.

Ray C. Freudiger

Shareholder

RCFreudiger@mdwcg.com

Portrait of Ray C. Freudiger

Ray Freudiger is a highly experienced litigator, having represented and defended clients in over 100 bench and jury trials in the state and Federal courts of Ohio. He has spent his career defending businesses and public entity clients in a wide variety of professional and general liability claims and suits brought against them. 

As a member of the firm’s Professional Liability Department, Ray has experience defending school districts in a wide array of matters including allegations of wrongful termination and discrimination and has knowledge of Special Education laws needed to appear in due process hearings before independent hearing officers. He also defends employers against allegations of discrimination based on race, gender, ethnicity and/or national origin. He represents these clients before the Ohio Civil Rights Commission, the EEOC, and in the federal and state courts. Ray additionally defends insurance agents and brokers, amusement park operators, real estate brokers & agents, architects, engineers, surveyors and homeowners associations in errors & omissions claims. Since joining the firm, he has had 11 jury trials, 10 of which resulted in a defense verdict and the other verdict substantially less than the pretrial offer. 

Ray has defended clients before administrative agencies such as in the Ohio Division of Real Estate, Ohio Civil Rights Commission, and Department of Urban Development (HUD). He also regularly conducts seminars for real estate brokers and their agents on real estate law issues, as part of their continuing education requirements and to help them to avoid litigation. Prior to attending law school, Ray obtained his property and casualty insurance license, which has served him well in representing clients in insurance coverage and bad faith matters.
 

