Timothy Rupert v. Liberty Mutual Insurance Company on Appeal From the Order of the United States…

PRECEDENTIAL
Filed May 16, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-3214
TIMOTHY RUPERT,
Appellant
v.
LIBERTY MUTUAL INSURANCE COMPANY
ON APPEAL FROM THE ORDER OF THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. No: 98-cv-01986)
Magistrate Judge: The Honorable Kenneth J. Benson
Argued on October 24, 2000
Before: BECKER, Chief Judge, SCIRICA and FUENTES,
Circuit Judges.
(Opinion Filed: May 16, 2002)
JAMES D. BELLIVEAU (Argued)
Edgar Snyder & Associates, LLC
1600 Gulf Tower
707 Grant Street
Pittsburgh, PA 15219-1925
Counsel for Appellant
STANLEY A. WINIKOFF (Argued)
Jones, Gregg, Creehan &
Gerace, LLP
411 Seventh Avenue, Suite 1200
Pittsburgh, PA 15219-1905
Counsel for Appellee
OPINION OF THE COURT
FUENTES, Circuit Judge:
This case raises the issue whether the plaintiff, insured
under an automobile insurance policy issued by the
defendant, is bound by a stacking waiver signed by his
deceased wife, who was formerly the first named insured on
the policy.1 This issue returns to us from the Pennsylvania
Supreme Court, notwithstanding that it granted our

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certification of a question of law.2 We framed the issue on
certification as follows:
Does the requirement in 75 Pa.C.S. S 1738(e) that a
valid stacking waiver "must be signed by the first
named insured" mean that a valid waiver must be
signed by the current first named insured on a policy,
thus imposing a continuing obligation on insurers to
acquire a new stacking waiver if the first named
insured on a policy changes, or does S 1738(e) merely
require that a valid waiver only must be signed by the
first named insured at the time the waiver is signed?
Unfortunately, the Court was unable to answer the certified
question, because, with one justice recused, the Court
divided 3-3. Rupert v. Liberty Mut. Ins. Co., 781 A.2d 132
_________________________________________________________________
1. In this case, "stacking" refers to the practice of allowing an insured to
aggregate or "stack" the coverage limits of each vehicle covered under an
insurance policy to pay for damages sustained in an accident.
2. The Pennsylvania Supreme Court accepts questions of law upon
certification from a United States Court of Appeals or the United States
Supreme Court pursuant to its Internal Operating Procedures. See, e.g.,
Coady v. Vaughn, 770 A.2d 287, 288 (Pa. 2001); Fiore v. White, 757 A.2d
842, 843 (Pa. 2000).
2
(Pa. 2001). Opinions were filed by Justices Zappala and
Cappy. Justice Zappala, joined by Chief Justice Flaherty
and Justice Castille, opined that the validity of a waiver of
stacking uninsured motorists coverage is determined at the
inception of the policy. In contrast, Justice Cappy, joined
by Justices Newman and Saylor, would hold that 75
Pa.C.S. S 1738(e) requires that a valid stacking rejection
form must be signed by the current first named insured.
The uncertainty over the state of Pennsylvania law on
this issue that prompted us to certify this question in the
first place is compounded by this result. We are therefore
left with no choice but to predict what the Pennsylvania
Supreme Court will ultimately decide by analyzing
Pennsylvania law ourselves.3 We find that Justice Zappala’s
view best reflects Pennsylvania law and will render
judgment accordingly, affirming the judgment of the
District Court. We will state our rationale succinctly. After
all, we write on quicksand; once the Pennsylvania Supreme
Court faces this question in another case -- we hope soon
-- it will presumably resolve it once and for all, and
anything we write will disappear.
I.
In 1984, Cynthia Winters purchased an automobile
insurance policy from defendant, Liberty Mutual Insurance
Company ("Liberty Mutual"). Ms. Winters included her
then-boyfriend Timothy Rupert, the plaintiff, on her policy

