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MAKSYMIUK v. MARYLAND CAS. INS. CO.

November 20, 1996

STANLEY MAKSYMIUK, Plaintiff
v.
MARYLAND CASUALTY INSURANCE CO., Defendant



The opinion of the court was delivered by: BRODY

 Anita B. Brody, J.

 November 20th, 1996

 Plaintiff filed this action in the Philadelphia Court of Common Pleas seeking the appointment of uninsured motorist arbitrators under a policy of insurance issued by Defendant. Defendant properly filed a notice of removal to this court.

 Defendant has moved for summary judgment. The issue before me is whether 75 Pa.C.S.A. § 1731(c.1) provides a remedy to a private litigant for an insurance company's failure to place in a policy renewal form prominent notice that coverage does not extend to uninsured motorist benefits. Because I find that this section provides no such remedy, I will grant Defendant's motion.

 Defendant Maryland Casualty Insurance Company issued an automobile insurance policy to plaintiff Stanley Maksymiuk for the period from June 8, 1993 through December 8, 1993. When signing the insurance contract, Plaintiff specifically waived the available uninsured motorist protection in the form required under Pennsylvania law. *fn1"

 Plaintiff was sent renewal policies every six months. The policy renewal covering December 8, 1994 through June 8, 1995, however, contained no notice in prominent type, as required under Pennsylvania law, that the policy did not provide protection for damages incurred in an accident involving an uninsured motorist. On February 28, 1995, Plaintiff was struck by an uninsured motorist in Philadelphia.

 These facts are not in dispute. The issue is one of law: Does § 1731(c.1) of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. § 1701, et seq., provide that an insured individual who has validly waived uninsured motorist liability coverage is nevertheless entitled to such coverage where the insurance company has failed to provide prominent notice of such waiver in policy renewal forms? Plaintiff claims that the only sensible reading of the statute is that it does. Defendant believes that, since § 1731(c.1) does not explicitly afford a remedy to a private litigant, it does not.

 
(c.1) Form of waiver. - Insurers shall print the rejection forms required by subsections (b) and (c) on separate sheets in prominent type and location. The forms must be signed by the first named insured and dated to be valid. The signatures on the forms may be witnessed by an insurance agent or broker. Any rejection form that does not specifically comply with this section is void. If the insurer fails to produce a valid rejection form, uninsured or underinsured coverage, or both, as the case may be, under that policy shall be equal to the bodily injury liability limits. On policies in which either uninsured or underinsured coverage has been rejected, the policy renewals must contain notice in prominent type that the policy does not provide protection against damages caused by uninsured or underinsured motorists. Any person who executes a waiver under subsection (b) or (c) shall be precluded from claiming liability of any person based upon inadequate information.

 75 Pa.C.S.A. § 1731(c.1) (emphasis added).

 There is no question that Plaintiff signed a valid waiver of uninsured motorist benefits. Nor is there any doubt that Defendant failed to include notice of the absence of such coverage on Plaintiff's policy renewal forms, as required by § 1731(c.1). The only question is whether § 1731(c.1) provides, as a remedy for such failure, that the insured who has validly and admittedly waived such coverage should nevertheless be covered by operation of law.

 The statute at first glance is unclear. The key phrases are highlighted above. Plaintiff's argument may be stated as follows: Section 1731(c.1) clearly obligates insurers to place prominent notice on renewal policies that such policies do not cover uninsured motorist liability. Defendant failed to do this. Therefore, the remedy provided in that section for failure to produce a valid rejection form, i.e. that "uninsured coverage...under that policy shall be equal to the bodily injury liability limits," applies, and this section therefore provides Plaintiff with coverage.

 Defendant reads the statute differently. Defendant admits that § 1731(c.1) requires insurance companies to provide prominent notice in renewal policies of the absence of uninsured motorist coverage. It also admits that it failed to do so in this case. However, Defendant denies that § 1731(c.1) provides any remedy for such failure. Rather, Defendant says, the notice requirement in this section is a regulatory provision, meant to be enforced by the Pennsylvania Insurance Department, and therefore it does not give rise to a private remedy. The remedy which this section does provide, ...


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