The opinion
J-A24040-23
2024 PA Super 312
MARQUITA HIGGINS, INDIVIDUALLY : IN THE SUPERIOR COURT OF
AND ON BEHALF OF A CLASS OF : PENNSYLVANIA
SIMILARLY SITUATED PERSONS :
:
Appellants :
:
:
v. :
: No. 752 EDA 2023
:
NATIONWIDE AFFINITY INSURANCE :
COMPANY OF AMERICA :
Appeal from the Order Entered March 8, 2023
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 2201001722
BEFORE: STABILE, J., DUBOW, J., and SULLIVAN, J.
OPINION BY SULLIVAN, J.: FILED DECEMBER 26, 2024
Marquita Higgins (“Higgins”) individually and on behalf of similarly
situated persons appeals from the grant of summary judgment in favor of
Nationwide Affinity Insurance Company of America (“Nationwide”). We affirm.
The trial court described the underlying facts:
Higgins is a Pennsylvania resident seeking to represent a
class of similarly situated persons. During the application process
for an auto-insurance policy (“[the policy]”), Nationwide gathered
information about Higgins, which indicated that Higgins owned
one vehicle and that there were no other drivers, vehicles, or
policies in Higgins’[s] household. Higgins elected to stack
[uninsured motorist/underinsured motorist “UM/UIM”] coverages
and was charged a premium for stacking. UM/UIM coverage
allows an individual to recover from a third party that has either
no auto insurance or has insufficient auto insurance, which does
not fully cover an injured victim. “Stacking” coverage benefits
allow an individual to combine coverage limits on a vehicle [] to
increase the potential recovery. Here, Higgins argues that there
is no stacking coverage benefit under a single-vehicle policy where
there are no other policies in the household. Higgins further
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alleges that Nationwide knowingly sold Higgins stacked coverage
benefits that did not exist. Thus, Higgins is seeking a return of
premiums paid for the alleged non-existent coverage. Higgins
[sought] partial summary judgment for declaratory relief and a
return of premiums paid. Nationwide filed a motion for summary
judgment in response to Higgins’[s] claims for declaratory relief,
return of premiums, injunctive relief, unjust enrichment, fraud,
and violation of the Pennsylvania Unfair Trade Practices and
Consumer Protection Law (“UTPCPL”).
Trial Court Opinion, 3/8/23, at 3 (footnote and unnecessary capitalization
omitted).
The trial court granted Nationwide’s motion for summary judgment and
denied Higgins’s motion for partial summary judgment. This timely appeal
followed.1
On appeal, Higgins contends:
1. Did the trial court err in finding that a stacking coverage benefit
exists under a single vehicle auto policy issued to a named insured
with no other auto policies in the household?
2. Did the trial court err in finding that the charge of an additional
premium for stacking under a single vehicle policy was justified
even though the policy provided no intra-policy stacking coverage
benefit nor any inter-policy stacking coverage benefit?
Higgins’s Brief at 1-2 (unnecessary capitalization omitted).
Both of Higgins’s issues challenge the trial court’s grant of summary
judgment based on the language of the policy. Our standard of review of an
order granting or denying summary judgment is well-settled:
We view the record in the light most favorable to the
nonmoving party, and all doubts as to the existence of a genuine
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1 Higgins and the trial court complied with Pa.R.A.P. 1925.
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issue of material fact must be resolved against the moving party.
Only where there is no genuine issue as to any material fact and
it is clear that the moving party is entitled to a judgment as a
matter of law will summary judgment be entered. Our scope of
review of a trial court’s order granting or denying summary
judgment is plenary, and our standard of review is clear: the trial
court’s order will be reversed only where it is established that the
court committed an error of law or abused its discretion.
Siciliano v. Mueller, 149 A.3d 863, 864 (Pa. Super. 2016) (citation omitted).
As has been recently explained.
