J-A32006-15


                              2016 PA Super 69

CHRISTOPHER TONER,                                  IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                         Appellant

                    v.

THE TRAVELERS HOME AND MARINE
INSURANCE COMPANY,

                         Appellee                       No. 53 WDA 2015


                  Appeal from the Order December 12, 2014
             In the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): GD 12-20308


BEFORE: SHOGAN, OTT, and STABILE, JJ.

DISSENTING OPINION BY SHOGAN, J.:                      FILED MARCH 21, 2016

      I respectfully dissent from the Majority’s decision in this case and

would reverse the order granting summary judgment in favor of Appellee,

The Travelers Home and Marine Insurance Company (“Travelers”) and

denying summary judgment to Appellant, Christopher Toner.

      On December 2, 2011, twenty-one-year-old Appellant, a student at

Penn State, was a front seat passenger in a vehicle operated by

Jonathan Edwards. Complaint, 10/23/12, at ¶ 16. Edwards lost control of

the vehicle, whereupon it traveled off the roadway over an embankment,

rolled over, and struck a tree.      Id. at ¶ 16.    Appellant suffered multiple

spine, pelvis, and rib fractures and a host of other injuries. Id. at 18.




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       Appellant recovered the liability policy limits for the vehicle driven by

Edwards and made a claim for stacked1 underinsured motorist coverage

under his mother’s auto policy with Travelers.2 In August 2006, Appellant’s

mother, Patricia Toner (“Mother”), had purchased an automobile insurance

policy from Travelers for a single vehicle, a 2004 Hyundai Santa Fe.

Complaint, 10/23/12, at Exh. 1; Joint Statement of Stipulated Facts

(“JSSF”), 11/24/14, at ¶ 8.             The bodily injury liability amounts were

$100,000.00 per person and $300,000.00 per accident. Complaint at ¶ 5;

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1
    The basic concept of stacking has been described as follows:

       [T]he ability to add the coverages available from different
       vehicles and/or different policies to provide a greater amount of
       coverage available under any one vehicle or policy. Additionally,
       there are two types of stacking, inter-policy and intra-policy. In
       re: Insurance Stacking Litigation, 754 A.2d 702 (Pa. Super.
       2000).

              Intra-policy stacking[, under consideration instantly,] is
       when more than one vehicle is insured under a single policy of
       insurance. For example: three cars insured under a single policy
       providing 15/30 UM/UIM benefits. If stacked, an insured is
       entitled to a total of $45,000 in UM/UIM benefits-three vehicles
       insured at $15,000 each equaling $45,000 in total coverage. If
       unstacked, only $15,000 is available in UM/UIM coverage.

             The statutory rationale for this recovery procedure is found
       at 75 Pa.C.S. § 1733 and 75 Pa.C.S. § 1738 . . . .

McGovern v. Erie Ins. Group, 796 A.2d 343, 344–345 (Pa. Super. 2002).
2
   Appellant’s permanent residence was his mother’s house in Bethel Park,
Pennsylvania. He is identified as a covered driver on the declarations page
for the Travelers’ auto insurance policy.
J-A32006-15


JSSF at ¶ 9. Mother also purchased underinsured motorist (“UIM”) benefits

in the amount of $100,000.00 per person and $300,000.00 per accident.

Complaint at ¶ 7; JSSF at ¶ 9. The policy provided for full tort coverage.

Complaint at Exh. 1; JSSF at ¶ 9.   In addition, Mother signed a form (an

uninsured (“UM”)/UIM stacking waiver) rejecting stacking of UIM benefits in

the August 2006 policy.    Complaint at Exh. 1; JSSF at ¶ 10.     The form

advised, “Stacking can only be used if you have more than one motor

vehicle.” Complaint at Exh. 1.

     Thereafter, Mother added two       vehicles to   the   policy; one   on

February 15, 2007, and one on June 11, 2009, as follows: On February 15,

2007, Travelers added a 2000 Chevrolet to the policy and placed it on the

policy’s declarations page. Complaint at ¶ 10; JSSF at ¶ 12. The title for

the 2000 Chevrolet reflects that Mother became the owner of the 2000

Chevrolet on February 20, 2007; thus, Travelers insured the 2000 Chevrolet

before Mother actually owned it. JSSF at ¶ 14. Travelers did not present a

new UIM stacking waiver form to Mother. Complaint at ¶ 13; JSSF at ¶ 22.

