J-A19044-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHELE DeCROSTA,                         :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                  Appellant               :
                                          :
            v.                            :
                                          :
ERIE INSURANCE GROUP                      :           No. 2982 EDA 2016

                    Appeal from the Order August 25, 2016
            in the Court of Common Pleas of Northampton County,
                     Civil Division, No(s): CV-2-14-11707

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED OCTOBER 18, 2017

      Michele DeCrosta (“DeCrosta”) appeals from the Order granting the

Motion for Summary Judgment filed by Erie Insurance Group (“Erie”).         We

affirm.

      The trial court set forth the relevant history underlying this appeal as

follows:

            [DeCrosta] brought the present action against [Erie] on
      December 8, 2014[,] seeking to recover stacked uninsured and
      underinsured [(“UM/UIM”)] motorist benefits [under the
      automobile insurance policy [issued to her by] Erie (hereinafter
      the “Policy”), which insured two vehicles DeCrosta owned.1] …
      [DeCrosta] has held a [P]olicy with [Erie] from approximately July
      [] 1990 to the present. [DeCrosta] was injured in an automobile


1 Pursuant to section 1738(a) of the Motor Vehicle Financial Responsibility
Law (“MVFRL”), an insured may elect to stack his or her UM/UIM motorist
benefits where there is more than one vehicle insured under one or more
policies providing such benefits. See 75 Pa.C.S.A. § 1738(a). This means
that “the limits of coverages available … for an insured shall be the sum of the
limits for each motor vehicle as to which the injured person is an insured.”
Id. Relevantly, however, an insured may elect to waive stacked insurance
coverage by executing a signed waiver. Id. § 1738(b), (c).
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     accident in [February] 2012.      Neither party disputes that
     [DeCrosta’s] Policy with [Erie] required [Erie] to indemnify
     [DeCrosta] for underinsured motorist coverage.    The dispute
     between the parties arose when [DeCrosta] submitted the claim
     requesting “stacked [UM/UIM] coverage.”

            [DeCrosta’s] [] [P]olicy with [Erie] … reflects unstacked
     automobile insurance at the time relevant to the accident. [Erie]
     asserts[,] and [DeCrosta] admitted in her deposition[,] that[, in
     September 2004, DeCrosta] signed a Waiver of Stacking
     Underinsured Motorist Coverage Limits form [(hereinafter, “the
     2004 waiver”)2]. [However, t]he parties dispute whether the date
     [hand]written on the document, September 17, 2004[,] was
     written by [DeCrosta].     The “unstacked” notation appears in
     [DeCrosta’s] [P]olicy coverage documents for the [P]olicy period
     between September 3, 2004[,] and September 3, 2005, with an
     effective date of September 11, 2004[,] and continues through
     the period in which [DeCrosta] was injured.

           In June [] 2006, [DeCrosta’s 1985] Chevy Camaro, denoted
     “Auto #2,” was deleted from coverage. Also in June [] 2006,
     [DeCrosta’s 1999] Chevy Malibu, denoted “Auto #3,” was added
     to the [P]olicy. [The P]olicy continue[d] to show “unstacked”
     [UM/UIM] motorist coverage at the time Auto #3 replaced Auto
     #2. There was no new waiver of stacked insurance when Auto #3
     was added to the [P]olicy.

           The dispute between the parties circles around the validity
     of the 2004 waiver, and the continued application of that waiver
     through the removal of Auto #2 from the [P]olicy[,] and the
     addition of Auto #3 to the [P]olicy.

          Following [d]iscovery, [Erie] filed a Motion for Summary
     Judgment on May 11, 2016. [DeCrosta] filed a Response to the
     Motion for Summary Judgment on June 9, 2016.




2 DeCrosta also signed a separate Waiver of Stacking Uninsured Motorist
Coverage Limits form, which bore a handwritten date of September 17, 2004.
DeCrosta paid less for non-stacked coverage than she would have paid for
stacked coverage.


