J. A33014/15
2017 PA Super 96
JOHN M. PERGOLESE AND : IN THE SUPERIOR COURT OF
PEGGY DOUG PERGOLESE : PENNSYLVANIA
:
v. :
:
THE STANDARD FIRE INSURANCE CO., :
ONE OF THE TRAVELERS INSURANCE :
COMPANIES D/B/A TRAVELERS :
PROPERTY CASUALTY AND TRAVELERS :
GROUP :
:
APPEAL OF: THE STANDARD FIRE :
INSURANCE CO., : No. 1467 EDA 2014
:
Appellant :
Appeal from the Judgment Entered April 11, 2014,
in the Court of Common Pleas of Montgomery County
Civil Division at No. 10-36947
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
OPINION BY FORD ELLIOTT, P.J.E.: FILED APRIL 11, 2017
Standard Fire Insurance Company (“Standard Fire”) appeals from the
judgment entered April 11, 2014, in this declaratory judgment action. The
trial court granted appellees’ motion for summary judgment after finding
that they were entitled to stacking of underinsured motorist benefits. After
careful review, we affirm.
The relevant facts and procedural history
underlying this appeal are as follows. Appellees are
husband and wife who reside in Worcester,
Montgomery County. In the early 1990s, Appellees
applied for personal automobile insurance with
* Retired Senior Judge assigned to the Superior Court.
J. A33014/15
Standard Fire’s predecessor in interest, Aetna
Insurance Company, through their insurance agent.
(Action for Declaratory Judgment (“Complaint”), filed
12/17/10, at ¶ 4; Answer with New Matter, filed
4/28/11, at ¶¶ 34-35; Appellant’s Motion for
Summary Judgment, filed 12/12/13 (“Motion”), at
¶ 2). On July 27, 1994, Appellees signed an Aetna
Option Selection Form indicating that they chose
non-stacked underinsured motorist (“UIM”) coverage
on policy number 020185337-101-1 (“20185337”).
(Motion, Exhibit C).
On May 29, 1996, Peggy Pergolese signed a
rejection of stacked UIM coverage form for this
policy on behalf of Appellees with John Pergolese’s
full knowledge and consent. (Motion at ¶ 3). At that
time, the insurance policy covered four (4) vehicles.
(Id. at ¶ 4). Specifically, for the 1996 coverage
year, the policy insured the following vehicles: 1989
Chevy Corvette, 1989 Mazda B-2200, 1988 Plymouth
Voyager and 1993 Mazda MX-6. (Cross Motion for
Summary Judgment, filed 1/13/14 (“Cross Motion”),
at ¶¶ 7-8; Exhibits F and G). On August 5, 1996,
Appellees executed a form waiving stacked UIM
coverage for the second policy, number 036766029-
101-1 (“36766029”). (Cross Motion at ¶ 6; Exhibit
E). The second policy provided coverage for one (1)
vehicle.[Footnote 2]
[Footnote 2] The Travelers system does
not allow the placement of more than
four (4) personal vehicles on a policy at
one time. (N.T. Deposition of Cody D.
Gilmore, 7/22/13 (Cross Motion, Exhibit
R) at 58-59[)]; [t]herefore, policy
holders wishing to insure more than four
personal vehicles at a time are required
to obtain a second policy. (Id.).
On or about November 19, 1996, Appellees
sought to remove the 1988 Plymouth Voyager from
coverage on policy number 20185337 and replace it
with a 1993 Nissan Pathfinder. (Cross Motion at ¶ 9;
Auto Change Form, Exhibit H). The amended
-2-
J. A33014/15
declaration sheet effective November 19, 1996
reflected coverage for the following vehicles: 1989
Chevy Corvette; 1989 Mazda B-2200, 1993 Nissan
Pathfinder and 1993 Mazda MX-6. (Id. at ¶ 10;
Exhibit I). Appellees renewed the policy every
six (6) months and the declaration sheets showed
non-stacked UIM benefits in the amount of
$100,000.00. The declaration sheets on policy
number 20185337 dated up to and including
January 27, 1998, also reflected coverage for the
same four (4) vehicles. (Id. at ¶ 11; Exhibits J, K
and L).
