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2016 PA Super 69

CHRISTOPHER TONER, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

THE TRAVELERS HOME AND MARINE 

INSURANCE COMPANY,

Appellee No. 53 WDA 2015

Appeal from the Order December 12, 2014

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): GD 12-20308

BEFORE: SHOGAN, OTT, and STABILE, JJ.

DISSENTING OPINION BY SHOGAN, J.: FILED MARCH 21, 2016

I respectfully dissent from the Majority’s decision in this case and 

would reverse the order granting summary judgment in favor of Appellee, 

The Travelers Home and Marine Insurance Company (“Travelers”) and 

denying summary judgment to Appellant, Christopher Toner.

On December 2, 2011, twenty-one-year-old Appellant, a student at 

Penn State, was a front seat passenger in a vehicle operated by 

Jonathan Edwards. Complaint, 10/23/12, at ¶ 16. Edwards lost control of 

the vehicle, whereupon it traveled off the roadway over an embankment, 

rolled over, and struck a tree. Id. at ¶ 16. Appellant suffered multiple 

spine, pelvis, and rib fractures and a host of other injuries. Id. at 18.
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Appellant recovered the liability policy limits for the vehicle driven by 

Edwards and made a claim for stacked1 underinsured motorist coverage 

under his mother’s auto policy with Travelers.2 In August 2006, Appellant’s 

mother, Patricia Toner (“Mother”), had purchased an automobile insurance 

policy from Travelers for a single vehicle, a 2004 Hyundai Santa Fe. 

Complaint, 10/23/12, at Exh. 1; Joint Statement of Stipulated Facts 

(“JSSF”), 11/24/14, at ¶ 8. The bodily injury liability amounts were 

$100,000.00 per person and $300,000.00 per accident. Complaint at ¶ 5; 

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1

 The basic concept of stacking has been described as follows:

[T]he ability to add the coverages available from different 

vehicles and/or different policies to provide a greater amount of 

coverage available under any one vehicle or policy. Additionally, 

there are two types of stacking, inter-policy and intra-policy. In 

re: Insurance Stacking Litigation, 754 A.2d 702 (Pa. Super. 

2000).

Intra-policy stacking[, under consideration instantly,] is 

when more than one vehicle is insured under a single policy of 

insurance. For example: three cars insured under a single policy 

providing 15/30 UM/UIM benefits. If stacked, an insured is 

entitled to a total of $45,000 in UM/UIM benefits-three vehicles 

insured at $15,000 each equaling $45,000 in total coverage. If 

unstacked, only $15,000 is available in UM/UIM coverage.

The statutory rationale for this recovery procedure is found 

at 75 Pa.C.S. § 1733 and 75 Pa.C.S. § 1738 . . . .

McGovern v. Erie Ins. Group, 796 A.2d 343, 344–345 (Pa. Super. 2002).

2

 Appellant’s permanent residence was his mother’s house in Bethel Park, 

Pennsylvania. He is identified as a covered driver on the declarations page 

for the Travelers’ auto insurance policy.
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JSSF at ¶ 9. Mother also purchased underinsured motorist (“UIM”) benefits 

in the amount of $100,000.00 per person and $300,000.00 per accident. 

Complaint at ¶ 7; JSSF at ¶ 9. The policy provided for full tort coverage. 

Complaint at Exh. 1; JSSF at ¶ 9. In addition, Mother signed a form (an 

uninsured (“UM”)/UIM stacking waiver) rejecting stacking of UIM benefits in 

the August 2006 policy. Complaint at Exh. 1; JSSF at ¶ 10. The form 

advised, “Stacking can only be used if you have more than one motor 

vehicle.” Complaint at Exh. 1.

Thereafter, Mother added two vehicles to the policy; one on 

February 15, 2007, and one on June 11, 2009, as follows: On February 15, 

2007, Travelers added a 2000 Chevrolet to the policy and placed it on the 

policy’s declarations page. Complaint at ¶ 10; JSSF at ¶ 12. The title for 

the 2000 Chevrolet reflects that Mother became the owner of the 2000 

Chevrolet on February 20, 2007; thus, Travelers insured the 2000 Chevrolet 

before Mother actually owned it. JSSF at ¶ 14. Travelers did not present a 

new UIM stacking waiver form to Mother. Complaint at ¶ 13; JSSF at ¶ 22. 

