Generette v. Donegal Mutual Insurance

884 A.2d 266, 2005 Pa. Super. 314, 2005 Pa. Super. LEXIS 3433

• Court: Superior Court of Pennsylvania
• Decided: September 9, 2005
• Status: Published

Opinions

OPINION BY

JOYCE, J.:

¶ 1 Appellant, Josephine Generette (“Generette”), appeals from the June 24, 2003 order issued by the Court of Common Pleas of York County, granting summary judgment in favor of Appellee, Donegal Mutual Insurance Company (“Donegal”). After careful review, we affirm.

¶ 2 Before us is another instance of an auto insurance consumer who makes a coverage decision that results in monetary savings, and then sues the carrier after being injured and realizing that more or better coverage would have been available absent that cost-saving decision. In this instance, the coverage decision was the waiver of stacking of underinsured motorist coverage (“UIM”) in exchange for a premium reduction.

¶3 The facts of this case are not in dispute, as evidenced by the stipulation entered into between the parties on June 28, 2001. According to that stipulation, on December 6, 1982, Generette applied for a policy of private automobile insurance with Donegal. Her policy was issued in accordance with the then-applicable Pennsylvania No-fault Motor Vehicle Insurance Act (“No-fault Act”), 40 P.S. §§ 1009.101-1009.701 (repealed).¹ Although the No-fault Act itself did not require uninsured motorist coverage (“UM”), that coverage was mandated by the Uninsured Motorist Act, 40 P.S. § 2000. Generette’s policy issued on December 6, 1982, included UM coverage in the amount of $30,000 per accident.²

¶ 4 On October 1, 1984, the No-fault Act was supplanted by the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S. §§ 1701-1799.7. The MVFRL required that, upon the first renewal of an existing policy after October 1, 1984, UM and UIM coverages be provided in amounts equal to the bodily injury liability (“BI”) limits, unless the insured elected to reduce the UM/UIM coverages to certain specified minimum amounts.

¶ 5 In accordance with the MVFRL, when Generette’s policy renewed on December 6, 1984, it included UM/UIM coverages equal to her BI limits of $100,000 per accident. The coverages remained at that level until December 6, 1985, when Generette executed a proper waiver form requesting that her UM/UIM limits be reduced to $35,000 per accident. Gener-ette received a premium reduction for electing lower limits. ¶ 6 With the enactment of Act 6 of 1990 (“Act 6”) on July 1, 1990, certain sections of the MVFRL were amended, including §§ 1731, 1734, and 1738. As a result, insureds could waive UM/UIM coverages completely (§ 1731), elect limits of UM/ UIM coverages in amounts lower than BI limits (§ 1734), and waive the right to stack UM/UIM coverages (§ 1738). For existing policies, the Act 6 amendments applied to the first renewal after July 1, 1990. For Generette, that first renewal took place on December 6, 1990. At that time, Generette and her husband elected non-stacked single limit UM/UIM coverages in the amount of $35,000 per accident. Generette’s policy was renewed with the $35,000 non-stacked UM/UIM limits every six months from December 1990 through April 29, 1997, when she was injured in an automobile accident.³

¶ 7 Following the accident, Generette recovered the $25,000 BI limits from the policy insuring the party responsible for the accident. Pursuant to 75 Pa.C.S. § 1733,⁴ she then presented a UIM claim to Nationwide, the carrier for the owner of the car in which she was a passenger at the time of the accident. Nationwide tendered its $50,000 UIM limits. Generette then submitted a claim to her own carrier, Donegal, asserting entitlement to the $35,000 in UIM coverage she purchased as “non-stacked” coverage.

¶ 8 Donegal denied Generette’s claim, contending she was barred from recovery by virtue of the language contained in her non-stacked UIM endorsement. The UIM endorsement under the Donegal policy includes an “other insurance” clause that, consistent with § 1733, first directs the insured to the UIM coverage applicable to the vehicle occupied by the insured at the time of the accident (“First priority”). When that coverage has been exhausted, the insured may pursue recovery under the policy affording UIM coverage to the insured as a named insured or family member (“Second priority”). In this case, Generette did exhaust the limits of the First priority policy, i. e., the Nationwide policy covering the vehicle in which she was a passenger. She then pursued the sole Second priority policy, i.e., her own Donegal policy.

