SUPREME COURT OF ARIZONA
En Banc
LUIS BALLESTEROS and ALMA ) Arizona Supreme Court
BALLESTEROS, husband and wife; ) No. CV-10-0026-PR
GUADALUPE PORTILLO; GERARDO )
PORTILLO; RICARDO PORTILLO; ) Court of Appeals
MANUEL PORTILLO; RUBEN PORTILLO; ) Division Two
GUADALUPE PORTILLO JR.; and ) No. 2 CA-CV 09-0123
PATRICIA YERENA, )
) Pima County
Plaintiffs/Appellees, ) Superior Court
) No. C20050987
v. )
)
AMERICAN STANDARD INSURANCE )
COMPANY OF WISCONSIN, a foreign ) O P I N I O N
corporation doing business in )
the state of Arizona as AMERICAN )
FAMILY INSURANCE COMPANY; )
AMERICAN FAMILY MUTUAL INSURANCE )
COMPANY, a foreign corporation )
doing business in the state of )
Arizona; SHIRLEE KOPIN; and )
SHAWN D. MORRIS, )
)
Defendants/Appellants. )
_________________________________ )
Appeal from the Superior Court in Pima County
The Honorable John E. Davis, III, Judge
The Honorable Stephen C. Villarreal, Judge
REVERSED AND REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division Two
223 Ariz. 269, 222 P.3d 292 (2009)
VACATED
________________________________________________________________
LAW OFFICE OF ELLIOT GLICKSMAN, P.L.L.C. Tucson
By Elliot A. Glicksman
And
GABROY, ROLLMAN, & BOSSE, P.C. Tucson
By John Gabroy
Richard A. Brown
Attorneys for Luis Ballesteros, Alma Ballesteros,
Guadalupe Portillo, Gerardo Portillo, Ricardo Portillo,
Manuel Portillo, Ruben Portillo, Guadalupe Portillo Jr.,
and Patricia Yerena
LEWIS AND ROCA, L.L.P. Phoenix
By Steven J. Hulsman
Brenden J. Griffin
Lawrence A. Kasten
Attorneys for American Standard Insurance Company
of Wisconsin, American Family Insurance Company,
American Family Mutual Insurance Company,
Shirlee Kopin, and Shawn D. Morris
MODRALL, SPERLING, ROEHL, HARRIS, & SISK, P.A. Albuquerque, NM
By Brian K. Nichols
Attorney for Amicus Curiae Progressive Casualty
Insurance Company
EHMANN DECIANCIO, P.L.L.C. Tempe
By Joel DeCiancio
Christopher Robbins
Attorneys for Amici Curiae National Association
of Mutual Insurance Companies and Property
Casualty Insurers
THE HASSETT LAW FIRM, P.L.C. Phoenix
By Myles P. Hassett
Lucas N. Frank
Attorneys for Amicus Curiae Independent Insurance
Agents and Brokers of Arizona
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Lynette J. Evans, Assistant Attorney General
Attorneys for Amicus Curiae Christina Urias, Director,
State of Arizona Department of Insurance
LAW OFFICES OF DAVID L. ABNEY Phoenix
By David L. Abney
Attorneys for Amici Curiae Arizona Trial Lawyers
Association and Arizona Association for Justice
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BROENING, OBERG, WOODS, & WILSON, P.C. Phoenix
By James R. Broening
Robert T. Sullivan
Brian W. Purcell
Attorneys for Amicus Curiae Farmers Insurance
Company of Arizona
________________________________________________________________
B E R C H, Chief Justice
¶1 Arizona Revised Statutes (A.R.S.) section 20-259.01
(Supp. 2009)1 requires insurers to offer uninsured motorist (UM)
and underinsured motorist (UIM) coverage to their insureds by
giving them a “written notice.” The issue in this case is
whether the insurer may satisfy this statutory requirement by
providing an Insurance Department-approved English-language form
to a Spanish-speaking insured.
I. FACTUAL AND PROCEDURAL BACKGROUND2
¶2 Luis Ballesteros purchased an automobile insurance
policy from American Standard Insurance Company of Wisconsin.
Because Ballesteros’s primary language is Spanish, a Spanish-
speaking member of the insurance agent’s staff helped
Ballesteros complete the application. The agent then gave
Ballesteros an English-language form, approved by the Arizona
1
Ballesteros purchased his policy in 2001. Because the
version of § 20-259.01 at that time did not materially differ
from the current statute, we cite the current version.