    • University of Cincinnati College of Law (J.D., 1991)
    • University of Cincinnati (B.B.A., 1982)
    • Ohio, 1991
    • U.S. District Court Southern District of Ohio, 1993
    • U.S. Court of Appeals 6th Circuit, 2017
    • U.S. District Court Northern District of Ohio, 2018
    • Supreme Court of the United States, 2019
    • Cincinnati Bar Association
    • Ohio State Bar Association, Education Law Committee
    • Dayton Bar Association, Civil Trial Practice Committee
    • Ohio Association of Civil Trial Attorneys, Alternative Dispute Resolution Committee
    • DRI (Defense Research Institute)
    • Education Law Association
    • An Overview of Commercial Auto Insurance in Pennsylvania & Ohio, Marshall Dennehey Client Presentation, January 26, 2021
    • Risk Management Best Practices for Engineers, Client Presentation, January 25, 2018
    • Secured a decision from the United States Sixth Circuit Court of Appeals, which affirmed a jury verdict in favor of our client, a housing authority in Ohio.  After written Briefing and oral argument, The Sixth Circuit affirmed the jury verdict in which the Appellant developer failed to prove that the Housing Authority discriminated against it (in violation of ADA and FHA) by refusing to apply to HUD for VASH vouchers on behalf of the developer. The developer failed to prove it asked the housing authority for VASH on behalf of disabled persons, the request was not reasonable, and the request was not necessary to enable disabled persons to enjoy their residents as non-disabled persons could.
    • Secured dismissal on behalf of our client, an insurance agency in Hamilton County, Ohio. The plaintiff entity alleged that it suffered monetary damages by having to pay for claims made against its California employees. It alleged the agency failed to obtain Employment Practices Liability insurance for the company’s California employees. In our Motion to Dismiss, Ray successfully argued that the “economic loss doctrine” barred all claims against the agency. 
    • Successfully argued in Motion for Summary Judgment that Plaintiffs' claims were precluded by law because the general grant of immunity pursuant to R.C. §2744.01 applied to them as a political subdivision and no exception to immunity existed. Plaintiffs, a minor student and parent, filed suit against the school district, school board, supervising teacher, and principal alleging they were negligent when an afterschool science project (through the STEM program) caught fire causing burn injuries to the student. This included the exception that allows for negligence claims when there is a physical defect within or on the grounds of the entity.  Further, the individual employees were also granted immunity because they were acting in their official capacities and thus the same analysis afforded to the school applied to the individuals. The Judge ultimately granted our Motion and dismissed Plaintiffs' claims.  
    • Obtained dismissal of an Ohio insurance agent who was sued by a condominium association.  The allegation was that the insurance agent inappropriately and unlawfully inserted himself into the insurance company’s investigation and tortuously interfered with the contract that resulted in the insurance company paying far less than the $1.3 million in damages alleged by the condominium association.  After taking depositions of the individuals from the condominium association, the insurance company, and defending his client’s deposition, Ray convinced Plaintiff’s attorney to dismiss all claims against the insurance agent.
    • Obtained a summary judgement in a slip and fall matter involving a liquor store, where the plaintiff slipped and fractured her wrist upon stepping into the store on May 18, 2018. Heavy rain that evening allegedly caused water to be blown inside, which Field claimed as the cause of her fall. A wet floor sign was present, but she did not see it. We argued that the rainwater was an open and obvious condition, which under Ohio law, they had no duty to warn against. The court, citing similar cases, agreed, noting that a property owner is generally not liable for injuries from open and obvious conditions like rainwater. As Field failed to establish that the defendants breached their duty of care, the court granted summary judgment in favor of the defendants.
    • Obtained a summary judgement for a general contractor insured by our client. Plaintiff was working for his employer at a fracking site when he was struck in the head by a hose that came off an above-ground storage tank. He sustained serious and permanent injuries. Plaintiff claimed the general contractor was liable for his injuries because it actively participated on the work site and controlled the unsafe condition which caused his injuries. We moved for summary judgment arguing that the general contractor relinquished complete control over the site to a sub-contractor and, thus, it had no control over any unsafe condition which caused the Plaintiff’s injuries. The trial court agreed and granted summary judgment in favor of our client.
    • Secured significant victory in wrongful death commercial liability action at both trial and appellate court levels in suit involving death of 18-year old woman who was struck and killed by a commercial truck that was backing up an access ramp to deliver product at a grain receiving facility at the same time the woman traversed onto the ramp.
    • Obtained a defense verdict in a jury trial where the case involved a rear end car accident. The plaintiff alleged serious and permanent injury, and while our client admitted fault, their contention was that the impact was of a minimal nature. The plaintiff incurred over $69,000 in medical expenses after the accident, and made a settlement demand of $200,000. The plaintiff rejected our nominal offer to settle the case before trial. Through the use of medical expert testimony, the defense contended that plaintiff's treatment was fueled by her subjective complaints, but there was no objective evidence of injury. The jury ruled in favor of the defendant.
    • Obtained a summary judgment on behalf of an insurance agent and the insurance agency. The agent and agency helped a business procure property and liability insurance on its business. A fire loss occurred and the insured discovered that it did not have business interruption coverage. It sued the agent and the agency for negligence, breach of contract and estoppel in failing to procure business interruption coverage for the insured. We convinced the Court that an insurance agent only has a duty to seek coverage which has been requested by the insured. Although the agent reassured the insured the day after the fire that the insured had business interruption coverage, the fact that this statement was incorrect, there is no evidence of any reliance by the insured, any reliance would have been unreasonable and unforeseen and the insured would have know that the agent's statements were incorrect if it had looked at the policy in its possession.
    • Successfully defended EEOC Charge of Discrimination brought against charter school client for alleged disability discrimination and failure to provide reasonable accommodation in violation of the Americans With Disabilities Act, as well of claims of FMLA interference and retaliation, resulting in finding of No Probable Cause in favor of employer.
    • Obtained summary judgment on behalf of insurance agency and insurance agent clients in insurance agent/broker professional liability action involving alleged failure to procure business interruption coverage for insured's start-up restaurant, which subsequently sustained uncovered fire loss.
    • Obtained summary judgment on behalf of one of nation’s largest grocery store chains in significant federal rights action that received considerable media attention venued in federal court in Cincinnati involving unruly patron and patron's right to open carry weapon on private premises.
    • Secured dispositive dismissal on behalf of national insurance carrier in breach of contract and bad faith action involving residential fire that occurred at insureds' residence. In addition, as a result of in-depth investigation and discovery in civil suit, insureds were charged with and pled guilty to crimes of arson and insurance fraud.

Results

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Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Summary Judgment Secured in a Design Defect Case

We won summary judgment on behalf of a company that provided software for the overall design of roof trusses in a design defect case. The plaintiff owned the apartment complex being built and hired Turnbull Wahlert to construct the building. 84 Lumber was subcontracted by Turnbull to build and install the roof trusses. 84 Lumber contracted with our client to use its software for the design of the roof trusses and to provide truss connect plate hangers. The building experienced severe water damage allegedly because the roof trusses were not sloped properly and the HVAC units were misplaced on the roof. Damages were estimated at over $1.2 million. 84 Lumber demanded that our client defend and indemnify it against Turnbull’s allegations. The court granted our motion for summary judgment.

