Gittelmacher v. Travelers PropertyCasualty Insurance Company

IN THE UNITED STATES DISTRICT COURT

_ FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SYLVIA GITTELMACHER, :

Plaintiff : CIVIL ACTION

7 :

TRAVELERS PROPERTY CASUALTY □

INSURANCE COMPANY et al., : NO. 21-3264

Defendants :

pear MEMORANDUM 2 7

RATTER, J. MARCH /_ , 2023

Sylvia Gittelmacher was struck by a car while on foot. After suffering an injury, she

recovered up to the liability limits of both the driver’s coverage and the underinsured motorist

coverage under her own insurance policy. Then, she made claims for underinsured motorist

coverage under her daughter’s and granddaughter’s policies. When those claims were denied, Ms.

Gittelmacher commenced this suit against Travelers Property Casualty Insurance Company and

Depositors Insurance Company, arguing that she was entitled to “stack” her daughter’s and

granddaughter’s coverage on top of her own. But Ms. Gittelmacher knowingly waived stacked

coverage so that she could pay a lower premium. Travelers’ and Depositors’ motions for summary

judgment will be granted for the reasons set forth below.

BACKGROUND

Ms. Gittelmacher was struck by an automobile while she was walking through a parking

lot in Bensalem, Pennsylvania. Because of the accident, Ms. Gittelmacher sustained injuries

including a tibial plateau fracture, which required surgery. The driver of the vehicle had insurance

with a per person bodily injury liability limit of $15,000, which was paid out to Ms. Gittelmacher.

At the time of the accident, Ms. Gittelmacher had her own automobile insurance policy

with Depositors, which covered one vehicle and had a bodily injury liability limit of $100,000 per

person and $300,000 per accident and matching underinsured motorist (“UIM”) coverage limits,

Prior to the accident, Ms. Gittelmacher had signed a waiver of stacked UIM coverage, which read:

By signing this waiver, I am rejecting stacked limits of underinsured motorist

coverage under the policy for myself and members of my household under which

the limits of coverage available would be the sum of the limits for each motor

vehicle under the policy. Instead, the limits of coverage that I am purchasing shall

be reduced to the limits stated in the policy. I knowingly and voluntarily reject the

stacked limits of coverage. I understand that my premiums will be reduced if I reject

this coverage.

Ex, C to Depositors’ Mot. for Summ. J. at ECF 128,

Ms. Gittelmacher was also an insured under two other policies in her household: (1) a

one-vehicle Depositors policy with a bodily injury liability limit of $100,000 per person and

$300,000 per accident and matching UIM coverage limits, issued to Ms. Gittelmacher’s resident

relative granddaughter, Paige Lyons (the “Lyons Depositors Policy”) and (2) a Travelers

Insurance Company policy with UIM coverage limits of $50,000 per accident issued to her

daughter, Sheryl Lyons (the “Lyons Travelers Policy”). Like Ms. Gittelmacher’s policy, the

Lyons Depositors Policy and the Lyons Travelers Policy each insured one vehicle, and both Ms.

Paige Lyons and Ms. Sheryl Lyons elected to waive stacked coverage.

Both Ms. Gittelmacher’s policy and the Lyons Depositors Policy contain an “Other

Insurance” clause, stating that two different priorities of recovery apply:

First The Underinsured Motorists Coverage applicable to the vehicle the

“insured” was occupying at the time of the accident.

Second The policy affording Underinsured Motorists Coverage to the “insured”

as a named insured or family member,

Ex, B to Depositors’ Mot. for Summ. J at ECF 115. The clause continues:

When there is no applicable insurance available under the First priority, the

maximum recovery under all policies in the Second priority shall not exceed the

highest applicable limit for any one vehicle under any one policy.

. 2

If two or more policies have equal priority, the insurer against whom the claim is

first made shall process and pay the claim as if wholly responsible for all insurers

with equal priority. The insurer is thereafter entitled to recover contribution pro rata

from any other insurer for the benefits paid and the costs of processing the claim.

id. The Lyons Travelers Policy has substantially similar language to Ms. Gittelmacher’s policy

and the Lyons Depositors Policy and provides in relevant part:

[When there is no applicable insurance available under the First priority, the

maximum recovery under all policies m the Second priority shall not exceed the

highest applicable limit for any one vehicle under any one policy.