On June 11, 2009, Travelers added a 2005 Chevrolet to the policy and 

placed it on the policy’s declarations page; it was issued June 16, 2009, 

effective June 11, 2009. Complaint at ¶ 10; JSSF at ¶ 18. Again, Travelers 

did not present a new UIM stacking waiver form to Mother. Complaint at ¶ 

13; JSSF at ¶ 22.
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Appellant filed a complaint for declaratory judgment on October 23, 

2012. On November 21, 2012, Travelers filed a notice of removal to federal 

court. By order and memorandum opinion dated January 8, 2013, the 

federal court remanded the case back to Allegheny County Common Pleas 

Court. Travelers filed an answer with new matter on January 15, 2013. 

After discovery and the pleadings closed, Appellant filed a motion for 

summary judgment, and on August 21, 2014, Travelers filed a cross-motion 

for summary judgment.

The parties filed the JSSF on November 24, 2014. The trial court 

granted Travelers’ motion for summary judgment and denied Appellant’s 

motion for summary judgment on December 12, 2014. Appellant filed a 

notice of appeal on January 8, 2015. It does not appear the trial court 

ordered a Pa.R.A.P. 1925(b) statement. The trial court filed an opinion on 

February 10, 2015.

Appellant raises the following issue on appeal:

A. Did the trial court err in holding that an insured, who 

signed a UM/UIM stacking waiver at the inception of a 

single-vehicle policy, was not entitled to stack UM/UIM 

benefits even though the carrier failed to obtain stacking 

waivers when a second and third vehicles were added to 

the policy?

Appellant’s Brief at 4. 

The Majority has cited to the standard of review applicable herein. 

Thus, I first examine the relevant statute.
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§ 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 reflect the different 

cost of such coverage.

75 Pa.C.S. § 1738.

Thus, where benefits are stacked, the amount recited in the 

declarations is multiplied by the total number of scheduled vehicles. Section 

1738(a) provides that UM/UIM coverage shall be considered stacked by 

multiplying the available coverage by the number of vehicles insured. Under 

section 1738(b), however, a named insured may elect to waive stacking, in 

which case the limits of protection are those stated for any one vehicle. 

Section 1738(c) provides that an insured purchasing UM or UIM coverage for 
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more than one vehicle must be provided with the opportunity to waive 

stacking.

The trial court referred to after-acquired and newly-acquired vehicle 

clauses in automobile insurance policies, noting that these clauses differ 

from insurance company to insurance company. It stated that there are two 

general types of such clauses: finite, “under which the insured is given a set 

number of days (such as thirty) for which [the] insurer will cover the added 

vehicle until the insured purchases a policy covering the additional vehicle,” 

and continuous, where “the insured must notify the insurer within a set 

number of days (usually thirty) that [the] insured is adding another vehicle 

to the policy and the additional vehicle is covered for the remaining term of 

the policy and going forward, unless the insured changes, replaces or adds 

vehicles.” Trial Court Opinion, 2/10/15, at 2–3. It maintained that these 

distinctions “are crucial.” Id. at 3. The essential holding of the trial court 

was as follows: “[I]t appears the vehicles were added via an after-acquired 

vehicle clause which was continuous. Therefore an additional waiver was 

not required and [Mother] was not entitled to stacking of UIM benefits.” 

Id. at 6.

The Majority, as did the trial court, focuses on the Sackett3trilogy of 

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3

 See Sackett v. Nationwide Mut. Ins. Co., 919 A.2d 194 (Pa. 2007) 

(“Sackett I”), modified on reargument, 940 A.2d 329 (Pa. 2007) (“Sackett 

II”), and 4 A.3d 637 (Pa. Super. 2010) (“Sackett III”).
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cases. In the Sackett trilogy, the Pennsylvania appellate courts addressed 

the question of “whether an insurer is required to obtain new UM/UIM 

stacking waivers from an insured when new vehicles are added onto an 

existing automobile policy, where that insured had waived UM/UIM coverage 

at the inception of the original policy.” Bumbarger v. Peerless Indemnity 

Insurance Company, 93 A.3d 872, 875 (Pa. Super. 2014) (en banc) 

(citation omitted) (analyzing the decisions in Sackett I, II, and III). 

