dissenting.
I respectfully dissent.
As part of her employment benefits Ball was provided with an insured company car in January, 1988. Following receipt of the benefit of the company car with insurance, Ball reduced the uninsured motorist (“UM”) and underinsured motorist (“UIM”) coverage limits on her own automobile from $300,000 to $100,000.
On July 15, 1988 Ball was killed by a negligent drunk driver. On behalf of Ball’s three surviving minor children and parents, Sayre collected all that was available from the other driver’s insurer and also collected $100,000 from the decedent’s UIM coverage.
Demand was then made on defendant for payment under its underinsured provisions. Defendant denied coverage, claiming that the endorsement issued for Arizona did not contain UIM coverage. This suit was commenced to enforce coverage. Both parties filed motions for summary judgment. Defendant attached affidavits from its agents and broker stating that Fleming only wanted mandatory minimum coverage in the various states. The price quotation that defendant gave Fleming, in a bid to replace previous coverage from Travelers Indemnity Corporation, did not contain any specific language excluding UIM coverage in Arizona. The price quotation sheet listed UM/UIM coverage. The language in the endorsement indicates that the policy includes UIM coverage. Under the Schedule of Coverage and Covered Autos, the section indicating UIM coverage includes in parentheses the language “When Not Included in Uninsured Motorist Coverage.” In Kemper’s Class Report—Automobile, the defendant indicated that UIM *415coverage existed, but in the trial court pleadings, defendant claimed that this was a “typo”. Defendant admits that UIM coverage was not offered to Fleming in writing or rejected by Fleming in writing in Arizona or in Oklahoma, where the policy originated.
Fleming’s practice for many years had been to insure its owned and leased fleet of vehicles with substantial liability coverage, but with only the minimum UM and UIM coverage (if any) required by statute in the various states where the vehicles are principally garaged. Fleming’s insurance is a “brokered” account. This means that Fleming specifically instructs an insurance broker as to the types of coverage it wants and does not want, so that insurance companies can formulate bids or proposals on precisely the desired coverage. Fleming’s Risk Manager was aware that UIM coverage was not required by law in Arizona, but that Arizona UIM coverage could be purchased up to liability policy limits. No evidence was presented that Ball ever saw the defendant’s policy, ever read the policy, or ever spoke to anyone at Kemper regarding its terms. The evidence is undisputed, however, that she reduced her own UM/UIM coverage upon receiving the insured vehicle from her employer.
Arizona law requires that insurers offer in writing to purchasers an opportunity to buy UIM coverage. A.R.S. section 20-259.01(0) and (E) provides in relevant part:
C. Every insurer writing automobile liability or motor vehicle liability policies, as provided in subsection A of this section shall also make available to the named insured thereunder and shall by written notice offer the insured and at the request of the insured shall include within the policy underinsurance motorist coverage which extends to and covers all persons insured under the policy, in limits not less than the liability limits for bodily injury or death contained within the policy. The selection of limits or rejection of coverage on a form approved by the director, by a named insured or applicant shall be valid for all insureds under the policy. The offer need not be made in the event of the reinstatement of a lapsed policy or the transfer, substitution, modification or renewal of an existing policy. At the request of the insured the insured may purchase and the insurer shall then include within the policy underinsured motorist coverage which extends to and covers all persons insured under the policy in any amount authorized by the insured up to the liability limits for bodily injury or death contained within the policy____
E. “Underinsurance motorist coverage” includes coverage for a person if the sum of the limits of liability under all bodily injury or death liability bonds and liability insurance policies applicable at the time of the accident is less than the total damages for bodily injury or death resulting from the accident. To the extent that the total damages exceed the total applicable liability limits, the underinsurance motorist coverage provided in subsection C of this section is applicable to the difference.