On February 23, 1998, Appellees asked their
insurance agent to remove the 1989 Mazda B-2200
from their policy. Unlike their request on
November 19, 1996, Appellees did not add a
replacement vehicle. (Cross Motion at ¶ 12; Auto
Change Form, Exhibit M). The amended declarations
page effective February 23, 1998, lists coverage for
only three (3) vehicles and a decreased premium.
(Id. at ¶ 13; Exhibit N).
On April 8, 1998, forty-four (44) days later,
John Pergolese called Appellees’ insurance agent to
request auto insurance coverage for an additional
vehicle before he took possession. Mr. Pergolese
requested that the agent fax a copy of the insurance
card so that Mr. Pergolese would have proof of
insurance before taking ownership of a 1990 Ford
F-150. (Id. at ¶ 14; Auto Change Form, Exhibit O).
As requested, the agent faxed a copy of the
insurance card with an effective date of April 8,
1998, to the location where Mr. Pergolese was
obtaining the tags and title. (Id. at ¶ 14-15; Exhibit
P). The amended declarations page effective April 8,
1998, showed the premium increase and listed four
vehicles as follows: 1989 Chevy Corvette, 1993
Nissan Pathfinder, 1993 Mazda MX-6 and 1990 Ford
F-150. (Id. at ¶ 16, 18; Exhibit Q).
Appellees’ Standard Fire Auto Policy provides in
pertinent part as follows:
-3-
J. A33014/15
J. “Your covered auto” means:
1. Any vehicle shown in the
Declarations.
2. Any of the following types of
vehicles on the date you become
the owner:
a. a private passenger
auto; or
b. a pickup or van.
This provision (J.2.) applies only if:
a. you acquire the vehicle
during the policy
period;
b. you ask us to insure it
within 30 days after
you become the
owner; and
c. with respect to a
pickup or van, no other
insurance policy
provides coverage for
that vehicle.
If the vehicle you acquire replaces
one shown in the Declarations, it
will have the same coverage as the
vehicle it replaced. You must ask
us to insure a replacement
vehicle within 30 days only if:
a. you wish to add or
continue Damage to
Your Auto Coverages;
or
-4-
J. A33014/15
b. it is a pickup or van
used in any “business”
other than farming or
ranching.
(Policy No. 20185337, Personal Auto Policy at 1;
Exhibit A to both Motions for Summary Judgment)
(emphasis added).
Appellant did not request a new waiver of
stacked coverage from Appellees after the addition of
the 1990 Ford F-150 to the three vehicle policy
under 20185337. (Cross Motion at ¶ 23). Appellees
continued to insure the same four vehicles under
policy number 20185337 through July 27, 2001.
(Id. at ¶ 24; Exhibit A). For the period of July 30,
2000, to July 30, 2001, Appellees insured one
vehicle, a 1992 Toyota Pickup under policy number
36766029. (Id. at ¶ 25; Exhibit B).
On July 23, 2001, John Pergolese suffered
severe injuries when a drunk driver rear ended his
1993 Mazda MX-6. (Motion at ¶ 15; Cross Motion at
¶ 26). Appellees timely submitted a claim for
underinsured motorist benefits to Appellant upon
receiving the liability policy limits from the tortfeasor
and after receiving Appellant’s consent to settle and
waiver of subrogation. (Complaint at ¶ 8; Answer at
¶ 8; Motion at ¶ 16). Appellees asserted that they
were entitled to stack UIM benefits according to the
number of vehicles on their two (2) policies up to a
limit of $500,000.00. (Complaint at ¶ 27; Motion at
¶ 17). Appellant denied that Appellees were entitled
to stack their policy benefits. (Motion at ¶ 18).
On December 17, 2010, Appellees filed an
action for declaratory judgment. On April 28, 2011,
Appellant filed its answer with new matter.