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as a "driver," while Cynthia herself was the sole "named
insured." As required by Pennsylvania law, the policy
included coverage for being struck by an uninsured
motorist. In 1988, Cynthia and Timothy married. In 1991,
the now Cynthia Rupert, still the only named insured on
the insurance policy that covered herself and Timothy,
executed a "Rejection of Stacked Uninsured Coverage
_________________________________________________________________
3. There would be no point to our re-submitting the question, for it is
possible that Justice Eakin, a newly elected justice, would vote in the
same manner as Chief Justice Flaherty, whom he replaced, leaving the
matter at 3-3. Resubmitting the question, therefore, would likely result
in only further -- and needless -- delay of this already protracted
litigation.
3
Limits" form for her Liberty Mutual auto insurance policy.
Thus, in 1991 Cynthia waived the right to stack uninsured
motorist coverage on her policy, under which Timothy was
also insured. In rejecting stacked coverage, Cynthia
acknowledged that the limits of coverage she was
purchasing would be reduced and that her insurance
premiums would be reduced as well.
In 1993, Timothy was added as a named insured under
the policy, while Cynthia remained as the first named
insured. Timothy testified in his deposition that Cynthia
handled all of their insurance matters until July 1996,
when she underwent heart bypass surgery. After that,
Timothy took over paying the bills. On January 20, 1997,
Cynthia died. Two days later, Timothy changed the policy to
remove Cynthia’s name so that he was now the sole named
insured on the policy. Over the next few months, Timothy
made several changes to the policy, such as adding certain
cars to the coverage and removing others. Timothy also
renewed the insurance policy on May 22, 1997.
On July 26, 1997, Timothy was seriously injured when
he was struck by a car while standing next to his own
vehicle. The car that hit him was operated by an uninsured
motorist. Timothy’s insurance policy included $300,000 in
uninsured motorist coverage per accident. Because the
policy covered two vehicles at the time of the accident,
Timothy could collect up to $600,000 on his accident if
stacking were allowed under the policy. Liberty Mutual
contends that, since Cynthia Rupert had waived stacked
coverage, it limited its payment on Timothy’s claim to
$300,000. Timothy submits that he was entitled to receive
up to $600,000 because, at the time of the accident, the
waiver of stacking was not valid as applied to him.
II.
Timothy claims that, because Cynthia died in January
1997 and thus was not the "first named insured" on the
policy at the time of the accident, the waiver that she
executed in 1991 was no longer valid as of July 1997. He

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interprets the Pennsylvania statute that applies to waivers
of stacking, 75 Pa.C.S. S 1738, to require that the waiver be
4
signed by the current first named insured on a policy in
order to be valid. Under this view, if the first named
insured changes, a waiver signed by the former first named
insured is no longer valid. According to Liberty Mutual’s
reading of the statute, a policy’s waiver continues to be
valid even after the policy’s first named insured changes, so
long as whoever executed the waiver was the first named
insured at that time. Because there was no dispute between
the parties as to the facts, the Magistrate Judge asked both
sides to submit summary judgment motions.4 The District
Court granted Liberty Mutual’s motion for summary
judgment, and Timothy Rupert appealed.
The District Court had diversity jurisdiction over this
case pursuant to 28 U.S.C. S 1332(a). We exercise
jurisdiction under 28 U.S.C. S 1291. Our review of a district
court’s grant of summary judgment is plenary. See TKR
Cable Co. v. Cable City Corp., 267 F.3d 196, 199 (3d Cir.
2001).
III.
The Pennsylvania General Assembly enacted the Motor
Vehicle Financial Responsibility Law ("MVFRL"), 75 Pa.C.S.
SS 1701-99, "in large part" to check the rapidly rising cost
of automobile insurance. Huber v. Erie Ins. Exchange, 587
A.2d 333, 334 (Pa.Super.Ct. 1991). The underlying aim of
the MVFRL is "to provide broad coverage to assure the
financial integrity of the policyholder." Danko v. Erie Ins.
Exch., 630 A.2d 1219, 1222 (Pa.Super.Ct. 1993), aff ’d, 649
A.2d 935 (1994). Accordingly, Pennsylvania courts have
held that "the MVFRL is to be construed liberally to afford
the greatest possible coverage to injured claimants." Sturkie
v. Erie Ins. Group, 595 A.2d 152, 157-58 (Pa.Super.Ct.
1991). Courts should refrain, however, from rewriting the
MVFRL " ‘under the pretext of pursuing its spirit.’ "
_________________________________________________________________
4. An inchoate factual dispute has emerged on appeal insofar as Liberty
Mutual now intimates that when renewing the policy Timothy in fact
knew that stacking had been waived. The record, however, provides no
support for this assertion. See Dep. of T. Rupert at 43, 76 (testifying that
although the waiver of stacking was clearly visible on the policy, he
never understood what the term meant).
5
Wolgemuth v. Harleysville Mut. Ins. Co., 535 A.2d 1145,
1151 (Pa.Super.Ct. 1987) (quoting 1 Pa.C.S. S 1921(b)).
With that framework in mind, we consider the respective
opinions of Justices Cappy and Zappala. They could not
agree upon whether the plain language of S 1738 requires