Ex, | to Travelers’ Mot. for Summ, J at ECF 36.

Ms. Gittelmacher made a claim for underinsured motorist coverage benefits under all three

policies in her household, demanding $250,000. Depositors paid out only $100,000 after

considering the “Other Insurance” language in Ms, Gittelmacher’s policy, Travelers paid

Depositors $20,000; its pro rata share of the amount the insurance company believed to be

recoverable by Ms. Gittelmacher.

Ms. Gittelmacher filed suit in the Montgomery County Court of Common Pleas against

Depositors and Travelers, alleging breach of contract against Depositors (Count TD, bad faith

against Depositors (Count IT), unjust enrichment against Depositors (Count IID), breach of contract

against Travelers (Count IV), bad faith against Travelers (Count V), unjust enrichment against

Travelers (Count VI), and for a declaratory judgment against all defendants that the “Other

Insurance” clauses in the Lyons Depositor Policy and the Lyons Travelers Policy violate the public

policy of Pennsylvania (Count VII). After removal to this Court by Travelers, Ms. Gittelmacher

stipulated to dismissal without prejudice of her bad faith and unjust enrichment claims against

Travelers and Depositors (Counts I, IL, V, and VD), along with the demands for attorney’s fees

under Count IV.!

Following the close of discovery,” Depositors and Travelers moved for summary judgment

on the remaining breach of contract and declaratory judgment claims. The insurance companies

argue that Ms. Gittelmacher is not permitted to recover from the Lyons Depositors Policy as a

matter of law because (1) Ms. Gittelmacher, her daughter, and her granddaughter knowingly

waived interpolicy stacking; (2) the “Other Insurance” clause limits Ms. Gittelmacher’s maximum

recovery to the highest applicable limit for any one vehicle under any one policy (7.e., the $100,000

already paid to Ms. Gittelmacher from her own policy); and (3) there is no legal basis for the Court

to invalidate the “Other Insurance” clause because it does not violate the Pennsylvania Motor

Vehicle Financial Responsibility Law, Pa. Cons. Stat §§ 1701-99.7 (the “MVFRL”) or any other

clearly expressed public policy of Pennsylvania, Ms. Gittelmacher filed briefs in opposition to the

motions, and each side submitted supplemental briefing. The Court heard oral argument on the

summary judgment motions, and the issues are ripe for resolution.

LEGAL STANDARDS

A movant will prevail at summary judgment if it “shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law,” Fed. R. Civ. P.

56(a). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if

I Ms. Gittelmacher states in her response to the Summary Judgment Motions that she will reinstate

her claims for bad faith and attorney fees. However, she has failed to make any formal motions to reinstate

those claims.

2 Ms. Gittelmacher avet's that discovery is not closed because Depositors has “stalled” discovery,

and both insurance companies have provided insufficient responses to Ms. Gittelmacher’s request for

admissions, Therefore, she claims that the summary judgment motion is not ripe for the Court’s review.

Nevertheless, discovery was closed, per the Court’s Amended Scheduling Order, on January 31, 2022, and

Ms. Gittelmacher never filed a motion to compel! such admissions.

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

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

When sitting in diversity, this Court must apply state substantive law. Erie R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938). Under Pennsylvania law, the purpose of interpreting an

insurance contract “is to ascertain the intent of the parties as manifested by the terms used in the

written insurance policy.” 401 Fourth St. v. Invs. Ins. Grp., 879 A.2d 166, 171 (Pa, 2005). Such a

contract should be “construed as a whole.” Luko v. Lloyd’s London, 573 A.2d 1139, 1142 (Pa.

Super. 1990), “[I]n Pennsylvania, ... exclusions are strictly construed against the insurer, as are

ambiguities in the policy.” Selko v. Home Ins. Co., 139 F.3d 146, 152 n.3 (3d Cir, 1998).

