ROWAN et al v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Filing 19

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/20/12. 6/21/12 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES ROWAN, et al.,
Plaintiffs,
v.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE CO.,
Defendant.

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CIVIL ACTION
NO. 11-7575

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

I.

June 20, 2012

INTRODUCTION
Plaintiffs James Rowan, Lorraine Rowan, Thomas Lynch,

and Darlene Lynch (collectively, “Plaintiffs”) bring this
declaratory judgment action against Defendant State Farm Mutual
Automobile Insurance Company (“Defendant”).

Plaintiffs’

Complaint seeks a declaratory judgment that their insurance
policy with Defendant has uninsured motorist and stacking
benefits.

Defendant answered denying all averments and asserting

that Plaintiffs waived in writing their rights to uninsured
motorist benefits.

Currently before the Court is Plaintiffs’ Motion for
Judgment on the Pleadings.

For the reasons that follow, the

Court will deny Plaintiffs’ Motion.

II.

BACKGROUND1
Plaintiffs James Rowan and Lorrain Rowan are married,

husband and wife, and reside in Philadelphia, Pennsylvania.
Plaintiffs Thomas Lynch and Darlene Lynch are married, husband
and wife, and reside in Philadelphia, Pennsylvania.

Defendant is

an insurance company and is a citizen of the State of Illinois.2
On February 8, 2006, Plaintiff James Rowan purchased a motor
vehicle insurance policy from Defendant that covered a 2001 Dodge
Durango Sport Wagon.

On that date, Plaintiff James Rowan signed

a rejection of Uninsured Motorist Protection Form.

That form

provided as follows:
By signing this waiver I am rejecting uninsured
motorist coverage under this policy, for myself and all
relatives residing in my household. Uninsured coverage
protects me and relatives living in my household for
losses and damages suffered if injury is caused by the
1

In accordance with the appropriate standard of review,
see infra Part III, the facts in this section are taken from the
pleadings and viewed in the light most favorable to Defendant.
2

Jurisdiction in this Court is founded upon diversity of
citizenship. See 28 U.S.C. § 1332(a) (2006).
2

negligence of a driver who does not have any insurance
to pay for losses and damages.
I knowingly and
voluntarily reject this coverage.
Signature of First Named Insured
Plaintiffs’ Compl. Ex. C, ECF No. 11.

Date
Also on the same page as

this waiver form was a provision Plaintiffs call the “in futuro”
clause.

This clause provides as follows:

First Named Insured ___________ Policy Number _______
Date ________ Agent’s Code ____
I understand that this acknowledgment of coverage
rejection shall be applicable, as of the date specified
above, to the policy of insurance identified above or
for which application is being made, on all replacement
policies and on all renewals of either this policy or
any replacement policy, unless I request in writing a
different selection for such coverage.
Id.

On August 6, 2009, Plaintiffs James and Lorraine Rowan added

a 2008 Honda Accord to Plaintiffs’ automobile insurance policy.
Before June 10, 2010, Plaintiffs Thomas and Darlene
Lynch were family members and resided in the same house as
Plaintiffs James and Lorraine Rowan.

On June 10, 2010, Plaintiff

Thomas Lynch was operating the 2001 Dodge Durango with the
permission of Plaintiffs James and Lorraine Rowan.

On that same

day, an unidentified vehicle caused Plaintiff Thomas Lynch to
swerve and collide with a tree; he sustained several injuries as
a result.

On October 31, 2010, Plaintiff Thomas Lynch made a

request of Defendant for uninsured motorist benefits due under
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the policy.

Defendant denied this request because Plaintiffs had

waived uninsured motorist protection.
On November 8, 2011, Plaintiffs filed their Complaint
in the Court of Common Pleas of Philadelphia County seeking a
declaration that the policy provided for $200,000 in stacked
uninsured motorist benefits.

See Notice of Removal, ECF No. 1.

After being served with the Complaint on November 21, 2011,
Defendant timely removed the action to this Court on December 9,
2011.

Id.

On December 13, 2011, Defendant filed an Answer to

Plaintiffs’ Complaint.

ECF No. 6.

On March 15, 2012, Plaintiffs

filed a motion for judgment on the pleadings.
Defendant responded in opposition.
a reply to this response.

ECF No. 11.

ECF No. 13.

ECF Nos. 14, 15.

Plaintiffs filed

The motion is now

fully briefed and ripe for disposition.

III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(c) provides that a
party may move for a judgment on the pleadings “[a]fter the
pleadings are closed — but early enough not to delay trial.”
Fed. R. Civ. P. 12(c).

“‘Under Rule 12(c), judgment will not be

granted unless the movant clearly establishes that no material
issue of fact remains to be resolved and that he is entitled to
judgment as a matter of law.’”

Rosenau v. Unifund Corp., 539
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F.3d 218, 221 (3d Cir. 2008) (quoting Jablonski v. Pan Am. World
Airways, Inc., 863 F.2d 289, 290-91 (3d Cir. 1988)).
Furthermore, under Rule 12(c) the Court looks to only the
pleadings and views “‘the facts presented in the pleadings and
the inferences to be drawn therefrom in the light most favorable
to the nonmoving party.’”