Appellees replied to the new matter on June 28,
2011. The parties conducted discovery, including
requests for admissions and depositions.
In particular, an underwriter for Travelers
Insurance testified at deposition as follows:
-5-
J. A33014/15
Q. Well, my question to you was from your
understanding of Travelers, the
insurance, if someone owns four vehicles
on a policy and they delete a car, so now
there’s [sic] three cars on that policy,
and a month and a half or two months
later that insured buys a new car and
asks for it to be added to the policy?
A. That would be an additional vehicle.
Q. Okay. That would be an addition, an
additional vehicle; is that correct?
A. That’s correct.
Q. All right. That would not be considered a
replacement vehicle?
A. Not if it was -- if it was not replaced at
that time.
Q. Okay. So, meaning that it’s your
understanding at Travelers that dealing
with replacement vehicles is when cars
are added and deleted at the same time?
A. Correct.
* * * *
Q. All right. I don’t want -- so somebody
has four cars and they delete a vehicle
on that policy, all right? And in this case
John Pergolese owned four cars on the
policy, and one of the cars he deleted,
okay, because it was junked or there was
an issue. It didn’t run anymore.
A. Okay.
-6-
J. A33014/15
Q. And then a month and a half later he
buys a car and adds a new car to that
policy.
A. That would be an additional vehicle.
Q. Okay. That would not be considered
replacement because it wasn’t done at
the same time, but that would [be] an
additional vehicle?
A. That is correct.
Q. Because when they’re advising the agent
of the new car, he’s purchasing coverage
on that new car?
A. That is correct.
(N.T. Deposition of Cody D. Gilmore, 7/22/13 (“N.T.
Gilmore Deposition”), at 54-56). Mr. Gilmore also
agreed that the addition of the vehicle increased the
premium as a policy change. (Id. at 68).
Mr. Gilmore explained that “the agents request
the majority of changes, and they process them on
[Travelers’] system within the office, their office.”
(Id. at 19). The addition of a vehicle to a policy is
never done by endorsement, the addition is
considered a policy change. (Id. at 32-33). At
Travelers “[a]n endorsement is a broadening or
reduction or change in a coverage level.” (Id. at
33). Mr. Gilmore also testified as follows:
Q. Is it your understanding that the
after-acquired clause that we just
referenced is a provision in the policy
that insures a new vehicle from the time
that insured gets the vehicle until he
calls somebody from Travelers to tell
them that he just bought a new car and
wants coverage?
-7-
J. A33014/15
A. This provides the coverage between the
time that the vehicle -- they own the
vehicle and the time they contact the
agent.
Q. Okay. So once -- so, right, so the car is
insured from the time that they buy it up
until they call Travelers to tell -- to tell
them about it?
A. Right, that they have advised that they -
- once they have purchased and they are
the owner of the vehicle, this is when
this -- that’s where they obtain their
coverage automatically is once they own
the vehicle.
Q. All right. What does Travelers require, if
you know, from the insured once they
call to say I got a new car whatever day
it was and I want it insured?
A. The agent would inquire if there was a
lienholder, the VIN number, and they
would make the change to the policy to
add it at that time.
Q. Okay. So, once they got -- if there’s a
lienholder, if there is the VIN, then that -
- then would it be -- in this case, it was
an agent that got the call. Then that
agent would add the policy?
A. That’s correct. They would process the
change.
(Id. at 44-45).
Appellant filed its Motion for summary
judgment on December 12, 2013. Appellees
responded in opposition on January 13, 2014, and
filed their cross motion at the same time. Appellant
replied to the cross motion on February 11, 2014.
Upon review of the record, the issues presented to
-8-
J. A33014/15
this court, the applicable law and after hearing
argument, the undersigned denied Appellant’s Motion
and granted Appellees’ cross motion by separate
orders dated April 11, 2014. Appellant filed a notice
of appeal from the court’s order granting the cross
motion on May 8, 2014. On May 9, 2014, Appellant
filed a second notice of appeal from the court’s order
denying their Motion. The undersigned issued an
order on May 27, 2014, directing Appellant to file a
Concise Statement of the Errors Complained of on
Appeal (“concise statement”). Appellant filed two
concise statements on June 6, 2014.