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J-A19044-17



Trial Court Opinion, 8/25/16, at 1-2 (footnotes added, citations to record

omitted).

      On August 25, 2016, the trial court entered an Order (and an

accompanying Opinion) granting Erie’s Motion for Summary Judgment and

entering judgment in favor of Erie. DeCrosta timely filed a Notice of Appeal,

after which the trial court ordered her to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. DeCrosta timely filed a Concise

Statement. The trial court then issued a Pa.R.A.P. 1925(a) Opinion, relying

upon the reasoning advanced in its prior August 25, 2016 Opinion.

      DeCrosta now presents the following issues for our review:

      A. Whether a material issue of fact exists concerning          an
         unrelated, non-stacking waiver [of insurance coverage]?

      B. Whether or not the substitution of a Chevrolet Malibu for a
         Chevrolet Camaro constituted a “replacement vehicle” per the
         terminology of the applicable insurance [P]olicy?

Brief for Appellant at 3 (capitalization omitted).

      When reviewing a trial court’s decision to grant a motion for summary

judgment, we adhere to the following standard and scope of review:

      We view the record in the light most favorable to the nonmoving
      party, and all doubts as to the existence of a genuine issue of
      material fact must be resolved against the moving party. Only
      where there is no genuine issue as to any material fact and it is
      clear that the moving party is entitled to a judgment as a matter
      of law will summary judgment be entered. Our scope of review of
      a trial court’s order granting or denying summary judgment is
      plenary, and our standard of review is clear[:] the trial court’s




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      order will be reversed only where it is established that the court
      committed an error of law or abused its discretion.

Pergolese v. Std. Fire Ins. Co., 162 A.3d 481, 486 (Pa. Super. 2017)

(citation omitted).

      In her first issue, DeCrosta contends that the trial court improperly

entered summary judgment against her, where there was a disputed issue of

material fact concerning the validity of the 2004 waiver.3        See Brief for

Appellant at 4-7. Specifically, DeCrosta points out that the 2004 waiver was

purportedly hand-dated by an anonymous person, and contends that “there is

no evidence whatsoever produced by Erie … concerning the validity of the

anonymous dating of same.”      Id. at 6-7; see also id. at 4 (asserting that

Erie “has not met [its] burden of proof in demonstrating that the [2004]

waiver produced was actually the exact waiver signed [o]n 9/17/04.”).

DeCrosta challenges the trial court’s ruling, in its Opinion, that her contention

concerning the handwritten date on the 2004 waiver is “immaterial.” Id. at 5

(citing Trial Court Opinion, 8/25/16, at 6 n.1) (which, in turn, cites to the




3 This claim is not reasonably suggested in DeCrosta’s Statement of Questions
Presented. See Krebs v. United Ref. Co., 893 A.2d 776, 797 (Pa. Super.
2006) (observing that issues not presented in the statement of questions
involved are generally deemed waived); see also Pa.R.A.P. 2116(a).
Nevertheless, we will overlook this defect. See Bailey v. Storlazzi, 729
A.2d 1206, 1210 (Pa. Super. 1999) (stating that “such a defect may be
overlooked where [an] appellant’s brief suggests the specific issue to be
reviewed and appellant’s failure does not impede our ability to address the
merits of the issue.”).


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J-A19044-17

non-precedential federal court decision in Lieb v. Allstate Prop. & Cas. Ins.

Co., 640 Fed. Appx. 194 (3d Cir. 2016)).

        Subsection 1738(d) of the MVFRL sets forth the required language for

forms    to    waive   UM/UIM    stacked      insurance   coverage.        75   Pa.C.S.A.

