IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELISE JACKSON, : CIVIL ACTION

:

Plaintiff, :

:

v. : NO. 05-CV-1480

:

ALLSTATE INSURANCE CO., :

:

Defendant. :

:

Anita B. Brody, J. July 12, 2006

EXPLANATION AND ORDER

Plaintiff Elise Jackson (“Jackson”) brings this action against her insurer, Defendant

Allstate Insurance Company (“Allstate”) for breach of contract and bad faith failure to pay an

insurance claim. As required by the Motor Vehicle Financial Responsibility Law (“MVFRL”),

75 Pa. Cons. Stat. Ann. § 1701 et seq., Defendant produces a waiver of coverage with what

appears to be Jackson’s signature. Plaintiff maintains that the waiver is invalid because the

signature on the form is a “forgery and/or . . . otherwise invalid.” (2d Compl. ¶ 15.) Before me

is Defendant’s motion for summary judgment. Because Plaintiff has not met her evidentiary

burden on her assertion of forgery, Defendant’s motion is granted.

I. JURISDICTION

Plaintiff Jackson is a citizen of Pennsylvania. Defendant Allstate is an insurance company

incorporated under the laws of Illinois with its principal place of business in Illinois. Plaintiff is

seeking a judgment in excess of $75,000 including punitive damages and statutory attorney’s fees.

Therefore, this court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332.

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1

 Prior to 1999, Allstate stored all documentation on microfilm, and disposed of original

copies. See Sisson Aff. at ¶ 3. The document in question is an enlargement of a microfilm

containing documentation of Jackson’s insurance policy. 

2

II. FACTUAL BACKGROUND

On March 5, 2002, Jackson was involved in an automobile accident. Because the

responsible party’s insurance was insufficient to fully compensate Jackson for the damages she

sustained, Jackson submitted an underinsured motorist (“UIM”) claim to her own insurer,

Allstate, to cover the balance of her costs. Allstate denied the claim, stating that “[t]here is no

underinsured motorist coverage on the policy” because Jackson signed a waiver of UIM

coverage. (2d Compl. ¶ 10.)

In support of its refusal to pay, Allstate produced a “Rejection of Underinsured Motorist

Coverage” form (Def.’s Ex. A at ALL0008).

1

 On the signature line is a set of markings that,

while difficult to read, Defendant presents as Jackson’s signature. Also, Allstate’s handwriting

expert compares the markings with other valid signatures and opines that “the questioned ‘Elise

Jackson’ signature is pictorially similar to the known signature of Elise Jackson” (Def.’s Ex. T).

Plaintiff does not contest this, but instead insists that it is not clear who wrote the name “Elise

Jackson.” (Pl.’s Resp. Mot. Summ. J. at 7.) Plaintiff presents no evidence that the signature is

not hers, apart from her testimony that she “can’t remember” signing the UIM rejection form:

Q. Yes. Can you identify whether that is your signature or not?

A. No. I don’t know what that is. I can’t see nothing up there.

Q. Do you see that there are some marks there that look like writing?

A. Yes.

Q. But you can’t tell whether that’s your signature or not?

A. No.

Q. Do you remember whether you signed a rejection of underinsured motorist

protection form when you were meeting with Mr. Wilson?

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2

 Throughout her sworn deposition, Jackson refuses to explicitly acknowledge most of the

signatures in the application as her own, even those that are undisputedly genuine: 

[With respect to Def.’s Ex. A at ALL0005:]

Q. Could you turn to the next page. Do you see there’s a line for the policy

holder’s signature? . . . Do you recognize that as your signature?

A. I don’t – they don’t have it too plain up here, you know. . . . 

Q. But, to the best of your ability looking at that, can you say sitting here today

whether that is or is not your handwriting on that line?

A. I can’t say it’s not and I can’t say it is.

. . .

Q. Now, if you look down toward the middle of the [next] page, do you see

there’s a signature . . . is that your signature?