Section 1738 of the [Motor Vehicle Financial Responsibility
Law “MVFRL”] sets forth the provisions governing the stacking of
UM and UIM benefits in Pennsylvania as well as the waiver of such
stacking. 75 [Pa.C.S.A.] § 1738. Specifically, Section 1738(a)
requires that insurers provide stacked UM and UIM coverage as
the default coverage in Pennsylvania.2 . . . Under the MVFRL, two
types of stacking exist: intra-policy and inter-policy. Intra-policy
stacking of UM/UIM benefits refers to the multiplication of the
limits of UM/UIM coverage under a single insurance policy by the
number of vehicles insured by that policy. On the other hand,
inter-policy stacking involves adding together the coverages for
vehicles insured under separate policies of insurance.
2 Section 1738(a) provides:
(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.
*****
Under the MVFRL, a named insured may elect to waive
stacked UM/UIM coverage. 75 [Pa.C.S.A.] § 1738(b).3 If a named
insured chooses to waive such coverage, the MVFRL requires that
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the insured’s premiums be reduced to reflect the different cost of
such coverage. 75 [Pa.C.S.A.] § 1738(c). As the Pennsylvania
Supreme Court explained, “the MVFRL makes clear that to
effectuate a waiver of UM/UIM coverage, an insurer must provide
the insured with a statutorily-prescribed waiver form, which the
named insured must sign if he wishes to reject the default
provision of stacked coverage.” [Gallagher v. GEICO Indemnity
Company, 201 A.3d 131, 137 (Pa. 2019)]. Although Section
1738 does not designate specifically whether or how inter-policy
stacking can be waived when individual vehicles are insured
through single-vehicle policies[,] Section 1738(a) . . .
unambiguously provides for inter-as well as intra-policy stacking,
thus expressing the clear intention of the General Assembly to
compel insurers to provide stacking coverage absent a valid
waiver.
3 Section 1738(b) states:
(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.
Paldolf v . United Services Automobile Assoc., 2022 WL 16951954, at *3
(W.D. Pa., 10/27/22) (most citations omitted, one citation format altered,
quotation marks omitted, footnotes in original), report and
recommendation adopted at, 2022 WL 16950485 (W.D. Pa., 11/15/22).2
In her inter-related issues, Higgins argues since she is “insured [under]
only one vehicle, there is no, and can be no, intra-policy stacking coverage
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2 “We recognize [federal court] decisions are not binding precedent on this
Court. Nevertheless, we may consider federal court decisions, and opinions
of other states, as persuasive authority.” Commonwealth v. Lang, 275 A.3d
1072, 1083 (Pa. Super. 2022) (citations omitted).
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benefit.” Higgins’s Brief at 4. She further claims “Inter-policy stacking . . .
involves only household policies. Since there were no other policies in the
household of [Higgins], . . . there is no, and can be no, inter-policy stacking
coverage benefit.” Id.3 Lastly, Higgins contends she was wrongly charged
additional premiums for stacking when that coverage did not provide her with
a benefit.4 See id.
The trial court disagreed because a single-vehicle policy holder may
confer a benefit from stacking UM/UIM coverage benefits:
In [Craley v. State Farm Fire and Cas. Co., 895 A.2d 530,
537 (Pa. 2006)] the [Supreme] Court noted that a single-vehicle
policy holder could benefit from stacking “where the individual is
injured in a vehicle other than his own insured vehicle and is an
insured under the non-owned vehicle’s policy, which also has
uninsured motorist coverage (such as an employer’s vehicle).”
[Id.] . . . [T]he Court found another instance in which a single-
vehicle policy owner may confer a benefit from stacking UM/UIM
coverages. [See id.] Similarly, in [Jones v. Geico Choice
Insurance Company, 617 F.Supp.3d 275, 281-82 (E.D. Pa.
2022)], the [trial c]ourt named additional scenarios in which a
single-vehicle policy holder may confer a benefit from stacking
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3 We note Higgins’s failure to comply with the Rules of Appellate Procedure.
Higgins’s argument is divided into nine sections, many including multiple
subsections, rather than the two enumerated in her statement of questions
presented. None of the argument titles match the two issues stated in the
statement of questions presented. See Higgins’s Brief at 7-81; see also
Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as there
are questions to be argued.”).