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that a stacking waiver be signed by the current first named
insured for it to be valid. The statute, as it pertains to
uninsured motorist coverage, reads as follows:
(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 underinsured coverage
shall apply separately to each vehicle so insured. The
limits of coverages available under this subchapter 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:
6
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.
Signature of First Named Insured
Date
(e) Signature and date.--The forms described in

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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.
75 Pa.C.S. S 1738.
Justice Cappy, who would hold that a valid stacking
waiver does in fact require the signature of the current first
named insured, expressed concern that a contrary holding
would run counter to the General Assembly’s intention "to
ensure that policyholders would be given full information
regarding availability of stacked coverage before deciding
whether or not to reject it." Rupert, 781 A.2d at 135. He
reasoned that, if the validity of a waiver of uninsured
motorist coverage is determined at the inception of the
policy, then future insureds would "not even minimally [be]
afforded constructive knowledge of the option to reject
stacked coverage." Id. at 136. Further, Justice Cappy
rejected Justice Zappala’s view that waiver validity is
determined "at the inception of the policy" on the ground
that such language appears nowhere in S 1738. Id.
While it is true that the statute does not directly state
that validity is determined "at the inception of the policy,"
it is also apparent that S 1738 does not explicitly require
that a valid waiver form be signed by the current first
7
named insured. If the language of the statute did either of
these things, then there would be no issue before us now.
In the view of Justice Zappala, we can infer thatS 1738
does not require the signature of the current first named
insured based upon the language used in subsections (d)
and (e) of the statute. He explained:
Pursuant to Section 1738(d), each named insured must
be informed of the option to waive stacked coverage.
The statute mandates the notification be presented in
the specific manner of the prescribed form described in
Section 1738(d)(1). That form calls only for the
signature of the first named insured. Likewise, Section
1738(e) also mandates the signature of the first named
insured. My reading of the plain meaning of Section
1738(d) and (e) is that the signature of the first named
insured evidences the insurer’s fulfillment of its
obligation of offering and informing the named insured
of his or her right to waiver. Given this plain meaning
of the statute, I find that, for purposes of Section 1738,
the signature of the first named insured on a valid
waiver at the inception of the policy is evidence that
each named insured under the policy was fully aware
of the options regarding stacked policy limits.
Rupert, 781 A.2d at 135 (emphasis added). We agree with
Justice Zappala’s interpretation of the statute. Under his
view, the first named insured’s signature on a valid waiver
form "at the inception of the policy" is sufficient to show