¶ 9 The Donegal policy restricts recovery in the Second priority to the amount by which the First priority recovery is exceeded by the greatest limit for any one vehicle under any one policy at the Second priority.⁵ For example, had Generette’s UIM coverage been $300,000, she would have been entitled to recover up to $250,000 in UIM benefits from Donegal, ie., Donegal’s $300,000 less Nationwide’s $50,000. But in this case, because the $50,000 (First priority) limits paid by Nationwide exceeded the $35,000 (Second priority) limits elected by Generette under the Donegal policy, Generette was not entitled to any additional UIM benefits, in accordance with the language of her non-stacked UIM endorsement for which she received a reduced premium.

¶ 10 Generette pursued a declaratory judgment action against Donegal, asking the trial court to find that Donegal’s “other insurance” clause was void as against public policy, and that Generette was entitled to UIM benefits in the amount of $100,000, the amount equal to her BI limits.⁶ Generette subsequently filed a motion for summary judgment, which was denied. Donegal then filed its motion for summary judgment, which was granted by order entered on June 24, 2003. In the accompanying opinion, the Honorable Michael J. Brillhart noted that Generette “has never denied that she elected to waive stacking, nor has she challenged the process by which she waived stacking and we reject [Generette’s] public policy challenge to her nonstacking policy.” Trial Court Opinion, 6/24/03, at 12-13.

¶ 11 Generette filed a motion for reconsideration, asserting that she, as a single-vehicle owner, cannot waive inter-policy stacking under Nationwide Mutual Insurance Company v. Harris, 826 A.2d 880 (Pa.Super.2003), and In re Stacking Litigation, 754 A.2d 702 (Pa.Super.2000).⁷ Following denial of the motion for reconsideration, Generette filed an appeal to this Court, raising one issue:

Is [Generette] entitled to underinsured motorist benefits because a named insured with one vehicle on her policy can not waive inter-policy stacking of under-insured motorist benefits?

¶ 12 A panel of this Court reversed by a 2-1 vote, with the majority finding that, under 75 Pa.C.S. § 1738, an insured cannot waive inter-policy stacking on a single-vehicle policy. Donegal sought reargument, which we granted.

¶ 13 Our scope of review on appeal from the grant of summary judgment is plenary. Yet, in reviewing the grant of summary judgment, we should reverse the trial court only where it is established that the court committed an error of law or clearly abused its discretion. Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 651 (Pa.Super.2002) (citations omitted), appeal denied, 574 Pa. 748, 829 A.2d 1158 (2003).

¶ 14 Our examination of the stacking issue before us begins with a review of the applicable statutory provisions set forth in 75 Pa.C.S. § 1738.

§ 1738. Stacking of uninsured and underinsured benefits and option to waive

(a)Limit for each vehicle. — When more than one vehicle is insured under one or more policies providing uninsured or underinsured motorist coverage, the stated limit for uninsured or underin-sured coverage shall apply separately to each vehicle so insured. The limits of coverages available under this subchap-ter for an insured shall be the sum of the limits for each motor vehicle as to which the injured person is an insured.

(b) Waiver. — Notwithstanding the provisions of subsection (a), a named insured may waive coverage providing stacking of uninsured or underinsured coverages in which case the limits of coverage available under the policy for an insured shall be the stated limits for the motor vehicle as to which the injured person is an insured.

(c) More than one vehicle. — Each named insured purchasing uninsured or underinsured motorist coverage for more than one vehicle under a policy shall be provided the opportunity to waive the stacked limits of coverage and instead purchase coverage as described in subsection (b). The premiums for an insured who exercises such waiver shall be reduced to reflect the different cost of such coverage.

(d) Forms.—

(1) The named insured shall be informed that he may exercise the waiver of the stacked limits of uninsured motorist coverage by signing the following written rejection form:

UNINSURED COVERAGE LIMITS

By signing this waiver, I am rejecting stacked limits of uninsured motorist coverage under the policy for myself and members of my household under which the limits of coverage available would be the sum of limits for each motor vehicle insured under the policy. Instead, the limits of coverage that I am purchasing shall be reduced to the limits stated in the policy. I knowingly and voluntarily reject the stacked limits of coverage. I understand that my premiums will be reduced if I reject this coverage.

