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The Supreme Court of Pennsylvania Upholds the Household Vehicle Exclusion in an Underinsured Motorist Policy

The Supreme Court of Pennsylvania, in a recent opinion, continued to reject the view that household vehicle exclusions are ipso facto unenforceable. In Erie Ins. Exch. v. Mione, 289 A.3d 524 (Pa. 2023), Albert Mione was injured after being hit by an underinsured vehicle while riding his motorcycle. That vehicle’s driver paid Mione the limits of the policy covering the subject vehicle, but Mione still sought payment through additional coverage. Mione’s motorcycle was insured through Progressive Insurance, but he previously waived underinsured coverage (“UIM”) under that policy prior to the accident in this case. However, Mione and his wife jointly owned a car insured by Erie Insurance. Their daughter lived with them and also owned a car insured by Erie. Both Erie policies included UIM coverage and so Mione sought to recover UIM benefits under those polices.

Despite Mione’s attempts, Erie denied the claims citing the fact that both policies contained household vehicle exclusions. These exclusions state that UIM coverage is not available under the applicable policy for injuries sustained while operating a household vehicle not listed on the policy under which benefits were sought. Erie denied coverage because Mione was riding his motorcycle at the time which was not listed on either Erie policy.

Erie filed a complaint in the Lehigh County Court of Common Pleas seeking a declaratory judgment that it did not have to pay the UIM benefits pursuant to this exclusion. The trial court granted Erie’s motion for judgment on the pleadings citing to Pennsylvania Supreme Court precedent with facts nearly identical to those presented in the instant case. In Eichelman v. Nationwide Insurance Co., 551 Pa. 558 (1998), a person was also injured while riding his motorcycle after being struck by an underinsured driver. The motorcyclist also sought UIM coverage under his parent’s policy as a resident relative since he waived UIM coverage in his motorcycle policy. The UIM carrier denied coverage based upon the household vehicle exclusion, which was ultimately upheld through a series of appeals.

Mione appealed the trial court’s ruling, but the Superior Court upheld the trial court’s ruling. This prompted further appeal to the Supreme Court of Pennsylvania. There, Mione argued that Gallagher v. GEICO Indemnity Co., 650 Pa. 600 (2019) overruled Eichelman. The court dissected both cases and ultimately disagreed with Mione and upheld the trial court’s original decision. Gallagher also involved a person being injured by an underinsured driver while riding a motorcycle. The motorcyclist had UIM coverage with GEICO which also insured two automobiles owned by the injured party with UIM coverage. GEICO paid the motorcyclist UIM coverage but denied additional UIM coverage based on the household vehicle exclusion. The court in Gallagher overruled GEICO’s denial holding that the denial was an attempt to skirt the Motor Vehicle Financial Responsibility Law’s (“MVFRL”) waiving of stacking requirements. Stacking of coverage is allowed unless the insurer specifically waives stacking. The motorcyclist in Gallagher did not waive stacking.

The Supreme Court distinguished Gallagher because Mione did not have UIM coverage on his motorcycle, which meant that the stacking and waiver issues in Gallagher was not relevant in the instant case. Therefore, Gallagher did not undermine Eichelman as applied to the subject facts. The Court upheld Eichelman and upheld the lower court’s ruling in favor of Erie that household vehicle exclusions are not ipso facto unenforceable. The Court’s opinion included a scenario where a person could waive more expensive UIM coverage for a motorcycle knowing the person would be covered by more affordable coverage under a house automobile policy. This would ultimately undermine the cost-containment rationale of the MVFRL.

The Supreme Court of New York Relieves an Insurer of its Duty to Defend and Indemnify for an Occurrence Outside of Defined Coverage

The Supreme Court of New York, New York County recently had occasion to interpret the terms of an insurance policy and in doing so, ordered that an insurance company was not responsible for defending and indemnifying an insured under the terms of the subject policy.

