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July 1, 2005.


The opinion of the court was delivered by: JOHN E. JONES, District Judge



Pending before the Court are cross-motions for Summary Judgment filed by Plaintiff Nationwide Insurance Company ("Nationwide" or "Plaintiff") and by Defendants Sharon and Charles P. Chiao ("Defendants"). (Rec. Docs. 10 and 13). Following briefing by the parties, we held oral argument on the Motions on May 13, 2005. The Motions are now ripe for our review. Diversity jurisdiction in this Court is proper pursuant to 42 U.S.C. § 1332.

  For the following reasons, we will grant the Defendants' Motion for Summary Judgment and deny Plaintiff's Motion for Summary Judgment. STANDARD OF REVIEW:

  Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed .R. Civ. P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences which a fact finder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).

  Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325.

  Federal Rule of Civil Procedure 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. Celotex Corp., 477 U.S. at 322-23.

  It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993) (citations omitted).

  Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. STATEMENT OF MATERIAL FACTS:

  The facts of this case are, in the main, undisputed.*fn1 On December 8, 1998 Defendant Sharon Chiao was a passenger in a 1990 Plymouth Voyager owned and operated by Chiao's coworker Janet K. Wilkinson ("Wilkinson") that was involved in a serious accident. At the time of the accident the two women were both employees of the Pennsylvania State University and were returning from Reading, Pennsylvania to their homes in Schuylkill County, Pennsylvania where they had traveled for an employer-sponsored meeting.

  The incident occurred when Wilkinson's attention to the road temporarily lapsed as she put out her cigarette. When Wilkinson's attention refocused on the road, she saw a vehicle stopped for a school bus immediately in front of her minivan. In an attempt to avoid a collision with the stopped vehicle, Wilkinson swerved to the right towards an embankment. The vehicle hit the embankment and flipped over. Passenger Sharon Chiao suffered significant and life-altering personal injuries.

  Following the incident, the Chiaos asserted a claim against Wilkinson, who was insured by the Progressive Insurance Company. In settlement of the Chiaos' claim, Progressive paid her the entire $15,000 value of Wilkinson's policy. In addition, Sharon Chiao's employer has paid her workers' compensation benefits pursuant to the Pennsylvania Workmen's Compensation Act, codified at 77 Pa. Cons. Stat. § 1 et seq. ("WCA").

  At the time of the incident, Chiao was herself insured by the Defendant. In addition to a standard automobile insurance policy, Chiao had purchased an underinsured motorist ("UIM") insurance policy (the "UIM Policy") from the Plaintiff, an optional coverage in Pennsylvania, against which Chiao has now asserted a claim as a result of the accident. Nationwide filed this action seeking a declaratory judgment that it need not pay Chiao for her injuries because she is not "due [payment] by law" as per the terms of the UIM Policy. (Cmplt. ¶ 13, Rec. Doc. 1). The UIM Policy is governed by the Pennsylvania Motor Vehicle Financial Responsibility Law, codified at 75 Pa. Cons. Stat. § 1701 et seq. ("MVFRL").


  The question before the Court is a succinct and unresolved question of Pennsylvania law: whether an automobile insurer must provide coverage to an insured who has purchased supplemental UIM insurance when the ...

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