Thought Leadership

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Legal Updates for Real Estate E&O Liability

New Ohio Law Targets Real Estate Wholesaling Practices

May 7, 2026

Effective March 2, 2026, the Ohio Department of Commerce Division of Real Estate and Professional Licensing (REPL) now requires real estate wholesalers to clearly disclose their intention and business model when contracting with a property owner and seller.  This was part of Ohio Senate Bill 155, which passed unanimously in the Ohio Senate in June 2025, and was signed into law by Governor Mike DeWine on December 1, 2025.  Real estate wholesalers serve as intermediaries in property transactions. They enter into a purchase agreement with a seller with no intent to buy the property themselves. Instead, they assign the contract to another buyer or investor at a higher price or charge a fee, typically 5% to 10% of the sale price, to earn a profit. The REPL, in partnership with the Ohio Department of Aging (ODA), and Ohio District 5 Area Agency on Aging in Richland issued a Consumer Alert in March 2025, on wholesalers, citing a rise in unsolicited real estate offers targeting older Ohio homeowners, often offering complex financial arrangements that include hidden risks, leaving older homeowners financially vulnerable. Under this new legislation, real estate wholesalers in Ohio are required to disclose their status to sellers or property owners and clarify that they do not represent the seller in the transaction. The law mandates that this disclosure be made through a clear and conspicuous written statement informing the seller that the individual is acting as a wholesaler. This disclosure must also be separate from the purchase contract or agreement between the parties and must be printed in bold type with a font size of at least 12 points. In the event a wholesaler fails to provide proper notice to the seller, the seller may cancel the purchase contract at any time before the close of escrow without penalty, giving the wholesaler 30 days to return any earnest money or deposits to the seller. Wholesalers who do not clearly disclose their role or properly inform the seller may also face disciplinary action from the Ohio Superintendent of Real Estate. This can include penalties such as suspension or revocation of their real estate license, as well as potential civil liability, monetary damages, and responsibility for attorneys’ fees.

Legal Updates for Special Education Law

Ohio Law Does Not Conflict with the Individuals with Disabilities in Education Act

April 1, 2025

The Ohio Department of Education and Workforce (DEW) oversees Ohio’s implementation of the Individuals with Disabilities in Education Act (IDEA), a federal law that entitles children with disabilities to a free appropriate public education (FAPE). In a recent lawsuit, DEW argued that a state court lacked subject matter jurisdiction over an IDEA claim because the state’s administrate code conflicted with the IDEA and, therefore, was preempted by federal law. State ex rel. Governing Bd. of Warren Cnty. Educational Serv. Ctr. v. Ohio Dept. of Education & Workforce, 2024-Ohio-6061 (12th Dist.). The specific conflict advanced by DEW was that the IDEA complaint procedure applied to any “public agency, while Adm.Code 3301-51-05(K)(5) and (6) is more circumscribed by applying only to a disabled child's ‘school district of residence.’ ” At the trial level, the court disagreed with DEW’s argument, holding that IDEA complaint procedures set forth in 34 C.F.R. 300.152 and 34 C.F.R. 300.153 and those set forth by Adm.Code 3301-51-05(K)(5) and (6) are “virtually identical,” with the exception that the C.F.R. uses the term “public agency” while the Adm.Code uses the term “school district of residence.”  The Twelfth District Court of Appeals agreed that Ohio’s complaint procedures were not in conflict with federal law. The appeal court explained that the IDEA and 34 C.F.R. 300.152 and 300.153 were crafted with general language to accommodate the variations of 50 states’ educational systems. As such, it makes sense that C.F.R. used the broad term “public agency” in the IDEA regulations. Adm.Code 3301-51-05(K)(5) and (6) do not truncate the IDEA or limit its protections; thus, they are not in conflict. In summary, the IDEA does not preempt Ohio’s administrate code regarding the procedure for filing an IDEA claim.    Legal Update for Special Education Law – April 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

The Enforceability of Online Arbitration Agreements Remains Unresolved in Pennsylvania, But the Pennsylvania Superior Court has Provided Substantive Guidance on the Issue

