.

Erin N. Margolin

Shareholder

ENMargolin@mdwcg.com

Portrait of Erin N. Margolin

Erin is a shareholder of the Casualty Department concentrating in asbestos, mass and toxic tort matters arising out of exposure to asbestos, silica and benzene. Erin's day-to-day asbestos practice includes directly participating in all phases of litigation, from investigation to trial, throughout Western Pennsylvania. 

Prior to joining the firm, Erin's practice involved the defense of complex, high exposure medical malpractice matters on behalf of several major New York area hospital systems and medical practices, at a New York City law firm. Her experience also includes construction cases, slip and fall cases, automotive accident cases, general insurance defense, and admiralty law cases.  She has handled all aspects of litigation from inception of the lawsuit through assisting at trial

Erin graduated from University of Pittsburgh School of Law in 2007.  During her time at Pitt, she was a member of Phi Alpha Delta Law Fraternity and served as its Vice Justice in 2005-2006.  Erin served as a research assistant to the Honorable David Torrey in 2006.  She participated in the Semester at Sea Program in 2005 and studied international law as well as the legal systems of various countries while traveling to Iceland, Norway, Russia, Poland, Belgium, France, Ireland, and Spain. 

Erin graduated magna cum laude from Lehigh University with a B.A. in English and Political Science in 2004.  She received departmental honors in Political Science.

    • University of Pittsburgh School of Law (J.D., 2007)
    • Lehigh University (B.A., magna cum laude, 2004)
    • New York, 2008
    • Pennsylvania, 2016
    • West Virginia, 2021
    • “Why Further Testing of Gene Mutations May Be the Right Stuff to Defend Against Occupational Exposure Mesothelioma Claims,” Defense Digest, January 2021, Vol. 27, No. 1

Thought Leadership

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Legal Updates for Asbestos and Mass Tort Litigation

Can Testing Gene Mutations Help in Defending Mesothelioma Claims?