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(2) The named insured shall be informed that he may exercise the waiver of the stacked limits of underinsured motorist coverage by signing the following written rejection form:

UNDERINSURED COVERAGE LIMITS

By signing this waiver, I am rejecting stacked limits of underinsured motorist coverage under the policy for myself and members of my household under which the limits of coverage available would be the sum of limits for each motor vehicle insured under the policy. Instead, the limits of coverage that I am purchasing shall be reduced to the limits stated in the policy. I knowingly and voluntarily reject the stacked limits of coverage. I understand that my premiums will be reduced if I reject this coverage.

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(e) Signature and date. — The forms described in subsection (d) must be signed by the first named insured and dated to be valid. Any rejection form that does not comply with this section is void.

¶ 15 Generette argues that the form prescribed by § 1738(d) states that the insured relinquishes only the right to stack coverages on a multi-car policy. In essence, Generette is suggesting that waiver of stacking is not an available option for policyholders who insure, as she does, a single vehicle under their policies. However, that interpretation conflicts with the language of § 1738(b), which states that a named insured may waive stacking. Under § 1738(b), that option is not restricted to named insureds purchasing UM/UIM coverages for more than one vehicle under a policy.

¶ 16 Allowing a named insured with one vehicle the option to waive stacking is consistent with the language of § 1738, and § 1738(b) in particular, and the statute does not prohibit an insurer from offering that waiver. However, an affirmative offer of waiver to a single-vehicle owner is not mandatory, as it is with a named insured with multiple vehicles insured under one policy.⁸

¶ 17 The issue presented to this Court is whether Generette is entitled to stacked UIM benefits because, as she asserts, as a single-vehicle owner, she cannot waive inter-policy stacking. Generette contends that the answer to this inquiry is found in the language of § 1738(d), the waiver form adopted by our Legislature. The § 1738(d) form directs that the limits of available coverage “shall be reduced to the limits stated in the policy.” However, the language of the waiver form, by itself, does not end the inquiry. It is also necessary to examine the language of the Donegal policy to ascertain the “limits stated in the policy” when an insured, such as Gener-ette, elects the waiver of stacking on a policy insuring a single vehicle.

¶ 18 The pertinent language from Done-gal’s “Underinsured Motorists Coverage— Pennsylvania (Non-Stacked)” endorsement is:

OTHER INSURANCE

If there is other applicable similar insurance available under more than one policy or provision of coverage:

The following priorities of recovery apply:

First The [UIM] applicable to the vehicle the “insured” was “occupying” at the time of the accident.

Second The policy affording [UIM] to the “insured” as a named insured- of family member.

1. When there is applicable insurance available under the First priority:

a. The limit of liability applicable to the vehicle the “insured” was “occupying,” under the policy in the First priority, shall first be exhausted; and

b. The maximum recovery under all policies in the Second priority shall not exceed the amount by which the highest limit for any one vehicle under any one policy in the Second priority exceeds the limit applicable under the policy in the First priority.

¶ 19 In accordance with Donegal’s policy, if Generette had been injured in her own vehicle, she would have simply presented a claim to Donegal for the $35,000 in UIM benefits available under her policy. However, she was injured while a passenger in a vehicle insured by Nationwide. Therefore, in accordance with § 1733 and the Donegal policy, she looked first to the Nationwide policy, and collected the $50,000 UIM limits available under that policy. After recovering more UIM coverage from Nationwide than she purchased under her own Donegal policy, she then turned to her policy, which included the non-stacked UIM coverage she elected.

¶ 20 As set forth above, Donegal’s “other insurance” clause provides a formula for calculating UIM benefits when the insured has recovered benefits under a policy insuring a non-owned vehicle. Because she had recovered UIM benefits in an amount greater than the level of coverage she purchased from Donegal, Generette was not entitled to any additional recovery from Donegal under her policy’s formula.⁹

¶ 21 Having concluded that the § 1738 waiver form reduces UIM coverage to the limits stated in the policy, and that the limits stated in Generette’s policy are calculated in accordance with the “other insurance” language in her non-stacked UIM endorsement, our inquiry returns to the issue raised by Generette: whether an insured may waive stacking on a policy insuring a single vehicle. A review of existing case law reveals that while the waiver of stacking issue has been discussed in several cases in recent years, it has been discussed only in dicta addressing the legitimacy of waiving inter-policy stacking. The following overview of case law is offered to substantiate this assertion.