Still, “a clear and unambiguous contract provision must be given its plain meaning unless

to do so would be contrary to a clearly expressed public policy.” Kichelman v. Nationwide Ins.

Co., 711 A.2d 1006, 1008 (Pa. 1998). Whether public policy concerns should invalidate an

insurance exclusion is a facts-and-circumstances inquiry. Burstein v. Prudential Prop. & Cas. Ins.

Co,, 809 A.2d 204, 207 (Pa, 2002). The Pennsylvania Supreme Court “consistently ha[s] been

reluctant to invalidate a contractual provision due to public policy concerns.” Williams v. GEICO

Gov't Emps. Ins. Co,, 32 A.3d 1195, 1200 (Pa. 2011). That Court has also imposed a “heavy

burden” on the litigant who seeks that a court “declare an unambiguous provision of an insurance

contract void as against public policy.” Generette v. Donegal Mut. Ins. Co., 957 A.2d 1180, 1190

(Pa. 2008). “Importantly, however, provisions of insurance contracts are invalid and unenforceable

if they conflict with statutory mandates because contracts cannot alter existing laws.” Gallagher

vy. GEICO Indem. Co., 201 A.3d 131, 137 (Pa. 2019).

DisCuSSION

I. Ms. Gittelmacher Is Not Entitled to Stacked Coverage Because She and the Other

Policyhoiders Knowingly Waived Interpolicy Stacking

“The concept of stacking relates to the ability to add coverages from other vehicles and/or

different policies to provide a greater amount of coverage available under any one vehicle or

policy.” Everhart v. PMA Ins. Grp., 938 A.2d 301, 302 (Pa. 2007). Under § 1738 of the MVFRL,

stacked coverage is the default for uninsured and underinsured benefits. 75 Pa. Cons. Stat. §

1738(a); Erie Ins. Exch, vy. Mione, No. 89 MAP 2021, 2023 WL 2008314, at *4 (Pa, Feb. 15, 2023).

Therefore, in default situations, the amount of coverage “shall be the sum of the limits for each

motor vehicle as to which the injured person is an insured.” Afione, 2023 WL 2008314, at *4

(quoting 75 Pa. Const. Stat. § 1738(a)). However, stacked coverage may be waived by statutorily

prescribed written waiver, 75 Pa. Cons. Stat. § 1738(d), “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.” Jd. § 1738(b).

There are two types of stacking: (1) intrapolicy stacking, in which a single insured can

stack coverage limits on multiple vehicles under a single umbrella insurance policy;? and (2)

interpolicy stacking, in which a single-vehicle insured can receive stacked benefits if she is an

insured under multiple separate insurance policies that provide stacked uninsured motorist or UIM

3 “Kor example: three cars insured under a single policy providing [$15,000.00 per person /

$30,000.00 per occurrence] UIM benefits. If stacked, an insured is entitled to a total of $45,000[.00] in [

benefits - three vehicles insured at $15,000{.00] each equaling $45,000[.00] in total coverage. If

unstacked, only $15,000[.00] is available in [ ]UIM coverage.” Erie Ins. Exch. vy. Backmeier, 287 A3d 931,

938-39 (Pa. Super. 2022) (quoting AdcGovern », Erie Ins. Group, 796 A.2d 343, 344-45 (Pa. Super. 2002)

(citation omitted), appeal denied, 809 A.2d 904 (Pa. 2002)).

benefits.? See, e.g., 12 Steven Plitt et al., Couch on Insurance § 169:7 (3d ed. Nov. 2022 update).

Here, the Court focuses on interpolicy stacking.

The Pennsylvania Supreme Court has held that interpolicy stacking may be waived under

§ 1738, but only if the waiver is “knowing.” Craley v. State Farm Fire & Cas. Co., 895 A.2d 530,

540-41 (Pa, 2006). The waiver form for underinsured coverage limits set forth in § 1738(d) reads:

By signing this waiver, I am rejecting stacked limits of underinsured motorist

coverage under the policy for myself and members of my household under which

the limits of coverage available would be the sum of limits for each motor vehicle

insured under the policy. Instead, the limits of coverage that ] am purchasing shall

be reduced to the limits stated in the policy. I knowingly and voluntarily reject the

stacked limits of coverage. I understand that my premiums will be reduced if I reject

this coverage.

