 122 (3d Cir. 2014) (quoting Phillips v.
County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)).
"To survive a motion to dismiss a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp, v. Twombly, 550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 556); see also
Thompson v. Real Estate Mortg. Network, 748 F.3d 142,
147 (3d Cir. 2014). "Threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice." Iqbal, 556 U.S. at
678. "Factual allegations of a complaint must be enough
to raise a right to relief above the speculative level."
Twombly, 550 U.S. at 555. A pleading party need not
establish the elements of & prima facie case at
this stage; the party must only "put forth allegations
that 'raise a reasonable expectation that discovery will
reveal evidence of the necessary element[s].'"
Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d
Cir.2009) (quoting Graff v. Subbiah Cardiology
Associates, Ltd, 2008 WL 2312671 (W.D. Pa. June 4,
2008)); see also Connelly v. Lane Const Corp., 809
F.3d 780, 790 (3d Cir.2016) ("Although a reviewing court
now affirmatively disregards a pleading's legal
conclusions, it must still. . . assume all remaining factual
allegations to be true, construe those truths in the light
most favorable to the plaintiff, and then draw all reasonable
inferences from them.") (citing Foglia v. Renal
Ventures Mgmt, LLC, 754 F.3d 153, 154 n. 1 (3d
a court need not credit bald assertions, unwarranted
inferences, or legal conclusions cast in the form of factual
averments. Morse v. Lower Merion School District,
132 F.3d 902, 906, n. 8 (3d Cir. 1997). The primary question
in deciding a motion to dismiss is not whether the Plaintiff
will ultimately prevail, but rather whether he or she is
entitled to offer evidence to establish the facts alleged in
the complaint. Maio v. Aetna, 221 F.3d 472, 482 (3d
Cir.2000). The purpose of a motion to dismiss is to
"streamline [ ] litigation by dispensing with needless
discovery and factfinding." Neitzke v.
Williams, 490 U.S. 319, 326-327, (1989).
time of oral argument, the parties agreed that the
disposition of the defense's Motion to Dismiss depends on
whether this Court expands the holding in Gallagher v.
GEICO, 201 A.3d 131 (Pa. 2019), which held that a
"household exclusion" in an automobile insurance
policy to preclude stacking of underinsured coverage is
unenforceable to defeat an underinsured insurance claim.
Barnhart asks this Court to hold that a "regular use
exclusion" in her automobile insurance policy to
preclude underinsured coverage is also unenforceable based
upon the Pennsylvania Supreme Court's reasoning in
Gallagher. Barnhart does not dispute that she cannot
recover UIM benefits if the "regular use exclusion"
is enforceable. Travelers contends that the Pennsylvania
Supreme Court's holding in Gallagher is
distinguishable because the issue in Gallagher
concerned a household exclusion as applied to a waiver of
stacked coverage. The present case concerns a "regular
use exclusion" as applied to a waiver of UM/UIM
benefits. Travelers argues that Gallagher is
distinguishable and that the Pennsylvania Supreme Court case
of Williams v. GEICO Gov't Employees Ins. Co.,
32 A.3d 1195 (Pa. 2011) controls in the present case.
Travelers also argues that neither Gallagher nor any
other Pennsylvania Supreme Court case has overturned the
Pennsylvania Supreme Court's holding in
Williams. The Williams case upheld the
enforceability of the "regular use exclusion" to
preclude coverage for an underinsured motorist claim.
Gallagher, the Pennsylvania Supreme Court held that
a motor vehicle insurance policy's "household
vehicle exclusion," as applied to preclude stacking of
underinsured motorist benefits, violates the Pennsylvania
Motor Vehicle Financial Responsibility Law (MVFRL),
specifically Section 1738. Gallagher, 201 A.3d at
131. In Gallagher, Brian Gallagher purchased two
separate policies from GEICO-one for his motorcycle and one
for his automobile. Mr. Gallagher "opted and paid for
stacked UM and UIM coverage when purchasing both
policies." Id. at 133. Mr. Gallagher was
injured when another vehicle struck his motorcycle.
Id. Because the tortfeasor was underinsured, he
sought UIM stacked coverage under his motorcycle policy and
automobile policy. Id. GEICO paid Gallagher's
UIM claim under his motorcycle policy, but GEICO denied the
UIM claim for the UIM coverage under his automobile ...