J-A29022-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRIAN GALLAGHER, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
GEICO INDEMNITY COMPANY, :
:
Appellee : No. 352 WDA 2016
Appeal from the Order entered February 18, 2016
in the Court of Common Pleas of Westmoreland County,
Civil Division, No(s): 5561 of 2014
BEFORE: DUBOW, MOULTON and MUSMANNO, JJ.
CONCURRING STATEMENT BY MUSMANNO, J.: FILED JANUARY 27, 2017
Reluctantly, I concur with the Majority. However, as stated in my
Dissenting Opinion in Government Employees Ins. Co. v. Ayers, 955
A.2d 1025 (Pa. Super. 2008), affirmed by an equally divided court, 18 A.3d
1093 (Pa. 2011), “it is my judgment that the application of the household
exclusion where an insured had not waived and received an attendant
reduction in premiums acts as an unknowing waiver of stacking coverage
that deprives an insured of the benefits for which he or she paid.” Gov't
Employees Ins. Co. v. Ayers, 955 A.2d 1025, 1030 (Pa. Super. 2008)
(Musmanno, J. dissenting). Further, as I explained in Ayers,
[b]ecause insurance companies routinely require motorcycle
owners to insure their motorcycles under a separate insurance
policy from the owners' other vehicles, those motorcycle owners
who elected and paid for inter-policy stacking will be stripped of
these benefits when they are injured while riding their
motorcycles. I do not characterize this as a "narrow
J-A29022-16
circumstance" and permit the insurance companies to receive a
windfall, as they would be permitted to withhold benefits for
which the insured has paid.
Id. at 1031. My reasoning is no less applicable in the instant situation, and
the issue warrants review by our Supreme Court.
Judge Dubow and Judge Moulton join the concurring statement.
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