Mann Ex Rel. Mann v. Farmers Insurance Co.

ALMA WILSON, Justice,

dissenting:

This case raises three issues concerning 36 O.S.1981, § 3636, uninsured motorist coverage. First, where an insured increases the policy limits on his bodily injury motorist coverage, must that insured reject in writing the increased amount of coverage on his uninsured motorist policy? Second, was the notice sent by the insurer which offered to discuss increasing the uninsured motorist coverage sufficient as a matter of law? Third, where a parent adds his minor son’s motor vehicle to that parent’s policy which insures several other motor vehicles, is the son entitled to stack the policies of all of the vehicles under the uninsured portion of the insurance policies?

The majority opinion holds that a written rejection is not required, that the notice was sufficient as a matter of law to inform the insured that he had a right to an increased uninsured motorist coverage, and that the trial court erroneously relied upon Shepard v. Farmers Insurance Co., 678 P.2d 250 (Okla.1983).

On May 18, 1982, Travis Mann was injured when a pickup truck struck the motorcycle on which he was a passenger. While the claim against the driver of the pickup was settled out of court, the claim against the motorcycle driver was tried resulting in a verdict in favor of Travis Mann for a total of $193,257.81, and a verdict in favor of Donald Mann for a total of $8,562.05, both judgments collecting interest at the rate of fifteen percent per an-num. In a separate proceeding, the Manns sued Donald Mann’s insurance company alleging that the judgments should be paid from the underinsured coverage of Mr. Mann’s policy. Travis Mann, a minor living in the same household as his father, Donald Mann, owned a pickup truck which his father had added to the coverage provided for nine other vehicles. Both appellants and appellees sought summary judgment.

The trial court found that the Manns were not entitled to stack the various motor vehicles covered in the insurance policy under the decision in Shepard; that an estoppel question still existed as to the rights of the plaintiff to recover under the policy; that the insurer had not complied with the written rejection requirement of 36 O.S.1981, § 3636; and that the limit of the uninsured motorist policy was $250,-000.00. The trial court then awarded judgments in favor of Travis Mann and Donald Mann against the insurer for the amounts awarded the Manns by the jury verdict.

Whether or not Travis Mann is insured is not an issue in this case. The insurer’s Brief in Support of Motion for Summary Judgment states in paragraph nine: “Truck Insurance Exchanges [sic] admits liability for the total sum of $10,000.00 being the single person limits on the uninsured motorist coverage applicable to the *4671980 Chevrelot [sic] Half-Ton Pickup Truck owned by Travis Mann and specifically endorsed on the fleet policy above referenced.” Having determined that the insurer is liable for at least $10,000.00, the next question is whether the policy changes would raise the liability limit on each vehicle.

I.

Because the insurance policy already provided uninsured motorist coverage in an amount sufficient to satisfy the minimum requirements of law, the insurer argues that the trial court erred by imposing the duty upon insurance companies to obtain a written rejection of uninsured motorist coverage in an amount equal to the bodily injury limits of the policy. I cannot agree with the reasoning of the majority opinion.

Title 36 O.S.1981, § 3636 provides in the second sentence of subsection B that:

Coverage shall be not less than the amounts or limits prescribed for bodily injury or death for a policy meeting the requirements of Section 7-204 of Title 47, Oklahoma Statutes, as the same may be hereafter amended; provided, however, that increased limits of liability shall be offered and purchased if desired, not to exceed the limits provided in the policy of bodily injury liability of the insured.

The limits for bodily injury at the time of the accident had been increased to $250,000 for an individual, with a maximum limit per accident of $500,000. In a letter to the parties, the trial judge stated that he found the notice requirement, which would offer increased limits of liability to the policyholder, to have been sufficient. However, he found that there was not a written rejection of the higher amount, and that such a written rejection was required by statute. The trial court held that “failure to secure a written rejection of uninsured motorist coverage subjects the insurance company to coverage in the amount of the policy of bodily injury liability limit.” The trial court reasoned that the statute provides no other method of verification of compliance.

Subsection F of § 3636 requires that a rejection of coverage be in writing:

The named insured shall have the right to reject such uninsured motorist coverage in writing, and except that unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.

The appellees never rejected the uninsured motorist coverage. The appellants admit that the policy provided at least the minimum required by law. The issue before us is one of first impression. Does § 3636 require that when the limits for bodily injury are increased, the policyholder must reject in writing the increased limit on uninsured coverage? Subsection B provides that “increased limits of liability shall be offered and purchased if desired, not to exceed the limits provided in the policy of bodily injury liability of the insured.” Subsection F provides that the named insured “shall have the right to reject such uninsured motorist coverage in writing.” I would hold that subsection F refers to all of subsection B, not just the portion of subsection B requiring that the policy coverage be the minimum required by State law. Because the only method for rejecting any coverage mentioned in subsection B is through a written rejection, the insurer was required to obtain a written rejection.