75 Pa. Con, Stat. § 1738(d). In Craley, the Pennsylvania Supreme Court found that the § 1738(d)

waiver language by its actual terms refers only to intrapolicy, not interpolicy, stacking, because

the language refers to a waiver of benefits under a singu/ar policy, rather than a waiver of benefits

under multiple policies. Craley, 895 A.2d at 541-42; accord Backmeier, 287 A.3d at 940. That

means that the statutory waiver does not by itself establish a valid waiver of interpolicy stacking.

Craley, 895 A.2d at 541-42. But, as the Cra/ey court reasoned, where the policy tied to the stacking

waiver covers only one vehicle, intrapolicy stacking is not possible. /d. at 542. As a result, the

policyholder with a single vehicle under the insurance policy has only one reasonable

interpretation of the waiver available—that it is a waiver of interpolicy stacking—and therefore,

“the waiver is valid and enforceable under the facts of thfe] case.” fd.

4 “For example: the same three cars, now separately insured all providing stacked [$15,000.00 per

person / $30,000.00 per occurrence] UIM coverage. [Pursuant to the concept of inter-policy stacking, the]

injured insured may still collect the $45,000[.00] in total coverage, the value of each policy being added

together - $15,000[.00] + $15,000[.00] + $15,000[.00].” Backmeier, 287 A.3d at 939 (quoting McGovern,

796 A.2d at 345).

The rationale in Craley applies here because the relevant facts are not distinguishable. Like

the policy at issue in Craley, Ms. Gittelmacher’s policy, the Lyons Depositors Policy, and the

Lyons Travelers Policy cover just one vehicle each, and the policyholders for all policies signed

statutory waiver forms prior to the date of the accident. When Ms. Gittelmacher and her resident

relatives received premium reductions following execution of those waivers, they were “presumed

to have known that the waiver applied to inter-policy stacking, notwithstanding [the] contention

that [they] did not understand what [they] were signing.” See Costa v. Progressive Preferred Ins.

Co., No, 16-cv-74, 2016 WL 3220515, at *3 (W.D. Pa. June 10, 2016) (internal quotation marks

omitted). Additionally, limiting Ms. Gittelmacher’s recovery under these facts, where all three

named insureds waived stacking, means that this Court will not run afoul of the old insurance

industry rule that “an injured should receive the coverage for which [s|he has paid.” Gallagher,

201 A.3d at 138.

Ms. Gittelmacher argues that the insurance companies invalidated her and her resident

relatives’ stacking waivers when the insurance companies combined the total benefits available

under a stacked policy so that Travelers could determine the pro rata share it was required to

contribute to Depositors. This “waiver of waiver” theory appears to be entirely novel, and Ms.

Gittelmacher cites to no caselaw where it is argued at all, let alone successfully argued, before any

coutt, be it federal or state. The argument is not persuasive. Ms. Gittelmacher recovered the

$100,000 she contracted for, the maximum amount owed to her following her execution of the

UIM waiver, out of her own policy with Depositors. Any later accounting occurring between the

Lyons Depositors. Policy and the Lyons Travelers Policy does not alter that fact, particularly

5 The benefits waiver at issue here is a UJM stacking benefits waiver and, in Cra/ey, tt was an

uninsured motorist stacking waiver. Craley, 895 A.2d at 533. This makes no practical difference, however,

as the underinsured motorist and uninsured motorist sections of the MVFRL mirror each other. Bubonovich

y, State Farm Mut. Auto, Ins. Co., No. 19-cy-1537, 2021 WL 848885, at *3 (W.D. Pa. Mar. 4, 2021).

because the practice is explicitly endorsed by the MVFRL. See 75 Pa. Cons, Stat. § 1733(b) (“The

insurer against whom a claim is asserted first... shall process and pay the claim as if wholly

responsible. The insurer is thereafter entitled to recover contribution pro rata from any other insurer

for the benefits paid and the costs of processing the claim.”).

