                                                                      NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   _____________

                                         No. 17-3371
                                        _____________

                                     WAYNE E. KUHNS;
                                    SHANNON C. KUHNS
                                      husband and wife,
                                                      Appellants
                                             v.

         THE TRAVELERS HOME AND MARINE INSURANCE COMPANY

                                       ______________

                       On Appeal from United States District Court
                          for the Middle District of Pennsylvania
                              (D. C. Civil No. 4-15-cv-01197)
                    Chief Magistrate Judge: Honorable Susan E. Schwab
                                     ______________

                     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                      July 12, 2018
                                    ______________

             Before: McKEE, VANASKIE *, and RESTREPO, Circuit Judges

                               (Opinion filed: January 3, 2019)

                                 _______________________




*
  The Honorable Thomas I. Vanaskie participated in the decision in this case. Judge Vanaskie
retired from the Court on January 1, 2019 after the submission date, but before the filing of the
opinion. This opinion is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d) and Third
Circuit I.O.P. Chapter 12.
                                           OPINION **



McKEE, Circuit Judge.

       Wayne and Shannon Kuhns appeal the grant of summary judgment entered in

favor of defendant Travelers and Home Insurance Co. on the Kuhnses’ claim for stacked

insurance benefits under a policy of automobile insurance following an accident

involving one of four automobiles that the Kuhnses owned and which were covered by

that policy. For the reasons that follow, we will affirm. 1

       The Kuhnses initially waived “stacked uninsured and underinsured motorists

(UIM)” coverage on their policy covering three of their vehicles. 2 A few months later, the

Kuhnses purchased a fourth vehicle – a pickup truck – and added it to that policy. The


**
  This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute
binding precedent.
1
  We review the District Court’s decision de novo, and we apply the same standard as the
District Court to determine whether summary judgment was appropriate. Norfolk
Southern Railway Co. v. Basell USA Inc., 512 F.3d 86, 91 (3d Cir. 2008). The substantive
law of Pennsylvania applies to this case. See Erie Railroad Co. v. Tompkins, 304 U.S. 64
(1938); Moody v. Sec. Pac. Eus. Credit, Inc., 971 F.2d 1056 (3d Cir. 1992).
2
  “The basic concept of stacking is the ability to add the coverages available from
different vehicles . . . to provide a greater amount of coverage [than is] available [for] any
one vehicle.” McGovern v. Erie Ins. Grp., 796 A.2d 343, 344 (Pa. Super. Ct. 2002). For
example, if an insured person has four cars in a policy that provides $100,000 of UIM
coverage on each car, and one car is in an accident, under a stacked insurance policy, the
insured will be entitled to a maximum payout of $400,000 (the total payout for all of the
cars in the policy: $100,000 x 4). Conversely, if the policy is not stacked, the insured
would only be entitled to a maximum payout of $100,000 (the payout for a single car).
        The Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL)
“requires all motor vehicle liability insurance policies to offer uninsured and
underinsured coverages[;] it also provides that the purchase of such coverages is
‘optional.’ 75 Pa. C.S.A. § 1731(a).” (JA 13–14.)

                                                 2
question before the Magistrate Judge, and before us on review, is whether the Kuhnses’

initial waiver of stacked insurance coverage applied to the fourth vehicle. The Magistrate

Judge granted summary judgment to Travelers based upon its conclusion that the fourth

vehicle was added pursuant to the insurance policy’s continuous after-acquired-vehicle

clause.

          Appellants correctly argue that our inquiry is governed primarily by the

Pennsylvania Supreme Court’s decisions in Sackett I and II. 3 There, the court considered

when Pennsylvania law requires an insurance company to provide the insured with an

additional opportunity to waive stacked insurance. Sackett had initially waived stacked

insurance but subsequently added a car to an existing multi-car policy. In rejecting the

Kuhnses’s claim for stacked benefits here, the Magistrate Judge correctly summarized the

Pennsylvania Supreme Court’s conclusion that adding another vehicle to a policy with a

continuous after-acquired-vehicles clause did not require the issuance of another waiver:

          [W]hen an insured adds a new vehicle to an existing multi-vehicle policy, the
          insurer, under Sackett I, must provide that insured with a new opportunity to
          waive stacked UIM coverage . . . unless, under Sackett II, the insured has
          already signed a valid stacking waiver . . . and coverage for the newly-added
          vehicle is extended under a continuous after-acquired-vehicle clause. 4

In other words, if (1) the Kuhnses signed a valid stacking waiver; and (2) their insurance

policy extends coverage for newly-added vehicles under an after-acquired-vehicles



3
  Sackett v. Nationwide Mutual Insurance Company, 919 A.2d 194 (Pa. 2007) (Sackett I),
and Sackett v. Nationwide Mutual Insurance Company, 940 A.2d 329 (Pa. 2007) (Sackett
II).
4
  JA 21 n.7 (emphasis added).

                                               3
clause; and (3) that clause is continuous (rather than finite); the waiver applies to the

newly-added vehicle as well.

       The parties do not dispute the first two propositions, namely that the Kuhnses

signed a valid stacking waiver, 5 and that the policy contained an after-acquired-vehicles

clause. 6 Rather, Appellants argue that the after-acquired-vehicle clause was not

continuous, and, relatedly, that the fourth vehicle was not added to the policy pursuant to

the after-acquired-vehicle clause, but rather by the issuance of a new declarations page

from Travelers. Both arguments fail.