Trial court opinion, 5/29/15 at 2-9.1
Appellant, Standard Fire, has raised the following issues for this court’s
review:
1. Did the trial court err in granting summary
judgment in favor of Plaintiffs/Appellees and in
denying Defendant’s/Appellant’s Motion for
Summary Judgment, where vehicles were
replaced under the continuous after-acquired
vehicle provision of the Standard Fire Policy,
and were not replaced by endorsement or
through the purchase of new insurance,
therefore not requiring the execution of new
waivers rejecting stacked underinsured
motorist benefits?
2. Even if this Court determines that the Ford
F-150 constituted an additional vehicle under
the Policy, did the trial court still err in
granting summary judgment in favor of
Plaintiffs/Appellees and in denying
Defendant’s/Appellant’s Motion for Summary
Judgment, where the after-acquired vehicle
provision of the Standard Fire Policy provided
for continuous coverage?
1
On July 13, 2015, this court quashed the appeal at No. 1466 EDA 2014,
taken from the April 11, 2014 order denying appellant’s motion for summary
judgment, as unnecessary and duplicative.
-9-
J. A33014/15
Appellant’s brief at 5.
We begin our analysis with our standard of
review:
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 order will be reversed
only where it is established that
the court committed an error of
law or abused its discretion.
Jones v. Unitrin Auto and Home Insurance Co.,
40 A.3d 125, 126-127 (Pa.Super. 2012), quoting
Erie Insurance Exchange v. Larrimore, 987 A.2d
732, 736 (Pa.Super. 2009) (citation omitted).
Jones further noted that “ordinary summary
judgment procedures are applicable to declaratory
judgment actions.” Id. at 127.
Shipp v. Phoenix Ins. Co., 51 A.3d 219, 221 (Pa.Super. 2012).
This case involves the interpretation of the
following statute:
- 10 -
J. A33014/15
§ 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
- 11 -
J. A33014/15
reflect the different cost of such
coverage.
75 Pa.C.S.A. § 1738 (in pertinent part).
Id. at 221-222.
As in Shipp,
This case particularly involves the interpretation of
section 1738(c) and whether the addition and/or
substitution of a new vehicle under the policy
constitutes a purchase of additional UM/UIM
coverage, requiring the insurer to present the
insured with a new opportunity to waive stacked
coverage. This question has been partially answered
by our supreme court in two separate decisions
involving the same parties.
In Sackett v. Nationwide Mutual Insurance Co.,
591 Pa. 416, 919 A.2d 194 (2007) (“Sackett I”),
the insured acquired a policy for two vehicles and
initially waived stacked UM/UIM coverage in the
amount of $200,000 ($100,000 unstacked). The
insured later added a third vehicle to the policy, and
the insurer did not provide the insured with the
opportunity to again waive stacked coverage.
Following an accident, the insured filed a declaratory
judgment action seeking $300,000 in stacked
coverage under section 1738 because the insurer
failed to provide the insured with the opportunity to
waive stacked UM/UIM coverage at the time the third
vehicle was purchased and added to the policy.
The trial court ruled that when the same named
insured simply adds a vehicle to an existing
insurance policy, the insurer does not need to
acquire a second waiver of stacked UM/UIM
coverage. This court affirmed that decision. On
appeal, however, the Sackett I court held that the
addition of a new vehicle to an existing multi-vehicle
policy constitutes a purchase under section 1738(c),
such that the insurer was responsible for again
acquiring a waiver to stacked coverage.
