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Glenn B. Shipp and Denise A. Shipp v. the Phoenix Insurance Company

August 14, 2012

GLENN B. SHIPP AND DENISE A. SHIPP, ADMINISTRATORS OF THE ESTATE OF MICHAEL R. SHIPP
v.
THE PHOENIX INSURANCE COMPANY D/B/A THE TRAVELERS, APPELLANT



Appeal from the Order, June 30, 2011, in the Court of Common Pleas of Chester County Civil Division at No. 10-01452

The opinion of the court was delivered by: Ford Elliott, P.J.E.

BEFORE: FORD ELLIOTT, P.J.E., BENDER AND COLVILLE,*fn1 JJ.

OPINION BY FORD ELLIOTT, P.J.E.:

Appellant, The Phoenix Insurance Company ("Phoenix"), brings this appeal from the entry of an order granting summary judgment in a declaratory judgment action filed by appellee, the administrators of the Estate of Shipp ("the Shipps"). Finding that summary judgment was improperly entered, we reverse.

The trial court accurately stated the underlying facts of this case:

Plaintiff Glenn B. Shipp applied for personal automobile insurance and signed a rejection of stacked underinsured coverage form on September 12, 2002. Said form was signed in the presence of his insurance agent. The policy was issued by the Phoenix Insurance Company. Plaintiffs paid less for non-stacked coverage than they would have paid for stacked coverage. The amount of underinsured motorist benefits available under the policy was $100,000.

This insurance policy was renewed every six months and the declaration sheets issued to Plaintiffs showed underinsured motorist benefits in the amount of $100,000 non-stacked. At the inception of the policy, three vehicles were insured: a 1992 Ford Club Wagon with comprehensive coverage but no collision, a 1995 Ford Windstar with collision and comprehensive coverage and a 1987 BMW 528E with neither comprehensive or collision coverage.

On February 13, 2004, Plaintiffs terminated coverage for the 1987 BMW 528E. On February 19, 2004, Plaintiffs terminated coverage for the 1995 Ford Windstar and added coverage for a 2004 Toyota Highlander with collision and comprehensive coverage. On September 10, 2005, Plaintiffs terminated coverage on the 1992 Ford Club Wagon and added coverage for a 2005 Toyota Corolla CE, which included collision and comprehensive coverage. Defendant did not offer the option to elect or reject stacked underinsured motorist coverage nor did they present new waiver forms to Plaintiffs to reject stacking at any time during these changes.

On February 3, 2006, Plaintiffs' minor son, Michael R. Shipp, was severely injured in a motor vehicle accident. He was a passenger of a motor vehicle driven by William R. Flemming, who admitted liability for the accident. Michael died on February 11, 2006 as result of the injuries sustained in the accident.

On the date of the accident, Plaintiffs and their son where [sic] insured under the above motor vehicle insurance policy which covered two vehicles, the 2005 Toyota Corolla and the 2004 Toyota Highlander. Both vehicles had collision and comprehensive coverage.

Following the accident and Michael's death, Plaintiffs made a claim to Defendant for the limits of underinsured motorist benefits in the amount of $200,000. This amount is the $100,000 underinsured motorist benefit stacked for two vehicles. Defendant responded by tendering $100,000 for the undisputed underinsured motorist benefit limit, but denied that Plaintiffs were entitled to stacked coverage. This Declaratory Judgment Action ensued.

Statement of the court, 11/7/11 at 1-3.

On appeal, Phoenix contends that the entry of summary judgment was in error because Phoenix was not compelled, pursuant to 75 Pa.C.S.A. ยง 1738, to obtain a second waiver of stacked uninsured/underinsured ("UM/UIM") coverage limits when the Shipps replaced an existing vehicle with ...


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