A policy issued by Safe Auto Insurance Co. that excluded coverage for non-family members who live with the vehicle owner but were not specifically included in the policy is enforceable under the state’s Motor Vehicle Financial Responsibility Law, the Pennsylvania Superior Court has ruled.

A split three-judge panel of the court ruled in Safe Auto Insurance v. Oriental-Guillermo that the policy was in line with the MVFRL because that statute places the burden of making sure a driver is insured on the vehicle-owner, and not the insurance companies.

The case stemmed from a two-car accident involving one woman who was driving the vehicle of the boyfriend she lived with. A passenger injured in the accident sought recovery against the driver, but Safe Auto pursued a declaratory judgment action to determine whether it had to pay out on the policy.

The Superior Court’s decision affirmed a ruling from the Lehigh County Court of Common Pleas, which granted the carrier’s summary judgment motion.

The injured passenger appealing the lower court’s ruling had argued that Safe Auto’s provision violated MVFRL’s mandate of having an owner ensure that all drivers are covered by insurance.

However, Judge Alice Beck Dubow, writing for the majority, said the provision instead supported the mandates of the MVFRL.

“The MVFRL does not anticipate always shifting the burden on insurance companies to discover the identities of resident, non-family member insureds, who have access to an insured’s vehicle,” Dubow said. “That is a burden more appropriately placed in the hands of the insured.”

Superior Court Judge Kate Ford Elliott issued a dissenting opinion, saying, “The MVFRL was never intended to abandon those who are injured using Pennsylvania highways for the protection of an automobile insurance carrier’s bottom line.”

“Broad coverage exclusions which eliminate these protections should not be enforceable,” Elliott said. “The insurer is in a much better position to accept the risk related to its insured than is the innocent injured victim.”

James Haggerty of Haggerty, Goldberg, Schleifer & Kupersmith, who is representing the injured passenger, said he agreed with Elliott’s assessment of the case, and is seeking to have the decision reviewed by an en banc Superior Court panel.

“It’s part of a continuing effort by the insurance carriers to maximize profits by minimizing coverage,” he said.

Mitchell Berger of Ryan, Brown, Berger & Gibbons, who is representing Safe Auto, declined to comment for the story.

According to Dubow, in April 2013, Rachel Dixon was driving a car owned by her boyfriend Rene Oriental-Guillermo when she was involved in a two-car accident in Allentown. Priscila Jimenez, a passenger in the other vehicle, sued Dixon, Oriental-Guillermo and the other driver.

Oriental-Guillermo had a policy through Safe Auto, which had an “unlisted resident driver exclusion,” specifically excluding people who lived with the policyholder, but were neither related to the policyholder nor listed on the policy.

Jimenez argued that she should be entitled to the coverage, and noted that named driver only exclusions, which specifically exclude people who the policyholder does not want to cover, indicates that insurance carriers must insure everyone who drivers a vehicle unless that person is specifically disclaimed from coverage. She further argued the exclusion violated the public policy goal of having “maximum feasible restoration to accident victims.”

Dubow, however, disagreed.

She said both the unlisted resident exclusion and the named driver only exclusions indicate that insureds must determine who they want to buy coverage for, and said it is settled that the goal of the MVFRL is to encourage vehicle owners to obtain proper insurance for people they expect will be driving their vehicle.

(Copies of the 22-page opinion in Safe Auto Insurance v. Oriental-Guillermo, PICS No. 17-1440, are available at http://at.law.com/PICS.) •