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that each named insured under the policy received notice of
the policy’s stacking options. Further, Justice Zappala is
clearly satisfied that individuals added to a policy as named
insureds subsequent to the execution of a stacking waiver,
such as Timothy Rupert in this case, will receive adequate
notice of the stacking waiver through the first named
insured.
We find support for Justice Zappala’s conclusion in
subsection (c) of the statute, which provides that"[e]ach
named insured purchasing . . . coverage . . . shall be
provided the opportunity to waive the stacked limits of
coverage . . . ." 75 Pa.C.S. S 1738(c) (emphasis added). This
language further suggests that insurers’ obligation to
8
inform named insureds of their right to waiver exists only
at the time that coverage is initially purchased.
Moreover, we do not share Justice Cappy’s view that
failing to require the signature of the current first named
insured on a valid waiver form would violate the legislative
goal of ensuring knowledgeable rejection of coverage. As
Justice Cappy acknowledged, the legislature adopted the
fiction of "constructive knowledge" in drafting S 1738(d). In
relevant part, the waiver form described in S 1738(d) reads,
"By signing this waiver, I am rejecting stacked limits of
uninsured motorist coverage under the policy for myself
and members of my household . . . ." 75 Pa.C.S. S 1738(d)
(emphasis added). In other words, as Justice Cappy
explained, the signature of the first named insured on a
proper waiver form is sufficient to show that all other
insureds had knowledge of the stacked coverage option,
and acquiesced in rejecting it.
Justice Cappy raises the concern that, if "a rejection form
signed ‘at the inception of the policy’ indefinitely binds all
future insureds, including those added long after the
original first named insured is removed from the policy[,]"
then "subsequent insureds are not even minimally afforded
constructive knowledge of the option to reject stacked
coverage." Rupert, 781 A.2d at 136. We question, however,
whether this would leave subsequent insureds with any
less knowledge of the waiver option than if the original first
named insured had remained on the policy as the first
named insured at the time subsequent insureds were
added to the policy.
In both situations, a decision on whether to reject
stacked coverage is made prior to the addition of
subsequent insureds. In both situations, the first named
insured has knowledge of the option to reject stacked
coverage.5 The only difference is that, in the scenario that
_________________________________________________________________
5. Even if the current first named insured was not the one who signed
the rejection form at the inception of the policy, he would have had at
least constructive knowledge of the waiver option either through the

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original first named insured or through a subsequent first named
insured who, herself, had at least constructive knowledge of the option.
In other words, subsequent first named insureds would always receive at
least constructive knowledge of the waiver option via a chain of first
named insureds linking back to the original.
9
Justice Cappy finds troubling, the current first named
insured is not the one who actually signed the rejection
form. We do not see, however, why subsequent insureds
would not receive at least constructive knowledge from a
first named insured who has knowledge of the decision to
reject stacked coverage, but who was not the one actually
to sign the rejection form.
Justice Cappy does not suggest that first named insureds
should be required to sign a new waiver form every time a
new insured is added to the policy. As long as a stacking
rejection form was signed by the current first named
insured, he appears satisfied that the fiction of constructive
knowledge is sufficient to meet the legislative goal of
ensuring knowledgeable rejection of coverage. We see no
reason, however, why subsequent insureds should not be
deemed to have received the same constructive knowledge
from a first named insured who has knowledge of the
waiver option but who was not the one to have actually
signed the rejection form.
In this case, Timothy Rupert became a named insured
under the policy with Liberty Mutual in 1993, when
Cynthia Rupert was listed as the first named insured. By
this time, Cynthia had already signed a valid rejection form
waiving stacked coverage. Through her, Timothy gained
either actual knowledge of the waiver option or at least
constructive knowledge when he was added to the policy.
Thus, when Timothy became the first named insured under
the policy in 1997, we can presume that he knowingly
rejected stacked coverage despite the fact that he never
signed a rejection form. At the very least, he had received
constructive knowledge of the waiver option through
Cynthia, the original first named insured.
Based upon our interpretation of the language ofS 1738,
which we find to be consistent with the legislative goal of
ensuring knowledgeable rejection of coverage, we conclude
that the MVFRL does not impose a continuing obligation on
insurers to acquire a new stacking waiver whenever the
first named insured on a policy changes. A valid stacking
waiver will remain valid as long as it was signed by the
person who was designated as the first named insured at
the time the waiver was signed. Thus, we hold that Timothy
10
Rupert is not entitled to derive the benefits of stacked
coverage because the waiver form executed by Cynthia
Rupert remained valid even after Timothy became the first

