policy of $ 100,000 as the limit of liability for bodily injuries caused by uninsured motorists. However, the Herzigs contend that since the policy was to provide coverage for two vehicles that the real limit is $ 200,000 (i.e., $ 100,000 for each car). Hence, assert plaintiffs, the Lamar vehicle is underinsured since the Sentry policy limit of $ 100,000 is less than $ 200,000.
The Herzigs maintain that since the underinsured motorists coverage provided by Aetna fixes the maximum liability of said coverage by reference to the maximum liability stated in the declaration section for uninsured motorist benefits that this court should resolve the stacking issue in accordance with state court precedent authorizing the stacking of uninsured motorists benefits. Plaintiffs cite State Farm Mutual Auto Insurance Co. v. Williams, 481 Pa. 130, 392 A.2d 281 (1978), Sones v. Aetna Casualty and Surety Co., 270 Pa. Super. 330, 411 A.2d 552 (1979), and Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968), for the proposition that such stacking is mandated by state law and that insurers' efforts to limit recovery by anti-stacking clauses in the policy are contrary to public policy.
As asserted by the Herzigs, Pennsylvania case law does offer support for the stacking of uninsured motorists benefits. While some cases base the availability of stacking on the existence of some ambiguity in the policy coverage terms and the absence of an express disclaimer, see Blocker v. Aetna Casualty and Surety Co., 232 Pa. Super. 111, 332 A.2d 476 (1975); Guerriero v. Potomac Ins. Co. (No. 2), 69 Pa. D. & C.2d 646 (1975); Flynn v. Allstate Insurance, 50 Pa. D. & C.2d 195 (1970), at least one decision has approved stacking despite the presence of an anti-stacking clause on the ground that such clauses were contrary to public policy. See Sones, 270 Pa. Super. at 334-35, 411 A.2d at 554.
The court recognizes that the policy declaration submitted by the parties discloses the payment of two premiums by the Herzigs, one for each car insured under the policy. In addition, the declarations page states that the payment of premiums for uninsured motorists benefits are included in the normal premium payments. Although Pennsylvania courts have emphasized the payment of multiple premiums to justify the cumulation of uninsured motorist benefits, Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 338, 473 A.2d 1005, 1010 (1984), this court must nevertheless reject plaintiffs' position that they are entitled to stack underinsured motorists benefits under the policy by multiplying the maximum liability stated by the number of vehicles covered. Uninsured motorists benefits are not underinsured motorists benefits, and plaintiffs may not by reference obtain what they have no contract or statutory rights to. Indeed, the state court decisions relied upon by plaintiffs all attempt to construe the terms of the policy at issue in conformity with the legislative intent underlying the Uninsured Motorist Act, 40 Pa. Stat. Ann. § 2000. Said act has no application to the provision of underinsured motorists benefits. Votedian v. General Accident Fire & Life Assurance Corp., 330 Pa. Super. 13, 478 A.2d 1324, 1327 (1984).
The clear terms of the contract of insurance governing the relationship between the parties require the rejection of plaintiffs "stacking" argument. The underinsured motorist coverage section of the policy provides:
The limit of liability shown in the Declarations under Uninsured Motorists is our maximum limit of liability under this coverage for all damages resulting from one accident. This is the most we will pay regardless of the number of covered persons, claims made, vehicles or premiums shown in the Declaration, or vehicles involved in the accident. (Emphasis added.)
Such policy provisions which unequivocally preclude the stacking of underinsured motorists benefits are valid and enforceable under Pennsylvania law. Vogel v. National Grange Mutual Ins. Co., 332 Pa. Super. 384, 481 A.2d 668 (1984); Haegele v. Pennsylvania General Insurance Co., 330 Pa. Super. 481, 479 A.2d 1005 (1984); Votedian, supra. While intermediate appellate court decisions are only "'indicia of how the state's highest court might decide' the issue . . ., such decisions may constitute 'presumptive evidence' of state law." McGowan v. University of Scranton, 759 F.2d 287, 291 (3d Cir. 1985) (citations omitted).
As the non-moving party, the Herzigs, in response to Aetna's motion for summary judgment bear the burden of coming forward with affidavits or other materials which "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In the event that the non-moving party "fails to make a showing sufficient to establish an element essential to that party's case," the Federal Rules mandate the entry of summary judgment against that party. Celotex, 477 U.S. at 332.
Plaintiffs have failed to negate Aetna's claimed basis for summary judgment. The Herzigs readily acknowledge that the liability limit of the policy was $ 100,000, as alleged by Aetna. Moreover, Pennsylvania case law offers no support for plaintiffs' sole defense that the Aetna policy limit for underinsured motorist benefits should be "stacked" to reflect the number of vehicles. A comparison between the Aetna underinsured motorists coverage limit of $ 100,000 and the Sentry policy's limit of $ 100,000 clearly supports Aetna's claim that the Lamar vehicle is not in fact an underinsured motor vehicle. Since no issues of material fact remain in dispute, Pennsylvania law requires the entry of summary judgment in Aetna's favor.
An appropriate order follows.
AND NOW, this 5th day of August, 1988, for the reasons stated in the accompanying memorandum, IT IS ORDERED that defendant's motion for summary judgment is GRANTED, and judgment shall be entered in defendant's favor.
JUDGMENT - August 5, 1988, Filed; August 8, 1988, Entered
AND NOW, this 5th day of August, 1988, IT IS ORDERED that judgment is entered in defendant's favor and against plaintiffs..