Key Points: The Pennsylvania Supreme Court confirms that an order compelling arbitration is not immediately appealable as collateral orders. The outcome of Chilutti II has generally left the substantive enforceability issues with browsewrap agreements unresolved in Pennsylvania. Until this issue is resolved by the Pennsylvania courts, companies operating in the Commonwealth should strive to ensure that their registration websites and/or application screens conspicuously present arbitration agreements in manners which ensure their users and consumers assent to the terms of the agreements by following the standards set forth in Chilutti I. Browsewrap agreements have been defined as agreements “‘in which a website offers terms that are disclosed only through a hyperlink and the user supposedly manifests assent to those terms simply by continuing to use the website,’ and typically do not require an electronic signature.” See, Cobb v. Tesla, Inc., 2026 WL 458470, at *1 n. 2 (Pa. Super. Feb. 18, 2026) (citation omitted). They are largely regarded as the “if you keep using this, you agree to everything buried in this link” terms embedded into almost every online agreement consumers and users sign before proceeding with purchases of goods and/or services. While consumers are generally aware of them, many almost never click on the link, nor read them in their entirety. This leaves many consumers and users ignorant of the terms and impact of such agreements. However, one’s ignorance of the otherwise neatly-tucked-away terms rarely renders them unenforceable. The issue of the enforceability of browsewrap agreements has been up for debate for some time in many jurisdictions, including Pennsylvania. Indeed, Pennsylvania had a brief grip on this issue for a period in time. Specifically, in 2023, an en banc Superior Court set forth heightened standards for companies to meet in order to secure assent and enforce browsewrap arbitration agreements. See Chilutti v. Uber Techs., Inc., 300 A.3d 430 (Pa.Super. 2023) (en banc) (“Chilutti I”) Chilutti I involved a husband and wife who sued Uber and its subsidiaries after the wife, a wheelchair bound passenger using Uber’s rideshare service, fell, struck her head, and lost consciousness due to her uber driver failing to provide a seatbelt and making an aggressive turn during the trip. The Chilutti’s filed a negligence lawsuit against Uber and its subsidiaries. In response, the defendants moved to compel arbitration, arguing that “the couple’s conduct on the company’s website and application — when they registered for the ridesharing service — signified that they agreed to be bound by the mandatory arbitration provision found in the hyperlinked terms and conditions.” The trial court granted the defendants’ petition and stayed the proceedings pending the results of arbitration, and the Chilutti’s appealed. On appeal, the Superior Court addressed two issues. First, it addressed the issue of whether it had jurisdiction to hear the appeal. A divided Superior Court determined that it did, with its basis for the holding being that the order from which the Chilutti’s appealed was a collateral order. Next, the Superior Court set out to address the merits of the Chilutti’s substantive claim. The Superior Court concluded that the parties lacked a valid agreement to arbitrate. Its rationale was that Uber’s website and application did not provide reasonably conspicuous notice of the terms to the Chiluttis. In reaching this decision, the en banc Superior Court held that browsewrap arbitration agreements are enforceable in Pennsylvania only if the registration website and application screens explicitly inform consumers that they are waiving the right to a jury trial, the registration process cannot be completed until the consumer is fully informed of this waiver, and, when the agreement is available via hyperlink, the waiver appears at the top of the first page of the terms in bold, capitalized text. Since the ruling, Pennsylvania courts have applied Chilutti I to determine if browsewrap agreements are enforceable.  For instance, the Allegheny County Court of Common Pleas invoked Chilutti I to reject an agreement that lacked an express jury-trial waiver on the assent screen.  See Miller v. Festival Fun Parks, LLC, 92 WDA 2025 (C.P. Alleg. Cnty. Mar. 24, 2025). Similarly, the Superior Court has held that notice which failed to explicitly state the consumer was waiving a jury-trial right did not “me[e]t the strict burden set forth by our en banc Court in Chilutti I.” Pierce v. FloatMe Corp., 348 A.3d 1077, 1088 (Pa. Super. 2025). While the issue of enforceability of browsewrap agreements appeared to have been resolved by Chilutti I, Pennsylvania courts’ grip on this issue has been slackened by the Pennsylvania Supreme Court’s January 21, 2026, opinion in Chilutti II. See Chilutti v. Uber Techs., Inc., 349 A.3d 826 (Pa. 2026) (“Chilutti II”). Therein, the Supreme Court did not address the merits of the Chiluttis’ substantive claim, but rather the issue of whether the Superior Court had appellate jurisdiction to immediately review the orders staying litigation pending arbitration. The Court ultimately vacated the en banc opinion on jurisdictional grounds, holding that the Superior Court did not have appellate jurisdiction because the trial court’s order from which the Chiluttis appealed did not qualify as a collateral order and, thus, the Superior Court erred in holding to the contrary and lacked jurisdiction to entertain the merits” of the Chiluttis’ substantive claim. As such, Chilutti II has rendered Chilutti I nonbinding, and the issue of enforceability of online arbitration agreements remains unresolved. However, in light of the fact the Supreme Court did not address or comment on the merits of the Chiluttis’ appeal, Chilutti I is still meaningful. Specifically, it provides guidance as to the standards a company should strive to meet to ensure they have obtained users’ assent so that they are able to enforce online arbitration agreements. Additionally, it may serve as persuasive authority in judges’ evaluations of petitions and/or motions to compel browsewrap arbitration agreements until this particular issue is properly put before our appellate courts. Keanna works in our Pittsburgh, PA office. She can be reached at (412) 803-1174 or KASeabrooks@MDWCG.com.