However, both the Sackett trilogy and Bumbarger involved multi-vehicle 

insurance policies, not single-vehicle policies as in the case sub judice. 

Majority Opinion at 7.

When addressing the issue of enforcement of initial stacking waivers 

for UIM coverage in Sackett I, our Supreme Court focused only on

existing multi-vehicle policies. The remedy for an automobile insurer’s 

failure to provide the opportunity to waive stacking of UM/UIM coverages, 

when the insured added a third vehicle to a policy, was the sum of stacked 

coverage limits for three vehicles, even though the insured did not pay the 

premium for stacked coverage. Without the waiver, coverage was provided 

by statute, and even though the insured had waived stacked coverage on 

two vehicles, there was no valid waiver on the sum of available stacked 

limits when the insured added a car to policy. In Sackett II, the Court 

specifically confined its holding to “the scenario involving the addition of a 

vehicle to a multi-vehicle policy,” expressly and unequivocally stating that 
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it was not “resolv[ing] . . . arguments concerning situations involving 

additions to single-vehicle policies.” Sackett II, 940 A.2d at 334, n.5 

(emphasis added). In Sackett III, on appeal from a bench trial decision 

holding that the Sacketts could stack UIM benefits, this Court concluded that 

Sackett I was the controlling authority and determined that, because the 

Sacketts added the additional vehicle to the policy through an endorsement, 

the additional vehicle was covered under the general terms of the policy, not 

the after-acquired vehicle clause. Since the additional vehicle was added 

prior to the accident therein, a waiver declining stacked coverage was 

required.

Appellant asserts that the Sackett trilogy of cases is inapposite to the 

case sub judice because here, Mother had a single-vehicle policy when she 

signed a stacking waiver, and therefore, the waiver is not enforceable. 

Appellant contends that because the Sackett cases discuss the legal 

ramifications of a UM/UIM stacking waiver when adding a car to an already 

existing multi-vehicle policy, they do not pertain to UM/UIM claims and 

stacking waivers where a car is added to a single-vehicle policy.

The Majority acknowledges Appellant’s “straightforward, and in many 

ways inviting, argument based largely on the statutory language found in 75 

Pa.C.S. § 1738,” but rejects it based upon Craley v. State Farm, 895 A.2d 

530 (Pa. 2006). Majority Opinion at 4–6. The Majority suggests that Craley

“widened the scope of [75 Pa.C.S.] Section 1738 to include single-vehicle 
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insurance policies.” Majority Opinion at 6. My reading of Craley, however, 

is that it extended application of the Motor Vehicle Financial Responsibility 

Law (“MVFRL”)’s waiver provision only to inter-policy stacking of singlevehicle coverage, which is not involved herein. Craley, 895 A.2d at 532 

(“[W]e hold the named insured’s waiver of inter-policy stacking

enforceable under the facts of this case”) (emphasis added); Nationwide 

Mut. Ins. Co. v. Zerr, CIV.A. 10-4199, 2011 WL 3156860 at *6 (E.D.Pa. 

2011). The Majority sets forth an interpretation of 75 Pa.C.S. § 1738 

supported by dicta in Craley to “reject [Appellant’s] interpretation of the 

statutory requirements of Section 1738.” Majority Opinion at 7.

The Majority goes on to evaluate the trial court’s application of 

Sackett II, finding that it “is the most relevant of the Sackett cases.” 

Majority Opinion at 7. While acknowledging that the Sackett cases 

“involved the addition of a vehicle to an existing multi-vehicle policy, not a 

single-vehicle policy,” the Majority concludes that case law requires 

examination of the issue similarly. Majority Opinion at 7. I disagree and 

conclude that it is that very difference that compels a different result herein. 

