J

- A08001

- 20 2020 PA Super 181

ROBERT FRANKS AND KELLY A. FRANKS, H/W Appellant

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2784 EDA 2019

Appeal from the Judgment Entered September 4 , 2019 In the Court of Common Pleas of Bucks County Civil Division at No(s): No. 2018

- 03954

BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J. DISSENTING STATEMENT BY LAZARUS, J.: FILED JULY 31, 2020 I respectfully dissent. As the Majority correctly notes, the Statutory Construction Act requires that, “[w] hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A § 1921(b). Moreover, w ords and phrases within a statute must be “construed according to rules of grammar and according to their common and approved usage,” id. at § 1903(a), and must be read within th e context of the remaining statutory language. Commonwealth v. Office of Open Records , 103 A.3d 1276, 1285 (Pa. 2014). O nly when the plain language of a statute is ambiguous may courts resort to other tools of statutory construction in order to ascertain the General Assembly’ s intent. See 1 Pa.C.S. A. § 1921(c)

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Here, the language of section 1738 (c) is clear and unambiguous. The opportunity to waive the stacked limits of coverage must be provided when an insured “ purchas[es] uninsured or underinsured motorist coverage for more than one vehicle under a policy[.]” 75 Pa.C.S.A. § 1738(c) (emphasis added). I do not believe the Frankses’ removal of a vehicle from their auto insurance policy constitutes a “purchase” as contemplat ed by the statute. I n Barnard v. Travelers Home and Marine Ins. Co. , 216 A.3d 1045 (Pa

. 2019) , the United States Court of Appeals for the Third Circuit presented our Supreme Court with a certified question of law as to whether an increase in the limits of UIM coverage on a multi

- vehicle policy constitutes a “purchase” under section 1738(c) , thus requiring an insurer to obtain a new waiver of stacking rights. The Court concluded that it does. In considering the issue, the Court focused its attention on th e common and approved usages of the word “purchase.” The Court looked first to Black’s Law Dictionary, which defines the term as “[t]he act or an instance of buying.” Id. at 1051, quoting Black’s Law Dictionary (11 th ed. 2019). The Court then observed t hat, “ [i] n common usage, ‘to buy’ means to acquire or obtain something from paying for it.” Id. Accordingly, the Court concluded that “the term ‘purchase’ requires two things: (1) the acquisition of something; and (2) payment.

. . . In order to satisf

y the first, the insured must obtain something that she does not already possess .” Id. at 1053 (emphasis added)

. Applying this rationale to the instant matter, it is clear that the Frankses did not effectuate a “purchase” of coverage within the plain meaning of theJ

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language used in section 1738(c). W hen the Frankses deleted the 1999 Ford Taurus from their policy, they did not “ obtain something ” that they did not

“ already possess. ” Id. To the contrary , they eliminated a portion of their existing cove rage. Nor did the Frankses make a payment of any sort. See id. at 1051 (to purchase is to acquire or obtain something from paying for it). To the contrary , they received a credit from State Farm in the amount of $15.06, and their annual premium s were re duced by a total of $500.00. Accordingly, applying the definition of the word “purchase” as set forth in Barnard , it is clear that the deletion of a vehicle from a policy does not result in a “purchase” as contemplated by section 1738 (c)

. The Majority’s r eliance on Shipp v. Phoenix Ins. Co. , 51 A.3d 219 (Pa. Super. 2012), for the proposition that a new stacking waiver is required whenever there is any change in the potential amount of stacked coverage is misplaced

. In Shipp , we held that a n ew waiver of stacked coverage was not required when an insured replaced one vehicle on his policy with another vehicle , since the insured’s UM/UIM coverage remained the same

. The Court reviewed Sackett v. Nationwide Mut. Ins. Co. , 919 A.2d 194 (Pa. 2007) (“ Sackett I ”) (addition of new vehicle to existing policy constitutes purchase of new coverage under section 1738) , Sackett v. Nationwide Mut. Ins. Co. , 940 A.2d 329 (Pa. 2007) (“ Sackett II ”) (extension of coverage under after

acquired

- vehicle provision to vehicle adde d to pre

- existing multi

- vehicle policy
is not new purchase of coverage under section 1738) , and Smith v. The Hartford Ins. Co. , 849 A.2d 277 (Pa. Super. 2004) (increase in unrelatedJ

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liability limits does not require new waiver of UM/UIM benefits) , and conc luded that “the matter of importance in all of [those] cases, as well as in section 1738 , pertains only to the UM/UIM policy coverage, whether it has changed , and whether a new waiver of stacked coverage is required.” Shipp , 51 A.3d at 224 (emphasis added ). The Majority reads into the emphasized language an import that I do not believe the Shipp Court intended to convey. In Shipp , the Court was not confronted with a situation

— as here

— in which stacked UM/UIM coverage decreased . Thus, to the extent that t he foregoing language may be read to suggest that any change in stacked coverage

— either an increase or decrease

— requires a new stacking waiver, it is merely dicta and not controlling here. Indeed, had the legislature intended to require a new
wai ver every time a named insured changes uninsured or underinsured motorist coverage for more than one vehicle under a policy, it could have simply replaced the word “purchasing” with “changing” in secti on 1738(c). It did not do so. In sum, i n removing a vehicle fro m their policy, the Frankses did not make a “purchase” of coverage as contemplated by the plain language of section 1738(c) . Accordingly, I would affirm the decision of the trial court

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