(concurring and dissenting):
I concur in parts I and III of the Court’s opinion. I cannot join part II because it is founded on an assumption of fact which we cannot make, and it directs recovery by the plaintiff on a theory which she did not raise in her motion for summary judgment. Consequently, it was not presented to nor ruled upon by the trial court in granting summary judgment and was not even mentioned as a point on the cross-appeal filed by the defendant in this Court.
In its complaint, the plaintiff alleged that it issued policy No. 76 10203 62 07 to defendant’s husband. In her answer to the complaint, the defendant alleged that neither she nor her husband received a copy of the policy and therefore had no knowledge of any of its terms and exclusions. It appears that the policy was originally written over eighteen months before the accident and had been renewed semiannually by Mr. Call. Since our rules of procedure do not permit a plaintiff to file a responsive pleading to an answer of a defendant, Farmers had no occasion to controvert the defendant’s denial that he received a copy. Later, in interrogatories propounded by the defendant to the plaintiff, the defendant asked whether the plaintiff had ever issued an automobile insurance policy for her husband. Farmers answered affirmatively. Defendant did not inquire whether the policy had ever been mailed or delivered, nor whether Farmers had informed Mr. Call in writing of the policy exclusions.1 In view of this state of the record, I am unable to make the leap that the majority makes and assume that the plaintiff did not at any time mail or otherwise deliver to its insured a copy of the policy. This is highly important since under the majority’s view of the law the policy msut be “delivered,” or the purchaser must otherwise be informed in writing of the exclusion. “Delivery” would take place upon mailing by the plaintiff. Whether the insured actually received it would be inconsequential if it was in fact mailed. Since “mailing” and “delivery” were not inquired into, summary judgment based on lack of “delivery” is not appropriate at this juncture.2
In the trial court, both parties moved for summary judgment. The plaintiff’s theory was that the household exclusion was valid and enforceable, relying upon State Farm Mutual Auto Insurance Co. v. Kay, 26 Utah 2d 195, 487 P.2d 852 (1971), and Kay v. Kay, 30 Utah 2d 94, 513 P.2d 1372 (1973). The defendant also moved for summary judgment on the theory that due to developments in the law since those cases were decided by this Court, we should hold that the household exclusion is unenforceable as being violative of public policy. Thus, the trial court was presented with a pure question of law, and it ruled that the household exclusion clause was invalid as to the first $15,000 of insurance, but was valid as to amounts in excess thereof. It is *239important to note that in her memorandum in opposition to plaintiffs motion for summary judgment, the defendant contended that even if she were ruled against on the question of law presented to the trial court, she had another theory entitling her to recover which could not be disposed of on the motion for summary judgment. This theory was that she and her husband had relied upon the plaintiffs agents over the years to provide them with adequate insurance coverage and that they had failed to specifically point out or warn them about the household exclusion clause. But she argued that recovery on this theory depended upon facts which still had to be developed. She stated in her memorandum:
Defendant maintains that the issues of facts still to be resolved even if the household family exclusion clause is valid are, first, whether defendant relied on plaintiffs agents to provide adequate insurance coverage; second, whether such reliance was reasonable; and, third, whether plaintiff breached a duty to provide adequate insurance coverage. Findings as [sic] these issues against plaintiff may estop plaintiff from relying on this exclusion. Hence, plaintiffs motion for summary judgment cannot be granted unless the court holds against defendant on each of these issues as a matter of law based on the scant file record before it, which action would be clearly in error.
(Emphasis added.) Thus, it is clear that the defendant did not contend in the trial court that lack of delivery of the policy alone would, as a matter of law, make the household exclusion clause unenforceable, as the majority now holds.
Even in this Court, in this appeal, the defendant makes no such contention. In her brief filed in this Court, the defendant states:
[T]he trial court did not rule on whether the household or family exclusion clause applies specifically to [defendant] in this case. The trial court reserved the issue of specific applicability of the clause to [defendant] pending an appeal of issues now before this court and in light of disputed facts relating to allegations by [defendant] that [plaintiff] and its agents breached their duty by failing to fully inform [defendant] of the lack of coverage in her insurance coverage.
The majority ignores the forthright contention made by the defendant in the trial court and which she now makes in this Court that she is not entitled to summary judgment on her second theory of recovery because it depends upon facts which are disputed and which were not inquired into on this motion for summary judgment. Instead, the majority now relieves the defendant of all proof which she so earnestly maintains she must produce and announces without any factual basis therefor that the policy was never delivered, its terms not disclosed, and thus the defendant is automatically entitled to recover.
Time and time again this Court has held that it will not consider points and contentions not raised in the trial court. We have repeatedly pointed out that we are a court of appeal and must afford the trial court the first opportunity to rule upon issues and theories advanced by the litigants. Yet in this case we are sua sponte doing the very thing that we forbid litigants to do. Whether a policy of insurance was ever mailed or delivered by the plaintiff to Mr. Call has never been claimed by the defendant to be determinative of her right to recover. If it is now going to be determinative in this action, an adequate record on that question should be made. As the defendant correctly points out, factual matters remain to be resolved before summary judgment would be proper on her theory that she and her husband relied upon Farmers to furnish her adequate insurance coverage, including disclosure of the household exclusion. I would remand the case to the trial court for a trial on the defendant’s theory and would not at this point reach out and decide the case on a theory not advanced in the trial court nor presented to us on defendant’s cross-appeal.
I dissent from the gratuitous extension by the majority of U.C.A., 1593, § 31-34-*2406(1) to automobile liability policies. The legislature clearly limited its application to credit life and disability insurance. General Motors Acceptance Corp. v. Martinez, Utah, 668 P.2d 498 (1983). Extending the statute beyond its clear terms under the guise of promoting public policy is judicial legislating.
HALL, C.J., concurs in the concurring and dissenting opinion of HOWE, J. ZIMMERMAN, J., does not participate herein.. The interrogatory referred to in the majority opinion which Farmers answered "information unavailable,” only inquired whether any insured was specifically given express notice of the household exclusion, “either at the time of application or at the time of renewal.” It did not inquire whether Farmers had at other times furnished Mr. or Mrs. Call written information about the policy (including the exclusions) but which did not "specifically" or "expressly" point out the household exclusion.
. The file kept by Farmers on Mr. Call reflects that on 1-19-81 and again on 1-27-81, the agent by written memo to "Policy Service" requested that Call's policy be "re-issued” because the insured had "misplaced” his. This memo is subject to the interpretation that Mr. Call did indeed once have a copy of his policy, but misplaced it and requested another from the agent. This whole subject was not explored on summary judgment and points up why a remand is necessary — as defendant herself contends.