In May 2009, Ms. Barnard increased her UIM limits to $100,000 per person. However, she did not sign a separate waiver of stacking at that time.

Ms. Barnard was injured in a car accident on June 17, 2016. The third party motorist responsible for the accident maintained insurance coverage with the minimum limit required by law – $15,000 – and tendered the full amount.

Ms. Barnard then filed a claim for UIM coverage with Travelers, which in turn tendered $100,000 in UIM benefits, the per person limit applicable to a single car under Ms. Barnard's policy.

Ms. Barnard rejected this tender on the ground that stacked limits were available by operation of law because of Travelers' failure to secure a written waiver of stacking when she increased the limits of her UIM coverage in 2009.

Travelers disagreed, Ms. Barnard sued, and the parties moved for summary judgment.

Pennsylvania Law

For an insured with more than one vehicle, 75 Pa. Cons. Stat. Section 1738 provides that the:

stated limit for uninsured or underinsured coverage shall apply separately to each vehicle so insured.

Section 1738(a) states that:

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.

Section 1738(b) allows an insured to waive this default requirement, in which case the UIM limits under the policy:

shall be the stated limits for the motor vehicle as to which the injured person is an insured.

Section 1738(c) sets out the conditions under which the insurer must present the insured with an opportunity for a waiver, stating:

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.

The District Court's Decision

The district court, focusing on the meaning of the term "purchase" as used by Section 1738(c) of the MVFRL, granted Ms. Barnard's motion for summary judgment.

In its decision, the district court observed that Section 1783(c) refers to "purchasing uninsured or underinsured coverage for more than one vehicle." It then ruled that Ms. Barnard had made a "purchase" of UIM coverage with limits of $100,000 per person in May 2009. It was a "purchase," the district court said, because Ms. Barnard had "requested a new, higher limit of UIM coverage, for which Travelers charged a higher premium." The district court noted that, with respect to the UIM coverage, Ms. Barnard's premium as of 2016 was almost double the premium first charged in 2007.

The district court was not persuaded by Travelers' argument that Ms. Barnard's May 2009 transaction should be characterized as an "alteration" of limits and not a purchase, reasoning that Ms. Barnard had paid for a level of UIM insurance that was different from what she had previously purchased, and for which she had paid a different and higher premium.

As an insurance "product," the district court concluded, the May 2009 policy was distinct from the May 2007 version that preceded it, and a written waiver of stacking under the statute was required.

The case is Barnard v. Travelers Home and Marine Ins. Co., No. 17-00290 (E.D. Pa. Feb. 5, 2018). Attorneys involved include: For MICHELLE BARNARD, Plaintiff: ERIK SNYDER, LEAD ATTORNEY, SNYDER LAW GROUP PC, KING OF PRUSSIA, PA; ROBERT P. SNYDER, LEAD ATTORNEY, ROBERT P. SNYDER & ASSOCIATES, KING OF PRUSSIA, PA. For THE TRAVELERS HOME AND MARINE INSURANCE COMPANY, Defendant: BROOKS FOLAND, LEAD ATTORNEY, Marshall Dennehey Warner Coleman & Goggin, Camp Hill, PA.