On June 11, 2009, Travelers added a 2005 Chevrolet to the policy and

placed it on the policy’s declarations page; it was issued June 16, 2009,

effective June 11, 2009. Complaint at ¶ 10; JSSF at ¶ 18. Again, Travelers

did not present a new UIM stacking waiver form to Mother. Complaint at ¶

13; JSSF at ¶ 22.
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         Appellant filed a complaint for declaratory judgment on October 23,

2012. On November 21, 2012, Travelers filed a notice of removal to federal

court.        By order and memorandum opinion dated January 8, 2013, the

federal court remanded the case back to Allegheny County Common Pleas

Court.        Travelers filed an answer with new matter on January 15, 2013.

After discovery and the pleadings closed, Appellant filed a motion for

summary judgment, and on August 21, 2014, Travelers filed a cross-motion

for summary judgment.

         The parties filed the JSSF on November 24, 2014.         The trial court

granted Travelers’ motion for summary judgment and denied Appellant’s

motion for summary judgment on December 12, 2014.               Appellant filed a

notice of appeal on January 8, 2015.          It does not appear the trial court

ordered a Pa.R.A.P. 1925(b) statement. The trial court filed an opinion on

February 10, 2015.

         Appellant raises the following issue on appeal:

         A.      Did the trial court err in holding that an insured, who
                 signed a UM/UIM stacking waiver at the inception of a
                 single-vehicle policy, was not entitled to stack UM/UIM
                 benefits even though the carrier failed to obtain stacking
                 waivers when a second and third vehicles were added to
                 the policy?

Appellant’s Brief at 4.

         The Majority has cited to the standard of review applicable herein.

Thus, I first examine the relevant statute.
J-A32006-15


     § 1738. Stacking of uninsured and underinsured benefits and
     option to waive

     (a) Limit for each vehicle.--When 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. The limits of coverages available under this subchapter
     for an insured shall be the sum of the limits for each motor
     vehicle as to which the injured person is an insured.

     (b) Waiver.--Notwithstanding the provisions of subsection (a),
     a named insured may waive coverage providing stacking of
     uninsured or underinsured coverages in which case the limits of
     coverage available under the policy for an insured shall be the
     stated limits for the motor vehicle as to which the injured person
     is an insured.

     (c) More than one vehicle.--Each named insured purchasing
     uninsured or underinsured motorist coverage for more than one
     vehicle under a policy shall be provided the opportunity to waive
     the stacked limits of coverage and instead purchase coverage as
     described in subsection (b). The premiums for an insured who
     exercises such waiver shall be reduced to reflect the different
     cost of such coverage.

75 Pa.C.S. § 1738.

     Thus, where benefits are stacked, the amount recited in the

declarations is multiplied by the total number of scheduled vehicles. Section

1738(a) provides that UM/UIM coverage shall be considered stacked by

multiplying the available coverage by the number of vehicles insured. Under

section 1738(b), however, a named insured may elect to waive stacking, in

which case the limits of protection are those stated for any one vehicle.

Section 1738(c) provides that an insured purchasing UM or UIM coverage for
J-A32006-15


more than one vehicle must be provided with the opportunity to waive

stacking.

       The trial court referred to after-acquired and newly-acquired vehicle

clauses in automobile insurance policies, noting that these clauses differ

from insurance company to insurance company. It stated that there are two

general types of such clauses: finite, “under which the insured is given a set

number of days (such as thirty) for which [the] insurer will cover the added

vehicle until the insured purchases a policy covering the additional vehicle,”

and continuous, where “the insured must notify the insurer within a set

number of days (usually thirty) that [the] insured is adding another vehicle

to the policy and the additional vehicle is covered for the remaining term of

the policy and going forward, unless the insured changes, replaces or adds

vehicles.”   Trial Court Opinion, 2/10/15, at 2–3.       It maintained that these

distinctions “are crucial.” Id. at 3. The essential holding of the trial court

was as follows: “[I]t appears the vehicles were added via an after-acquired

vehicle clause which was continuous.           Therefore an additional waiver was

not required and [Mother] was not entitled to stacking of UIM benefits.”

Id. at 6.