A. It could be. It looks like it.

Q. And to the right of that it says date 8/17/98. Is that your handwriting as well?

A. That could be.

Q. Do you know for sure whether it is or it isn’t?

A. It looks like it could be. It’s been a long time.

. . . 

[With respect to the “Uninsured Motorist” rejection, Def.’s Ex. A at ALL0007:]

Q. . . . Do you see there’s a line for your signature down towards the bottom of the

page . . . Is that your handwriting?

A. It could be.

Q. Do you know for sure whether it is or not?

A. There’s years gone by. Got me. It could be.

Jackson Dep. at 22:22 to 33:1 (emphases added). 

3

A. No, I can’t remember that.

Jackson Dep. at 30:14 to 31:5.2 Plaintiff’s own expert fails to opine that the signature is not

Jackson’s. Rather, the expert states, “I am unable to offer an opinion regarding the signature in

question. . . .” Def.’s Ex. S ¶ D.2.

Defendant, in support of its contention that the signature is Jackson’s, has submitted

evidence that:

• Allstate maintained the questioned rejection form as part of Jackson’s policy

application, with the form bearing the same date and date stamp as the rest of the

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3

 Though circumstantial, evidence of similarity between a challenged signature and

known exemplars is persuasive evidence that a signature is not a forgery. See Nieves v. Hess Oil

Virgin Islands Corp., 219 A.2d 1237, 1252 (3d Cir. 1987); Tippet v. EMC Mortgage Corp., 2004

WL 2495405 at *4 (Bankr. E.D. Pa. 2004). 

4

 Hank Wilson, the agent who helped Jackson complete her original application, testified

that “it’s rare that you don’t have [UIM and UM coverage] together” and further agreed with

defendant’s counsel that “it would make more sense if you were going to pick just one of them,

to pick uninsured rather than underinsured” See Wilson Dep. at 19:11 to 20:7.

4

pages of the application. (Def.’s Ex. A.)

• Jackson received at least seven policy renewal forms that explicitly stated that she

had rejected UIM coverage (Def.’s Exhs. D through J), which she accepted

consistently without question or protest.

• Allstate never charged, and Jackson never paid, premiums for UIM coverage at

any time prior to her accident.

• Expert testimony states that the “partially visible written signature was, in all

probability, the writing of the name ‘Elise Jackson’” and that “the questioned

‘Elise Jackson’ signature is pictorially similar to the known signatures of Elise

Jackson.”3 (Def.’s Ex. T at ¶ III.)

• Jackson’s policy application otherwise “reflects a desire to minimize premiums”

(Def.’s Mot. Summ. J. at 2), including an undisputed rejection of uninsured

motorist (“UM”) coverage (Def.’s Ex. A at ALL0007) and a selection of a

“limited” tort option (Def.’s Ex. A at ALL0006). 

• To select UIM coverage but not UM coverage, according to Allstate, “would

make no sense.”4 (Def.’s Mot. Summ. J. at 9.)

• Allstate has no incentive to issue a policy providing less coverage than an insured

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5

wants, as each additional coverage is an additional profit for Allstate and an

additional commission for the issuing agent. See Wilson Dep. at 26:1 to 27:2.

• Jackson twice acknowledged in writing on her application that she understood the

coverages she had selected (Def.’s Ex. A at ALL0004, ALL0009), including the

original application summary (Def.’s Ex. A at ALL0001-ALL0004), which listed

six selected coverages, none of which were UIM coverage.

III. LEGAL STANDARD

Summary judgment is appropriate where, viewing the record in the light most favorable

to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue of material fact exists “if

the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). “This standard provides that the mere

existence of some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment.” Id. at 247-48 (emphasis in original). A

plaintiff’s bald allegations and denials, unsupported by facts of record, do not create an issue of

material fact sufficient to withstand summary judgment. Fed. R. Civ. P. 56(e); Liberty Lobby,

477 U.S. at 248-49. “[T]he underlying purpose of summary judgment is to avoid a pointless trial

in cases where it is unnecessary and would only cause delay and expense.” Goodman v. Mead

Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert denied, 429 U.S. 1038 (1977).

