Erie Insurance Exchange v. Baker

Justice SAYLOR

concurring.

I concur in the result only, as I believe Appellant’s argumentation is stronger than the lead opinion portrays. As Appellant ably explains, the Colbert and Eichelman decisions, upon which the lead Justices rely, are readily distinguishable. For example, in those cases, this Court did not examine the express requirements of the stacking provisions of the Motor Vehicle Financial Responsibility Law, see 75 Pa.C.S. § 1738, upon which Appellant relies. Rather, Colbert and Eichelman were litigated and decided on more general public policy grounds. See Brief for Appellant at 26-28.1

Nevertheless, I am persuaded that the amendments to the MVFRL codified at Section 1738 do not invalidate longstanding policy exclusions (including regularly-used non-owned car, household, and territorial exclusions) rooted in ensuring the collection of reasonable premiums (with reasonableness being monitored by the Insurance Department). Had the Legislature intended to invalidate these, I believe, it would have done so more directly. Instead, to the extent the General Assembly even considered the matter,2 it seems most *368likely to me that it regarded these types of exclusions separate and apart from priority-of-recovery and stacking questions.3 As such, I believe it is most reasonable to treat these exclusions as going to the scope of the UM/UIM coverage in the first instance, before stacking questions are reached, rather than as an aggregation question arising under the stacking provisions.

My position also incorporates thoughts I previously developed concerning the many difficulties presented by the MVFRL, including the question of what the Legislature meant in the requirement to offer “uninsured or underinsured motorist coverage,” and specifically, the degree of portability the General Assembly intended to be associated with these concepts. See, e.g., Burstein, 570 Pa. at 219-23, 809 A.2d at 230-32 (Saylor, J., dissenting).

. The observation, in the lead opinion, that statutes are an embodiment of public policy is correct. See Opinion Announcing the Judgment of the Court, at 362 n. 7, 972 A.2d at 511 n. 7. However, I fundamentally disagree with the approach of applying decisions which did not consider a discrete statutory provision to answer the question of what policy such provision establishes. See id.

. The complex development of the decisional law in this arena demonstrates that the coverage of the MVFRL is so broad that it would not *368have been possible for anyone to anticipate the law's application in the myriad of factual scenarios which have unfolded. For this reason, I have previously expressed my belief that the Legislature intended for the administrative agency with expertise in the field to fill in the substantial gaps via well developed regulations (subject, of course, to judicial review to ensure consistency of those regulations with the legislative objectives). See, e.g., Generette v. Donegal Mut. Ins. Co., 598 Pa. 505, 528, 957 A.2d 1180, 1194-95 (2008) (Saylor, J., concurring and dissenting). Notably, this Court recently expressed its concern with the agency's performance of such rulemaking responsibilities. See Nationwide Ins. Co. v. Schneider, 599 Pa. 131, 145 n. 8, 960 A.2d 442, 450 n. 8 (2008).

. This Court already has applied similar logic to the priority-of-recovery provisions of Section 1733, 75 Pa.C.S. § 1733. See Burstein v. Prudential Property and Cas. Ins. Co., 570 Pa. 177, 186 n. 7, 809 A.2d 204, 209 n. 7 (2002) (stating that, "[wjhile Section 1733 contemplates that UM and UIM coverage may be portable in some instances, it does not suggest that UM or UIM coverage would extend where the coverage has been specifically excluded"); accord Colbert, 572 Pa. at 89 n. 3, 813 A.2d at 751 n. 3 (same). I do realize, however, that this rationale is difficult to reconcile fully with some indications in the majority decision in Generette, 598 Pa. at 522, 957 A.2d at 1191. See generally id. at 526-27, 957 A.2d at 1193-94 (Saylor, J., concurring and dissenting) (developing the tension between Generette, on the one hand, and Burstein and Colbert on the other).