Therefore, Ms. Gittelmacher is not entitled to stack the coverage of the Lyons Depositors

Policy or Lyons Travelers Policy on top of her own policy with Depositors.

IL. Under the “Other Insurance” Clause in Her Policy, Ms. Gittelmacher Is Not

Entitled to Recover Amounts in Excess of $100,000

Under § 1738 of the MVFRL, when the named insured waives stacking coverage, “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.” 75 Pa, Con. Stat. § 1738(b). The “Other

Insurance” clause in Ms. Gittelmacher’s policy implements this section of the MVFRL and limits

recovery in the event of multiple second priority insurers to “the highest applicable limit for any

one vehicle under any one policy.” Ex. B to Depositor’s Mot. for Summ. J, at ECF 115. This

language is permissible under the MVFRL because the “highest applicable limit constitutes a

stated limit for a motor vehicle as to which the injured person is an insured.” See Meyers vy.

Travelers Ins. Co., 597 F. Supp. 3d 745, 754 (E.D. Pa. 2022) (internal quotation marks omitted)

(“The only limitation this language imposes on an insured’s recovery is that the policies’ limits

cannot be aggregated and that is precisely how the waiver of stacking is supposed to work.”); see

also Backmeier, 287 A.3d at 947. Indeed, if this Court found the “Other Insurance” provision

contained in Ms. Gittelmacher’s policy or other similarly worded provisions impermissible, it

would fundamentally unravel the MVFRL’s provision for waivers of stacking, Meyers, 597 F.

Supp. 3d at 754. Courts outside of this district, both federal and state, have arrived at the same

conclusion. See, e.g., Backmeier, 287 A.3d at 947; Costa, 2016 WL 3220515, at *2 (refusing to

find that a similarly worded “Other Insurance” clause was not triggered by a stacking waiver or

that the clause violated Pennsylvania public policy); Heller v. State Farm Ins. Cos., No. 408-2008,

2010 WL 1778629, (Venango Cnty, Ct. of C.P. Apr. 29, 2010), aff'd by 32 A.3d 269 (Pa. Super.

2011) (finding that where a valid waiver of stacking existed, there was no violation of the MVFRL

or Pennsylvania public policy due to a similarly worded “Other Insurance” clause).

Applying the “Other Insurance” clause to this case, there is no “first priority” insurance

available to Ms. Gittelmacher because she was a pedestrian and thus not occupying an insured

vehicle at the time of the accident. See 75 Pa Cons. Stat. § 1733(a)(1) (“[P]ayment shall be made

[first from a] policy covering a motor vehicle occupied by the injured person at the time of the

accident.”), Rather, the three policies from which she seeks recovery fall into the “second priority”

bucket. fd. § 1733(a)(2) (listing as second priority “faj policy covering a motor vehicle not

involved in the accident with respect to which the injured person is an insured”); Ex. B at

Depositor’s Mot. for Summ J. at ECF 115, In other words, Ms. Gittelmacher can only recover

$100,000, rather than $250,000 she seeks, because the highest applicable limit for Ms.

Gittelmacher’s vehicle under any one of the three policies is $100,000 under Ms. Gittelmacher’s

own policy, Looking to the final paragraph of the “Other Insurance” clause in Ms. Gittelmacher’s

policy, and as discussed above, after paying out the claim as if fully responsible, Depositors is

entitled to recover pro rata contribution from each of the other relevant policies (7.¢., $40,000 from

the Lyons Depositors Policy and $20,000 from the Lyons Travelers Policy), Ex. B, Depositor’s

Mot. for Summ J., at ECF 115. And to reiterate, far from being in violation of the MVFRL, the

pro rata scheme aligns with § 1733(b) of the statute? and with the reduced premiums Ms,

6 “The insurer against whom a claim is asserted first under the priorities set forth in subsection (a)

shall process and pay the claim as if wholly responsible. The insurer is thereafter entitled to recover

contribution pro rata from any other insurer for the benefits paid and the costs of processing the claim.” 75

Pa. Con. Stat. § 1733(b).

