                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS


                                        No. 18-3066


                   FARMLAND MUTUAL INSURANCE COMPANY

                                             v.

  DEBRA LYNN SECHRIST, Administrator of the estate of Defendant Edward Alfred
   Sechrist; GARY BRYANT KAUFFMAN, H/W; DELORES KAUFFMAN, H/W,
                               Appellants
                           ________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. No. 1:16-cv-01111)
                         District Judge: Honorable Yvette Kane


                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    April 5, 2019



   Before: CHAGARES and HARDIMAN, Circuit Judges, and GOLDBERG, District
                               Judge*

                                    (Filed: May 2, 2019)


                                         OPINION+



________________________________
*      The Honorable Mitchell S. Goldberg, United States District Judge of the United
States District Court for the Eastern District of Pennsylvania, sitting by designation.
+
       This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7., does
not constitute binding precedent.
GOLDBERG, District Judge.

       After Appellants Edward Alfred Sechrist and Gary Bryant Kauffman (the

“Employees”) were involved in a serious accident while driving a vehicle for their

employer, Clouse Trucking, they sought to collect underinsured motorist benefits 1 from

Appellee, Farmland Mutual Insurance Company (“Farmland”), their employer’s

commercial automobile insurer.

       At issue in the District Court was the amount of underinsured motorist coverage

provided under Farmland’s policy. The Employees urged that the policy should be

reformed to provide $1,000,000 of underinsured coverage. Farmland disagreed,

contending that the policy provided $35,000 of underinsured motorist coverage. In

deciding the cross-motions for summary judgment, the District Court found in favor of

Farmland, concluding that Clouse Trucking had elected a lower amount of underinsured

motorist coverage pursuant to the Pennsylvania Motor Vehicle Financial Responsibility

Law (“MVFRL”), 75 Pa. Cons. Stat. § 1701 et seq.

       For the following reasons, we will affirm the District Court’s grant of summary

judgment in favor of Farmland.

I.     FACTUAL AND PROCEDURAL BACKGROUND

       The accident in question occurred on April 30, 2013. The parties agreed that the

Employees were driving during the course of their employment in a vehicle that was


1
       Underinsured motorist coverage “provide[s] protection for persons who suffer
injury arising out of the maintenance or use of a motor vehicle and are legally entitled to
recover damages therefor from owners or operators of underinsured motor vehicles.” 75
Pa. Cons. Stat. § 1731(c).
                                             2
owned by Clouse Trucking, and insured by Farmland. After the accident, the Employees

filed a claim with Farmland for underinsured motorist benefits, alleging that the

tortfeasors’ insurance was insufficient to cover their losses and damages.

       The controlling policy was procured by Clouse Trucking on June 30, 2011. In the

District Court, the parties agreed that the following documents were relevant and

controlling: (a) the Farmland Policy Application, (b) the Underinsured Motorist Coverage

Selection Form, and (c) the Important Policy Notice Concerning Available Benefits and

Limits.

       The Farmland Policy Application clearly reflects that Clouse Trucking applied for

$1,000,000 of CSL bodily injury coverage, 2 and $35,000 of underinsured motorist

coverage. This form was signed by J. Edward Clouse, the owner of Clouse Trucking.

       The facts gleaned from the Underinsured Motorist Selection Form are not as clear.

This form, also signed by J. Edward Clouse, contained a box at the top labeled

“Underinsured Motorist Coverage Limit Offered.” There, a handwritten notation stated

“35,000.” (J.A. 256.) By all accounts, the number written into this box should not have

been $35,000, but rather $1,000,000, as that number was the “Underinsured Motorist

Coverage Limit Offered.” Beneath the box, the form states:

        Underinsured Motorist Coverage is available in amounts equal to or less
       than the limits of liability for bodily injury.


2
       CSL stands for “Combined Single Limit” liability insurance, whereby the insurer
agrees to pay a set amount for all damage in a single accident. This type of insurance
policy protects all types of damages up to the set amount, regardless of the actual
amounts of each individual type of damage (i.e., personal injury, accident damage, and
personal property damage).
                                             3
(J.A. 256.)

       In the middle section of the Underinsured Motorist Selection Form, the Insured is

provided with two options, as follows:

       Selection of Underinsured Motorist Coverage Limits: Underinsured Motorist
       Coverage is available in amounts equal to or less than the limits of liability
       for bodily injury. However, the limits may not be less than the minimum
       bodily injury limits required by Pennsylvania law ($15,000 each person /
       $30,000 each accident split limits).

