NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 21-2935

________________

CYNTHIA G. EBERLY, INDIVIDUALLY, AND AS EXECUTRIX

OF THE ESTATE OF BRYAN L. EBERLY, DECEASED,

 Appellant

v.

LM GENERAL INSURANCE COMPANY AND

LIBERTY MUTUAL INSURANCE COMPANY

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 5-20-cv-06308)

District Judge: Honorable Edward G. Smith

________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

on June 12, 2024

Before: CHAGARES, Chief Judge, JORDAN, and SCIRICA, Circuit Judges.

(Filed: August 1, 2024)

________________

OPINION*

________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
2

SCIRICA, Circuit Judge

In this action for underinsured motorist (“UIM”) benefits, the sole issue on appeal 

is whether a “regular use” exclusion in plaintiff/appellant Cynthia G. Eberly’s policy issued 

by defendant/appellee LM General Insurance Co. (“LM General”) violates Pennsylvania’s 

Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A. §§ 1701 et seq. (“MVFRL”). 

We conclude that it does not, and so we will affirm. 

I.

The facts of this case are straightforward and undisputed. 

Cynthia’s husband, Bryan Eberly, was killed in a car crash in June 2016. He was 

operating a vehicle owned and provided for his regular use by his employer, BJ Baldwin 

Electric, Inc., in the course and scope of his employment. At the time of the accident, 

Bryan and Cynthia were insured under a policy issued by LM General that provided for 

“stacked underinsured motorists coverage in the amount of $250,000.00 per person” and 

“insured two motor vehicles.” Appx. 33-35 (“Stip.”) ¶¶ 8-9. In addition, the Eberlys’ son, 

Adam Eberly, who resided with them at the time, was the named insured on another policy 

issued by LM General that provided for “non-stacked underinsured motorists coverage in 

the amount of $250,000.00” and “insured one motor vehicle.” Id. ¶¶ 10-13. However, 

neither policy insured the vehicle Bryan was operating at the time of the accident. Rather, 

both policies contained a provision excluding coverage for bodily injury sustained

[b]y an “insured”, as defined in this endorsement, while using, “occupying,” 

or when struck by, any non-owned motor vehicle that is furnished or made 

available for your regular use, or the regular use of a “family member”, which 

is not insured for Underinsured Motorists Coverage under this policy.
3

Appx. 11 (citation omitted). 

As executrix of Bryan’s estate, Cynthia submitted demands for underinsured 

motorist coverage under both policies. LM General denied those claims citing the regular 

use exclusion in both policies. Cynthia then initiated this action in the Lancaster County 

Court of Common Pleas, seeking, among other things, a declaration of coverage under the 

two policies. LM General timely removed the suit to the United States District Court for 

the Eastern District of Pennsylvania. At the District Court’s direction, the parties filed a 

stipulation of facts and cross-motions for summary judgment concerning the enforceability 

of the regular use exclusion. Cynthia argued the regular use exclusion violated sections 

1731 and 1738 of the MVFRL as interpreted by the Pennsylvania Supreme Court in 

Gallagher v. Geico Indemnity Co., 201 A.3d 131 (Pa. 2019). The District Court granted 

LM General’s motion and denied Cynthia’s motion, holding that “the regular use exclusion 

does not violate [either sections 1731 or 1738 of] the MVFRL, that Gallagher does not 

apply to the instant case, and that the regular use exclusion operates to bar coverage in this 

case.” Id. at 12.1 

This timely appeal followed.2

1 Cynthia subsequently filed a motion for post-judgment relief under Federal Rule 

of Civil Procedure 60(b), which the District Court denied. 

