J-A24028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 DONALD C. PETRA                         :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 PENNSYLVANIA NATIONAL MUTUAL            :   No. 505 MDA 2018
 CASUALTY INSURANCE COMPANY              :

               Appeal from the Order Entered March 13, 2018
  In the Court of Common Pleas of Franklin County Civil Division at No(s):
                                2016-02932


BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                    FILED JANUARY 16, 2019

     Donald C. Petra appeals from the order entered March 13, 2018,

granting summary judgment to Pennsylvania National Mutual Casualty

Insurance Company (Penn National) in this declaratory judgment action. See

42 Pa.C.S.A. §§ 7531-41. At issue is whether the trial court properly

determined that an insurance policy’s “household exclusion” excluded

underinsured motorist (UIM) coverage for Petra for injuries sustained while

driving his motorcycle. In accordance with precedent established in Allstate

Fire & Cas. Ins. Co. v. Hymes, 29 A.3d 1169 (Pa.Super. 2011), as thereafter

reaffirmed in Swarner v. Mut. Benefit Group, 72 A.3d 641 (Pa.Super.

2013), we affirm.

     The parties stipulated to the following facts:

     On May 19, 2015, Petra was operating his motorcycle when he
     collided with an automobile owned and operated by Jason R.
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     Nalewak. Petra was ejected from the seat of his motorcycle and
     hit the ground. No other vehicles were involved in the accident.
     Petra sustained bodily injuries while he was “in physical contact
     with” his motorcycle, and while he was “separate from physical
     contact with” his motorcycle. Some of Petra’s injuries were caused
     by physical contacts with Petra’s own motorcycle. Between the
     time of the collision and when Petra’s body came to rest on the
     ground, there was no intervening or superseding accident.

     Petra is insured with Harley-Davidson Insurance Services, Inc.,
     under a policy underwritten by Progressive Advanced Insurance
     Co. [(Motorcycle Policy)], but [he] had rejected uninsured and
     [UIM coverage]. At the time of the accident, Petra also owned a
     minivan [that] was insured with Penn National under Policy
     Number 1290185570 [(Minivan Policy)], a copy of which has been
     incorporated into the record by stipulation. The minivan is the only
     vehicle insured under the Minivan Policy underwritten by Penn
     National. [As] Petra rejected UIM [benefits] under the
     [M]otorcycle [P]olicy, he is seeking UIM benefits from his Minivan
     Policy to compensate for injuries related to the accident.

Trial Court Opinion, filed March 13, 2018, at 2-3 (internal citations to

Stipulated Facts, 12/21/2017, omitted).

     The Minivan Policy contains a household exclusion to UIM coverage,

which provides in relevant part:

     A. We do not provide Underinsured Motorists Coverage for “bodily
     injury” sustained:

        1. By you while “occupying”, or when struck by, any motor
        vehicle you own which is not insured for this coverage under
        this policy.

Minivan Policy, UIM Coverage Endorsement, Form 70-3131 (Rev. 08/12), at

1. In this context, “occupying” means “in, upon, getting in, on, out or off.”

Minivan Policy, Definitions, Form PP 00 01 06 98, at 1.




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J-A24028-18



      In August 2016, Petra commenced this declaratory judgment action by

complaint. At the close of pleadings, in December 2017, the parties filed

stipulated facts and cross-motions for summary judgment. In March 2018, the

trial court concluded that the household exclusion barred Petra from UIM

benefits under the Minivan Policy. Trial Ct. Op. at 8. Accordingly, it denied

Petra’s motion for summary judgment and granted Penn National’s motion.

Order, 03/13/2018.

      Petra timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. In response, the court directed our attention to its prior opinion.

See Order, 04/03/2018.

      On appeal, Petra raises the following issue:

      Is [Appellant], Donald C. Petra, entitled to underinsured motorist
      benefits pursuant to an automobile insurance policy issued by
      [Appellee], Pennsylvania National Insurance Company, because
      the “household exclusion” does not preclude coverage as [Petra]
      was not “occupying” a non-insured motor vehicle when he was
      injured?

Petra’s Br. at 2.

      Petra seeks our interpretation of the rights and obligations of the parties

under the Minivan Policy, an insurance contract. “The proper construction of

an insurance policy is resolved as a matter of law to be decided by the court

in a declaratory judgment action.” Swarner, 72 A.3d at 644 (quoting Hymes,

29 A.3d at 1171). As a matter of law, our standard of review is de novo. Id.

      When interpreting an insurance policy, our goal is to ascertain the
      parties' intentions as manifested by the policy's terms. We must
      give effect to clear and unambiguous terms. An insured may not

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J-A24028-18


       complain that his or her reasonable expectations were frustrated
       by policy provisions and limitations that are clear and
       unambiguous. However, when a policy provision is ambiguous, we
       will construe it in favor of the insured.