2
We view the facts in the light most favorable to American
Standard, the party against whom partial summary judgment was
entered. Tarron v. Bowen Mach. & Fabricating, Inc., 225 Ariz.
147, 151 ¶ 16, 235 P.3d 1030, 1034 (2010).
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Department of Insurance (DOI), on which to select or reject
UM/UIM coverage. Ballesteros signed the form, indicating on it
that he declined such coverage.
¶3 Several months later, Ballesteros’s mother-in-law, an
insured under the policy, died in a collision with an uninsured
driver. Ballesteros made a claim for UM coverage, which was
denied. He sued for breach of contract, claiming that because
American Standard failed to comply with A.R.S. § 20-259.01, UM
coverage should be included in his policy by operation of law.3
See Ins. Co. of N. Am. v. Superior Court (Villagrana), 166 Ariz.
82, 85-86, 800 P.2d 585, 588-89 (1990) (holding that the
“appropriate remedy” for failure to make the statutorily
required offer of UM coverage “is to make such coverage part of
the contract by operation of law”).
¶4 The trial court granted partial summary judgment to
Ballesteros, concluding that American Standard violated § 20-
259.01 by not offering him UM/UIM coverage on a Spanish-language
form. The court reasoned that the English DOI-approved UM/UIM
selection form was not “reasonably calculated to bring to
[Ballesteros’s] attention that which was being offered” and
that, to satisfy § 20-259.01, the written offer of UM/UIM
3
Ballesteros also alleged several non-contractual claims
such as bad faith, consumer fraud, breach of fiduciary duty,
negligence, and negligent misrepresentation, which have not been
resolved and are not at issue in this appeal.
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coverage to a Spanish-speaking insured must be in Spanish.
¶5 The court of appeals reversed the partial summary
judgment in favor of Ballesteros, but held that American
Standard was not entitled to judgment on its cross-motion for
summary judgment on the contract claim. Ballesteros v. Am.
Standard Ins. Co., 223 Ariz. 269, 271-72 ¶ 2, 222 P.3d 292, 294-
95 (App. 2009). The court concluded that the use of a DOI-
approved UM/UIM selection form did not allow American Standard
to sail into a “safe harbor” that automatically satisfied § 20-
259.01. Id. at 277-78 ¶ 26, 222 P.3d at 300-01. It determined
that although American Standard was not statutorily required to
provide Ballesteros a Spanish-language form, factual questions
remained as to whether American Standard made Ballesteros
sufficiently aware of the offer of UM/UIM coverage through other
communications. Id. at 278-79 ¶¶ 28-31, 222 P.3d at 301-02.
¶6 We granted review of Ballesteros’s petition to
determine whether an insurer must provide a Spanish-language
form to a Spanish speaker to comply with § 20-259.01. We also
granted review of American Standard’s cross-petition to
determine whether, by using a DOI-approved UM/UIM selection
form, American Standard complied with the statute. See A.R.S.
§ 12-120.24 (2003); see also Ariz. Const. art. 6, § 5, cl. 3
(conferring jurisdiction).
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II. DISCUSSION
¶7 Section 20-259.01(A) requires insurance companies to
offer UM coverage. It provides, in relevant part, as follows:
Every insurer writing automobile liability or
motor vehicle liability policies shall make available
to the named insured thereunder and by written notice
offer the insured and at the request of the insured
shall include within the policy uninsured 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 by a named insured or applicant
on a form approved by the director is valid for all
insureds under the policy.
Section (B) imposes the same requirements for UIM coverage.
A.R.S. § 20-259.01(B). We interpret statutes de novo, Steven H.
v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 566, 570 ¶ 14, 190 P.3d
180, 184 (2008), attempting “to give effect to the intent of the
legislature,” In re Estate of Winn, 214 Ariz. 149, 151 ¶ 8, 150
P.3d 236, 238 (2007). We also review summary judgment rulings
de novo. Espinoza v. Schulenberg, 212 Ariz. 215, 216-17 ¶ 6,
129 P.3d 937, 938-39 (2006).
¶8 In 1965, the legislature first required that all
automobile insurance policies include minimum levels of UM
coverage. 1965 Ariz. Sess. Laws, ch. 34, § 1 (1st Reg. Sess.).