§ 1738(d)(1), (2).4 Subsection 1738(d) requires that “[t]he named insured

shall … sign[] the [] written rejection form[.]” Id.; see also id. (providing

that the waiver form must begin with the following language: “By signing this

waiver, I am rejecting stacked limits of [UM/UIM] motorist coverage under

the policy ….”). Subsection 1738(e) explains that “[t]he forms described in

subsection (d) must be signed by the first named insured and dated to be

valid.” Id. § 1738(e); see also id. (providing that a rejection form that does

not comply with subsection (d) is void).

        As a matter of statutory interpretation, we may not insert into a statute

a   word      or   requirement   that   does    not   exist   in   the   statute.    See

Commonwealth v. Gehris, 54 A.3d 862, 865 (Pa. 2012) (stating that “it is

not for the courts to add, by interpretation, to a statute, a requirement which

the legislature did not see fit to include.”) (citation omitted); see also

Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., 788 A.2d 955, 962

(Pa. 2001) (stating that although we must “listen attentively to what a statute




4 In the instant case, the 2004 waiver contains language identical to that
provided in subsection 1738(d).



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J-A19044-17

says; one must also listen attentively to what it does not say.” (citation and

brackets omitted)).

      To be a “valid,” a UM/UIM stacked insurance waiver form must be

signed, but not necessarily dated, by the insured.         See 75 Pa.C.S.A.

§ 1738(d), (e).    Nowhere in section 1738 did the legislature require that a

form “must be signed and dated by the first named insured.” We may not

insert such a requirement into the statute.       See Gehris, supra; Kmonk-

Sullivan, supra.

      In the instant case, it is undisputed that DeCrosta signed the 2004

waiver. Accordingly, the trial court did not err in ruling that the 2004 waiver

is valid, and that its validity did not hinge upon who dated the document.

Accord State Farm Fire & Cas. Co. v. Rey, 1995 U.S. Dist. LEXIS 5282,

1995 WL 241493, at **6-7 (E.D. Pa. 1995) (concluding that a date pre-

inscribed by an insurance company on a UIM waiver form was sufficient for

the form to be “dated” under the MVFRL, and stating that “[t]he purpose of

the signature requirement is to ensure that the insured has waived coverage.

The only logical purpose for a date is to eliminate disputes about when such a

waiver was effective.”); Lieb, 640 Fed. Appx. at 197-98 (same).          Thus,

DeCrosta’s first issue does not entitle her to relief.5



5Moreover, to the extent DeCrosta contends that Erie was unable to produce
a signed UM/UIM stacking waiver for the period of Policy beginning in April
2002, see Brief for Appellant at 5, this claim does not entitle her to relief.
The 2004 waiver was valid, and was in effect at the time of the accident in
question.


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J-A19044-17

      In her second issue, DeCrosta contends that a disputed issue of

material fact exists concerning the addition of Auto #3 to the Policy.            See

Brief for Appellant at 7-9. Specifically, DeCrosta argues that, contrary to the

trial court’s determination, Auto #3 did not constitute a “replacement

vehicle,”    which   thereby   required   Erie   to   present   DeCrosta   with   the

opportunity to execute a new UM/UIM stacking waiver. Id. at 7. DeCrosta

further maintains that there is an ambiguity in the Policy provision that

defines “replacement vehicle” as “any private passenger auto that the insured

acquires, purchases, or leases within the policy period to replace an auto

described by the declarations.”      Motion for Summary Judgment, 5/11/16,

Exhibit 4 (the Policy) at ¶ 3 (emphasis added). See Brief for Appellant at 8;

see also id. at 7 (citing Penn-America Ins. Co. v. Peccadillos, Inc., 27

A.3d 259, 264 (Pa. Super. 2011) (en banc) (stating that an ambiguity in an

insurance policy must be construed in favor of the insured and against the

insurer)).   DeCrosta contends that the ambiguity lies in the above-italicized

language in the definition of “replacement vehicle,” i.e., a vehicle that “the

insured acquires … to replace ….” Brief for Appellant at 8.