Moreover, I take issue with the Majority’s extensive four-page discussion of 

the Bird4exception in Sackett II, even though the Majority acknowledged 

that the Bird holding “is not relevant to the determination of the instant 

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4

 Bird v. State Farm, 165 P.3d 343 (N.M.Ct.App. 2007).
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matter as Bird expressly did not address UM/UIM stacking or waiver. . . .” 

Majority Opinion at 10. In addition to that significant difference, Bird

involved four different insurance policies, suggesting inter-policy stacking 

concepts, not intra-policy stacking as is at issue herein.

In August 2006, when Mother purchased the single-vehicle policy with 

Travelers providing for UM/UIM coverage, she signed a UM/UIM stacking 

waiver. In February 2007, when she added a second vehicle to the policy, 

she essentially converted her policy into a multi-vehicle policy that provided 

UM/UIM coverage. Pursuant to 75 Pa.C.S. § 1738(a), as a purchaser of a 

multi-vehicle policy providing UM/UIM coverage, Appellant maintains that 

Mother automatically became entitled to UM/UIM stacking. Appellant’s Brief 

at 9. Mother did not waive UM/UIM stacking under section 1738(b) in 2007 

because Travelers did not provide her with a UM/UIM stacking waiver, as 

was required under section 1738(c). Without the waiver, Appellant argues 

that section 1738(a) of the statute remains in force, and Mother is entitled 

to UM/UIM stacking.

As Appellant points out, the statute does not require the insurance 

company to provide a UM/UIM stacking waiver to a single-vehicle policy 

purchaser or to an insured purchasing a policy which provides no UM/UIM 

benefits. For 75 Pa.C.S. §1738 to be triggered, two criteria must be met:

1. the insurance policy that an insured is purchasing must 

provide UM/UIM benefits and

2. the policy must be purchased for more than one vehicle.
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Here, when Mother purchased her policy in 2004, there was only one 

vehicle insured under the policy, and there was nothing to stack. Thus, as 

Appellant asserts, the UM/UIM stacking waiver obtained from Mother by 

Travelers at the time when she only was insuring one vehicle “was not 

mandatory and, therefore, [was] . . . unenforceable.” Appellant’s Brief at 

15.

I am persuaded that the Sackett trilogy of cases is inapposite to the 

case sub judice because here, Mother had a single-vehicle policy when she 

signed a stacking waiver, and the waiver was not enforceable. As Appellant 

submits, the Sackett cases discuss the legal ramifications of a UM/UIM 

stacking waiver when adding a car to an already existing multi-vehicle 

policy; they do not pertain to UM/UIM claims and stacking waivers where a 

car is added to a single-vehicle policy.

I find Bumbarger similarly distinguishable. In that case, the 

insurance company issued a personal automobile policy to Ms. Bumbarger 

providing coverage for two vehicles. At that time, the insured executed 

forms rejecting stacking of UM/UIM coverage. Approximately two months 

later, a third vehicle was added to the policy through an endorsement. A 

fourth vehicle was added two years later; unlike the third vehicle, it was 

added by an amended declarations page. Bumbarger, 93 A.3d at 874. 

After the insured was involved in an accident in the third vehicle and filed a 

claim for stacked UM benefits, the insurer maintained that the original 
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waiver of stacked UM/UIM benefits remained in effect. Bumbarger thus has 

different considerations from the instant case, as well.5

I conclude that a new stacking waiver form should have been provided 

to Mother when she added the second vehicle to her policy in February of 

2007 because that was the first time there existed the possibility that 

stacking, in particular, intra-policy stacking, became possible. Thus, I would 

reverse the order of the trial court granting Travelers’ motion for summary 

judgment and denying Appellant’s motion for summary judgment.

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5

 Herein, on both occasions when adding the second and third vehicles to 

her policy, Mother asked Travelers to add them to her policy. In both 

instances Travelers issued a new Declarations page reflecting the change to 

the policy, thereby adding coverage by endorsement. Thus, in neither 

instance was the after-acquired-vehicle clause triggered.