Several years later, the legislature added the requirement that
insurers “make available” higher amounts of UM coverage. 1972
Ariz. Sess. Laws, ch. 157, § 1 (2d Reg. Sess.). In 1981, the
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legislature amended the statute to require insurers to include
minimum levels of UIM coverage and to both “make available” and
“by written notice offer” UM/UIM coverage in amounts equal to
the liability limits for bodily injury or death under the
policy. 1981 Ariz. Sess. Laws, ch. 224, § 1 (1st Reg. Sess.).
Just one year later, the legislature removed the requirement of
mandatory minimum UIM coverage, 1982 Ariz. Sess. Laws, ch. 298,
§ 1 (2d Reg. Sess.), and it eliminated mandatory minimum UM
coverage in 1993, 1993 Ariz. Sess. Laws, ch. 1, § 3 (5th Spec.
Sess.). Although the legislature eliminated mandatory UM/UIM
coverage, it nonetheless maintained the requirement that
insurers “make available” and “by written notice offer” both
types of coverage.
¶9 In 1992, the legislature also amended the statute to
provide that “[t]he selection of limits or rejection of [UM/UIM]
coverage by a named insured or applicant on a form approved by
the director [of the Department of Insurance] shall be valid for
all insureds under the policy.” 1992 Ariz. Sess. Laws, ch. 147,
§ 1 (1st Reg. Sess.); 1994 Ariz. Sess. Laws, ch. 304, § 1 (2d
Reg. Sess.).
A. Interpreting “make available” and “by written notice
offer”
¶10 This case requires us to determine what A.R.S. § 20-
259.01 means by requiring insurers to “make available” UM/UIM
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coverage and to offer such coverage “by written notice.”
¶11 In McCloe v. Utah Home Fire Insurance Co., 121 Ariz.
402, 404, 590 P.2d 941, 943 (App. 1978), the court of appeals
held that the 1972 version of the statute, which required
insurers to “make [UM coverage] available” to their insureds,
did not impose “an affirmative obligation upon insurers to give
their insureds actual personal knowledge of such an option.”
Thus, the only requirement imposed by the “make available”
language was that insurers be willing to provide such coverage.
In 1981, the legislature amended the statute to require that
insurers “by written notice offer” UM coverage, for the first
time imposing a requirement that insurers bring the availability
of such coverage to the insured’s attention. 1981 Ariz. Sess.
Laws, ch. 224, § 1 (1st Reg. Sess.).
¶12 The court of appeals interpreted the amended statute in
Giley v. Liberty Mutual Fire Insurance Co., 168 Ariz. 306, 812
P.2d 1124 (App. 1991). There, an insurer’s agent handed a UIM
offer form to the insured stating that the insured must sign it
to obtain coverage. Id. The customer signed the form,
unknowingly rejecting UIM coverage. Id. Although the “make
available” provision was not directly at issue in light of the
agent’s misleading conduct, and without citing any supporting
authority or the seemingly conflicting holding in McCloe, the
court held that the phrase “make available” obligates an insurer
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to “offer such coverage in a way reasonably calculated to bring
to the insured’s attention that which is being offered” and
found that a question of fact existed on that issue. Id. at
306-07, 812 P.2d at 1124-25.
¶13 Ballesteros cites Giley for the proposition that an
English form is not reasonably calculated to bring to a Spanish
speaker’s attention that UM/UIM coverage is being offered.
After Giley, however, this Court addressed the obligations
imposed by § 20-259.01 in Tallent v. National General Insurance
Co., 185 Ariz. 266, 915 P.2d 665 (1996). We held there that the
requirement to “offer” UM/UIM coverage under § 20-259.01 was
guided by general principles of contract law. Id. at 267-68,
915 P.2d at 666-67. We cited with approval the Second
Restatement of Contracts’ definition of an offer as “the
manifestation of willingness to enter into a bargain, so made as
to justify another person in understanding that his assent to
that bargain is invited and will conclude it.” Id. at 268, 915
P.2d at 667 (quoting Restatement (Second) of Contracts § 24).
Thus, whether an offer has been made does not depend on the
offeree’s understanding of the terms of the offer, but instead
on whether a reasonable person would understand that an offer
has been made and that, upon acceptance, the offeror would be
bound. Lopez v. Charles Schwab Co., 13 Cal. Rptr. 3d 544, 548
(Ct. App. 2004) (“[T]he pertinent inquiry is whether the
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individual to whom the communication was made had reason to
believe that it was intended as an offer.” (quoting Donovan v.