In MIC Gen. Ins. Corp. v. Rashid, 2023 NYLJ LEXIS 654 (Mar. 6, 2023), Plaintiff, MIC General Insurance Corp. (hereafter “Plaintiff”) sought a declaratory judgment decreeing that it was not responsible to defend and indemnify Defendants, Rezia Rashid and Nawroz Zulfikar (hereafter “Defendants”) as a result of a slip and fall incident involving a third party on Defendants’ property. That third party, Ethel Cardoba, slipped and fell on a sidewalk outside of an insured multi-family residence that Defendants believed to be an “insured location” under the terms of their policy with Plaintiff.

The policy issued by Plaintiff provided coverage for “occurrences” to which “coverage applies,” which included bodily injuries suffered at an “insured location.” The policy’s liability coverage section failed to elaborate as to which occurrences were covered and whether coverage would apply to “residential premises” as one of many types of “insured locations” enumerated in the policy definitions.

Plaintiff filed an unopposed Motion for Default Judgment, which asked the Court to determine that Plaintiff had no responsibility to provide defense and indemnification to Defendants in the underlying personal injury matter brought by Cardoba. In support of the Motion, Plaintiff advanced two arguments. First, Plaintiff argued that the underlying personal injury action is outside the scope of the policy’s coverage. However, the Court disagreed with this argument because the policy expressly stated that Plaintiff would cover the costs of a defense and judgment should suit be brought against an insured for damages because of bodily injury “caused by an ‘occurrence’ to which this coverage applies …” The court specifically found that the policy’s liability coverage section did not limit coverage to “insured locations” or “residential premises” and that while it was reasonable to infer that the sidewalk at issue would not be an “insured location” or a “residential premises,” the absence of an express limitation to coverage under these terms ruled the interpretation of the policy. The Court believed that to make such an inference would be to improperly add meaning to the policy’s explicit language.

Despite the Court rejecting this first argument, it ultimately sided with Plaintiff and held that Plaintiff was not obligated to defend and indemnify Defendants. In so ruling, the Court analyzed the language of the policy as applied to the facts available. In its analysis, the Court found that an “insured location” included one of many types of premises, one of which covered “residential premises.” The policy at issue was purchased by Defendants to cover a three-family dwelling consisting of three separate apartments. However, the policy defined a covered “residential premises” as a “one-family or two-family dwelling.” Given that the subject premises was not a one-family or two-family dwelling, the Court found that it did not qualify as a “residential premises” under the policy’s definition and therefore did not qualify as an “insured location.”

Thus, the denial of defense and indemnification was proper given this express exclusion of Defendants’ premises. In so ruling, the Court refused to give additional meaning to the express terms of an insurance policy and instead, accepted Plaintiff’s argument relying on the explicit exclusion of coverage for the property at issue. The Court also reaffirmed the long-standing principle in New York that the duty to defend and indemnify does not attach simply where a policy is held by an insured and where the insured seeks coverage for incidents beyond the scope of the policy.

The New Jersey Appellate Division Has Occasion to Determine the Liability of the Owner of a Vacant Lot for Injuries Sustained on the Lot’s Abutting Sidewalk

On January 4, 2023, the New Jersey Appellate Division rendered an interesting, yet unpublished opinion related to the issue of liability for a sidewalk abutting a vacant lot. In Padilla v. An, 2023 N.J. Super. Unpub. LEXIS 14 (App. Div. January 4, 2023) Plaintiff, Alejandra Padilla, slipped and fell on the sidewalk abutting a vacant lot in Camden owned by the Defendants. As a result of the fall, Plaintiff allegedly suffered significant bodily injuries resulting in permanent disability and limiting her ability to work.

Plaintiff, in a subsequently filed lawsuit, alleged that the Defendants were negligent for failing to maintain the sidewalk abutting their property, thereby reportedly creating an unreasonable risk to pedestrians. At the conclusion of discovery, the Trial Court granted Defendants’ Motion for Summary Judgment, finding that the Defendants did not owe a duty to Plaintiff.