IV. DISCUSSION

The only factual dispute in this case is the origin of the “Elise Jackson” signature on the

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5

 Under Federal Rule of Evidence 302, “In civil actions and proceedings, the effect of a

presumption respecting a fact which is an element of a claim or defense as to which State law

supplies the rule of decision is determined in accordance with State law.” In this case, the burden

of proof on the issue of forgery is therefore determined by Pennsylvania law.

6

 Section 1731(a) of the MVFRL provides: “No motor vehicle liability insurance policy

shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle

6

UIM rejection form. Unless the signature is a forgery, Allstate has breached no duty, Jackson’s

policy does not include UIM coverage, and Jackson, of course, has no claim for breach of

contract or bad faith. To resolve this issue, two basic questions must be answered: (1) Does the

MVFRL change the Pennsylvania common law rule that the party asserting the forgery bears the

burden of proving the forgery? and (2) If not, has Jackson, the party asserting the forgery,

presented sufficient evidence to create an issue of material fact under Federal Rule of Civil

Procedure 56?

A. The Burden of Proof

Under Pennsylvania common law, a party relying on forgery “has the burden in the first

instance of proving the facts upon which the forgery is based by clear, direct, precise and

convincing evidence.”5 Carlson v. Sherwood, 206 A.2d 19, 20 (Pa. 1965). Jackson contends that

under the MVFRL, in the context of a waiver of UIM coverage, if the insured asserts possible

forgery, the burden of proof on the issue of forgery shifts to the insurer to disprove forgery. This

argument is contradicted by the MVFRL itself, as well as by Pennsylvania rules of statutory

construction. The burden of proof remains with the party asserting the forgery.

The MVFRL requires insurers to offer underinsured motorist and uninsured motorist

(“UM”) coverage that compensates individuals for damages sustained in accidents with

uninsured or underinsured vehicles.6 Purchase of UM and UIM coverage is optional, although to

Case 2:05-cv-01480-AB Document 39 Filed 07/12/06 Page 6 of 12
registered or principally garaged in this Commonwealth, unless uninsured motorist and

underinsured motorist coverages are offered therein or supplemental thereto in amounts as

provided in section 1734 . . . . Purchase of uninsured motorist and underinsured motorist

coverages is optional.” 75 Pa. Cons. Stat. Ann. § 1731(a).

7

 Section § 1731(c) provides: “Underinsured motorist coverage shall provide 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. The named insured shall be informed that he may reject underinsured motorist coverage

by signing the following written rejection form:

REJECTION OF UNDERINSURED MOTORIST PROTECTION

By signing this waiver I am rejecting underinsured motorist coverage under this policy, for

myself and all relatives residing in my household. Underinsured coverage protects me and

relatives living in my household for losses and damages suffered if injury is caused by the

negligence of a driver who does not have enough insurance to pay for all losses and damages. I

knowingly and voluntarily reject this coverage.

...................................

Signature of First Named Insured

...................................

Date

(c.1) Form of waiver.--Insurers shall print the rejection forms required by subsections (b) and (c)

on separate sheets in prominent type and location. The forms must be signed by the first named

 insured and dated to be valid. The signatures on the forms may be witnessed by an insurance

agent or broker. Any rejection form that does not specifically comply with this section is void. If

the insurer fails to produce a valid rejection form, uninsured or underinsured coverage, or both,

as the case may be, under that policy shall be equal to the bodily injury liability limits. On

policies in which either uninsured or underinsured coverage has been rejected, the policy

renewals must contain notice in prominent type that the policy does not provide protection

against damages caused by uninsured or underinsured motorists. Any person who executes a

waiver under subsection (b) or (c) shall be precluded from claiming liability of any person based

upon inadequate information.”