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named insured under the policy. Further, after Cynthia
signed the waiver, the insurance premiums paid by her and
Timothy were reduced to reflect the absence of stacked
coverage. Allowing Timothy Rupert to reap the benefits of
stacked coverage without having paid for stacked coverage
not only seems unfair, but could compromise the legislative
goal of reducing the cost of insurance.
IV.
For the foregoing reasons, we will affirm the judgment of
the District Court.
11
BECKER, Chief Judge, dissenting:
I share Judge Fuentes’ frustration that we must revisit
this case and his hope that the Pennsylvania Supreme
Court will soon resolve the issue. Since we "write on
quicksand," Maj. op. at 3, I will write succinctly. In my
view, Justice Cappy’s views best reflect Pennsylvania law.
The critical part of his rationale is as follows:
The legislature placed the burden of obtaining a valid
rejection of stacked coverage on the insurance
company: The rejection forms in S 1738(d) must be
signed and dated by the first named insured, or else
the rejection of stacked coverage is void. 75 Pa. C.S.
S 1738(e). It is evident that the General Assembly
sought to ensure that policyholders would be given full
information regarding availability of stacked coverage
before deciding whether or not to reject it. Cf. Salazar
v. Allstate Insurance Co., 549 Pa. 658, 702 A.2d 1038,
1044 (1997) (sections 1731, 1791 and 1791.1 describe
information that insurer must provide "in order that
the insured may make a knowing and intelligent
decision on whether to waive [uninsured motorists]
benefits coverage").
. . . .
The question with which we are presented in this
matter involves the effect of a valid waiver by the first
named insured. The Opinion of Mr. Justice Zappala
finds that the validity of a waiver of uninsured
motorists coverage is determined "at the inception of
the policy." Yet this language appears nowhere in
section 1738. Moreover, under this expansive view, a
rejection form signed "at the inception of the policy"
indefinitely binds all future insureds, including those
added long after the original first named insured is
removed from the policy; these subsequent insureds
are not even minimally afforded constructive knowledge
of the option to reject stacked coverage. This troubling
result does not follow if the insurer has obtained a
rejection form from the current first named insured,
whose signature would reject coverage for all those
insureds currently on the policy. In light of the

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12
legislative goal of ensuring knowledgeable rejection of
coverage, and the conclusive effect of the first named
insured’s signature upon other insureds, it is of
paramount importance that any new first named
insureds receive the notice prescribed by S 1738.
Rupert, 781 A.2d at 135-36.
I find this reasoning persuasive. In my view, by rendering
the notion of constructive knowledge almost infinitely
elastic, Judge Fuentes has placed more weight on it than it
can bear, especially in the context of the particular
legislative provision at issue, which is part of a statutory
scheme (Pennsylvania’s Motor Vehicle Financial
Responsibility Law ("the MVFRL"), 75 Pa.C.S.SS 1701-99)
whose "underlying objective" is "to provide broad coverage
to assure the financial integrity of the policyholder." Danko
v. Erie Ins. Exch., 428 Pa. Super. 223, 229 (1993), aff ’d,
538 Pa. 572 (1994).
Consistent with this objective, the Pennsylvania courts,
pursuant to their statutory obligations to construe statutes
to effectuate the intent of the legislature, see 1 Pa.C.S.
S 1921(a), and to construe statutes liberally in order to
promote justice, see 1 Pa.C.S. S 1928(c), have concluded
that the MVFRL ought to be interpreted so as to"afford[ ]
the injured claimant the greatest possible coverage."
Motorists Ins. Cos. v. Emig, 444 Pa. Super. 524, 538 (1995).
Accordingly, "[i]n close or doubtful cases," the MVFRL and
insurance policies issued in compliance with it should be
construed "to favor coverage for the insured." Id.
As evidenced by the Pennsylvania Supreme Court’s 3-3
split, this case is clearly "close" and "doubtful." Justice
Cappy’s interpretation of S 1738 as requiring that a valid
waiver of stacking be executed by the current first named
insured is the construction that would afford Timothy, the
injured claimant here, "the greatest possible coverage." As
Justice Cappy explained, the very detailed requirements of
S 1738 are designed to "ensur[e] knowledgeable rejection of
coverage." Rupert, 781 A.2d at 135 (emphasis added).
Consequently, even if ruling for Timothy rewards him for
being ignorant as to the terms of the policy, such a result
appears to be consistent with S 1738’s purpose of protecting
insureds from unintentionally waiving stacked coverage.
13
Additionally, comparing what the legislature did not state
in S 1738 with what it did state in other provisions of the
MVFRL informs our resolution of this issue. Section 1791,
for instance, which prescribes the notice requirements for
insurance policies, explicitly provides that an insured is
presumed to have knowledge of the policy’s benefits and
limits so long as notice was provided to him "at the time of