¶ 22 The first case to discuss waiver of inter-policy stacking was In re Stacking Litigation (“Stacking Litigation”), 754 A.2d 702 (Pa.Super.2000) (en banc). In the Stacking Litigation case, the issue was whether automobile insurance carriers could charge a “stacking” premium to insureds who owned just one vehicle.¹⁰ We noted with approval that the trial court referred the issue to the Insurance Commissioner, who concluded that charging a premium for stacking was lawful. Quoting Donnelly v. Bauer, 553 Pa. 596, 608, 720 A.2d 447, 453 (1998), we recognized that:

Courts traditionally accord an interpretation of a statutory provision by an administrative agency charged with administering that statute some deference. However, the interpretation of a statute is a question of law for the Court to resolve and when the Court is convinced that the interpretative regulation adopted by the administrative agency is clearly erroneous or is violative of legislative intent, the Court disregards the administrative agency’s interpretation.

Stacking Litigation, 754 A.2d at 706. See also Allstate Insurance Company v. Seelye, 846 A.2d 1286, 1289 (Pa.Super.2004) (citing Winslow-Quattlebaum v. Maryland Ins. Group, 561 Pa. 629, 752 A.2d 878 (2000) (finding that the Insurance Department’s interpretation of language of the MTVTRL should be accepted as valid if not fraudulent, in bad faith, clearly arbitrary, or an abuse of discretion)).

¶ 23 Having determined that the insurance premium issue referred to the Commissioner in the Stacking Litigation case was one within her area of peculiar expertise, we turned to the interpretation and application of the provisions of § 1738. We noted that “[a]ll of Appellants’ causes of action were premised upon their belief that Appellees’ conduct violates section 1738 by charging Appellants a premium for an illusory benefit and in failing to inform them of the opportunity to waive stacking.” Id. at 709. We then pointed out the fallacy of the “illusory benefit” argument by explaining that single-vehicle owners who elected, and paid for, stacking could potentially stack their coverage with the coverage on another vehicle through inter-policy stacking, thereby reaping a benefit from their payment of “stacked” premiums. Id. at 709-10.

¶ 24 In the Stacking Litigation case, we also offered our opinion that subsections (b), (c) and (d) of § 1738, construed together, limit the § 1738(b) waiver of stacking option to those named insureds who purchase UM/UIM coverages for more than one vehicle. Id. at 708. However, determining the validity of a waiver of stacking on a single-vehicle policy was not necessary for the Court’s decision. Therefore, our pronouncement in the Stacking Litigation case, addressing the waiver of stacking, constitutes obiter dicta and is not binding. See Hunsberger v. Bender, 407 Pa. 185, 188, 180 A.2d 4, 6 (1962) (statement in prior opinion, which clearly was not decisional but merely dicta, “is not binding upon us”).¹¹

¶25 In McGovern v. Erie Insurance Group, 796 A.2d 343 (Pa.Super.2002), this Court discussed stacking under § 1738, but in a different context. In that case, the injured motorist, McGovern, collected the BI limits from the negligent driver, and then UIM coverage from his own policy covering the motorcycle he was riding when he was injured.¹² McGovern then turned to Erie for UIM coverage under a policy issued to his mother, with whom he lived. Erie paid its UIM limits, but refused to honor McGovern’s request for stacked limits under the policy. However, the refusal was not based on a waiver of stacking. In fact, both McGovern and his mother had elected stacking of UM/UIM coverages under their respective single-vehicle policies. Instead, Erie’s refusal was based on the fact McGovern was trying to apply Erie’s limits of coverage to his motorcycle and his automobile, both of which were insured under separate policies issued by companies other than Erie. This Court affirmed the trial court’s determination that McGovern could not use § 1738’s stacking language to extend Erie’s coverage to vehicles not insured by Erie.