7

refuse such coverage, an insured must sign rejection forms whose precise language is dictated by

statute, see 75 Pa. Cons. Stat. Ann. § 1731(b) (UM waiver) and (c) (UIM waiver).7

To deny an insured’s UIM claim, an insurer must produce a “valid rejection form.” 75

Pa. Cons. Stat. Ann. § 1731(c.1). To be valid, the form must specifically comply with the

technical requirements of the statute as laid out in § 1731 (c). See, e.g., Lucas v. Progressive

Case 2:05-cv-01480-AB Document 39 Filed 07/12/06 Page 7 of 12
8

 With respect to the insurer’s responsibility of validating signatures, the statute goes no

further than to say that “[t]he signatures on the forms may be witnessed by an insurance agent or

broker.” 75 Pa. C.S.A. § 1731(c.1) (emphasis added). 

9

 As Justice Rehnquist noted in his dissent in Liberty Lobby, it is difficult to incorporate

a state substantive evidentiary burden into a federal summary judgment analysis. Liberty Lobby,

477 U.S. at 269-71 (Rehnquist, J., dissenting). Under the federal law of summary judgment,

state law determines which party bears the burden of proof and which facts are material for

purposes of summary judgment. Id. at 248. But, the federal district judge, under the applicable

8

Cas. Ins. Co., 680 A.2d 873 (Pa. Super. Ct. 1996) (holding that an insurer who produced signed

rejections of UIM and UM coverage on a single page was liable to plaintiff for UIM coverage).

To hold that an insurer must be able to prove the validity of a signature in every situation

involving § 1731(c), however, would impose an additional technical requirement on the insurer,

namely, that of potentially being required to prove that every signature it maintains in its records

is not a forgery.8 The statute simply does not require this.

Unless the statute specifically provides otherwise, there is no reason that the burden of

proof should be different in the statutory context than that at common law. Pennsylvania courts

are reluctant to infer abrogation of a common law rule from legislative silence: “[A]n

implication alone cannot be interpreted as abrogating existing law. The legislature must

affirmatively repeal existing law or specifically preempt accepted common law for prior law to

be disregarded.” Metropolitan Prop. and Liability Ins. Co. v. Ins. Comm’r of Pennsylvania, 580

A.2d 300, 302 (Pa. 1990). There is no indication whatsoever that the MVFRL changes the

common-law rule that the party asserting the forgery bears the burden of proving the facts upon

which the forgery is based. To withstand summary judgment, Jackson therefore bears the burden

of showing that the challenged signature is a forgery.

B. Jackson’s Evidence of Forgery9

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standards set forth in the Federal Rules of Civil Procedure for judgment as a matter of law,

determines whether a genuine issue of material fact exists such that a reasonable jury could

return a verdict for the nonmoving party. See id. at 249; Fed. R. Civ. P. 50(a)(1), 56(c), 56(e). In

the present case, state law determines that the burden of proof on the issue of forgery rests on

Jackson. It further determines that the MVFRL is immaterial to this burden of proof. But, it is

for me to determine, under the applicable standards in Rule 56, whether there is a material

dispute with respect to the forgery such that a reasonable jury could find for Jackson; and under

Rule 56(e), the mere allegations of forgery in her complaint are insufficient to withstand

summary judgment.

Jackson also, however, presents testimony that she cannot remember signing the form. I

must therefore decide, as a matter of federal summary judgment law, whether this testimony

creates a genuine issue of material fact. Under Liberty Lobby, this inquiry will, as discussed in

the text, involve an incorporation of the state substantive evidentiary burden. See 477 U.S. at

253. Because the state standard for proof of forgery is “clear and convincing” evidence, see

Carlson v. Sherwood, 206 A.2d 19, 20 (Pa. 1965), I must therefore decide whether, based on

Jackson’s testimony that she cannot remember signing the form, a reasonable jury could find for

Jackson by clear and convincing evidence. See Liberty Lobby, 477 U.S. at 254-55. For the

reasons stated in the text of this opinion, I hold as a matter of law that a jury could not make such

a finding.