4 This claim is not supported by the facts.
Higgins has not pointed to anything
of record which would demonstrate she was charged an additional premium
for stacking. Rather, had she elected to waive stacking, she would have
received a reduction in her premium. See 75 Pa.C.S.A. § 1738(c). Therefore,
we will not further address this issue.
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UM/UIM coverages. [See id.] The [Jones c]ourt notes a specific
scenario:
[C]onsider a mother-in-law about to move in
with one of her adult children and that child’s spouse
who owns two vehicles and has policies with stacking
coverage. The mother-in-law purchases a car and her
own single vehicle insurance policy with stacking
coverage knowing that she will soon be joining her
adult child’s “household.” As soon as she moves in,
she and her adult child will both benefit from
interpolicy stacking in the event of an accident.
[Id. at 284].
Here, Higgins’[s] assertion that the household policy
situation is the only situation where the charge of stacking by an
insurance may be justified . . . is incorrect. Stacked UM/UIM
coverage does confer a benefit, and accordingly, Higgins is not
entitled to declaratory relief, return of premiums, or injunctive
relief.
Trial Court Opinion, 3/8/23, at 4-5 (unnecessary capitalization and footnotes
omitted; citation format altered).
The trial court further concluded Higgins did not state a claim for unjust
enrichment both because the stacked UM/UIM coverage conferred a benefit
on her and because she entered a binding contract with Nationwide and a
“claim for unjust enrichment cannot be made when the parties enter into a
binding contract.” Id. at 6. See also Wilson Area School Dist. v. Skepton,
895 A.2d 1250, 1254 (Pa. 2006) (“the doctrine of unjust enrichment is
inapplicable when the relationship between the parties is founded upon a
written agreement or express contract”).
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Likewise, the trial court found Higgins’s fraud claim did not merit relief.
See Trial Court Opinion, 3/8/23, at 6-8. The court noted Higgins’s fraud claim
was based on a “mischaracterization” of the Pennsylvania Supreme Court’s
holding in Generette v. Donegal Mut. Ins. Co., 957 A.2d 1180 (Pa. 2008).5
Id. at 7. Thus, the trial court concluded Higgins’s fraud claim was based on
a misconception that stacked UM/UIM coverage provided no benefits to her.
See id.
Lastly, the trial court rejected Higgins’s claim pursuant to the UTPCPL
because it was again based on Higgins’s overly broad interpretation of the
holding in Generette. See id. at 8-9. The court explained:
To state a claim under Pennsylvania’s UTPCPL, a plaintiff
must allege facts from which the court can plausibly infer: (1)
deceptive conduct or representations by the defendant, and (2)
justifiable reliance by the plaintiff on the defendant's deceptive
conduct that caused the plaintiffs harm. [See Jones, 617
F.Supp.3d at 288 (citations omitted)]. Deceptive conduct is
viewed through the eyes of the “reasonable consumer.” [Landau
v. Viridian Energy PA LLC, 223 F.Supp.3d 401, 417 (E.D. Pa.
2016)].
Here, Higgins relies on the incorrect holding of Generette
in claiming that Nationwide engaged in deceptive conduct or
representations. Nationwide was required by the MVFRL to
provide stacked coverage absent an express waiver from Higgins,
and Nationwide did not deceive Higgins because there are benefits
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5 In Generette, our Supreme Court narrowed and clarified the instances in
which stacking applies, stating, “[stacking applies] only to ‘insureds’ as
provided in the MVFRL’s definition section, 75 Pa.C.S.A. [§] 1702, which does
not include guest passengers.” Generette, 957 A.2d at 1190. As has been
explained, “The decision in Generette changed the law by holding [that]
waiver of stacked UIM coverage only applied to policies between statutorily
defined insureds.” Jones, 617 F.Supp.3d at 283 (citation omitted).
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to stacking UM/UIM coverage as stated infra. Higgins had an
obligation to question Nationwide prior to entering into the
contract. Accordingly, Higgins failed to state a claim for a violation
of UTPCPL, and Higgins’[s] claims fail as a matter of law.