¶26 In Nationwide Mutual Insurance Company v. Harris, 826 A.2d 880 (Pa.Super.2003), this Court considered whether a “household exclusion” clause could operate to preclude recovery of UIM benefits. In that case, Harris was injured while operating her own vehicle. At the time, she resided with a brother and her mother. Harris first recovered the BI limits from the policy insuring the negligent driver. She next recovered UIM benefits under her own Allstate policy, as well as UIM benefits under an Allstate policy issued to her brother. She then presented a claim to Nationwide, her mother’s carrier. Nationwide denied coverage based on its “household exclusion.”¹³

¶ 27 The opinion in the Harris case is silent as to whether Harris had elected to waive stacking of UM/UIM benefits. Waiver was not the issue; validity of the household exclusion was the issue. Nevertheless, the Court stated, “[t]his case, like McGovern, involves the issue of inter-policy stacking, a form of stacking § 1738 specifically requires. In fact, an insured may not waive the right to inter-policy stacking; only intra-policy stacking may be waived.” Id. at 884. The Court did not include a direct citation to authority for its pronouncement that inter-policy stacking may not be waived. However, there is a notation that this Court held, in Stacking Litigation, supra, “that the legislature has circumscribed the class of named insureds to whom notice must be given and who may therefore waive stacking to those who purchased coverage for more than one vehicle under a single policy.” Id. at 883 (citing Stacking Litigation, 754 A.2d at 708).

¶ 28 As noted previously, the issue in the Stacking Litigation case was whether insurance carriers could charge stacking premiums to insureds who owned one vehicle. Statements concerning limitations on stacking were dicta.

¶ 29 This Court next examined § 1738 in State Farm Mutual Automobile Insurance Company v. Rizzo, 835 A.2d 359 (Pa.Super.2003). In that declaratory judgment action, the parties presented stipulated facts to this Court in an appeal brought by the injured insured, Rizzo. After recovering the BI limits from the negligent driver, Rizzo received the UIM policy limits under the State Farm policy insuring her own vehicle. She then turned to the State Farm policy covering the vehicle owned by her father, with whom she resided. Both Rizzo and her father had waived stacking under their policies and had received a premium discount for doing so.

¶ 30 State Farm denied coverage under Rizzo’s father’s policy, claiming that its “other insurance clause” precluded coverage.¹⁴ In a joint stipulation of facts presented to the trial court in State Farm’s declaratory judgment action, the parties agreed that Rizzo would not be entitled to coverage under her father’s policy, should the court determine that the “other insurance” clause was enforceable.

¶ 31 The trial court found in favor of State Farm, not on the basis of the “other insurance clause,” but rather based on Riz-zo’s waiver of stacking pursuant to § 1738. On appeal, Rizzo raised several issues, including whether the trial court erred in failing to address the sole issue presented to that court, ie., the validity of State Farm’s “other insurance” clause; and whether the trial court erred in determining that a waiver of stacking under § 1738 operates to preclude inter-policy stacking of UIM benefits.

¶ 32 This Court reversed the trial court, citing reversible error based on the trial court’s analysis of the stacking issue, and noting that this Court had recently discussed, in Stacking Litigation, supra, whether a single-vehicle owner could waive stacking of UM/UIM. Quoting dicta from Stacking Litigation, that “subsections (b), (c) and (d) [of § 1738] must be construed together such that only named insureds who purchase coverage for more than one vehicle under a policy may waive the stacking of uninsured or underinsured benefits,” this Court concluded that Rizzo and her father, each with just one vehicle, could not waive inter-policy stacking of UIM benefits. Rizzo, 835 A.2d at 363-64. And because, as State Farm had agreed by stipulation, the “other insurance” clause would not apply absent the Rizzos’ waivers of stacking, and because the Court concluded — based on dicta from the Stacking Litigation case — that the Rizzos could not waive stacking under § 1738, the “other insurance” clause did not apply to the facts of the case. Therefore, Rizzo was permitted to pursue coverage under her father’s policy.¹⁵

¶ 33 In the Rizzo opinion, the Court stated:

Applying the Stacking Litigation court’s analysis to the facts of this case, we find that daughter and father could not waive stacking because neither insured more than one vehicle under a policy (intra-policy stacking); in fact, neither possessed more than one vehicle, the very situation the Stacking Litigation court addressed. See Nationwide Mut. Ins. Co. v. Harris, 826 A.2d 880, 883-884 (Pa.Super.2003) (interpreting the Stacking Litigation court’s analysis of § 1738 and concluding that an insured may not waive the right to inter-policy stacking; only intra policy stacking may be waived). Thus, despite the fact that State Farm apparently reduced insureds’ premiums for them purported “election” to waive stacking, their election was void ab initio because it conflicted with the provisions of § 1738 as this court has interpreted it.