10

Gittelmacher, her daughter, and her granddaughter paid in consideration for signing waivers of

stacked recovery for cach of the three insurance policies. To permit additional recovery would not

be reasonable in light of the clear language of the policy and, moreover, would not align with the

Pennsylvania Supreme Court’s practice of “enforc[ing] contractual language to avoid gratis

coverage.” Pa. Nat. Mut, Cas. Co. v. Black, 916 A.2d 569, 581 (Pa, 2007).

Ms. Gittelmacher counters that she paid for $100,000 in UIM beneftts, her daughter paid

for $50,000 in UIM benefits, and her granddaughter paid for $100,000 in UIM benefits. But, she

argues, the “Other Insurance” clause made these elected amounts illusory, because under the pro

rata arrangement, Ms. Gittelmacher and her resident relatives received pennies on the dollar when

it came to a payout following her parking lot injury: Ms. Gittelmacher and her granddaughter paid

for $100,000 in benefits but effectively only received $40,000 each, and her daughter paid for

$50,000 in benefits but only received $20,000 in actual benefits following the pro rata accounting

that occurred between the two insurance companies. Moreover, the non-injured resident relatives

were then charged with claims against their respective policies.

The problem with Ms, Gittelmacher’s argument is twofold. First, Ms. Gittelmacher and her

resident relatives each paid a lower premium in consideration for waiving their stacking benefits,

such that Ms. Gittelmacher was limited to recover a maximum of $100,000 in UIM benefits from

the policies available to her in the second priority, including Ms. Gittelmacher’s policy, the Lyons

Depositors Policy, and the Lyons Travelers Policy. See also Costa, 2016 WL 3220515, at *3

(“Allowing any additional recovery would provide Plaintiff with coverage for which [she] never

paid a premium, which would be inconsistent with the Pennsylvania Supreme Court’s admonition

that contractual language must be construed to avoid gratis coverage.” (internal quotation marks

omitted)). In a breach of contract claim, “[alny expectation that Ms. [Gittelmacher] had to the

11

contrary was not reasonable in light of the clear language of the policy.” fd Second, .Ms.

Gittelmacher’s daughter and granddaughter do not join her as plaintiffs in this suit, and Ms.

Gittelmacher has not explained how she has standing to recover for the alleged injury to her relatives.

Because Depositors’ payment of $100,000 to Ms. Gittelmacher and Travelers’ pro rata

payment of $20,000 to Depositors align with the terms of the relevant policies following her and

her resident relatives’ execution of non-stacking waivers, Ms. Gittelmacher cannot succeed on her

breach of contract claims or bad faith claims.

HI. The “Other Insurance” Clause Violates Neither the MVFRL nor Clearly

Expressed Public Policy

“TUIMIcoverage serves the purpose of protecting innocent victims from underinsured

motorists who cannot adequately compensate the victims for their injuries.” Hichelman vy.

Nationwide Ins. Co., 711 A.2d 1006, 1010 (Pa. 1998), “That purpose, however, does not rise to

the level of public policy overriding every other consideration of contract construction.” fd A

litigant carries a heavy burden of proof when she seeks to argue that a clear and unambiguous

contract clause is void as in violation of public policy. Sayles y. Allstate Ins. Co,, 219 A.3d 1110,

1122-23 (Pa. 2019).

A. Generette’s Reasoning Does Not Apply to Invalidate the “Other Insurance” Clause

as Against Public Policy

Ms. Gittelmacher argues that the “Other Insurance” clause violates Pennsylvania law and

invites this Court to apply the reasoning in Generefte v. Donegal Mutual Insurance Company., 957

A.2d 1180, 1191 (Pa. 2008), to broaden the general policy of excess UIM coverage within the

MVFRL. The Court declines to take up that invitation.

The MVFRL operates as part of an “excess coverage” regime. Backmeier, 287 A.3d at

942-43 (citing Generette, 957 A.2d at 1191). Under the excess coverage framework, the tortfeasor

12

is underinsured if his policy coverage limits are less than the injured insured’s actual losses, and

the injured insured’s coverage is “excess” above the liability policy of the tortfeasor. /d. (quoting

Generette, 957 A.2d at 1186 n.12). An injured insured in this type of regime, like Ms.