Defendants’ motion relied upon the matter of Abraham v. Gupta, 281 N.J. Super. 81 (App. Div. 1995) and argued that pursuant to that precedent they had no duty to maintain the sidewalk in question because it abutted a vacant lot that was not generating any income. In adhering to its long-standing precedent, the Trial Court also found Plaintiff’s argument, that Defendants “could” have generated income by either developing or selling the property to be unpersuasive. While Plaintiff attempted to rely upon both Gray v. Caldwell Wood Prods., Inc., 425 N.J. Super. 496 (App. Div. 2012) and Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981), in support of her position, the Trial Court distinguished these oft-cited opinions, noting that Plaintiff’s accident in Gray took place within the bound of a property with a vacant commercial building, which could have generated income. Though Stewart does stand for the proposition that a commercial property owner does have a duty to maintain a sidewalk abutting a commercial property, the Trial Court noted that Abraham found that duty did not apply where the property could not generate income.

On appeal, Plaintiff argued that the Trial Court erroneously relied upon Abraham, and rather, should have applied the standards and reasoning set forth in Stewart. Specifically, Plaintiff argued that Abraham far too narrowly misconstrued the holding in Stewart, which is a long-standing precedent of the New Jersey Supreme Court. Plaintiff stressed that Gray, which specifically involved a sidewalk abutting a vacant building, was applicable given that the property “was capable of generating income by operation of a commercial activity on it,” and Defendants “bought then sold the property for commercial profit.” Gray, 425 N.J. Super. at 498-503.

Further, Plaintiff relied upon a municipal ordinance of the City of Camden which required Defendants to maintain a sidewalk abutting their property and argued that pursuant to the Appellate Division’s opinion in Luchejko v. City of Hoboken, 414 N.J. Super. 302, 319 (App. Div. 2010), a jury should have been given the opportunity to determine whether Defendants had a duty to maintain the sidewalk pursuant to that ordinance.

Irrespective of Plaintiff’s arguments on appeal, the New Jersey Appellate Division affirmed “substantially for the reasons set forth by the trial judge in his oral decision.” The Appellate Division did make a point to note that:

Abraham remains good law that an owner of a non-income producing vacant lot owes no duty to the public to maintain the lot’s abutting sidewalk in a safe condition. Plaintiff has pointed to no reason why we should deviate from that ruling, which was rendered almost 3 decades ago. Plaintiff’s reliance upon the municipal ordinance stating that landowners are responsible for maintaining their abutting sidewalks is misplaced.

Slip. Op. at 4.

The Appellate Division further explained that in Luchejko, the New Jersey Supreme Court held that a private citizen’s breach of an ordinance did not create a right of action to an individual citizen, noting that “the most conspicuous cases of this sort are those that deny liability to private suit for violation of the duty imposed by ordinance upon abutting property owners to maintain sidewalk pavements or to remove ice and snow from the war.”  Luchejko, 207 N.J. at 200.

The Court held that in this matter Plaintiff failed to demonstrate that the Defendants violated the municipal ordinance and that “even if they had, a violation could not provide the basis for liability in the sidewalk slip and fall case.”  Slip. Op. at 5. “Simply put, the ordinance does not impose a duty on defendants to protect the plaintiff from a sidewalk’s dangerous condition.  See also Robinson v. Vivirito, 217 N.J. 199, 208 (2014) (holding whether a party owes a duty to another party is a question of law for the court to decide, not the factfinder.)”  Slip. Op. at 5.

Accordingly, this unpublished opinion is a useful continuing discussion of sidewalk liability in the State of New Jersey. The Court’s decision is specifically useful in outlining the defense of vacant property owners facing claims from pedestrians sustaining injuries on abutting sidewalks of those non-revenue generating properties.