- 12 -
J. A33014/15
Following this decision, the supreme court granted
re-argument to explore the impact of newly acquired
vehicle clauses, almost universally contained in
vehicle insurance policies, on its decision in
Sackett I. In Sackett v. Nationwide Mutual
Insurance Co., 596 Pa. 11, 940 A.2d 329 (2007)
(“Sackett II”), the court noted that there are two
common forms used for newly acquired vehicle
clauses. The first type provides automatic coverage
upon acquisition of the additional new vehicle, but
lapses after a specified, finite amount of time,
requiring the insured to apply for new coverage
thereafter. The second type provides continuing
coverage, usually requiring the insured only to give
notice that a new vehicle has been acquired. The
Sackett II court held that the second type of newly
acquired vehicle clause does not trigger an obligation
by the insurer to obtain a second waiver of stacked
coverage; however, where the newly acquired
vehicle clause is of the lapsing, finite variety,
Sackett I still applies and the insurer must again
acquire a waiver of stacked coverage.[Footnote 1]
[Footnote 1] Ultimately, on remand to
the trial court, the court conducted a
non-jury trial and again ruled that the
Sacketts could stack their coverage. On
appeal, this court found that newly
acquired vehicle provisions of
Nationwide’s policy with the Sacketts was
of the lapsing finite variety which the
supreme court had held to require the
re-obtaining of waiver by the insurer. As
Nationwide had failed to re-obtain such
waiver, this court ruled that the trial
court properly permitted the coverage to
be stacked. Sackett v. Nationwide
Mutual Insurance Co., 4 A.3d 637
(Pa.Super. 2010) (“Sackett III”),
appeal denied, Pa. , 34 A.3d 83
(2011).
Id. at 222.
- 13 -
J. A33014/15
In Bumbarger v. Peerless Indem. Ins. Co., 93 A.3d 872 (Pa.Super.
2014) (en banc), this court’s most recent en banc pronouncement on the
stacking issue, we held that when an insured takes ownership of a vehicle
and simultaneously informs his insurer of the new vehicle, the language and
purpose of the after-acquired vehicle provision in the policy is never
triggered. An after-acquired vehicle provision merely extends existing
coverage until the insured notifies the insurer that he wishes to insure the
new vehicle under his policy with the insurer. The after-acquired vehicle
clause extends temporary, stop-gap coverage, thereby protecting the
insured until the policy can be amended.2 The addition of the vehicle to the
policy by the insurer, pursuant to Sackett I and III, requires a new
2
Initially, an after-acquired-vehicle clause is
essentially a contractual grace period, during which
the insurer will automatically provide coverage for a
newly acquired vehicle for a brief period, until either
other insurance is purchased or the insurer is
informed of the new vehicle and the insured asks to
have the new vehicle put on the existing policy. This
clause gives an insured the time to decide what
insurance to ultimately purchase. Otherwise, an
insured would be required to purchase insurance
contemporaneously with the purchase of the
car.[Footnote 5]
[Footnote 5] This might not be a
hardship when purchasing a vehicle
through a dealership, but might prove
burdensome when buying a car through
a person to person transaction.
Toner v. Travelers Home and Marine Ins. Co., 137 A.3d 583, 588
(Pa.Super. 2016).
- 14 -
J. A33014/15
stacking waiver. In Bumbarger, we did not need to look to the analysis of
Sackett II which only addressed the implication of the after-acquired
vehicle clause.3
In that case, Peerless issued Helen Bumbarger (“Helen”) a personal
automobile policy providing motor vehicle coverage for two vehicles, a
1980 Ford F-150 pick-up truck and a 1998 Ford Taurus. Id. at 873. Helen
rejected stacking of UM/UIM coverage by completing the appropriate forms.