       First, the Magistrate Judge correctly concluded that because the policy

“automatically extend[s] . . . coverage to newly-acquired autos,” the policy was

continuous. 7 The Travelers policy stated that a “covered auto” includes “any . . .

vehicle[,] on the date you become the owner,” so long as three conditions were met: (1)

the vehicle was acquired “during the policy period;” (2) the policy holder “asks

[Travelers] to insure it within 30 days;” and (3) “no other insurance policy provides

coverage for that vehicle.” 8



5
  See e.g., JA 3 (“Mr. Kuhns acknowledges that he expressly waived stacked,
underinsured motorist coverage when he initially bought his motor vehicle insurance
policy from Travelers.”).
6
  See e.g., Appellants’ Reply Br. at 1 (recognizing that the Travelers policy contained an
after-acquired-vehicles clause, but arguing that “the additional vehicle the [Kuhnses]
purchased was not added by way of the after-acquired vehicle clause”).
7
  JA 27. See also Sackett II, 940 A.2d at 333–34 (distinguishing the continuous policy in
Satterfield v. Erie Ins. Prop. & Cas. 618 S.E.2d 483 (W. Va. 2005) from the “finite”
policy in Bird v. State Farm Mut. Auto Ins. Co. 165 P.3d 343 (N.M. Ct. App. 2007)).
8
  JA 24 (emphasis added). Appellants do not dispute that each of the three conditions was
met here.
                                              4
       Appellants argue that because the policy required the Kuhnses to satisfy three

conditions subsequent in order to become covered, the policy did not provide automatic

coverage and, thus, was not continuous. However, as the Magistrate Judge correctly

noted, Sackett II specifically addressed that issue. In Sackett II, the court said: “[T]o the

degree that coverage under a particular after-acquired-vehicle provision continues in

effect throughout the existing policy period, subject only to conditions subsequent such

as notice and the payment of premiums, . . . we clarify that Sackett I should not disturb

the effect of an initial UIM waiver.” 9 We came to a similar conclusion in Seiple v.

Progressive N. Ins. Co. 10 There, the insurance policy stated: “any new motorcycle

acquired by an insured during the policy period [wa]s automatically covered by the

policy, so long as the insured pa[id] any additional premiums and the additional

motorcycle [wa]s not already covered.” 11 Accordingly, we held “the after-acquired-

vehicle clause at issue is continuous, rather than finite in nature.” 12

       The Pennsylvania Superior Court has construed the same language from the

Travelers Policy at issue here, post-Sackett, and found that the after-acquired-vehicles




9
  Sackett II, 940 A.2d at 333–34 (“We hold that the extension of coverage under an after-
acquired-vehicle provision to a vehicle added to a pre-existing multi-vehicle policy is not
a new purchase of coverage for purposes of Section 1738(c), and thus, does not trigger an
obligation on the part of the insurer to obtain new or supplemental UM/UIM stacking
waivers.”).
10
   568 Fed. App’x 183 (3d Cir. 2014).
11
   Id. at 186.
12
   Id. at 186–87.

                                               5
clause is continuous. 13 The Magistrate Judge here correctly considered those decisions in

entering judgment.

       Appellants’ argument that the vehicle was not added to the policy pursuant to the

after-acquired vehicles clause, but rather by Travelers’ addition of a new declarations

sheet fails as well. We have previously concluded that “[a]ccording to Pennsylvania’s

Insurance Commissioner, the mechanism by which vehicles generally are added to

existing policies is via ‘newly acquired vehicle clauses,’” rather than by the issuance of

an amended declarations page. 14 Here, the Magistrate Judge correctly found, “neither the

adding of the fourth vehicle to th[e declarations] sheet, nor the issuance of that sheet,

triggered Travelers’s contractual duty to extend coverage to the [Kuhnses’] newly-

acquired vehicle. Instead, its duty was triggered by the Policy’s after-acquired-vehicle

clause.” 15

       The Magistrate Judge’s conclusion finds further support in our decision in State

Auto Property & Casualty Ins. Co. v. Pro Design, P.C.16 There, we held “the mere

addition of a vehicle to an existing policy is not a purchase.” 17 Therefore, Pennsylvania

law, as articulated in Sackett II, “did not require [the insurer] to provide [the insured]


13
   See Shipp v. Phoenix Ins. Co., 51 A.3d 219 (Pa. Super. Ct. 2012); Toner v. The
Travelers Home & Marine Ins. Co., 137 A.3d 583 (Pa. Super. Ct. 2016).
14
   Seiple v. Progressive N. Ins. Co., 568 F. App’x 183, 187 (3d Cir. 2014) (“Sackett III
does not create a per se rule, as Seiple suggests, that vehicles added by endorsement
require new stacking waivers without regard to the language in the after-acquired-vehicle
clause.”).
15
   JA 36.
16
   566 F.3d 86 (3d Cir. 2009).
17
   Id. at 93.

                                              6
with the opportunity to waive stacking upon the addition of the second and third vehicles

to the policy; the waiver signed at the inception of the policy remained valid upon the

addition of those vehicles.” 18

           Accordingly, for the reasons stated above, and those in the Magistrate Judge’s well

reasoned and careful Memorandum Opinion, we agree that Travelers was not required to

issue another waiver to Appellants when the fourth car was added to the policy.

Therefore, we will affirm the judgment.




18
     Id.
                                                7