Id. at 364.

¶ 34 Again, the issue of the waiver of stacking was not before this Court in the Stacking Litigation case and was not necessary to the resolution of the issue facing the Court, ie., whether carriers could charge a premium for stacking of UM7UIM coverages on single-vehicle policies. Compounding the confusion here is the fact that this Court, in the Harris case, included the statement, ostensibly based on Stacking Litigation dicta, that “[i]n fact, an insured may not waive the right to inter-policy stacking; only intra-policy stacking may be waived.” Harris, 826 A.2d at 884. Yet, the issue in the Harris case was the validity of Nationwide’s household exclusion, not waiver of stacking. As a result, the above-quoted passage from the Rizzo case is purely Harris dicta based on Stacking Litigation dicta. “[M]ere repetition does not elevate obiter dicta to the level of binding precedent.” Commonwealth v. Singley, 582 Pa. 5, 15, 868 A.2d 403, 409 (2005).¹⁶

¶ 35 In essence, what is found through this review of cases can best be described as “stacking of stacking dicta.” Clearly, a statement in a prior opinion that was merely dicta, including dicta based on prior dicta, is not binding on us. Id.

¶ 36 The interplay between § 1738 and the household exclusion was re-examined by this Court in State Farm Fire and Casualty Company v. Craley, 844 A.2d 573 (Pa.Super.2004), appeal granted, 580 Pa. 706, 860 A.2d 490 (2004).¹⁷ In the Craley case, Jayneann Craley was killed in an accident caused by an uninsured driver. At the time, she was operating a vehicle that she owned and insured through State Farm. Her husband Randall also owned a vehicle insured under a separate policy issued by State Farm. Both policies included waivers of stacking, as well as household exclusions.

¶ 37 State Farm filed a declaratory judgment action, apparently having paid its UM limits under the policy issued to Jayneann, but having denied the claim made for UM benefits under her husband’s policy. The trial court found in favor of the insured, holding that the stacking waivers and the household exclusions violated public policy. On appeal, this Court reversed, stating that:

We agree that because these were two separate policies, resulting in “inter-policy” stacking, the stacking waiver is not valid. However, under recent case law, the household vehicle exclusion clause does not violate public policy and therefore State Farm is only liable under Jayneann’s policy and need not pay under Randall’s policy.

Craley, 844 A.2d at 573-74.

¶ 38 After deciding the case based on the household exclusion, the Court, in dicta, offered its analysis of the Stacking Litigation case and its progeny, and proposed an interpretation of § 1738 consistent with this opinion, concluding that § 1738(b) permits waiver of both intra-policy and inter-policy stacking. A concurring and dissenting opinion agreed with the result reached on the issue of the household exclusion, but dissented from what the author concluded was dicta relating to the validity of waivers of stacking. Id. at 575 (Bender, J., concurring and dissenting).

¶ 39 Returning to the case presently before this Court, it is first necessary to ascertain whether the validity of the waiver of stacking under single-vehicle policies has been squarely addressed by this Court in any context other than as dicta. As is apparent from the above overview, it has not. From the origins of the discussion in the Stacking Litigation case, through the most recent discussion in the Craley case, waiver of stacking under single-vehicle policies has not been an issue essential to the resolution of any case before this Court. Consequently, this Court’s pronouncements on the issue to date must be categorized as non-binding, non-prece-dential dicta. See Kane v. State Farm Fire & Casualty Company, 841 A.2d 1038, 1048 (Pa.Super.2003).

¶ 40 While the waiver of stacking under single-vehicle policies has not been addressed by this Court other than in dicta, it was discussed by the Insurance Commissioner in the consolidated cases that were presented to this Court in the Stacking Litigation case. In Leed v. Donegal Mutual Insurance Company, Declaratory Opinion and Order, February 23, 1998, the Commissioner stated:

A waiver option is allowed for named insureds in [§ 1738(b) ]. Waiver permits the named insured to refuse “stacking.” In 75 Pa.C.S.A. § 1738(b), the statute unmistakably requires that “notwithstanding the provisions of subsection (a),” that the named insured may waive coverage which provides for stacking of uninsured or underinsured coverages. Just as the creation of stacking in subsection (a) does not utilize “inter-policy stacking” or “intra-policy stacking” labels, neither is the waiver option qualified as to any type of stacking.