       If you want Underinsured Motorist Coverage, please indicate the coverage
       limits you want by placing an “X” in the appropriate box and then sign and
       date where appropriate.
       □ I want Underinsured Motorist Coverage with limits equal to my Bodily
       Injury Liability limits.
       □ I want Underinsured Motorist Coverage with limits lower than my Bodily
       Injury Liability limits as indicated below:

(J.A. 256.) Clouse Trucking selected the second option, indicating that it wanted

“Underinsured Motorist Coverage with limits lower than my Bodily Injury Liability

limits.” (J.A. 256.) While the Insured was to then select one of the boxes to indicate the

selection of the coverage amount, it is unclear what amount was selected because a sticky

note obscures several of the boxes.

       Finally, the Important Policyholder Notice, also signed by J. Edward Clouse,

indicates that he understood that Farmland provided “[un]insured, underinsured, and

bodily injury liability coverage up to at least $100,000.” (J.A. 251.) This Notice mirrors

the notice set forth in 75 Pa. Cons. Stat. § 1791.

       Based upon these documents, Farmland paid a total of $35,000 in underinsured

motorist benefits to the Employees, reasoning that Clouse Trucking had validly “waived”

underinsured motorist coverage equal to the bodily injury liability coverage (which was

                                              4
$1,000,000), and instead clearly selected underinsured motorist coverage of $35,000.

The Employees, however, demanded $1,000,000 in underinsured motorist benefits,

arguing that Clouse Trucking’s waiver of the $1,000,000 bodily injury amount was

invalid and unenforceable because it did not comply with the MVFRL.

       Unable to resolve this dispute, Farmland brought a declaratory judgment action

against the Employees in the District Court, seeking a determination of its obligations

under the MVFRL related to the underinsured motorist coverage. After the parties filed

cross motions for summary judgment, the District Court granted summary judgment in

favor of Farmland, finding that the Farmland Policy Application was a valid written

request by Clouse Trucking for lower underinsured motorist coverage pursuant to

MVFRL Section 1734. The Employees have appealed, urging that Clouse Trucking’s

purported selection of $35,000 in underinsured motorist coverage was invalid pursuant to

the MVFRL.

II.    LEGAL STANDARD

       “We exercise plenary review over a district court’s grant of summary

judgment.” Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 218 (3d Cir. 2015). We

apply the same standard as the District Court, viewing facts and making all reasonable

inferences in the non-movant’s favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265,

266–67 (3d Cir. 2005). Summary judgment is appropriate where “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).



                                             5
III.   ANALYSIS 3

       A.     The Selection of Underinsured Motorist Coverage Pursuant to Section
              1734

       The Employees argue that the District Court’s order granting summary judgment

to Farmland must be reversed because the election of underinsured motorist coverage

below the amount offered did not comply with the requirements of MVFRL Section

1731. Specifically, the Employees argue that Farmland failed to offer underinsured

motorist coverage equal to the liability coverage because the “Underinsured Motorist

Coverage Selection Form” contained a box that listed the “Underinsured Motorist

Coverage Limit Offered” as “35,000,” wherein it should have read “1,000,000” (i.e., the

amount of the bodily injury liability coverage). (J.A. 256.)

       Farmland responds that the MVFRL does not require any specific waiver form or

language to elect the lower coverage and, consequently, the signed Farmland Policy

Application satisfies the requirements of the MVFRL. 4 Farmland points out that the

Farmland Policy Application clearly states: “CSL” liability limit of “$1,000,000” and

“CSL” underinsured motorist coverage of “$35,000.” (J.A. 247–48, 259–60.)


3
      The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction
under 28 U.S.C. § 1291.
4
        The parties use the term “waiver” to describe the election of underinsured motorist
coverage in an amount less than the bodily injury liability coverage, pursuant to MVFRL
Section 1734. However, Section 1734 does not reference that term and instead states that
“[a] named insured may request in writing the issuance of coverages under section 1731 .
. . in amounts equal to or less than the limits of liability for bodily injury.” 75 Pa. Cons.
Stat. § 1734. Accordingly, we find the parties’ use of “waiver” to be somewhat
confusing, and will instead use terms consistent with the language of Section 1734, such
as “request” or “election.”
                                              6
       The MVFRL requires every motor vehicle insurance policy issued in Pennsylvania

to include an offer of both uninsured and underinsured motorist coverage equal to the

bodily injury liability amount. 75 Pa. Cons. Stat. § 1731(a). However, the purchase of

such coverage is “optional,” such that the insured can select one of the three options:

(a) purchase underinsured motorist coverage equal to the bodily injury liability amount

(i.e., the default option); (b) waive underinsured motorist coverage completely under

Section 1731(c); or (c) elect underinsured motorist coverage in an amount less than the

bodily injury liability coverage amount under Section 1734.