Gittelmacher, will recover first under the tortfeasor’s policy up to the limit and then recover under

her own policy up to the lesser of her coverage limits or the total amount of damages. A//wein v.

Donegal Mut. Ins. Co., 671 A.2d 744, 747 (Pa. Super. 1996). In a gap coverage framework, in

contrast, the tortfeasor is underinsured where his liability limits are less than the injured insured’s

own policy limit rather than her losses. Ja. The injured insured’s own policy benefits fill the gap

between the tortfeasor’s liability limits and the injured person’s liability limits—that is, the

recovery from the tortfeasor’s policy is deducted from the amount recoverable under the injured

insured’s UIM policy. Jd.

An “Other Insurance” clause may be found unenforceable if it does not align with the

MVFRL excess coverage framework. Generetie, 957 A.2d at 1191, The Pennsylvania Supreme

Court concluded that § 1733 of the MVERL, which defines first and second priority UIM coverage,

does not provide for gap coverage, and therefore, first and second priority UIM policies should

interact in an excess insurance framework. fd. That is, any policy provisions that would deduct

first priority policy limits from the second priority policy limits would violate the MVFRL as

against public policy. Backmeier, 287 A.3d at 944 (citing Generette, 957 A.2d at 1192; Aliwein,

671 A.2d at 747-50),

The Pennsylvania Supreme Court has not yet determined whether an insurance clause that

implements a UIM stacking waiver by limiting maximum recovery to the highest applicabie

coverage limit among all second priority insurers violates the MVFRL’s excess coverage mandate

or some other public policy. Backmeier, 287 A.3d at 945; Meyers, 597 F. Supp. 3d at 751. In Meyers,

13

a court in this district, in predicting how the Pennsylvania Supreme Court would resolve that issue,

looked to the language of § 1738, specifically that the limits of coverage for a non-stacked UIM

policy equal “the stated limits for the motor vehicle as to which the injured person is an insured.” 75

Pa. Con. Stats. § 1738(b). The court reasoned that an “Other Insurance” clause precluding the

ageregation of policy limits within the second priority category following execution of a waiver of

stacked benefits was fully in compliance with § 1738, and it refused to expand the excess coverage

framework so broadly that it would invalidate the express language of a provision of the MVFRL.

Meyers, 597 F. Supp. 3d at 754; see also Backmeier, 287 A3d at 945 n.8 (noting that the

Pennsylvania Superior Court found the rationale in Meyers persuasive). Here, Ms. Gittelmacher has

simply not met her burden to show how the “Other Insurance” clause can be against Pennsylvania

public policy when it is included to implement a statutory provision of § 1738.

Ms. Gittelmacher attempts to distinguish her case from the plaintiff's case in Meyers

because Ms. Gittelmacher was a pedestrian when she was struck, whereas Ms. Meyers occupied a

car at the time of her accident. Meyers, 597 F. Supp. 3d at 748. This shifts the Court’s focus from

the horizontal relationship amongst second priority insurers to the vertical relationship between a

first priority insurer and a second priority insurer. Ms. Gittelmacher asserts that, because

pedestrians are not properly accounted for in the MVFRL, she has drawn a short stick and is

entitled to no first priority recovery under § 1733(a)(1), leaving recovery under § 1733(a)(2) as

her only option. 75 Pa. Cons, Stat § 1733(a). This, she claims, results in ambiguity and effectively

converts the excess coverage regime into a gap regime for all injured pedestrian insureds.

Although § 1733 does not explicitly refer to pedestrian insureds, the language of both the

MVFRL and Ms. Gittelmacher’s policy is clear and unambiguous as to how the law should apply

to insureds in Ms, Gittelmacher’s circumstances. Section 1733 creates a distinction between

14

policies covering a vehicle occupied by the person injured (the first priority) and policies for a

vehicle not involved in the accident that name the injured person as an insured (the second

priority). The excess coverage framework is in no way jeopardized by the application of § 1733

to Ms. Gittelmacher’s recovery because her second priority UIM coverage is not being reduced by

the first priority UIM coverage. Generefte, 957 A.2d at 1191-92, Put more bluntly, Ms,

Gittelmacher’s second priority UIM coverage cannot be reduced by a first priority coverage in

violation of state public policy where, by statutory definition, 70 such first priority coverage exists.