Trial Court Opinion, 3/8/23, at 8-9 (footnotes omitted, citation format
altered).
Having thoroughly reviewed the law and the record, we find no error in
the trial court’s ruling. Our conclusion is reinforced by the decision of the
United States Court of Appeals for the Third Circuit, which recently addressed
the identical issues in Berardi v. USAA Gen. Indemnity Company, 2023
WL 4418219 (3d Cir. 7/10/23), which held single-vehicle owners with no other
household policies can derive benefits from stacked motor vehicle insurance
policies. See id. at *2-3, citing In re Insurance Stacking Litig., 754 A.2d
702 (Pa. Super. 2000) and disagreeing that Generette compelled a contrary
result.
After discussing scenarios in which the Third Circuit believed single-
vehicle owners would derive a benefit from stacking, it stated:
[Appellants] assert that these hypothetical scenarios are
inapplicable to them because none have been involved in an
incident in their employer’s vehicle, purchased another vehicle, or
added another person to their household. Pennsylvania law,
however, does not “require an insurer to explain every
permutation possible from an insured's choice of coverage.”
Kilmore v. Erie Ins. Co., 595 A.2d 623, 626-27 (Pa. Super.
1991). Instead, insureds have the “obligation to question [the]
insurer at the time the insurance contract is entered into as to the
type of coverage desired and the ramifications arising therefrom,”
and to determine what coverage will best serve their needs. Id.
at 627; see also Wisniski v. Brown & Brown Ins. Co., 906
A.2d 571, 579 n. 6 (Pa. Super. 2006) (stating that insureds have
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“the duty to inquire about the scope of insurance coverage”
(internal quotations and citation omitted)). As discussed, insureds
with a single vehicle and no other household policies can still
benefit from stacking in certain situations, and [Appellants] had
the choice to waive stacking coverage if they believed these
scenarios would be inapplicable to them.
Id. at *3 (citation format altered). The Third Circuit also rejected the
appellants’ unjust enrichment and UTPCPL claims for the same reasons the
trial court proffered here. See id. at *3-4; see also Trial Court Opinion,
3/8/23, at 5-9.
Having thoroughly reviewed the relevant law, we see nothing to
distinguish the instant matter from Berardi and find the Third Circuit’s
reasoning to be persuasive.6 Accordingly, for the reasons discussed above,
we affirm the grant of summary judgment.
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6 The Third Circuit decided Berardi after Higgins filed her brief in the instant
matter. The attorneys who represent Higgins represented the appellants in
Berardi and Jones. In Berardi, the Third Circuit affirmed the district court
decisions in both Berardi and Jones in all respects. See Berardi, 2023 WL
4418219, at *4. The trial court in the instant matter relied heavily on the
district court decisions in Berardi and Jones. See Trial Court Opinion,
3/7/23, at 4-9.
In her brief, Higgins castigates the trial court for its reliance on Berardi
and Jones and repeatedly impugns and demeans the district courts’ opinions
in Berardi and Jones. Higgins complains:
The decision of the trial court failed miserably in attempting to
understand stacking concepts in Pennsylvania. The trial court
relied blindly upon decisions of the federal district court[,] which
similarly displayed a profound misunderstanding of stacking law
under the MVFRL . . . However, the trial court (along with the
(Footnote Continued Next Page)
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Order affirmed.
Date: 12/26/2024
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district court) failed miserably in attempting to understand and
interpret these concepts.
Higgins’s Brief at 6-7 (unnecessary capitalization omitted). See also id. at
51 n. 29 (quoting Ralph Waldo Emerson’s statement “Consistency is the
hobgoblin of little minds,” when referencing the trial court decision).
We note with disapproval the condescending, and at times sarcastic tone
that permeates Higgins’s counseled brief. As an appellant, an individual is
certainly entitled to argue the trial court erred. However, to use a brief
addressed to this, or any, court to express disdain for the trial courts that rule
contrary to a party’s position is unprofessional.
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