9

Neither Jackson’s bald allegation of forgery nor her testimony that she cannot remember

signing the rejection form, nor the combination of both, satisfy her evidentiary burden to

preclude a federal grant of summary judgment. Therefore no genuine issue of material fact exists

with respect to the alleged forgery, and Allstate is entitled to judgment as a matter of law.

When determining whether a genuine issue of material fact exists, a federal court must

take into account the substantive evidentiary burden that the parties will bear at trial. Liberty

Lobby, 477 U.S. at 253. Under Pennsylvania common law, to prevail at trial, the party asserting

forgery must present “clear, direct, precise and convincing evidence” of forgery. Carlson v.

Sherwood, 206 A.2d 19, 20 (Pa. 1965). Accordingly, I must decide whether a reasonable jury

could find for Jackson by clear, direct, precise and convincing evidence. See Liberty Lobby, 477

U.S. at 254-55.

Under Pennsylvania law, in order for evidence to be clear and convincing,

Case 2:05-cv-01480-AB Document 39 Filed 07/12/06 Page 9 of 12
10 The Third Circuit itself has reached the same conclusion that bald allegations of forgery

unsupported by facts of record are insufficient to create issues of material fact. Nieves v. Hess

Oil Virgin Islands Corp., 819 F.2d 1237, 1252 (3d Cir. 1987) (involving an action under the

Virgin Islands Code).

10

the witnesses must be found to be credible, [ ] the facts to which they have testified

remembered distinctly and the details thereof narrated exactly and in due order, and [ ]

their testimony so clear, direct, weighty, and convincing as to enable either a judge or jury

to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.

Jones v. Prudential Prop. and Cas. Ins. Co., 856 A.2d 838, 844 (Pa. Super. Ct. 2004). In Carlson

v. Sherwood, a judgment debtor brought an action to open a judgment on a note on the grounds

that the note had been forged. When asked by his counsel if he recognized the signature on the

note as his own, the judgment debtor responded “I would say no,” and “I don’t think I ever did

sign it.” Id. (emphasis in original). The court found that this “uncorroborated testimony” was

“certainly less than clear, direct, precise and convincing.”10 Id. Like the debtor in Carlson,

Jackson has offered no evidence that the signature is not her own except for “uncorroborated

testimony” containing the same degree of doubt and uncertainty that was found insufficient in

Carlson. Moreover, Jackson’s own expert was unable to testify that the signature was a forgery,

while Allstate’s expert did opine that the questioned signature was “pictorially similar” to

conceded exemplars. Jackson has not presented clear and convincing evidence that her signature

was forged. She has only claimed that she may have signed the UIM rejection form but cannot

remember doing so. While the court here need not determine the credibility of her testimony, it

is clear that “the facts to which [she has] testified” are not “remembered distinctly.” Jones, 856

A.2d at 844. Jackson has only testified that she does not remember whether she signed the

waiver. She has not, however, testified that she distinctly remembers not signing the waiver. 

Because a reasonable jury could not find for Jackson by clear and convincing evidence,

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Jackson has not raised a genuine issue of material fact as to whether her signature on the UIM

rejection form was forged. Defendant’s motion for summary judgment is therefore granted.

V. CONCLUSION

Pennsylvania law assigns Jackson the burden of proving forgery by clear and convincing

evidence. The standard is commensurately high for a motion for summary judgment, and Section

1731 of the MVFRL does not shift the burden to Allstate. Because Jackson’s claim relies solely

on the bald allegations of forgery in her complaint and mere assertions that she cannot remember

signing the form, Jackson has not met her burden. Accordingly, she has not created a genuine

issue of material fact with respect to her claims for relief, and Allstate’s motion is granted.

Case 2:05-cv-01480-AB Document 39 Filed 07/12/06 Page 11 of 12
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ORDER

AND NOW, this __12th___ day of July, 2006, it is ORDERED that Defendant’s Motion

for Summary Judgment (Doc. No. 14) is GRANTED.

 

 ANITA B. BRODY, J.

Copies VIA ECF on to: Copies MAILED on to:

O:\ABB 2006\JacksonSJM.wpd

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