2 After the parties informed us that the issue of whether a regular use exclusion 

violates the MVFRL was currently pending before the Pennsylvania Supreme Court in 

Rush v. Erie Insurance Exchange, No. 77 MAP 2022, we decided to hold the matter C.A.V. 

pending the Pennsylvania Supreme Court’s resolution of Rush. The Pennsylvania Supreme 

Court issued its decision on January 29, 2024. See Rush v. Erie Ins. Exch., 308 A.3d 780 
4

II.3

Cynthia does not dispute that Bryan was operating a vehicle owned by his employer 

and provided to him for his regular use at the time of his accident, or that the regular use 

exclusions in both policies issued to the Eberlys by LM General unambiguously operate to 

bar coverage. Instead, she argues that the regular use exclusions are unenforceable as a 

matter of law under the MVFRL—specifically, that the exclusions violate section 1731’s 

requirement that insurers offer underinsured motorist coverage, and that they operate as a 

waiver of inter-policy stacking in violation of section 1738 as interpreted by the 

Pennsylvania Supreme Court in Gallagher. We need only address the latter argument, 

however, as the Pennsylvania Supreme Court recently concluded that a “‘regular use’

exclusion is a permissible limitation of UIM coverage under the MVFRL” and does not 

violate section 1731. Rush, 308 A.3d at 802.4

(Pa. 2024). At our direction, the parties filed supplemental briefs on February 19, 2024 

addressing Rush’s impact on the issues in this appeal.

3 The District Court had jurisdiction under 28 U.S.C. § 1332. We have appellate 

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the parties’ crossmotions for summary judgment. Moore v. Walton, 96 F.4th 616, 622 (3d Cir. 2024). 

Summary judgment is appropriate only if “there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

4

Indeed, Cynthia no longer appears to be pursuing her section 1731 argument in 

light of Rush. See Cynthia Supp. Br. 2 (recognizing that the Pennsylvania “Supreme Court 

determined that Section 1731 does not stand in conflict with the regular use exclusion”). 

With that said, she is correct that the Pennsylvania Supreme Court explicitly declined to 

consider whether the regular use exclusion violates section 1738. See Rush, 308 A.3d 802 

n.30 (“The Insured’s final statutory argument is that the ‘regular use’ exclusion violates 

Section 1738 of the MVFRL, which governs stacking of UIM coverage. Given that the 
5

Section 1738 provides that “[w]hen more than one vehicle is insured under one or 

more policies providing uninsured or underinsured motorist coverage, the stated limit for 

uninsured or underinsured coverage shall apply separately to each vehicle so insured” and 

“[t]he limits of coverages available . . . shall be the sum of the limits for each motor vehicle 

as to which the injured person is an insured.” 75 Pa. C.S.A. § 1738(a). The Pennsylvania 

Supreme Court has interpreted this provision to mandate “stacked UM/UIM coverage [as] 

the default coverage available to every insured . . . on all vehicles and all policies” absent 

express waiver. Gallagher, 201 A.3d at 137. Thus in Gallagher, a “household vehicle 

exclusion” which purported to exclude from coverage any injury involving a vehicle “not 

insured . . . under this policy” was invalid under section 1738 “as it act[ed] as a de facto

waiver of stacked UIM coverage provided for in the MVFRL, despite the indisputable 

reality that Gallagher did not sign the statutorily-prescribed UIM coverage waiver form” 

but instead “decided to purchase stacked UM/UIM coverage” for both his motorcycle and 

car from the same insurer. Id. at 133, 138. 

Cynthia contends “Gallagher stands for the proposition that insurance policy 

provisions that conflict with the specific requirements of the MVFRL will be declared 

invalid and unenforceable.” Cynthia Br. 14; see also Appx. 13 (arguing before the District 

Court that Gallagher “represents a new lens through which the Pennsylvania Supreme 

Court will now view challenges to the MVFRL and questions pertaining to automobile 

facts of this case do not implicate stacking of coverage, we need not address this claim.”); 

accord Cynthia Supp. Br. 1.
6

insurance policy language” (citations omitted)). To her, because “the regular-use exclusion 

has the effect of denying access to the UIM coverage she purchased and paid premiums 

for” it must be “a violation of section 1738 and renders the regular-use exclusion invalid 

for the same reasons the Gallagher court found the household vehicle exclusion invalid.” 

Cynthia Br. 19.