       If an insured decides not to purchase any uninsured or underinsured motorist

benefits, the insured is required to complete a written waiver that must “specifically

comply” with the statutorily-provided forms. 75 Pa. Cons. Stat. § 1731(c). In other

words, the waiver form cannot differ at all from the forms provided in Section 1731.

       Alternatively, if an insured decides to elect underinsured motorist coverage in an

amount less than the bodily injury liability coverage, the insured is required to complete a

written request. 75 Pa. Cons. Stat. § 1734. Unlike the strict requirements of fully

waiving coverage under Section 1731, the election of a lower amount of coverage under

Section 1734 can take any form, so long as it contains the following: “the written request

must be signed by the insured and must contain an express designation of the amount of

coverage requested, all manifesting the insured’s desire to purchase coverage in amounts

less than the bodily injury limits.” Weilacher v. State Farm Mut. Auto. Ins. Co., 65 A.3d

976, 983, 986 (Pa. Super. Ct. 2013) (quoting Nationwide Mut. Ins. Co. v. Catalini, 18

A.3d 1206, 1209 (Pa. Super. Ct. 2011)).

                                             7
       “Despite the legislature’s detailed requirements for rejecting [uninsured motorist

and underinsured motorist] coverage in [Section 1731], there are no such requirements in

§ 1734.” Orsag v. Farmers New Century Ins., 15 A.3d 896, 901 (Pa. 2011). “[A] § 1734

written request must include ‘not only the signature of the insured, but also, an express

designation of the amount of coverage requested.’ Clearly, the most effective manner in

which to ‘expressly designate’ the amount of coverage requested is by electing a specific

dollar amount on an insurance application.” Id. (quoting Lewis v. Erie Ins. Exch., 793

A.2d 143, 153 (Pa. 2002)).

       In Orsag, the insured signed a pre-printed application that requested bodily injury

liability coverage of $100,000, uninsured motorist coverage of $15,000, and underinsured

motorist coverage of $15,000. Id. at 897. Immediately above the applicant’s signature,

the application included language stating: (a) “I have read the above application and I

declare that to the best of my knowledge and belief all of the foregoing statements are

true,” and (b) “I understand that the coverage selection and limit choices here or in any

state supplement will apply to all future policy renewals, continuations and changes

unless I notify you otherwise in writing.” Id.

       This case is analogous to Orsag because Clouse Trucking signed a pre-printed

application requesting bodily injury coverage of $1,000,000, uninsured motorist coverage

of $35,000, and underinsured coverage of $35,000. The application was signed, dated,

and contained both a clause that the application was true under threat of penalty, and a

clause that the selections apply to future renewals unless the insurer was notified in

writing.

                                             8
       The Employees attempt to distinguish this case from Orsag because the insured in

Orsag filled out the application amounts by hand, whereas Clouse Trucking did not. This

argument is unavailing because all that is required under the MVFRL is a written request,

signed by the insured, and an “express designation of the amount of coverage requested.”

Weilacher v. State Farm Mut. Auto. Ins. Co., 65 A.3d 976, 983, 986 (Pa. Super. Ct.

2013). Moreover, “under Pennsylvania law, a[n] [uninsured motorist and underinsured

motorist] reduction request does not fail merely because an insurance agent filled out the

coverage amounts on the form.” See Davis v. Allstate Prop. & Cas. Co., No. 13-CV-

07038, 2014 WL 4857434, at *6 (E.D. Pa. Sept. 30, 2014) (citing State Farm Mut. Auto.

Ins. Co. v. Hughes, 438 F. Supp. 2d 526, 536 (E.D. Pa. 2006)).

       The Employees’ reliance on Erie Ins. Exch. v. Larrimore, 987 A.2d 732 (Pa.

Super. Ct. 2009) also does not undermine the District Court’s decision. In Erie, the

Pennsylvania Superior Court refused to enforce a coverage reduction where the

policyholder signed the application, but did not sign the insurer’s stand-alone form.