Ms. Gittelmacher clearly and unambiguously qualifies for recovery under the second priority, as,

indeed, might any number of other pedestrians, bicyclists, scooterists, or skateboarders in close

proximity to motor traffic. The Court is thus “required to give effect to that language.” 407 Fourth

St. Inc,, 879 A.2d at 171. And even if the Court were persuaded that there is a more lucid means

of explaining to insureds the process of their recovery if they have the misfortune to be injured as

pedestrians, “the Court cannot and should not interpose [its] views on public policy for those of

the legislature because the Court’s role is to interpret statutes, not re-write them.” Jones v. GEICO

Choice Ins. Co., No. 22-cv-558, 2022 WL 2974909, at *7 (E.D. Pa. July 27, 2022) (citing

DiGirolamo v. Apanavage, 312 A.2d 382, 385 (Pa. 1973) (internal quotation marks omitted).

B. The “Other Insurance” Clause Is Not Void as an Impermissible De Facto Waiver

of UIM Coverage

Ms. Gittelmacher also argues the “Other Insurance” clause operates as an impermissible

de facto waiver of UIM coverage. Looking to Gallagher v. GEICO Indemnity Company, 201 A.3d

131, 132 (Pa. 2019), she argues that the “Other Insurance” clause is a de facto waiver of stacking

benefits. In Gallagher, a motorcyclist was injured in a collision with a truck. fd. The injured

insured had two policies with GEICO: one was a motorcycle policy and the other was a policy for

his two automobiles. Id. at 133. The insured sought stacked UIM benefits under both policies, but

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GEICO denied the claim under the automobile policy because a household vehicle exclusion found

in an amendment to that policy stated: “This coverage does not apply to bodily injury while

occupying or from being struck by a vehicle owned or leased by you or a relative that is not insured

for Underinsured Motorists Coverage under this policy.” at 133, Finding that GEICO’s

amendment violated the unambiguous mandates for waivers set forth in § 1738, the Pennsylvania

Supreme Court found that the household vehicle exclusion violated the MVFRL and was

unenforceable as a matter of law. Jd. at 138.

Ms. Gittelmacher argues that, just as in Gallagher, her right to stacked coverage was

effectively waived without her knowledge. But the facts of her case are easily distinguishable—

here, Ms. Gittelmacher, her daughter, and her granddaughter all signed stacked benefits waivers,

and under Craley, such waivers were knowingly executed. Ms. Gittelmacher does not elaborate

how there could have been an impermissible de facto waiver when all three of the named insureds

explicitly waived stacking in waivers conforming with § 1738. “The MVFRL precludes any clause

that acts as a disguised waiver of stacking by skirling Section 1738's express waiver requirements.”

Mione, 2023 WL 2008314, at *6 (emphasis added). Section 1738 was in no way skirted here, so

the “Other Insurance” clause is not void. Cf Geist v. State Farm Mut, Auto. Ins. Co., 49 F.4th 861,

866 (3d Cir. 2022) (finding that “[a}t bottom, [federal courts] must adhere to the MVFRL’s text”

regarding §§ 1731 and 1734 of the MVFRL).

Therefore, Ms. Gittelmacher does not persuade this Court that Pennsylvania public policy

is violated by the “Other Insurance” clause.

CONCLUSION

In sum, there is no genuine dispute of material fact, and Ms. Gittelmacher cannot

overcome the clear and unambiguous terms of the stacked benefits waiver she signed, which

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conform with the requirements of Pennsylvania’s MVFRL and do not violate public policy, The

Court grants summary judgment to Depositors and Travelers. Appropriate orders follow.

BY THE COURT:

/

Ld JA.

fe LAY Eo ha LA des

— \ GENE/EK, PRATTER

UNITED STATES DISTRICT JUDGE

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