We disagree. To start, Cynthia overstates the import of Gallagher. The 

Pennsylvania Supreme Court in Gallagher took great care to note the “narrow[ness]” of its 

decision, emphasizing “we offer no opinion or comment on the enforceability of any other 

exclusion to UM or UIM coverage or to coverage in general, including exclusions relating 

to racing and other inherently dangerous activities.” Gallagher, 201 A.3d at 138 n.8. And 

subsequent Pennsylvania Supreme Court decisions have consistently declined to extend 

Gallagher’s holding beyond its facts. See, e.g., Erie Ins. Exch. v. Mione, 289 A.3d 524, 

530 (Pa. 2023) (“We reiterate today that the holding in Gallagher was based upon the 

unique facts before us in that case, and that the decision there should be construed 

narrowly.”); see also Rush, 308 A.3d at 799-800 (following Mione and declining to rely on 

Gallagher because Mione “clarif[ied] the scope of Gallagher’s holding”). In fact, while 

Rush did not address the validity of regular use exclusions under section 1738, it did reject 

the very argument Cynthia puts forward as to Gallagher’s significance. See Rush, 308 

A.3d at 799 (rejecting the argument that “Gallagher stood for the proposition that the 

‘household’ exclusion was invalidated in its entirety as conflicted with the language of the 

MVFRL” and that “we should follow its analysis and conclude that absent a waiver of 

coverage . . . , UIM coverage is available without regard to the ‘regular use’ exclusion”). 
7

The Pennsylvania Supreme Court even went so far as to suggest that Gallagher has no 

bearing on the validity of regular use exclusions. See id. at 799-800 (“[T]he Insureds’ 

argument and some federal courts’ predictions that Gallagher controls the enforceability 

of the ‘regular use’ exclusion to UIM coverage conflates issues surrounding stacked UIM 

coverage under Section 1738 with the issue of portability of UIM coverage arising under 

1731.” (footnote omitted)). 

In addition, the factual differences between this case and Gallagher trump any 

similarities. Gallagher was injured while operating a motorcycle which he owned and for 

which he purchased stacked coverage from the defendant/insurer. Gallagher, 201 A.3d at 

132-33. He then sought to stack coverage between the motorcycle policy and another 

policy issued to him by the same insurer that also provided stacked coverage on additional 

vehicles he owned. Id. at 133. In contrast, Bryan was injured while operating a vehicle he 

neither owned nor for which he purchased stacked coverage from LM General. Yet 

Cynthia inexplicably seeks to stack coverage between her two LM General policies, neither 

of which covers the vehicle Bryan was driving. What is more, one of those policies—the 

policy for which Adam Eberly was a named insured—does not even provide for stacked 

coverage.

These distinctions matter for at least two reasons. First, that Gallagher purchased 

his two policies from the same insurer meant the insurer was on notice of the possibility

that Gallagher might stack between his two policies. The insurer therefore had the 

opportunity to charge higher premiums to compensate for that additional risk. See 

Gallagher, 201 A.3d at 138. In contrast, LM General had no way of knowing of (and thus 
8

was not compensated for) the risk that Bryan or Cynthia might seek to stack between the 

LM General policies and whatever policy covered the car Bryan was operating at the time 

of his accident. 

Second, while the household vehicle exclusion in Gallagher operated to bar stacking 

between the two policies under all circumstances, here, the Eberlys can access stacked 

coverage on their own cars and on any cars they drive provided they do not fit within any 

of the applicable exclusions to such coverage. In other words, the regular use exclusion in 

this case only operates to bar stacking in the limited circumstance presented here: where 

the claimant was operating a vehicle which he did not own but that was provided to him 

for his regular use. The regular use exclusion, therefore “is neither an implicit waiver of 

coverage nor an improper limitation on the statutorily mandated coverage” but rather 

“functions as a reasonable preclusion of coverage of the unknown risks associated with 

operating a regularly used, non-owned vehicle.” Williams v. GEICO Gov’t Employees Ins. 

Co., 32 A.3d 1195, 1208 (Pa. 2011). 

Accordingly, the regular use exclusion does not violate section 1738 of the MVFRL, 

and so the District Court did not err in granting LM General’s motion for summary 

judgment and denying Cynthia’s cross-motion. 

III.

For the foregoing reasons, we will affirm.