Here, Clouse Trucking actually signed a stand-alone form, selecting the box that stated:

“I want Underinsured Motorist Coverage with limits lower than my Bodily Injury

Liability Limits.” (J.A. 256.) Because it is not clear what coverage amount was selected

on this selection form, given that a sticky note tab obstructed the view, the District Court

properly found that the Farmland Policy Application was the operative document. And,

two years after Erie, the Pennsylvania Supreme Court clarified that “the most effective

manner in which to ‘expressly designate’ the amount of coverage requested is by electing



                                              9
a specific dollar amount on an insurance application.” Orsag v. Farmers New Century

Ins., 15 A.3d 896, 901 (Pa. 2011). 5

       The Farmland Policy Application clearly reflected a waiver of $1,000,000 in

underinsured motorist coverage, and an election of the lesser amount of $35,000. The

requirements under Section 1734 of the MVFRL that the request be signed and contain an

express designation of the amount of coverage were clearly met. As such, the District

Court properly granted summary judgment in favor of Farmland.

       B.     Patent Ambiguity

       The Employees also argue that the policy contains a patent ambiguity because the

“Underinsured Motorist Coverage Selection Form” contained a box that listed the

“Underinsured Motorist Coverage Limit Offered” as “35,000,” whereas the MVFRL

required Farmland to offer underinsured motorist coverage equal to the bodily injury

liability coverage (i.e., $1,000,000). The District Court found that this argument “is

merely an invitation to find ambiguity where none exists,” and “decline[d] to find that



5
       The Employees’ other citations are likewise distinguishable. See, e.g., Freeth v.
Zurich Am. Ins. Co., 152 F. Supp. 3d 420, 429 (E.D. Pa. 2015) (finding that there was no
waiver pursuant to § 1743 because the operative document explicitly required the insured
to sign a state-specific election or rejection form, and contained the disclaimer that “THIS
SUMMARY FORM IS NOT A SUBSTITUTE FOR REVIEWING EACH
INDIVIDUAL STATE’S SELECTION/REJECTION FORM FOR UM AND UIM
COVERAGE. YOU ARE REQUIRED TO DO SO”), aff’d, 645 F. App’x 169 (3d Cir.
2016); Weilacher v. State Farm Mut. Auto. Ins. Co., 65 A.3d 976, 986 n.1 (Pa. Super. Ct.
2013) (“[I]f an insured purchases new [uninsured motorist and underinsured motorist]
coverage following an initial rejection of [uninsured motorist and underinsured motorist]
coverage, the insurer must provide [uninsured motorist and underinsured motorist]
coverage equal to the bodily injury liability coverage, unless the insured validly requests
lower limits of coverage pursuant to section 1734.”).
                                            10
under general principles of contract law that ambiguity as to the amount of coverage

offered on one page of a 200 page insurance contract, but not selected, requires this Court

to construe the Farmland Policy as providing $1,000,000 of underinsured motorist

benefits.” (J.A. 27.) We agree.

       We recognize that the Underinsured Motorist Coverage Selection Form and the

application form completed could be read to create an incongruity because the

“Underinsured Motorist Coverage Selection Form” contained a box that listed the

“Underinsured Motorist Coverage Limit Offered” as “35,000,” where it should have read

“1,000,000” (i.e., the amount of the bodily injury liability coverage). But, this does not

mean that the Underinsured Motorist Coverage Selection Form is the more reliable

document regarding the insured’s intent. See State Farm Mut. Auto. Ins. Co. v. Hughes,

438 F. Supp. 2d 526, 537 (E.D. Pa. 2006). As explained above, the “MVFRL does not

require a particular form be completed in order to satisfy Section 1734 regarding the

election of lesser [underinsured motorist] coverage; it only requires a request in writing

for reduced coverage limits.” Id.

       Moreover, Clouse’s signature on the Important Policy Notice cures any potential

ambiguity. A signed Notice that mirrors the notice in 75 Pa. Cons. Stat. § 1791 creates a

“conclusive” and irrebuttable presumption that the insured has been advised of the

benefits and limits available under the MVFRL. Prudential Prop. & Cas. Ins. Co. v.

Pendleton, 858 F.2d 930, 935 (3d Cir. 1988). So, we must presume that Clouse knew he

could have bought up to $1,000,000 in underinsured motorist coverage.



                                             11
       Because we find that the Farmland Policy Application was a valid election under

Section 1734, the fact that Clouse Trucking did not request reduced underinsured

motorist coverage on the Underinsured Motorist Coverage Selection Form is not

dispositive, as “it did not preclude [the insured] from making such a ‘request in writing’

in another manner.” Hughes, 438 F. Supp. 2d at 537. Accordingly, the District Court

properly granted summary judgment to Farmland.

IV.    CONCLUSION

       For the foregoing reasons, we will affirm.




                                            12