A written notice is mandatory. The offer must be in definite and specific terms so as to make effective the insured’s clear acceptance of the additional coverage or knowledgeable rejection thereof. UIM coverage is included by operation of law if the insurer fails to effectively offer such coverage in writing to the purchaser. St. Paul Fire & Marine Ins. Co. v. Gilmore, 168 Ariz. 159, 167, 812 P.2d 977, 985 (1991); Insurance Co. of North America v. Superior Ct., 166 Ariz. 82, 85, 800 P.2d 585, 588 (1990). Since the defendant admits that Kemper did not offer Fleming the UIM coverage in Arizona, plaintiff argues that the effect of the non-offer is that the insured is entitled to coverage to the extent of the liability coverage which in this case is $8,000,000.
Defendant does not dispute the law on this issue but instead argues that Fleming waived the statutory protection of a written offer of UIM coverage by specifically directing Kemper not to include non-réquired UIM in its proposal. Defendant argues that as a result, Kemper’s proposal did not include UIM coverage in states such as Arizona where that coverage is not required by law. Defendant claims the trial court was correct when it held that Fleming is not entitled to UIM coverage which it did not intend, did not pay *416for, and which it expressly waived in soliciting Kemper’s proposal.
Defendant states that the public policy behind A.R.S. section 20-259.01(0) is to give the insured the option of purchasing UIM coverage up to policy limits if such coverage is desired. Spain v. Valley Forge Ins. Co., 152 Ariz. 189, 192, 731 P.2d 84, 87 (1987). Thus the defendant and the majority take the position that there is an exception to the mandatory written offer rule of the statute which is that a sophisticated corporation, well aware of the nature and availability of UIM coverage, may waive the protection of the mandatory offer by specifically directing the insurance company not to include UIM coverage in its proposal. In such a situation, they urge, there is no failure to make a required offer because the offer was knowingly waived by the insured before it could be made.
As plaintiff points out, in Arizona the law is very clear that a written UIM offer is mandatory and the effect of noncompliance is coverage in the amount of the liability policy limits. Ormsbee v. Allstate Ins. Co., 176 Ariz. 109, 859 P.2d 732 (1993); St. Paul Fire & Marine Ins. Co., 168 Ariz. at 167, 812 P.2d at 985. The majority, stating that there are no Arizona eases directly addressing the waiver issue, relies on cases from other states which hold that a named insured can waive the protection of the statutory “written notice” requirement. This ignores the clear import of the recent Arizona supreme court opinion in Ormsbee v. Allstate Ins. Co.
The majority states that: “If there was a dispute between Defendants and Fleming, we agree that the protection of A.R.S. section 20-259.01(0) would apply and that the Fleming policy would contain policy-limits UIM coverage by operation of law.” Ante p. 6. The record clearly shows that Fleming insures over three thousand vehicles per year. That insurance is such a substantial portion of Fleming’s cost of doing business that Fleming has its own “risk manager” to coordinate and oversee its insurance coverage. Certainly a company with whom Fleming placed its account such as the defendant, would be eager to please the customer and maintain such a large account. Similarly, Fleming would clearly want to get the lowest possible price for its fleet insurance coverage. There is therefore a commonality of interests between the defendant and Fleming and their post-claim agreement on coverage is not surprising.
Even accepting the majority’s and the defendant’s theory of advance oral waiver of coverage, the issue should still be one of fact for the jury as there are disputed issues of material fact as to whether such a waiver did actually occur. It is precisely because the legislature did not want evidentiary wars on this issue that our statute, A.R.S. section 20-259.01(C), contains mandatory language. Our supreme court in Ormsbee stated, “the statute is absolute and on its face covers all automobile liability policies.” 148 ArizAdv. Rep. at 7. This court cannot and should not contradict the wisdom of the legislature in this regard. Therefore I would hold that the trial court erred in finding a valid oral waiver of UIM coverage and in granting summary judgment for the defendant. I would reverse and remand with directions to grant summary judgment for the plaintiff. Even under the majority’s theory of this case, the judgment should be reversed and the case remanded for trial due to the admitted discrepancies in the evidence.