RRL Corp., 27 P.3d 702, 709 (Cal. 2001))); Anderson v. Douglas &
Lomason Co., 540 N.W.2d 277, 286 (Iowa 1995) (“The test for an
offer is whether it induces a reasonable belief in the recipient
that he can, by accepting, bind the sender.” (quoting
Architectural Metal Sys., Inc. v. Consol. Sys., Inc., 58 F.3d
1227, 1229 (7th Cir. 1995))). As a result, we held that § 20-
259.01 “does not require the offer to contain an explanation” of
UM/UIM coverage. Tallent, 185 Ariz. at 267, 915 P.2d at 666.
¶14 The parties do not dispute that Ballesteros was offered
UM/UIM coverage on a form approved by the DOI. Ballesteros
claims only that he did not understand the form. Under contract
principles, however, the test is objective: Whether an offer
was made turns only on whether a reasonable person would
understand that a proposal of terms was made, not on
Ballesteros’s subjective understanding of the offer form. The
offeree need not understand the content of an offer in order to
bind the offeror. Therefore, the “written notice” provision of
§ 20-259.01 does not require translation of the offer into
Spanish so that a Spanish speaker understands the offer’s terms;
it requires only that the insurer make an offer that, if
accepted, would bind the insurer to provide the offered
coverage.
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¶15 This conclusion comports with the language of § 20-
259.01, which does not require a Spanish form. It is further
supported by the fact that the legislature has explicitly
required a Spanish translation in other statutes. See A.R.S. §§
6-631(B), 6-1257, 6-1411, 12-1596, 12-2406(C), 23-906(D), 25-
504(C), 31-229(B), 36-504(A), 44-1362(B), 49-542.03 (imposing a
Spanish requirement). That the legislature included this
requirement in some statutes, but not in § 20-259.01, indicates
that the omission of any such requirement in § 20-259.01 was
intentional. See Estate of McGill ex rel. McGill v. Albrecht,
203 Ariz. 525, 530-31, 57 P.3d 384, 389-90 (2002) (refusing to
read “gross negligence” into a statute because “[t]he
legislature surely knows how to require a showing of gross
negligence, having used that term in a great number of
statutes”).
¶16 Our conclusion is strengthened by the fact that § 20-
259.01 once briefly required forms in both Spanish and English.
1997 Ariz. Sess. Laws, ch. 125, § 1 (1st Reg. Sess.). That
requirement was removed just a year after it was enacted. 1998
Ariz. Sess. Laws, ch. 288, § 2 (2d Reg. Sess.). This history
confirms that the legislature did not intend to impose a
Spanish-translation requirement in the current statute. See
State v. Garza Rodriguez, 164 Ariz. 107, 111, 791 P.2d 633, 637
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(1990) (noting presumption that “by amending a statute, the
legislature intends to change the existing law”).
¶17 In sum, § 20-259.01 does not require that the UM/UIM
offer form be provided in Spanish. If the legislature desires
to add such a requirement, it may do so, see Tallent, 185 Ariz.
at 268, 915 P.2d at 667, but it is not our place to rewrite the
statute.
¶18 Ballesteros nonetheless argues that for an insurer to
truly “make available” UM/UIM coverage to a Spanish-speaking
insured, it must provide a form in Spanish that is “reasonably
calculated to bring [the offer] to the insured’s attention.”
Giley, 168 Ariz. at 306, 812 P.2d at 1124. Although we express
no opinion whether tort law may impose such a requirement in
certain circumstances, we conclude, as did the court of appeals,
that § 20-259.01 imposes no such obligation.
B. Use of a DOI-approved form
¶19 American Standard argues that, in amending § 20-259.01
in 1992 to permit the use of a DOI-approved form, the
legislature intended to provide a method for insurers to
demonstrate compliance with the statutory requirement to make a
written offer of UM/UIM coverage. It asserts that it complied
with § 20-259.01 by providing Ballesteros with a DOI-approved
selection form.
¶20 As noted, the legislature, through a series of
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amendments, modified § 20-259.01 to provide that “[t]he
selection of limits or rejection of [UM/UIM] coverage by a named
insured or applicant on a form approved by the [DOI] director
shall be valid for all insureds under the policy.” 1992 Ariz.