Pennsylvania’s Ongoing Snow Storm Precedent is Applied to Snow and Ice Falling from Rooftops

The Superior Court of Pennsylvania recently reaffirmed the scope of the duty owed by both a landowner and snow removal contractor during an ongoing snow storm. In Sylvester v. Alvin Ziegler Snow Removal, 2022 Pa. Super. Unpub. LEXIS 1524 (Pa. Super. 2022), the plaintiff was injured by snow and ice which fell from the roof of a building as he was leaving work at the Tobyhanna Army Depot. After leaving his home at 6 a.m. on the morning of the incident and commuting for 45 minutes, the plaintiff did not encounter any snow on the roadways. Plaintiff further had no difficulty walking from his truck into work in the light snow that had accumulated on the front sidewalks.

During the workday, heavy snow piled up on the rooftops of plaintiff’s workplace and on the ground below. At the end of his shift at 5 p.m., plaintiff attempted to leave the building, but was not able to open the door more than an inch because it was blocked by snow. He used an ice chopper to push some of the snow out of the way, and after some time was finally able to get the door open enough to exit. When plaintiff exited the building, it was still snowing. The parking area had not been cleared, but the road had been plowed. While plaintiff was descending the three or four steps from the building to the ground, he heard a noise which he knew to be snow falling off the roof. He looked up to see where the noise was coming from, and was struck and knocked down by ice and snow falling from the roof.

Plaintiff testified that he could not say for sure whether there had been snow or ice on the roof before that day’s snowstorm. According to a CompuWeather report, 20 inches of snow fell on the date of the incident, with snowfall occurring from 3:45 a.m. until between 5:30 and 6:30 p.m. In contrast, it had not snowed at all in the week prior to the incident.

At the time of the incident, plaintiff’s employer had a contract with the defendant snow and ice removal contractor. Pursuant to that contract, the defendant was responsible for, among other things, removing snow and ice from the roof surfaces at the depot. Defendant’s owner testified that on the day of the storm, fourteen of his employees worked to remove snow at the depot, which was their only job for the day. However, he did not have sufficient manpower to inspect the roofs of the buildings due to the heavy snow. He testified that he would have needed 250-300 people to adequately clear all of the roof surfaces given the severity of the storm. He began work at 7:00 a.m. and worked approximately eight and a half hours, before sending his employees home, as further attempts to remove the snow from the ground were futile.

Plaintiff subsequently filed a lawsuit, alleging the defendant snow removal contractor was negligent in failing to clear the snow and ice from the roof in a timely manner, thus allowing snow to accumulate for an unreasonable amount of time. Defendant, in a later filed motion for summary judgment, argued that plaintiff’s injury occurred during an ongoing snowstorm, such that a reasonable period of time, within which they were expected to clear the snow and ice, could not have expired. Stated differently, defendant argued it did not owe a duty to plaintiff to clear the snow and ice from the roof during the active storm.

The Court noted that under Pennsylvania law, a plaintiff asserting a negligence claim must establish four elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages. “The mere fact that an accident has occurred does not entitle the injured person to a verdict. A plaintiff must show that the defendant owed a duty of care, and that this duty was breached.”  See Estate of Swift by Swift v. Northeastern Hosp., 456 Pa. Super. 330 (Pa. Super. 1997); Rauch v. Mike-Mayer, 2001 Pa. Super. 270 (Pa. Super. 2001).

In conducting its analysis, the Court cited prior Pennsylvania cases applying the “hills and ridges doctrine” in the context of slip and falls on snow and/or ice located on the ground. Those cases established (1) that there is no absolute duty on an owner or occupier of property to keep his premises free from ice and snow at all times; (2) that an owner or occupier of land is protected from liability for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations; and (3) that a landowner’s duty to remove snow and ice is triggered only “a reasonable time after” the landowner becomes aware of the dangerous conditions created by the snow and ice.  See Hutchison v. Montgomery Ward & Co., 364 Pa. 126 (1950).  More directly applicable was the Court’s prior decision in Collins v. Philadelphia Suburban Development Corporation, 179 A.3d 69 (Pa. Super. 2018), which held that a landowner has no obligation to correct such conditions until a reasonable time after a winter storm has ended.