Thought Leadership

Featured Conversations... Key Takeaways from A.M. Best’s Webinar on the Misuse Defense in Product Liability Claims, Featuring Michael Salvati

Michael Salvati, shareholder in our Philadelphia office, was a panelist for the April A.M. Best webinar, “The Misuse Defense: Strategic Approaches to Defending Product Liability Claims for Insurers.” During the program, Michael and his fellow panelists offered practical, jurisdiction‑specific guidance on how misuse and failure‑to‑warn theories intersect in modern product liability litigation. Michael emphasized the unique challenges these claims present—particularly in states like Pennsylvania, where evidentiary rules diverge sharply from those applied in many other jurisdictions. Failure to Warn as the “Flip Side” of Misuse Salvati explained that failure‑to‑warn allegations often arise as a direct counter to a misuse defense. As he noted, “If our misuse defense is that the plaintiff didn't use a product properly or safely, then the failure to warn claim is that we didn't tell them how to use it properly.” He emphasized that these claims can stem from either the absence of warnings or criticisms of existing warnings, such as insufficient specificity or lack of clarity about risks. Pennsylvania’s Unique Evidentiary Landscape One of Salvati’s most notable points was the stark difference in how Pennsylvania treats evidence of compliance with industry standards. He highlighted that Pennsylvania is “one of the only states…where that evidence is not admissible” in strict liability cases. Manufacturers cannot rely on compliance with ANSI, UL, ISO, or even federal safety standards to defend the product against a strict liability claim—because the focus is solely on the product itself, not the manufacturer’s conduct. Salvati acknowledged the challenge this creates for defense counsel and clients who expect such compliance to carry weight. Understanding the Three Defect Theories Salvati also walked through the three primary defect theories recognized in many jurisdictions: - Design defect – a flaw in the product’s intended design - Manufacturing defect – a deviation affecting a specific unit - Failure to warn – inadequate instructions or warnings He noted that warnings claims are increasingly significant and sometimes stand alone when design or manufacturing theories are weak. As he put it, plaintiffs often default to warnings claims because “the default position seems to be, ‘If I got hurt, there must be something wrong.’” Warranties and State‑by‑State Variations Salvati addressed how breach‑of‑warranty claims fit into the broader framework, explaining that implied warranties—such as merchantability—often overlap with strict liability in Pennsylvania. He emphasized the importance of understanding local nuances, as warranty law and admissibility rules vary widely across states. Looking Ahead: The Growing Importance of Warnings In his closing remarks, Salvati stressed that warnings should never be treated as an afterthought in product liability defense. He observed that warnings‑only claims are becoming more common and urged manufacturers and insurers to continually evaluate the clarity and completeness of their instructions and warnings. His takeaway: “We should always be talking about what are the instructions that come with our products…to bolster a misuse defense.” Listen to the complete webinar here: https://www3.ambest.com/conferences/events/eventregister.aspx?event_id=WEB1074.

Casey Alan Coyle Joins Marshall Dennehey's PA Appellate Practice as a Shareholder in Harrisburg and Philadelphia

News

Marshall Dennehey Expands Leading Pennsylvania Appellate Practice With Addition of Shareholder Casey Coyle

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

PA Superior Court Upholds Household Vehicle Exclusion in Favor of Erie When Stacking Was Not Implicated