February 3, 2021

If you have ever watched television, you have surely seen a commercial from a plaintiff’s firm proclaiming: “Mesothelioma is caused by asbestos exposure. If you or a family member suffers from mesothelioma, you may be entitled to financial compensation.” However, these advertisements are misleading. As advances in genetics research are made, it has become clear that occupational asbestos exposure is not the only potential cause of mesothelioma. In fact, in at least 20 to 30% of mesothelioma diagnoses, occupational asbestos exposure has nothing to do with the diagnosis. As information on other potential causes of mesothelioma increases, large payouts by industrial defendants on these cases are no longer a foregone conclusion. Let’s start with a basic scientific overview. Mesothelioma is a type of cancer that occurs in the thin layer of tissue that covers the majority of your internal organs, i.e., your mesothelium. There are several types of mesothelioma: pleural mesothelioma (mesothelioma that affects the tissue that surrounds the lungs); peritoneal mesothelioma (mesothelioma that affects the tissue in the abdomen); pericardial mesothelioma (mesothelioma that affects the tissue around the heart); and tunica vaginalis mesothelioma (mesothelioma that affects the tissue around the testicles). Mesothelioma occurs when the DNA in cells is damaged. DNA is the chemical in our cells that makes up our genes. Genes are the instructions for how our cells function, and we inherit our genes from our parents. Consequently, it makes sense in that our genes play a role in whether or not we are predisposed to various cancers, including mesothelioma. For instance, BAP1 tumor predisposition syndrome is caused by mutations in the BAP1 gene. BAP1 is an important “good” gene, which suppresses tumors, and every human has two copies of this gene: one from their father and one from their mother. BAP1 gene mutations have been found in the genes of patients with mesothelioma, in addition to various other types of cancer. P16 deletions also are a possible feature of the genes of patients with malignant mesothelioma; in fact, this deletion occurs in up to 80% of pleural mesothelioma cases and approximately 25% of peritoneal mesothelioma cases. It can be expounded from this that some people with no industrial asbestos exposure whatsoever, but with certain gene mutations, are more predisposed to developing mesothelioma than others who do not have the same genes. Likewise, many individuals with a large amount of occupational exposure to asbestos never develop mesothelioma, likely because they do not have any gene mutations. In the 2011 article “Germline BAP1 Mutations Predispose to Malignant Mesothelioma,” Joseph Testa opined that mesothelioma clustering associated with the BAP1 gene mutation is observed in some families; in fact, such clustering in families in the U.S. and Turkey have lead to up to 50% of family members developing mesothelioma. Dr. Testa’s study sequenced the BAP1 in germline DNA from one family in Wisconsin and one family in Louisiana, none of whom had any occupational asbestos exposure. In the family from Wisconsin, six affected family members (four with mesothelioma and two with other types of cancer) had identical gene mutations, whereas, unaffected family members did not. Likewise, the genes of the five affected family members (three with mesothelioma and two with other types of cancer) in the Louisiana family showed complete concordance between the BAP1 mutation status and linkage analysis. The question then becomes: What else plays a factor in these pre-disposed individuals developing mesothelioma? In 2018, Dr. Richard Attanoos wrote an article titled “Malignant Mesothelioma and its Non-Asbestos Causes,” about the developing information on the other causes of mesothelioma. Dr. Attanoos states that therapeutic radiation for other malignancies is a now a well-established cause of mesothelioma. Additionally, he noted that chronic pleural inflammation can cause mesothelioma, as diffuse malignant mesothelioma has been reported in patients with tuberculosis, chronic empyema, peritonitis and/or Crohn’s Disease. Dr. Attanoos expounded that some mesotheliomas are also idiopathic in nature and some may be caused by mineral fibers other than asbestos. Dr. Attanoos goes on to explain that while most pleural mesotheliomas (70% to 90%) in men in Europe and North America were attributable to occupational asbestos exposure; for peritoneal mesothelioma, however, the proportion was lower. Additionally, in North America, few mesotheliomas in women were attributable to asbestos exposures. Dr. Attanoos pontificates that, given amphibole asbestos exposures are presently uncommon and epidemiologic evidence, including incidences of mesothelioma in both sexes, as well as the time trend of these diagnoses in addition to the lack of occupational asbestos exposures, suggests that there are other factors which cause mesothelioma. In simpler terms, there is overwhelming evidence that recent diagnoses of mesothelioma cases are being caused by something other than occupational exposure to asbestos. Dr. Attanoos opines that the current data suggests that a smaller fraction of tumors in men and very few tumors in women are now related to asbestos. This is expounded upon in the 2018 article “Genomics and Epigenetics of Malignant Mesothelioma,” authored by Dr. Adam Sage. Dr. Sage notes that there have been global efforts to limit asbestos exposure through bans; however, a corresponding decrease in mesothelioma diagnoses has not been observed. In fact, the incidence of mesothelioma increased by almost 40% between 2005–2014. He opines that a significant portion of the newly diagnosed cases are the result of non-mining professional occupations and environmental exposures. Dr. Sage believes that germline mutations in the BAP1 gene are one of the most significant factors that lead to the development of mesothelioma. Testing for BAP1 mutations is fairly easy, especially as genetic testing continues to be on the rise. In fact, much like women with a familial history of breast cancer undergo BRCA testing, there may be a time in the near future when those with a family history of mesothelioma are given genetic testing for BAP1 mutations and P16 deletions so that they can be monitored for early detection. Even ancestral DNA testing companies, such as 23andMe and AncestryDNA, already test clients for BRCA. It is reasonable to assume that other gene mutations linked to cancer will be commonly tested in the future. Accordingly, it is likely that the presence of the BAP1 mutation will be readily available information in future asbestos litigation. There is already strong evidence to suggest that occupational asbestos exposure is not causing mesothelioma diagnoses to continue to rise. In the meantime, in order to appropriately defend occupational exposure mesothelioma cases, it will be important to question plaintiffs regarding their familial cancer history as well as any genetics testing that they have undergone. Additionally, a history of radiation therapy as well as exposure to other types of mineral fibers should be investigated.   Legal Updates for Asbestos & Mass Tort Litigation – February 2020, has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tdrau@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved.

Defense Digest

Why Further Testing of Gene Mutations May Be the Right Stuff to Defend Against Occupational Exposure Mesothelioma Claims

