# Gittelmacher v. Travelers PropertyCasualty Insurance Company

> District Court, E.D. Pennsylvania · March 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10405070

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10405070

## How later opinions describe it (automated extraction)

- finding that “[a}t bottom, [federal courts] must adhere to the MVFRL’s text” regarding §§ 1731 and 1734 of the MVFRL

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10405070. Public record. Not legal advice.