Key Points: A household vehicle exclusion was upheld under an Erie Policy when the estate of deceased insureds sought UIM coverage when the insureds were occupying a motorcycle owned by the insureds, but the motorcycle was not covered by Erie’s Policy. The PA Superior Court distinguished Gallagher v. GEICO, in which Gallagher, unlike the Erie insured, had recovered UM/UIM, thus rendering the "household exclusion" an impermissible waiver of stacking. Here, with no UIM recovery from any source, the issue of stacking, much less impermissible waiver of stacking, never arose. In sum, the household vehicle exclusion is a valid exclusion when stacking is not implicated. In the Pennsylvania Superior Court case of Erie Ins. Exchange v. Estate of Kennedy, 350 A.3d 219 (Pa. Super. 2025), the court upheld Erie’s denial of coverage under the household vehicle exclusion in the Erie Policy when the insureds were occupying a motorcycle not covered under the policy. Dennis and Elissa Kennedy, Erie insureds, died in a single-vehicle motorcycle accident, with Dennis driving. Dennis insured the motorcycle with Progressive, which paid its liability limits to Elissa, after which Elissa sought household stacked Erie UIM coverage. Erie denied coverage under its "household exclusion" applicable to vehicles owned by insureds, but not covered by Erie's policy. The trial court granted judgment in favor of Erie on the ground that such benefits were barred by an exclusion applicable when an insured has suffered damages while occupying a vehicle owned by a relative and not covered under the policy, i.e. the household vehicle exclusion. Finding that the exclusion was valid, the PA Superior Court affirmed. The court found the facts of the case and policy exclusion analogous to the case of Erie Ins. Exchange v. Mione, 289 A.3d 524 (Pa. 2023). In Mione, a motorcyclist was injured in an accident with another vehicle whose driver was both at fault and underinsured. The motorcyclist's insurance policy did not include UM/UIM coverage. However, the motorcyclist had two household policies covering other vehicles, including stacked UM/UIM coverage, as well a household vehicle exclusion. UM/UIM benefits were therefore denied, and the motorcyclist argued that the exclusion was invalid because it did not comport with the statutory waiver requirements of Section 1738. The PA Supreme Court rejected the argument, explaining that UM/UIM coverage could not be procured in the "first instance" under the motorcyclist's household policies as “[F]or a household vehicle exclusion to be acting as an impermissible de facto waiver of stacking, the insured must have received UM/UIM coverage under some other policy first, or else is not implicated at all.” The motorcyclist had not received any UM/UIM benefits under his own motorcycle policy, so there was nothing for the UM/UIM benefits of the household policies to "stack on" to, and as such, Section 1738 was not implicated. The court also distinguished the case from Gallagher v. Geico, 201 A.3d 131 (Pa. 2009), in which a motorcyclist was injured in an accident caused by another driver who was underinsured. The motorcyclist had purchased two policies, each of which provided stacked UM/UIM benefits. The first policy covered only the motorcycle; the second covered two automobiles, while also containing a "household exclusion," which precluded UM/UIM benefits. The PA Supreme Court held that the exclusion was invalid because the resulting waiver of UM/UIM coverage did not comport with the statutory requirements of Section 1738. The court distinguished the Kennedy’s case from Gallagher as the Kennedy’s were attempting to stack UM/UIM coverages from (a) the Progressive Motorcycle Policy under which Dennis Kennedy was the only insured, and (b) the Erie Policy under which Dennis Kennedy and Elissa J. Kennedy were the insureds. Crucially, the court found that the party from whom the right to stack UM/UIM benefits under the Erie policy was derived (Elissa J. Kennedy) was not an insured under the motorcycle policy. In other words, no one paid for Elissa J. Kennedy to receive UM/UIM benefits under the motorcycle policy, so that policy afforded her no contractual right to such coverage in the first instance. The court further reasoned that the "miscellaneous vehicle" exclusion in the Erie Policy was valid because the insured, Elissa J. Kennedy, had not first received UM/UIM coverage under Dennis Kennedy's Motorcycle Policy. In conclusion, the Court found Gallagher inapposite, and Mione compelled the affirmance of the trial court's ruling upholding Erie’s denial of coverage pursuant to the household vehicle exclusion. Christin is a Shareholder in our King of Prussia, Pennsylvania, office. She can be reached at 610-354-8279 or clkochel@mdwcg.com.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

Congratulations to our 2026 Florida Super Lawyers & Rising Stars: Elizabeth Ferguson, A.C. Nash, Taylor Naughton, Sophia Philor, Amara Rodriguez

News

Marshall Dennehey Announces 2026 Florida Super Lawyers & Florida Rising Stars

News

Veteran Trial Attorney Joseph M. Toddy Joins Marshall Dennehey’s Casualty Department in Philadelphia

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.