Id. The Bumbarger court described the salient facts as follows:
On July 24, 2007, Helen purchased a third vehicle, a
1995 Ford F–150 pick-up truck. That same day, she
notified her insurance agent of the purchase and
requested that it be added to and insured under the
Policy. The insurance agent notified Peerless about
the third vehicle and the vehicle was added to the
Policy through a validly executed endorsement,
effective July 24, 2007. On October 2, 2009, Helen
notified her insurance agent that she had purchased
a fourth vehicle, a 1985 Ford Bronco; she requested
that this vehicle also be added to and insured under
the Policy. The agent notified Peerless and coverage
of the fourth vehicle became effective as of the date
of purchase; unlike the third vehicle, this fourth
3
However, it is important to note that in Sackett II, “where coverage under
an after-acquired-vehicle clause is expressly made finite by the terms of the
policy, Sackett I controls and requires the execution of a new UM/UIM
stacking waiver upon the expiration of the automatic coverage in order for
the unstacked coverage option to continue in effect subsequent to such
expiration.” Sackett II, 940 A.2d at 334 (citation and footnote omitted).
In other words, when an insured notifies an insurer that he has obtained an
additional vehicle and that vehicle is added to the policy by the insurer, then
the after-acquired vehicle extended coverage expires immediately and a new
stacking waiver is required. In most cases, according to Sackett II, only
replacement vehicles would be subject to the extended continuous coverage
provisions of an after-acquired vehicle provision in that one vehicle merely
replaces another under the same conditions and coverages of the policy.
- 15 -
J. A33014/15
vehicle was not added by way of endorsement, but
rather its addition was reflected by an amended
declarations page.
On December 3, 2009, while driving the 1995 Ford
pick-up (third vehicle) Helen was involved in a motor
vehicle accident with an uninsured vehicle; she
subsequently submitted a claim for UM benefits
under the Policy. Helen claimed that she was
entitled to stacked UM benefits; Peerless maintained
that the original waiver of stacked UM/UIM benefits
under the Policy, executed on May 17, 2007,
remained in effect.
Id. at 873-874 (footnote omitted).
The trial court granted summary judgment for the Bumbargers, finding
that because the third vehicle was added to the policy pursuant to an
endorsement, the vehicle was effectively added to the policy’s declarations
and was covered under the general terms of the policy and not the
newly-acquired-vehicle clause. Id. at 874. Therefore, the trial court
determined that Sackett I required Peerless to obtain a new stacking waiver
from the Bumbargers when the third vehicle was added to the policy.
Because Peerless failed to do so, the Bumbargers were entitled to stacked
UM coverage as a matter of law. Id. Furthermore, since the Bumbargers
were entitled to stacking under the general terms of the policy, the trial
court did not determine the duration of any coverage under the policy’s
newly-acquired-vehicle clause as discussed in Sackett II. Id. at n.6.
- 16 -
J. A33014/15
On appeal, this court affirmed, finding that because the Bumbargers
added the third vehicle to the policy by way of endorsement, the
newly-acquired-vehicle clause was never triggered:
[I]n both Sackett and this case, the vehicles were
added to an existing policy; they were not added to
replace a vehicle already covered under the policy.
Moreover, although the policies in both Sackett and
the instant case had after-acquired vehicle clauses,
because the additional cars were added on pursuant
to the policy’s endorsement provision immediately
after being purchased and were placed on the
policy’s declarations’ page, the after-acquired vehicle
clauses became irrelevant.
Id. at 878. “Here, the third vehicle added to the Peerless policy in July 2007
was added by endorsement at the time of purchase onto the declarations
page of the Policy; at this point, the vehicle was covered by the original
policy; therefore, the newly-acquired vehicle clause was not triggered.” Id.
Relying on Sackett I and Sackett III, this court in Bumbarger concluded
that the Bumbargers were statutorily entitled to the stacked limits of
UM coverage:
Therefore, because the Bumbargers added their third
vehicle to the Peerless Policy by way of an
endorsement, the new vehicle was covered under
the general terms of the Peerless policy and not its
after-acquired vehicle clause. Sackett III, supra.
Moreover, because this new vehicle was added to the
Peerless Policy before the Bumbargers’ accident,
Peerless was required, under Sackett I, to obtain a
new waiver from the Bumbargers declining stacked
coverage. Id.
Id. at 879.