Here, the Court found that plaintiff suffered an injury during a severe and active snowstorm, which dumped approximately 20 inches of snow. Under these circumstances, it would have been totally unreasonable to require the defendant to clear snow and ice from the roof of the relevant building. Because defendant did not owe a duty to plaintiff to clear snow and ice from the roof of the building during an ongoing storm, plaintiff failed to make out a prima facie case of negligence. This was so even where the defendant was on site all day and aware of the generally prevailing conditions. Thus, the Court affirmed the trial court’s grant of summary judgment in favor of the defendant, dismissing plaintiff’s lawsuit.

New York Supreme Court Reaffirms Contractor’s Burden in Moving for Summary Judgment Regarding Alleged Dangerous Condition on Public Sidewalk

The Supreme Court of New York, New York County recently denied an electrical contractor’s motion for summary judgment where that contractor failed to sufficiently establish that it did not cause or create the allegedly dangerous condition that caused the plaintiff’s fall. In Bernfeld v. CRC Assoc., Inc., 2023 N.Y. Misc. LEXIS 249 (January 17, 2023), plaintiff, Lawrence Bernfeld, exited his apartment building located on West 79th Street in Manhattan when he stepped out onto the sidewalk and slipped on a patch of ice next to a fire hydrant approximately 40 to 50 feet from the intersection of West 79th Street and Amsterdam Avenue. He would later testify that he did not see the icy condition prior to his fall, but that there was construction taking place on the roadway and sidewalk outside of his building. The porter and building superintendent at plaintiff’s building each offered testimony stating that a hose was attached to the fire hydrant at issue on the date of the accident by two unknown workers and that the hose and hydrant were actively leaking water.

Defendant, CRC Associates, Inc. (hereafter “CRC”) was hired by the Metropolitan Transit Authority to perform electric work related to the installation of fare collection machines, which would require CRC to lay wiring under the sidewalk for the fare machine installation. CRC’s owner testified that he subcontracted sidewalk demolition, excavation, restoration and site protection work to defendant, Primetime Excavating (hereafter “Primetime”). Primetime’s president testified that it did perform this concrete work and that it would have reason to use water at a job site to clean its tools. Primetime’s job site superintendent and safety coordinator testified that when Primetime had occasion to use water for its concrete saws, it had water tanks on its trucks, which left it with no reason to extract water from the fire hydrant on the date of the accident.

Given the testimony of its president and testimony offered by Primetime representatives, CRC moved for summary judgment arguing that it did not use the fire hydrant on the date of the accident and could not have created the allegedly dangerous condition that caused Plaintiff’s fall. The Supreme Court began its analysis of CRC’s motion by noting that “where a contractor working on a public sidewalk or roadway establishes that it did not cause or create the allegedly dangerous condition on which the plaintiff fell, summary judgment in favor of that contractor is appropriate.” see Camacho v. City of New York, 135 A.D.3d 482, 482 (1st Dept 2016); Levine v. City of New York, 101 A.D.3d 419, 420 (1st Dept 2012). CRC’s president specifically testified that CRC employees were working on Amsterdam Avenue on the date of the accident and its electricians would have no reason to use water in performing their work at this location. Primetime’s job site superintendent added that he was unaware of any need for CRC’s electricians to use water on the date of the accident.