Sess. Laws, ch. 147, § 1 (2d Reg. Sess.); 1994 Ariz. Sess. Laws
ch. 304, § 1 (2d Reg. Sess.). The legislature adopted these
amendments to remedy the fact-intensive inquiry Giley engendered
regarding whether the insurer had offered UM/UIM coverage. See
Arizona State Senate, Minutes of Committee on Commerce and Labor
9, 40th Leg., 2d Reg. Sess. (Apr. 22, 1992) [hereinafter “Senate
Committee Minutes”] (noting that insurers are required to “make
available” UM/UIM coverage, but that “[t]he law does not specify
exactly how this should be made available”); Arizona State
Senate, Fact Sheet for H.B. 2062, 40th Leg., 2d Reg. Sess. (May
14, 1992) [hereinafter “Fact Sheet”] (to similar effect); see
also Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 269-70, 872 P.2d
668, 673-74 (1994) (permitting reliance on non-legislators’
statements in circumstances providing “sufficient guarantees
that the statements reflect legislators’ views”). The remedy
chosen was to create a method by which insurers may demonstrate
compliance with § 20-259.01. Senate Committee Minutes 13-14
(observing that under the amendment “the signing of [the] paper
[is] ipso facto the end of the inquiry as to whether [UM/UIM
coverage] was meaningfully offered”); Fact Sheet (noting that
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the amendment provides “an acceptable procedure for the offering
of [UM/UIM] insurance”).
¶21 After passage of the 1992 amendment, if an insurer
provides and the insured signs a DOI-approved UM/UIM selection
form, the insurer has satisfied the statutory requirement to
“make available” and “by written notice offer” UM/UIM coverage.
Senate Committee Minutes 9 (“[T]he insurance agent can use a
form approved by the Director of the Department of Insurance to
satisfy [§ 20-259.01].”); Fact Sheet (noting that § 20-259.01
“is satisfied if the insured signs a form approved by the
Department of Insurance stating the amount of coverage
desired”).
¶22 While the 1992 amendment was designed to diminish fact
questions, Ballesteros’s reading of the statute would replace
one fact-intensive inquiry for another. Under Giley, the
factual determination concerned whether UM/UIM coverage was
sufficiently offered. Ballesteros’s approach would require
consideration of whether the language proficiency of the insured
is such that a Spanish form is required and whether the terms of
the offer were understood. Agents in the field, however, are
not necessarily equipped to determine a client’s language
proficiency or degree of understanding. Such a requirement may
lead in future cases to questions about an offeree’s general
understanding of the contract terms regardless of the language
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in which they are provided in a form. Although § 20-259.01 is
remedial in nature, Calvert v. Farmers Ins. Co. of Ariz., 144
Ariz. 291, 294, 697 P.2d 684, 687 (1985), we nonetheless
conclude, as we did in Tallent, that imposing a comprehension
requirement is “both unwarranted by the statute and unwise,” 185
Ariz. at 268, 915 P.2d at 667. We further recognize that the
legislature passed the 1992 amendments to protect insurers from
after-the-fact inquiries regarding the offer of coverage. To
read a language requirement into the statute under the guise of
effectuating the remedial purpose would thwart this legislative
goal.
¶23 Finally, Ballesteros’s approach offers no principled
distinction between Spanish speakers and others whose
proficiency in English may be limited. Ballesteros proposes
that DOI approval of a Spanish form demonstrates that use of
that form for Spanish-speaking customers is mandatory, while the
DOI’s failure to create forms in other languages means that
translation into those languages is not required. We find no
such import in the DOI sample Spanish form. The DOI Director
provides the Spanish form “as a matter of convenience for
insurers, rather than as a mandate for use.” Brief of the
Director of the Arizona Department of Insurance as Amicus
Curiae, at 6.
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¶24 In sum, because American Standard provided Ballesteros
a DOI-approved form, it satisfied § 20-259.01.
C. Attorney Fees
¶25 American Standard requested attorneys’ fees pursuant to
A.R.S. § 12-341.01(A). In the exercise of our discretion, we
deny that request.
III. CONCLUSION
¶26 For the reasons set forth, we vacate the opinion of the
court of appeals and remand this case to the superior court with
instructions to enter partial summary judgment in favor of
American Standard on Ballesteros’s contract claim.
__________________________________
Rebecca White Berch, Chief Justice
CONCURRING:
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Peter B. Swann, Judge*
*Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Peter B. Swann, Judge of the Arizona Court of
Appeals, Division One, was designated to sit on this matter.
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