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application for original coverage." Section 1738, on the
other hand, does not contain any similar express
presumption that a waiver signed by the first named
insured at the inception of coverage is to remain valid
throughout the policy’s lifetime.1
_________________________________________________________________
1. It is instructive to contrast this case with our decision in Nationwide
Mutual Insurance Co. v. Buffetta, 230 F.3d 634 (3d Cir. 2000). Like the
case at bar, Buffetta involved a married couple that was once insured on
the same automobile policy. Mr. Buffetta was originally the sole "named
insured" while his wife was on the policy as a"driver." As the sole named
insured, Mr. Buffetta chose to increase the policy’s bodily injury liability
limits, but declined to increase the policy’s uninsured motorist ("UM")
coverage. Under the MVFRL, an insurance company must provide UM
coverage at a level equal to the policy’s bodily injury coverage unless the
insured requests a reduction by executing an Uninsured Motorist
Coverage Authorization Form (a "waive down"). See 75 Pa.C.S. SS 1731,
1734. Consequently, in order to avoid the increase in UM coverage
concomitant to the increase in his bodily injury liability limit, Mr.
Buffetta executed the required waive down.
A year later, the Buffettas divorced, and Mrs. Buffetta took title to the
car. She then changed the insurance policy to be in her name alone.
Soon thereafter, Mrs. Buffetta’s father, who lived in her house and was
covered by the policy, was killed in an automobile accident with an
uninsured driver. Mrs. Buffetta made a claim on the policy, contending
that the limits of the UM coverage should not be the lower amount
approved by her husband, but rather the full liability limit of the policy
because she had not personally executed the waive down.
The court held that Mrs. Buffetta was bound by her ex-husband’s
waive down, its opinion focusing on the "permissive terms" of S 1734’s
waive down provision as it relates to the insurer’s responsibilities. Id. at
641. The panel noted that S 1734, "by its terms, does not require
anything to be done by an insurer to permit the reduction in the amount
of UIM coverage under a policy," id. at 639, but rather that it "provides
that ‘a named insured may request in writing the issuance of coverages
. . . in amounts equal to or less than the limits of the liability for bodily
injury.’ " Id. (quoting S 1734) (alteration in original).
14
Finally, I am not convinced that allowing Timothy to reap
the benefits of stacked coverage would compromise the
legislative goal of reducing insurance costs, as Judge
Fuentes intimates. Rather, whatever increased costs that
might result from a holding in favor of Timothy would be
negligible, for were we to rule in Timothy’s favor,
Pennsylvania insurers, as rational profit-maximizing firms,
would henceforth always seek the consent of the current
first named insured in policies that have waived UM
stacking coverage. The unique problem presented by this
case, therefore, would not arise again.
For these reasons, I respectfully dissent.
A True Copy:
Teste:

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Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
The statute at issue in this case, in contrast, is not written in
"permissive terms." Instead, S 1738 imposes various requirements on the
insurer for a valid waiver of stacking. For instance, unlike S 1734, S 1738
requires that an opportunity for waiver of stacking be provided to the
insured. In short, Buffetta does not control the outcome of this case
because its holding was in large part based on the fact that S 1734 never
required the insurer to take any affirmative steps to provide the insured
with the opportunity to reduce UM coverage, whereasS 1738, the
relevant statutory provision in the case at bar, clearly imposes
affirmative obligations on the insurer.
15

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