The Pennsylvania Supreme Court has agreed to hear arguments dealing the interplay between household vehicle exclusions limiting insurance stacking and the state’s Motor Vehicle Financial Responsibility Law. The case at issue should give the justices a chance to revisit a topic the high court has split on twice in the past 10 years.

On Aug. 8, the justices granted allocatur in Gallagher v. GEICO Indemnity to address whether it is a violation of the MVFRL if a household vehicle exclusion limits stacking even when the insured paid for and did not expressly waive the option to stack the policy.

According to the state Superior Court’s January decision in Gallagher, in two split decisions the Supreme Court affirmed rulings that had determined similar policy language limiting stacking did not violate the MVFRL. One of those cases, Government Employees Insurance v. Ayers, came before the justices in 2011, while the other case, Erie Insurance Exchange v. Baker, came before the Supreme Court in 2009.

In Gallagher, according to Superior Court Judge H. Geoffrey Moulton, who wrote the intermediate court’s decision in the case, plaintiff Brian 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 Ayers was controlling, Moulton said.

Ayers, according to Moulton, involved Jesse Ayers who insured two motorcycles with Geico under one policy and two trucks under another policy, which contained a similar household vehicle exclusion. Ayers was also injured in a motorcycle accident, and denied coverage beyond the UIM limit on his motorcycle insurance because of that exclusion.

Moulton said a divided Superior Court ruled that the language in the exclusion was clear and unambiguous, and did not go against the MVFRL “or any other discernable public policy.”

On appeal, the Supreme Court split evenly on the issue. Chief Justice Thomas G. Saylor wrote an opinion supporting an affirmance, saying he disapproved of the policy, but that “the writing of separate policies, and enforcement of the household exclusion, is justified relative to motorcycle insurance coverage.”

Prior to Ayers, a divided Supreme Court handled the Baker case, which had also dealt with a similar exclusion and a plaintiff with stacked coverage who was injured in a motorcycle accident.

The Supreme Court in Baker also split on the issue, with two justices joining interim Justice Jane Cutler Greenspan’s opinion affirming the lower court’s decision. Saylor also filed a concurrence, and Justices Max Baer, Debra Todd and Seamus McCaffery dissented.

The Baker ruling, according to Moulton, rejected the plaintiff’s argument that the household vehicle exclusion was a “disguised waiver,” and said the exclusion was “valid and unambiguous preclusion of coverage of unknown risks.”

In ruling on Gallagher’s case, Moulton said the Superior Court was bound by the prior rulings, but he noted the closely contested outcomes.

“Given the significance of this legal issue and the divided nature of the Supreme court in both Ayers and Baker, Gallagher may wish to petition the Pennsylvania Supreme Court for allowance of appeal,” Moulton said.

Joseph Hudock of Summers, McDonnell, Hudock & Guthrie, who represents Geico, said he was not surprised the justices took of the issue.

“This time around we ought to have seven justices so we ought to have a majority, and they should make a definitive pronouncement,” Hudock said. “Not all carriers enforce the household exclusion. Some allow stacking, others don’t, but it’s an important issue for the industry.”

Joyce Novotny-Prettiman of Quatrini Rafferty represents Gallagher. She did not return a call for comment.