       The Majority, as did the trial court, focuses on the Sackett3 trilogy of

____________________________________________


3
   See Sackett v. Nationwide Mut. Ins. Co., 919 A.2d 194 (Pa. 2007)
(“Sackett I”), modified on reargument, 940 A.2d 329 (Pa. 2007) (“Sackett
II”), and 4 A.3d 637 (Pa. Super. 2010) (“Sackett III”).
J-A32006-15


cases. In the Sackett trilogy, the Pennsylvania appellate courts addressed

the question of “whether an insurer is required to obtain new UM/UIM

stacking waivers from an insured when new vehicles are added onto an

existing automobile policy, where that insured had waived UM/UIM coverage

at the inception of the original policy.” Bumbarger v. Peerless Indemnity

Insurance Company, 93 A.3d 872, 875 (Pa. Super. 2014) (en banc)

(citation omitted) (analyzing the decisions in Sackett I, II, and III).

However, both the Sackett trilogy and Bumbarger involved multi-vehicle

insurance policies, not single-vehicle policies as in the case sub judice.

Majority Opinion at 7.

      When addressing the issue of enforcement of initial stacking waivers

for UIM coverage in Sackett I, our Supreme Court focused only on

existing multi-vehicle policies. The remedy for an automobile insurer’s

failure to provide the opportunity to waive stacking of UM/UIM coverages,

when the insured added a third vehicle to a policy, was the sum of stacked

coverage limits for three vehicles, even though the insured did not pay the

premium for stacked coverage. Without the waiver, coverage was provided

by statute, and even though the insured had waived stacked coverage on

two vehicles, there was no valid waiver on the sum of available stacked

limits when the insured added a car to policy.     In Sackett II, the Court

specifically confined its holding to “the scenario involving the addition of a

vehicle to a multi-vehicle policy,” expressly and unequivocally stating that


                                    -7-
J-A32006-15


it was not “resolv[ing] . . . arguments concerning situations involving

additions to single-vehicle policies.” Sackett II, 940 A.2d at 334, n.5

(emphasis added).    In Sackett III, on appeal from a bench trial decision

holding that the Sacketts could stack UIM benefits, this Court concluded that

Sackett I was the controlling authority and determined that, because the

Sacketts added the additional vehicle to the policy through an endorsement,

the additional vehicle was covered under the general terms of the policy, not

the after-acquired vehicle clause.   Since the additional vehicle was added

prior to the accident therein, a waiver declining stacked coverage was

required.

      Appellant asserts that the Sackett trilogy of cases is inapposite to the

case sub judice because here, Mother had a single-vehicle policy when she

signed a stacking waiver, and therefore, the waiver is not enforceable.

Appellant contends that because the Sackett cases discuss the legal

ramifications of a UM/UIM stacking waiver when adding a car to an already

existing multi-vehicle policy, they do not pertain to UM/UIM claims and

stacking waivers where a car is added to a single-vehicle policy.

      The Majority acknowledges Appellant’s “straightforward, and in many

ways inviting, argument based largely on the statutory language found in 75

Pa.C.S. § 1738,” but rejects it based upon Craley v. State Farm, 895 A.2d

530 (Pa. 2006). Majority Opinion at 4–6. The Majority suggests that Craley

“widened the scope of [75 Pa.C.S.] Section 1738 to include single-vehicle
J-A32006-15


insurance policies.” Majority Opinion at 6. My reading of Craley, however,

is that it extended application of the Motor Vehicle Financial Responsibility

Law (“MVFRL”)’s waiver provision only to inter-policy stacking of single-

vehicle coverage, which is not involved herein.                Craley, 895 A.2d at 532

(“[W]e    hold    the   named     insured’s      waiver   of    inter-policy   stacking

enforceable under the facts of this case”) (emphasis added); Nationwide

Mut. Ins. Co. v. Zerr, CIV.A. 10-4199, 2011 WL 3156860 at *6 (E.D.Pa.

2011).     The Majority sets forth an interpretation of 75 Pa.C.S. § 1738

supported by dicta in Craley to “reject [Appellant’s] interpretation of the

statutory requirements of Section 1738.” Majority Opinion at 7.

       The Majority goes on to evaluate the trial court’s application of

Sackett II, finding that it “is the most relevant of the Sackett cases.”