Id. (quoting Jablonski, 863 F.2d at

290-91).

IV.

DISCUSSION
Plaintiffs present two arguments why a judgment on the

pleadings is appropriate in this case.

First, Plaintiffs argue

that by including the in futuro clause on the same page as the
related uninsured motorist waiver, Defendant impermissibly
altered the waiver and it is now void.

Second, Plaintiffs argue

that even if it is permissible to place such a clause on the same
page as the uninsured motorist waiver, Plaintiffs never signed
the in futuro clause; therefore, it is unenforceable.

The Court

addresses each argument in turn and finds both unavailing.

A.

Whether the In Futuro Clause Voids the Uninsured
Motorist Waiver

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Plaintiffs argue that Defendant’s inclusion of the in
futuro clause on the same page as the uninsured motorist waiver
voids the uninsured motorist waiver because the in futuro clause
impermissibly alters the uninsured motorist waiver.

In

particular, Plaintiffs argue that because the in futuro clause
specifically relates to the uninsured motorist waiver, it
therefore adds to that waiver’s language, which is not allowed
under Pennsylvania law.
Pennsylvania’s Motor Vehicle Financial Responsibility
Law (“MVFRL”) requires insurers to offer uninsured motorist
coverage.

See 75 Pa. Cons. Stat. Ann. § 1731(a) (West 2012).

Pertinent here, an insured may reject this coverage, but this
rejection must specifically comply with the following statutory
provision:
Uninsured motorist coverage shall provide protection
for persons who suffer injury arising out of the
maintenance or use of a motor vehicle and are legally
entitled to recover damages therefor from owners or
operators of uninsured motor vehicles.
The named
insured shall be informed that he may reject uninsured
motorist coverage by signing the following written
rejection form:
REJECTION OF UNINSURED MOTORIST PROTECTION
By signing this waiver I am rejecting uninsured
motorist coverage under this policy, for myself
and all relatives residing in my household.
Uninsured coverage protects me and relatives
living in my household for losses and damages
suffered if injury is caused by the negligence of
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a driver who does not have any insurance to pay
for losses and damages.
I knowingly and
voluntarily reject this coverage.
Signature of First Named Insured
Date
Id. § 1731(b).

In addition, the statute provides the following

details about how this waiver is effectuated:
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.
Id. § 1731(c.1).

In this case, it is undisputed that Defendant

provided the appropriate uninsured motorist waiver form, and that
Plaintiffs signed this form.

This form was at the top of the

page, included Plaintiff James Rowan’s signature, and was
outlined in a box.

See Pls.’ Compl. Ex. C.

Its wording, within

this box, was exactly as required by § 1731(b).

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Lower on the

same page, in a separately outlined box, was the following
additional provision — the in futuro clause:
First Named Insured ___________ Policy Number _______
Date ________ Agent’s Code ____
I understand that this acknowledgment of coverage
rejection shall be applicable, as of the date specified
above, to the policy of insurance identified above or
for which application is being made, on all replacement
policies and on all renewals of either this policy or
any replacement policy, unless I request in writing a
different selection for such coverage.
Id.
Under the current interpretation of § 1731, for an
uninsured motorist waiver to be valid, an insurer may not in any
way alter the language of the waiver.

Jones v. Unitrin Auto &

Home Ins. Co., 40 A.3d 125, 131 (Pa. Super. Ct. 2012).

Even the

inclusion of one word for clarification purposes will render the
waiver void.

See Robinson v. Travelers Indem. Co. of Am., No.

11-5267, 2012 WL 677007, at *2 (E.D. Pa. Feb. 29, 2012).
Plaintiffs argue that because Defendant included the related in
futuro provision on the same page as the uninsured motorist
waiver, this added “58 words” to the uninsured motorist waiver
and runs afoul of the law in Jones.

The Court is not persuaded.

Both Jones and Robinson, Plaintiffs’ two principal
cases in support of their position, involved uninsured motorist
waivers that had additional words directly added to the language
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above where the insured signed.

That is not the case here.

Although admittedly related to the uninsured motorist waiver, the
in futuro clause is a distinct and separate clause, albeit on the
same page as the uninsured motorist waiver.

Under the

circumstances here, the uninsured motorist waiver is not void.
The Pennsylvania Supreme Court was presented with a
similar issue in Winslow-Quattlebaum v. Maryland Insurance Group.
752 A.2d 878 (Pa. 2000).

Aptly, it explained, “The sole issue

before this Court is whether an insured’s rejection of
underinsured motorist benefits must appear alone on a page in the
insurance application to be valid pursuant to 75 Pa.C.S. §
1731(c.1).”3

Id. at 879.

In that case, the underinsured

motorist waiver appeared on the same page as the underinsured
stacking benefits waiver.

The court explained that the statute

only requires the uninsured waiver and the underinsured waiver to
be on separate pages from each other, but does not prevent the
uninsured waiver or the underinsured waiver to have other
provisions on the same page.

Id. at 880-81.