January 29, 2021

Key Points: Our genes play a role in whether we are predisposed to certain types of cancer, including mesothelioma. In at least 20–30% of mesothelioma diagnoses, occupational exposure to asbestos is not the cause of the disease. If you have ever watched television, you have surely seen a commercial from a plaintiff’s firm proclaiming: “Mesothelioma is caused by asbestos exposure. If you or a family member suffers from mesothelioma, you may be entitled to financial compensation.” However, these advertisements are misleading. As advances in genetics research are made, it has become clear that occupational asbestos exposure is not the only potential cause of mesothelioma. In fact, in at least 20 to 30% of mesothelioma diagnoses, occupational asbestos exposure has nothing to do with the diagnosis. As information on other potential causes of mesothelioma increases, large payouts by industrial defendants on these cases are no longer a foregone conclusion. Let’s start with a basic scientific overview. Mesothelioma is a type of cancer that occurs in the thin layer of tissue that covers the majority of your internal organs, i.e., your mesothelium. There are several types of mesothelioma: pleural mesothelioma (mesothelioma that affects the tissue that surrounds the lungs); peritoneal mesothelioma (mesothelioma that affects the tissue in the abdomen); pericardial mesothelioma (mesothelioma that affects the tissue around the heart); and tunica vaginalis mesothelioma (mesothelioma that affects the tissue around the testicles). Mesothelioma occurs when the DNA in cells is damaged. DNA is the chemical in our cells that makes up our genes. Genes are the instructions for how our cells function, and we inherit our genes from our parents. Consequently, it makes sense in that our genes play a role in whether or not we are predisposed to various cancers, including mesothelioma. For instance, BAP1 tumor predisposition syndrome is caused by mutations in the BAP1 gene. BAP1 is an important “good” gene, which suppresses tumors, and every human has two copies of this gene: one from their father and one from their mother. BAP1 gene mutations have been found in the genes of patients with mesothelioma, in addition to various other types of cancer. P16 deletions also are a possible feature of the genes of patients with malignant mesothelioma; in fact, this deletion occurs in up to 80% of pleural mesothelioma cases and approximately 25% of peritoneal mesothelioma cases. It can be expounded from this that some people with no industrial asbestos exposure whatsoever, but with certain gene mutations, are more predisposed to developing mesothelioma than others who do not have the same genes. Likewise, many individuals with a large amount of occupational exposure to asbestos never develop mesothelioma, likely because they do not have any gene mutations. In the 2011 article “Germline BAP1 Mutations Predispose to Malignant Mesothelioma,” Joseph Testa opined that mesothelioma clustering associated with the BAP1 gene mutation is observed in some families; in fact, such clustering in families in the U.S. and Turkey have lead to up to 50% of family members developing mesothelioma. Dr. Testa’s study sequenced the BAP1 in germline DNA from one family in Wisconsin and one family in Louisiana, none of whom had any occupational asbestos exposure. In the family from Wisconsin, six affected family members (four with mesothelioma and two with other types of cancer) had identical gene mutations, whereas, unaffected family members did not. Likewise, the genes of the five affected family members (three with mesothelioma and two with other types of cancer) in the Louisiana family showed complete concordance between the BAP1 mutation status and linkage analysis. The question then becomes: What else plays a factor in these pre-disposed individuals developing mesothelioma? In 2018, Dr. Richard Attanoos wrote an article titled “Malignant Mesothelioma and its Non-Asbestos Causes,” about the developing information on the other causes of mesothelioma. Dr. Attanoos states that therapeutic radiation for other malignancies is a now a well-established cause of mesothelioma. Additionally, he noted that chronic pleural inflammation can cause mesothelioma, as diffuse malignant mesothelioma has been reported in patients with tuberculosis, chronic empyema, peritonitis and/or Crohn’s Disease. Dr. Attanoos expounded that some mesotheliomas are also idiopathic in nature and some may be caused by mineral fibers other than asbestos. Dr. Attanoos goes on to explain that while most pleural mesotheliomas (70% to 90%) in men in Europe and North America were attributable to occupational asbestos exposure; for peritoneal mesothelioma, however, the proportion was lower. Additionally, in North America, few mesotheliomas in women were attributable to asbestos exposures. Dr. Attanoos pontificates that, given amphibole asbestos exposures are presently uncommon and epidemiologic evidence, including incidences of mesothelioma in both sexes, as well as the time trend of these diagnoses in addition to the lack of occupational asbestos exposures, suggests that there are other factors which cause mesothelioma. In simpler terms, there is overwhelming evidence that recent diagnoses of mesothelioma cases are being caused by something other than occupational exposure to asbestos. Dr. Attanoos opines that the current data suggests that a smaller fraction of tumors in men and very few tumors in women are now related to asbestos. This is expounded upon in the 2018 article “Genomics and Epigenetics of Malignant Mesothelioma,” authored by Dr. Adam Sage. Dr. Sage notes that there have been global efforts to limit asbestos exposure through bans; however, a corresponding decrease in mesothelioma diagnoses has not been observed. In fact, the incidence of mesothelioma increased by almost 40% between 2005–2014. He opines that a significant portion of the newly diagnosed cases are the result of non-mining professional occupations and environmental exposures. Dr. Sage believes that germline mutations in the BAP1 gene are one of the most significant factors that lead to the development of mesothelioma. Testing for BAP1 mutations is fairly easy, especially as genetic testing continues to be on the rise. In fact, much like women with a familial history of breast cancer undergo BRCA testing, there may be a time in the near future when those with a family history of mesothelioma are given genetic testing for BAP1 mutations and P16 deletions so that they can be monitored for early detection. Even ancestral DNA testing companies, such as 23andMe and AncestryDNA, already test clients for BRCA. It is reasonable to assume that other gene mutations linked to cancer will be commonly tested in the future. Accordingly, it is likely that the presence of the BAP1 mutation will be readily available information in future asbestos litigation. There is already strong evidence to suggest that occupational asbestos exposure is not causing mesothelioma diagnoses to continue to rise. In the meantime, in order to appropriately defend occupational exposure mesothelioma cases, it will be important to question plaintiffs regarding their familial cancer history as well as any genetics testing that they have undergone. Additionally, a history of radiation therapy as well as exposure to other types of mineral fibers should be investigated. *Erin is an associate in our Pittsburgh, Pennsylvania office. She can be reached at (412) 803-1195 or enmargolin@mdwcg.com. Defense Digest, Vol. 27, No. 1, January 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

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

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.

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.

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.

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

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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

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.