Id. at 12. The Commissioner continued, stating:

Subsection (b) allows all classes of policyholders to waive stacked UM/UIM coverage. However, the General Assembly reserved a separate waiver provision for the multiple vehicle owner by creating subsection (c), entitled “More than one vehicle.” This subsection specifically requires that multivehicle policyholders be provided the opportunity to waive stacked limits of coverage. Subsection (d) supplies the form for this waiver. Subsections (c) and (d) are separate provisions for waiver by multiple vehicle policyholders of the stacked limits of coverage described in subsection (a).

Evident from the above analysis of § 1738, and from the examination and approval of rates and policies for single vehicle (i.e., inter-policy) stacking, is that single vehicle policy stacking is still permissible after the Act 6 amendments to the Financial Responsibility Law. Stacking coverage may be waived by the named insured, whether under a multiple or single vehicle policy.

Id. at 13.

¶ 41 To reiterate what this Court recognized in the Stacking Litigation case:

Courts traditionally accord an interpretation of a statutory provision by an administrative agency charged with administering that statute some deference. However, the interpretation of a statute is a question of law for the Court to resolve and when the Court is convinced that the interpretative regulation adopted by the administrative agency is clearly erroneous or is violative of legislative intent, the Court disregards the administrative agency’s interpretation.

Stacking Litigation, 754 A.2d at 706 (quoting Donnelly v. Bauer, 553 Pa. 596, 608, 720 A.2d 447, 453 (1998)).

¶ 42 We find with the Insurance Commissioner’s conclusion, that both inter-policy and intra-policy stacking are permitted under § 1738, is neither erroneous nor violative of legislative intent. We also find that Generette elected the waiver of stacking of her UIM coverage and received a reduced premium as a result. We further conclude that the waiver is implemented through the “other insurance” language of Donegal’s UIM endorsement, and that the endorsement restricts Generette’s UIM recovery to the $50,000 coverage already paid to her under the Nationwide policy in accordance with § 1733.¹⁸

¶ 43 Because the applicable standard of review in this case is error of law or abuse of discretion, and because the trial court neither committed error of law nor abused its discretion by granting Donegal’s motion for summary judgment, we affirm the order of that court.

¶ 44 Order affirmed.

¶ 45 FORD ELLIOTT, J. files a Dissenting Opinion, joined by BENDER, J., PANELLA, J., and GANTMAN, J. concurs with separate Dissenting Statement.

¶ 46 GANTMAN, J. files a Dissenting Statement.

1 . At the time of the original issuance of the policy, Generette was Josephine Ausby. She married Ervin Generette on August 23, 1988, and her husband was added as a named insured at that time. For the sake of simplicity, we shall refer to Appellant as Generette, even in relation to time periods pre-dating her marriage.

2 . The Uninsured Motorist Act did not require that insurers offer any amount of UIM, and the Donegal policy issued in 1982 did not provide that coverage to Generette.

3 . Although not crucial to our discussion, we note that Generette added a second vehicle to the policy on January 3, 1992, and elected $35,000 in non-stacked UM/UIM coverages on that vehicle as well. Effective December 6, 1992, one vehicle was removed from the policy. Non-stacked UM/UIM coverages of $35,000 continued in effect for the remaining vehicle.

4 .Section 1733 sets forth the priority of recovery when more than one UM/UIM policy applies. The general rule in § 1733(a) directs that the first claim for UM/UIM benefits be made under the policy covering the vehicle occupied by the injured person at the time of the accident, and that any subsequent claim be made under a policy on a vehicle not involved in the accident with respect to which the injured person is an insured.

5 . The policy provides: "[t]he maximum recovery under all policies in the Second priority shall not exceed the amount by which the highest limit for any one vehicle under any one policy in the Second priority exceeds the limit applicable under the policy in the First priority.”