- 17 -
J. A33014/15
As in Bumbarger, the policy in the instant case includes a
newly-acquired-vehicle clause which does not apply to any vehicles shown in
the Declarations. See Bumbarger, 93 A.3d at 878 (“However, for this
coverage to apply to a ‘newly acquired auto’ which is in addition to any
vehicle shown in the Declarations, you must ask us to insure it within
14 days after you become the owner,” quoting Peerless Automobile Policy,
Personal Auto Special Provisions (Pennsylvania Definitions) at Section K.2
(emphasis in Bumbarger)). Here, appellees notified their agent of the new
vehicle, the 1990 Ford F-150, and requested proof of coverage before the
purchase was completed. The agent then faxed a copy of the insurance card
and issued amended declarations pages reflecting coverage of the new
vehicle at an increased premium. As in Bumbarger, the
after-acquired-vehicle provision in the Standard Fire policy is simply
inapplicable. Therefore, we need not consider whether it is continuous or
finite. Pursuant to Sackett I, Sackett III, and Bumbarger, appellees’
addition of the 1990 Ford F-150 to the policy constituted a new “purchase”
of UM/UIM coverage under Section 1738 of the MVFRL and required the
execution of a new UM/UIM stacking waiver.
We find appellant’s reliance upon Shipp, supra, and Toner, supra, to
be misguided. In Shipp, the policy at issue had an identical after-acquired-
vehicle clause as the policy in this case. Shipp, 51 A.3d at 223. However,
Shipp involved a replacement for an existing vehicle, not an additional
- 18 -
J. A33014/15
vehicle being added to the policy. Id. at 222-223. The after-acquired-
vehicle clause of the policy at issue in Shipp provided continuing,
uninterrupted coverage on a replacement vehicle without notice unless
collision coverage was added or continued or a business vehicle was
involved. Id. at 223. The court in Sackett II, as discussed above, held
that continuing coverage subject only to a notice requirement did not require
the insurer to re-obtain waiver of stacked UM/UIM coverage. Id. Since the
insureds in Shipp simply replaced one vehicle with another at the same
time, there was no change in the amount of UM/UIM coverage available to
the Shipps, and the only change was in the identity of the covered vehicle.
Id. at 224. As such, no new insurance coverage was purchased and Phoenix
was not required to obtain a new waiver of stacked coverage from the
Shipps. Id.
Here, by contrast, the 1990 Ford F-150 was not a replacement vehicle.
Rather, it was added to the policy 44 days after appellees removed the 1989
Mazda B-2200 from their policy. At that time, the amended declarations
pages listed only three vehicles and a decreased premium. Forty-four days
later, appellees notified their insurance agent of their intention to purchase
the 1990 Ford F-150 and amended declarations pages were issued. The
1990 Ford F-150 was not a replacement vehicle, as admitted by Mr. Gilmore,
appellant’s underwriter. Therefore, Shipp is inapposite.
- 19 -
J. A33014/15
Appellant also cites Toner, in which it was determined that the
insurer, Travelers, was not required to provide Toner with a new waiver of
stacking form when she added cars to her single vehicle policy. However, in
Toner, the after-acquired-vehicle clause was at issue. Toner, 137 A.3d at
592. As such, Toner is distinguishable. We determine that the case
sub judice is controlled by our supreme court’s decisions in Sackett I,
Sackett III, and this court’s en banc decision in Bumbarger.
Finally, appellant argues that the trial court should not have permitted
inter-policy stacking where the stacking waiver applicable to the
single-vehicle policy remained valid and in effect at the time of the accident.
(Appellant’s brief at 36 n.5.) According to appellant, at most, appellees
would be entitled to $400,000 of stacked UIM coverage, not $500,000. This
issue was not raised in the court below or in appellant’s Pa.R.A.P. 1925(b)
statement. Therefore, it is deemed waived. Pa.R.A.P. 1925(b)(4)(vii);
Pa.R.A.P. 302(a).
Judgment affirmed.
Strassburger, J. files a Concurring Opinion.
Stabile, J. files a Dissenting Opinion.
- 20 -
J. A33014/15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2017
- 21 -