Estate of O’Connell ex rel. O’Connell v. Progressive Ins. Co., 79 A.3d

1134, 1137-38 (Pa.Super. 2013).

       Here, Petra concedes the language of the Minivan Policy is “clear.”

Petra’s Br. at 14. He further acknowledges that the household exception

precludes coverage for an insured where that person is injured while

“occupying” a vehicle not covered by the Minivan Policy. Id. at 10.

Nevertheless, Petra asserts that he is entitled to UIM benefits under the

Minivan Policy. Id. at 9. According to Petra, he was not “occupying” his

motorcycle when he was injured. Id. at 11. Parsing the definition of

“occupying,” Petra suggests that “[s]ome of his injuries were sustained while

he was in physical contact with the motorcycle[,] while other injuries occurred

after he was separated from the motorcycle.” Id. at 8, 14. According to Petra,

Penn National could have drafted “broader and more comprehensive”

language to preclude coverage in a case like this, but it failed to do so. Id. at

15 (citing in support Hymes, 29 A.3d at 1176 (Colville, J., dissenting)).1 Thus,

Petra concludes, the trial court erred. Id. at 16.

       Previously, we have addressed similar circumstances. A brief review of

those precedents will demonstrate why, in this case, the trial court did not err.

____________________________________________


1Petra’s reliance on the learned J. Colville’s dissent in Hymes is misplaced,
as it carries no precedential value.

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      In Hymes, the plaintiff sought UIM benefits for injuries suffered while

operating a motorcycle not insured by the relevant policy. Hymes, 29 A.3d at

1171. Upon colliding with an automobile, the plaintiff was thrown from his

motorcycle and struck the windshield of the automobile. Id. at 1171, 1172.

      The policy at issue in Hymes contained a household exclusion,

excluding UIM benefits to “anyone while in, or, getting into or out of or when

struck by a motor vehicle owned or leased by you or a resident relative” not

covered by the policy. Id. In seeking UIM benefits, the plaintiff argued that

he had suffered no injuries until after he was ejected from his motorcycle and

struck the windshield. Id. However, based on the plain language of the

exclusion, the trial court denied coverage existed, and this Court affirmed. Id.

at 1172-73. Noting that we should construe unambiguous terms in their

“natural, plain, and ordinary sense,” we concluded that “[s]egmenting the

accident under [the plaintiff’s] analysis would create an absurd result.” Id. at

1172 (quoting trial court opinion favorably).

      In contrast, this Court found coverage existed in Swarner. In that case,

the plaintiff was thrown from her motorcycle following a collision with a pick-

up truck. Swarner, 72 A.3d at 643. She came to rest in a travel lane where

she was subsequently run over by a second automobile. Id. at 643. The

insurance provider denied her UIM benefits based on the policy’s household

exclusion. Id. at 644. The exclusion applied where an insured was “occupying”

a vehicle not insured by the policy. Id. at 646. “Occupying” was defined as

“1) In; 2) Upon; or 3) Getting in, on, out or off.” Id.

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J-A24028-18



       The trial court agreed with the provider, but on appeal we reversed. Id.

at 643. Critical to our analysis, and with reference to our holding in Hymes,

we concluded that the household exclusion did not cover the facts presented,

where the plaintiff was “lying in the roadway and subsequently struck by an

underinsured motorist.” Id. at 651. Under these circumstances, the plaintiff

“had ceased to occupy the motorcycle” when the second accident occurred.

Id.

       Here, Petra’s attempt to distinguish injuries suffered upon impact with

Nalewak’s vehicle from those incurred after he was thrown from his motorcycle

is not persuasive. Indeed, we rejected such a distinction explicitly in Hymes,

where we concluded—under nearly identical facts and household exclusion—

that recognizing coverage “would create an absurd result.” Hymes, 29 A.3d

at 1172.2 Moreover, Petra’s reliance on Swarner is misplaced. In that case,

we recognized two, distinct accidents had occurred. In contrast, here, Petra

stipulated that a single accident occurred and that there was no intervening

or superseding accident. Stipulated Facts at 3 Nos. 14, 15. Thus, our analysis

in Swarner is inapposite.

       Construing the unambiguous terms of the household exclusion

contained in the Minivan Policy, Petra suffered bodily injury while occupying

his motorcycle, a vehicle not covered by the policy. Pursuant to Hymes and
____________________________________________


2 It is also incongruous with Stipulated Facts agreed to by Petra. See
Stipulated Facts at 3 No. 11 (“Mr. Petra is demanding UIM benefits as
compensation for all injuries sustained as a result of the accident.”) (emphasis
added).

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J-A24028-18



Swarner, and as determined by the trial court, we further conclude that Petra

occupied his motorcycle from the moment of impact with Nalewak’s vehicle,

through ejection, and until his body came to rest on the ground. See Trial Ct.

Op. at 8. Accordingly, Petra is not entitled to UIM benefits.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/16/2019




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