6 . In the proceedings before the trial court, Generette also challenged the reduction of UM/UIM limits she made in 1985, from an amount equal to her BI limits of $100,000, to the $35,000 UM/UIM limits in effect as of the 1997 accident date. She has not pursued that issue in this appeal.

7 .As explained by the Insurance Commissioner, inter-policy stacking "utilizes a separate insurance policy as the source of benefits to combine with the injured person's coverage under his [own] policy. In this scenario, coverage limits contained in separate policies are available for cumulation in the event primary coverage is insufficient.” Leed v. Donegal Mutual Insurance Company, Declaratory Opinion and Order, February 23, 1998, at 6. By contrast, intra-policy stacking involves multiplying the limits of UM/UIM coverage under a single policy by the number of vehicles insured under that policy.

8 . "Each named insured purchasing [UM/UIM] coverage for more than one vehicle under a policy shall be provided the opportunity to waive the stacked limits of coverage and instead purchase coverage as described in subsection (b)." 75 Pa.C.S. § 1738(c) (emphasis added).

9 . Citing Allwein v. Donegal Mutual Insurance Company, 448 Pa.Super. 364, 671 A.2d 744 (1996), Generette suggests that enforcing Donegal's set-off clause converts UIM coverage into “gap” rather than "excess” coverage. Appellant’s Substituted Brief for Reargument at 8. We dismiss this contention. "Gap” and "excess” relate to reducing, or not reducing, UIM coverage by the limits of available BI coverage.

10 . Seven issues were presented by Appellants in the Stacking Litigation case. The issue addressed in the instant case, whether a single-vehicle owner could waive stacking of UM/UIM coverages, was not among them.

11 . Even though the waiver of stacking discussion in the Stacking Litigation case was dicta, we are constrained to note that, in retrospect, our analysis would impose a limitation on the language of § 1738(b), which allows a named insured to waive stacking. The Legislature did not impose any such restriction.

12 . McGovern’s motorcycle was insured by Progressive under a policy that provided $15,000 in UIM coverage. McGovern also owned an automobile insured by TICO. No UIM benefits were paid by TICO due to the application, of an unchallenged exclusionary clause. McGovern, 796 A.2d at 344, n. 1.

13 . Nationwide’s policy directed, inter alia, that UIM coverage did not apply to ''[b]odily injuiy suffered while occupying a motor vehicle owned by you or a relative but not insured for [UIM] coverage under this policy.” Harris, 826 A.2d at 882.

14 . State Farm’s "other insurance” clause mirrors the Donegal policy provision, providing in pertinent part: "The maximum recovery under all policies in the Second priority shall not exceed the amount by which the highest limit for any one vehicle under any one policy in the Second priority exceeds the limit applicable under the policy in the First priority.”

15 . Having concluded that "other insurance” clause was inapplicable to the case, the Court stated, "we need not determine whether or under what circumstances it might be enforceable or unenforceable.” Rizzo, 835 A.2d at 365.

16 . We note that, even if the § 1738 waiver issue were deemed central to the resolution of the Rizzo case, or any other panel decision post-dating our Stacking Litigation decision, as the court sitting en banc, we are not bound to follow a Superior Court panel opinion. See Neilson v. Nationwide Insurance Company, 738 A.2d 490 (Pa.Super.1999).

17 . The Craley case was argued before our Supreme Court on May 16, 2005.

18 . Although Generette is not entitled to recover any UIM benefits from Donegal under the facts of this case, the waiver of stacking does not foreclose the possibility of a single-vehicle owner recovering UIM benefits from his or her own policy when the owner is injured in a non-owned vehicle. Employing the same hypothetical set forth previously in this opinion, if the Nationwide policy provided UIM coverage in the amount of $50,000, and if Generette had purchased non-stacked coverage in the amount of $300,000, Gener-ette would have been entitled to recover up to $250,000 in UIM benefits under her own policy (her $300,000 UIM limits, less the Nationwide $50,000 UIM limits). Stated another way, assuming the damages warrant the recovery, under no circumstance will the injured individual ever be prevented from recovering at least the level of coverage purchased from his or her carrier, even though part — or even all — of the recovery might be paid by another insurer. In this case, Gener-ette actually recovered greater UIM benefits than she purchased, due to the fact that the Nationwide UIM limits were greater than the coverage she purchased from Donegal.