      The trial court addressed DeCrosta’s claim as follows:

      [DeCrosta’s] Auto #3 was added pursuant to the replacement
      vehicle clause of the [] [P]olicy. Auto #3 was added to the
      [P]olicy following the removal of Auto #2.     This change is
      reflected in [t]he Amended Declaration Sheet[.] The Amended
      Declaration Sheet refers to the reason for amendment as “Auto
      [#]2- Replaced.”

                                   ***



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J-A19044-17


            [DeCrosta’s Auto #3] was a replacement [vehicle] under the
     definitions provided by the [P]olicy. As a replacement [vehicle],
     [Erie] was not required to have a new stacking waiver executed
     by [DeCrosta] when Auto #3 was added to the [P]olicy in 2006.
     As the [2004] waiver is applicable, [DeCrosta’s] has waived her
     ability to stack coverage under [the P]olicy. There is no genuine
     issue of material fact. Thus, [Erie] is entitled to judgment as a
     matter of law.

Trial Court Opinion, 8/25/16, at 5-6 (footnote and citations to record

omitted).

     To determine whether an insurer is obligated to have an insured sign a

new UM/UIM stacking waiver following the addition of a new vehicle to a

motorist insurance policy, the Court must focus on the following: “1) how was

the ‘new’ vehicle added to the existing policy (i.e., via endorsement or [a]

newly acquired auto clause); and 2) what is the specific language of the

relevant clause(s) in the applicable insurance policy?”       Bumbarger v.

Peerless Indem. Ins. Co., 93 A.3d 872, 876 (Pa. Super. 2014)).

     This Court’s decision in Shipp v. Phoenix Ins. Co., 51 A.3d 219 (Pa.

Super. 2012), is directly on-point and controls our disposition.   The Shipp

Court addressed “whether the addition and/or substitution of a new vehicle

under [a motorist insurance] policy constitutes a purchase of additional

UM/UIM coverage, requiring the insurer to present the insured with a new

opportunity to waive stacked coverage.” Id. at 222. In Shipp, the insureds’

son died as a result of injuries he sustained in a motor vehicle accident. Id.

at 220. Prior to the accident, the insureds signed a waiver of stacked UIM




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benefits under their insurance policy.   Id.   After the accident, the insureds

made a claim to the insurer for the limits of UIM benefits, in an amount that

was the underinsured motorist benefit stacked for two vehicles. Id. at 221.

The insureds claimed that, under section 1738, supra, the insurer should

have obtained a second waiver of stacked UM/UIM coverage when the

insureds replaced an existing vehicle under the insurance policy with a new

vehicle. Id.

      After thoroughly discussing the relevant law, the Shipp Court held that

the trial court had erred in permitting the insureds’ coverage to be stacked,

where (1) the policy continuously covered two vehicles only, and the insureds

had merely replaced one covered vehicle with another; (2) consequently,

there was no change to the potential stacked UM/UIM coverage that was

available under the policy; and (3) the initial UM/UIM stacking waiver signed

by the insureds was still valid and barred the stacking of coverage.    Id. at

223-24; see also id. at 224 (stating that “[i]n the case of a replacement

vehicle, there is no change whatsoever in the amount of UM/UIM coverage.

The only change is in the identity of the covered vehicle.”).

      In the instant case, there were two vehicles on DeCrosta’s Policy as of

the date she signed the 2004 waiver, and thereafter, there were never more

than two vehicles on the Policy. As she merely replaced Auto #2 with Auto

#3, Erie did not have to obtain from DeCrosta a new UM/UIM waiver. See id.

at 223-24. Finally, there is no merit to DeCrosta’s bald claim that the Policy




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provision defining “replacement auto” was somehow ambiguous. Accordingly,

the trial court did not err in determining that there is no material issue of fact

insofar as this claim is concerned.

      Based upon the foregoing, we conclude that the trial court properly

granted Erie’s Motion for Summary Judgment.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/18/17




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