Majority Opinion at 7.           While acknowledging that the Sackett cases

“involved the addition of a vehicle to an existing multi-vehicle policy, not a

single-vehicle policy,” the Majority concludes that case law requires

examination of the issue similarly.            Majority Opinion at 7.   I disagree and

conclude that it is that very difference that compels a different result herein.

Moreover, I take issue with the Majority’s extensive four-page discussion of

the Bird4 exception in Sackett II, even though the Majority acknowledged

that the Bird holding “is not relevant to the determination of the instant

____________________________________________


4
    Bird v. State Farm, 165 P.3d 343 (N.M.Ct.App. 2007).
J-A32006-15


matter as Bird expressly did not address UM/UIM stacking or waiver. . . .”

Majority Opinion at 10.     In addition to that significant difference, Bird

involved four different insurance policies, suggesting inter-policy stacking

concepts, not intra-policy stacking as is at issue herein.

      In August 2006, when Mother purchased the single-vehicle policy with

Travelers providing for UM/UIM coverage, she signed a UM/UIM stacking

waiver. In February 2007, when she added a second vehicle to the policy,

she essentially converted her policy into a multi-vehicle policy that provided

UM/UIM coverage. Pursuant to 75 Pa.C.S. § 1738(a), as a purchaser of a

multi-vehicle policy providing UM/UIM coverage, Appellant maintains that

Mother automatically became entitled to UM/UIM stacking. Appellant’s Brief

at 9. Mother did not waive UM/UIM stacking under section 1738(b) in 2007

because Travelers did not provide her with a UM/UIM stacking waiver, as

was required under section 1738(c). Without the waiver, Appellant argues

that section 1738(a) of the statute remains in force, and Mother is entitled

to UM/UIM stacking.

      As Appellant points out, the statute does not require the insurance

company to provide a UM/UIM stacking waiver to a single-vehicle policy

purchaser or to an insured purchasing a policy which provides no UM/UIM

benefits. For 75 Pa.C.S. §1738 to be triggered, two criteria must be met:

      1.   the insurance policy that an insured is purchasing must
           provide UM/UIM benefits and

      2.   the policy must be purchased for more than one vehicle.
J-A32006-15


      Here, when Mother purchased her policy in 2004, there was only one

vehicle insured under the policy, and there was nothing to stack. Thus, as

Appellant asserts, the UM/UIM stacking waiver obtained from Mother by

Travelers at the time when she only was insuring one vehicle “was not

mandatory and, therefore, [was] . . . unenforceable.”     Appellant’s Brief at

15.

      I am persuaded that the Sackett trilogy of cases is inapposite to the

case sub judice because here, Mother had a single-vehicle policy when she

signed a stacking waiver, and the waiver was not enforceable. As Appellant

submits, the Sackett cases discuss the legal ramifications of a UM/UIM

stacking waiver when adding a car to an already existing multi-vehicle

policy; they do not pertain to UM/UIM claims and stacking waivers where a

car is added to a single-vehicle policy.

      I find Bumbarger similarly distinguishable.         In that case, the

insurance company issued a personal automobile policy to Ms. Bumbarger

providing coverage for two vehicles.       At that time, the insured executed

forms rejecting stacking of UM/UIM coverage.       Approximately two months

later, a third vehicle was added to the policy through an endorsement.      A

fourth vehicle was added two years later; unlike the third vehicle, it was

added by an amended declarations page.          Bumbarger, 93 A.3d at 874.

After the insured was involved in an accident in the third vehicle and filed a

claim for stacked UM benefits, the insurer maintained that the original
J-A32006-15


waiver of stacked UM/UIM benefits remained in effect. Bumbarger thus has

different considerations from the instant case, as well.5

       I conclude that a new stacking waiver form should have been provided

to Mother when she added the second vehicle to her policy in February of

2007 because that was the first time there existed the possibility that

stacking, in particular, intra-policy stacking, became possible. Thus, I would

reverse the order of the trial court granting Travelers’ motion for summary

judgment and denying Appellant’s motion for summary judgment.




____________________________________________


5
   Herein, on both occasions when adding the second and third vehicles to
her policy, Mother asked Travelers to add them to her policy. In both
instances Travelers issued a new Declarations page reflecting the change to
the policy, thereby adding coverage by endorsement. Thus, in neither
instance was the after-acquired-vehicle clause triggered.