However, the Court denied CRC’s motion for summary judgment without considering the opposition filings because it found that CRC failed to meet its burden of proof and triable issues of fact still existed. Specifically, the Court found that the testimony of CRC’s president was insufficient because he was not present at the job site on the date of the accident and lacked personal knowledge as to CRC’s actions or inactions. CRC did not offer any testimony from the two electricians on site on the date of the accident, each of which may have had personal knowledge superior to that of CRC’s president. Moreover, the Court found that Primetime’s superintendent could not definitively state whether CRC employees used the hydrant on the date of the accident, which was also insufficient to prove that CRC did not create the alleged dangerous condition. Moreover, the Court noted that even if CRC had met its burden of proof, the testimony of the porter and building superintendent for Plaintiff’s building, stating that they saw a hose dripping water from the fire hydrant on the date of the accident, created a triable issue of fact sufficient to defeat CRC’s motion for summary judgment.

Ultimately, the Court’s decision hinged on the sufficiency of the defendants’ collective testimony and the lack of personal knowledge supporting that testimony. Without even considering the opposition filings, the Court took a firm stance on the unreliable nature of evidence lacking personal knowledge and its use in dispositive motion practice.

The Supreme Court of New York Reaffirms the Limited Scope of Pre-Action Disclosure

The Supreme Court of New York, New York County recently reaffirmed the purpose and scope of pre-discovery disclosure in a petition to disclose surveillance footage. In Villani v. Rite Aid of NY, Inc., 2022 NY Slip Op 32949 (September 2, 2022), petitioner, Joanna Villani, received a COVID-19 booster shot at a Rite Aid location in Manhattan. Villani, who had a history of vasovagal, requested to sit in the vaccination room so as to avoid standing and fainting, but she claimed that the Rite Aid pharmacy staff informed her that the area was too busy and that she would need to take a seat in the nearby “alcove area.” Thereafter, Villani claims that she began to feel faint and called out for help to no avail before standing up, passing out, and hitting her head on the pharmacy counter. As a result of the fall, she claimed to have suffer severe facial and eye injuries.

Villani filed a petition seeking disclosure of the in-store surveillance video capturing the incident prior to filing her complaint so that she could better frame the facts of her complaint. Specifically, Villani sought to identify which Rite Aid staff members were present at the time of the incident in order to name those staff members as defendants responsible for her injuries.

In response, Rite Aid of NY, Inc. argued that Villani’s request was an inappropriate pre-discovery disclosure request because Plaintiff’s complaint could adequately allege enough facts to initiate legal action without the need for the surveillance video prior to discovery.

The Supreme Court agreed with Rite Aid of NY, Inc. and denied Villani’s petition. In so ruling, the Court cited Holzman v. Manhattan and Bronx Surface Tr. Operating Auth., 271 A.D.2d 346, 347 (1st Dept. 2000) for the proposition that pre-action disclosure is not appropriate where a plaintiff already has sufficient information to frame a meritorious complaint. The Court specifically noted, “pre-action discovery is not permissible as a fishing expedition to ascertain whether a cause of action exists and is only available where a petitioner demonstrates that he or she has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong…” Bishop v. Stevenson Commons Assocs., L.P., 74 A.D.3d 640, 641 (1st Dept. 2010).

The Court reasoned that Villani had all the information needed to file a meritorious complaint, including when the incident happened, where it happened and what details led to the incident taking place. Villani knew which defendant she would name in a complaint and which cause of action she would use to pursue her claims. Villani’s desire to identify specific Rite Aid employees would be better served through a plenary action for the disclosure of those names rather than the production of the surveillance video, which would be an inefficient means to identify those potential defendants. The Court noted that Villani’s request for the surveillance footage was nothing more than a normal discovery request that may, at most, require a letter to Rite Aid of NY, Inc. requesting that the video be preserved for later production in discovery.

Ultimately, the Court reaffirmed the purpose and scope of pre-action disclosure and petitions seeking the same as a means to identify facts and causes of action that will lead to a meritorious complaint when those facts and causes of action are not already known to a potential plaintiff. When those facts giving rise to a potential complaint and the causes of action to be used are already clear to a plaintiff, pre-action disclosure is neither necessary nor appropriate.

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