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While the issue before the court in Winslow-Quattlebaum
was the underinsured motorist waiver, and this case involves the
uninsured motorist waiver, it is a distinction without a
difference. Section 1731 governs and provides the framework for
both waivers. And, subsection c.1 covers both uninsured and
underinsured motorist waivers. See 75 Pa. Cons. Stat. Ann. §
1731(c.1).
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Therefore, in this case, there is nothing in the
statute that would prevent the in futuro clause from appearing on
the same page as the uninsured motorist waiver.

Indeed, and as

explained by the Court in Winslow-Quattlebaum, the statute
requires the uninsured motorist waiver to appear “in prominent
type and location” within the insurance contract.
Stat. Ann. § 1731(c.1).

75 Pa. Cons.

If the uninsured motorist waiver had to

appear on the page alone, the requirement for the provision to
appear in “prominent type and location” would be surplusage.
Winslow-Quattlebaum, 752 A.2d at 881.
Plaintiffs argue that Winslow-Quattlebaum is
distinguishable.

Plaintiffs argue that Winslow-Quattlebaum

involved “two separate and distinct statutory concepts —
underinsured motorist coverage (§ 1731) and stacking (§ 1738),”
and whether those two provisions could be included on the same
page.

Pls.’ Reply Br. 2, ECF No. 14.

Here, however, Plaintiffs

argue that the in futuro clause and the uninsured motorist clause
are related.

Plaintiffs also argue that the court in Winslow-

Quattlebaum stressed that the form used by the defendant in that
case, which included the underinsured motorist waiver and
stacking benefits waiver, had been approved by the Pennsylvania
Insurance Department, and the court deferred to that department’s
approval.

Both of these distinctions are without a difference.
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Whether the two provisions in this case — the in futuro
clause and the uninsured motorist clause — are related has no
effect on the force of Winslow-Quattlebaum’s holding.

Based on

the statute’s plain language, the court held that “[t]here is
nothing in the language of section 1731(c.1) to suggest that the
required rejection statement for [uninsured motorist] or
[underinsured motorist] coverage must stand alone on a page
without any other writing.”

752 A.2d at 880-81.

The only

requirement is that the uninsured motorist and underinsured
motorist coverage appear on separate pages from each other.

This

makes sense, as both are separate coverage options that each must
independently be offered to an insured.

See 75 Pa. Cons. Stat.

Ann. § 1731(a); Winslow-Quattlebaum, 752 A.2d at 882.

Therefore,

the relatedness of the in futuro clause to the uninsured motorist
waiver is not dispositive here.
The same is true of the Pennsylvania Insurance
Department’s approval in Winslow-Quattlebaum.

While the court in

Winslow-Quattlebaum found that approval supportive of its
holding, it was clear that based upon the plain language of §
1731 alone “there is no prohibition to having rejection of
[underinsured motorist] benefits and [underinsured motorist]
stacking benefits appear on the same official form.”
Quattlebaum, 752 A.2d at 881.

Winslow-

Accordingly, there is nothing to
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prevent Defendant from placing the in futuro clause on the same
page as the uninsured motorist waiver.

Both clauses are separate

and distinct in their appearance, as required by the statute.
See 75 Pa. Cons. Stat. Ann § 1731(c.1) (“Insurers shall print the
rejection forms required by subsections (b) and (c) on separate
sheets in prominent type and location.” (emphasis added)).
Therefore, the in futuro clause does not impermissibly add
language to the uninsured motorist waiver and its appearance on
the same page does not render the uninsured motorist waiver void.

B.

Whether the In Futuro Clause is Enforceable
In the alternative, Plaintiffs argue that they never

signed the in futuro clause and this lack of signature renders
the clause unenforceable.

Therefore, without a signed in futuro

clause, Plaintiffs argue that there was no uninsured motorist
waiver in effect at the time of the accident on June 10, 2010.
On the pleadings alone, Plaintiffs fail to carry their
burden of establishing that the in futuro clause is
unenforceable.

The in futuro clause is completely separate from

the uninsured motorist waiver and has no signature line.
Specifically, the clause provides:
First Named Insured ___________ Policy Number _______
Date ________ Agent’s Code ____
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I understand that this acknowledgment of coverage
rejection shall be applicable, as of the date specified
above, to the policy of insurance identified above or
for which application is being made, on all replacement
policies and on all renewals of either this policy or
any replacement policy, unless I request in writing a
different selection for such coverage.
Pls.’ Compl. Ex. C.

Plaintiffs argue that the in futuro clause’s

language indicates that it must be signed.

Defendant argues that

this provision is merely administrative and that Plaintiffs’
signature is not required.

While Plaintiffs’ argument has some

appeal, on the face of the pleadings, the Court cannot say as a
matter of law that it carries the day.
Accordingly, Plaintiffs fail to show there are no
genuine issues of material fact as to whether their uninsured
waiver is void and their motion will be denied.

V.

CONCLUSION
For the reasons set forth above, the Court will deny

Plaintiffs’ Motion for Judgment on the Pleadings.
order will follow.

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An appropriate