An injured driver who previously elected and paid for stacking should not be limited from tapping that coverage because of a household vehicle exclusion, attorneys representing an injured motorist told the Pennsylvania Supreme Court at oral argument.

Such a waiver, they said, would frustrate the aims of the Motor Vehicle Financial Responsibility Law, they said.

The attorneys representing a man injured during a motorcycle accident, who subsequently sought additional coverage under an automobile policy, told the justices during the April 10 argument session in Pittsburgh that if the exclusion could be applied to stacking, then household policies could be broadly used to invalidate stacked coverage.

“The companies can start writing single-car policies and then, putting in household regular use exclusions and everything else, even if you take stacking, you're never going to get stacking because you're in a household car,” Schmidt Kramer attorney Scott Cooper said.

Cooper, along with Joyce Novotny-Prettiman of Quatrini Rafferty, argued on behalf of plaintiff Brian Gallagher in Gallagher v. Geico Indemnity. The case delved into questions about the MVFRL's impact on stacking. The issue has caused at least two splits among Supreme Court justices in the last decade.

According to court records, Gallagher bought stacked coverage on two Geico insurance policies—one for his motorcycle and the other for his two automobiles. He was involved in a motorcycle accident in August 2012, and, after paying $50,000 in underinsured motorist coverage, Geico denied Gallagher's claim for additional coverage under the automobile policy.

Geico cited the household vehicle exclusion in that policy, which said the coverage did “not apply to bodily injury while occupying or from being struck by a vehicle owned or leased by you or a relative that is not insured for [UIM] coverage under the policy.”

The trial court granted summary judgment to Geico, finding that Government Employees Insurance v. Ayers controlled. The Supreme Court issued a split decision in that case in 2011, two years after it split on the case Erie Insurance Exchange v. Baker.

Cooper contended that prior Supreme Court decisions had upheld some exclusions that limited stacking, but he said those cases dealt with narrow circumstances.

Justice Max Baer, however, said both he and Chief Justice Thomas Saylor had previously written that the household exclusion is a way for insurance companies to reasonably contain risks.

“A household exclusion has nothing to do with stacking,” Baer said. “It's a way for the industry to protect themselves against unknown risks. How does that violate public policy?”

Cooper replied the company knew the risks when it wrote the policy and accepted the payments.

“This case shows how, even if the company knows about the risks, they'll still write the policy. They'll still charge the premium,” Cooper said.

Joseph Hudock of Summers, McDonnell, Hudock, Guthrie & Rauch, who argued for Geico, however, contended that cost-containment is an important concern when it comes to interpreting the MVFRL, and, although the justices have previously said it is not the overarching goal of the law, it needs to be considered.

Hudock added that motorcycles are inherently more dangerous than automobiles, and that there would be nothing unconstitutional about the state General Assembly making a law that bars stacking for motorcycles.

“You should get what you pay for,” Hudock said. “But again this is a case where he is seeking benefits for which he has not paid and which are specifically excluded from the policy.”