The majority opinion cites Moser v. Liberty Mutual Insurance Co., 731 P.2d 406 (Okla.1986), and states that the reasoning in that case concerning umbrella liability policies applies equally to the case at bar. The majority opinion reasons that requiring an insurance company to obtain a written rejection of the highest available limits of uninsured motorist coverage where the insured already has the minimum coverage “would result in the insured being placed in the position as though an uninsured motorist, with whom the insured was involved in an accident, had purchased the same liability policy as that purchased by the insured.” The opinion adds that under the reasoning *468in Moser this result goes beyond the mandate of 36 O.S.1981, § 3636.

The reasoning implies that § 3636 does not provide for an insured being placed in a superior position than the minimum statutory requirement of $10,000/$20,000 found in 47 O.S.1981, § 7-204(a). But § 3636 does contemplate such a result. The statute in the second sentence of subsection B provides:

Coverage shall be not less than the amounts or limits prescribed for bodily injury or death for a policy meeting the requirements of Section 7-204 of Title 47, Oklahoma Statutes, as the same may be hereafter amended; provided, however, that increased limits of liability shall be offered and purchased if desired, not to exceed the limits provided in the policy of bodily injury liability of the insured. [Emphasis added.]

If the appellants had offered, and the appellees had purchased uninsured motorist protection up to the limits of their bodily injury liability, the protection would have been $250,000/$500,000. That is twenty-five times the minimum required by 47 O.S.1981, § 7-204. The legislature clearly allows the insured the choice of being in a better position than a motorist who chooses only the minimum coverage required by law.

When the Supreme Court of Florida determined that rejection in writing of a higher limit of uninsured motorist coverage was not required by the statutes of that state,1 Florida’s legislature subsequently amended its statutes to require that the rejection or selection of lowered limits of uninsured motorist coverage be made on a form, and further provided for the basic content of the form.2 If Oklahoma’s legislature desires a similar result it should amend § 3636.

II.

Notice by the appellants was mailed in August of 1977, stating that the Oklahoma Legislature had passed a law requiring an insurance company to offer to provide uninsured motorist coverage with increased limits of liability. That notice is quoted in the majority opinion. However, the majority opinion perfunctorily disposes of appellees’ major contention that the notice was insufficient as an offer of increased coverage.

I question whether the increased limit was ever knowingly rejected. In pertinent part, that notice read:

The Oklahoma Legislature recently passed a law which requires an insurance company to offer to provide Uninsured Motorists coverage with increased limits of liability.
******
The endorsement on the reverse side amends the Uninsured Motorists provisions of the policy to comply with the new law.
If you wish to increase your Uninsured Motorist limits of liability, please contact your agent. You may not select higher limits than your policy’s Bodily Injury Liability Limits.

The endorsement on the reverse side amended the uninsured motorist portion of the policy as follows:

1) The Limits of Liability are amended to provide:
The limit of the Company’s liability, unless otherwise stated in the Declarations, shall be the limits of bodily injury liability required by the motor vehicle *469financial responsibility law of the State of Oklahoma.

That notice was mailed in August of 1977. The April 8, 1982 renewal notice showed the limits of bodily injury as being $250,000 per individual, and $500,000 per accident. Under the column marked UM for “uninsured motorist” are the initials COV for “covered.” The cover sheet does not tell how much that coverage is. In order for an insured to make an informed decision, he must be able to understand the offer which is being made. Nothing on the endorsement, or the renewal notice informed Mr. Mann what his coverage was after his policy had been amended. Therefore the amount of coverage provided by the policy for uninsured motorist protection is ambiguous. Where the wording of an insurance policy causes an ambiguity, the doubt raised will be resolved in favor of the insured. Pitchford v. Electrical Workers’ Ben. Ass’n., 189 Okl. 82, 113 P.2d 591, 593 (1941).

Section 3636(B) provides that increased limits of liability “shall be offered and purchased if desired”3 and requires that the insurance company offer increased limits of coverage not to exceed the limits provided in the policy of bodily injury liability of the insured. If the insured cannot ascertain the amount of coverage under his policy, he cannot knowingly reject the coverage which the statute provides must be offered.4 As the amount of coverage was ambiguous, and because the insured did not knowingly reject the increased coverage, I would find that these facts subject the insurer to the amount required to be offered, in this case $250,000.00 per individual.

There is a second reason for finding that the “offer” made in the notice sent in August of 1977 was insufficient. The notice preceded material changes in the policy. Those changes constitute a new policy, not a renewal policy. If the policy is not a renewal policy, then uninsured motorist coverage is automatically included in the insurance policy. After the notice was sent in August of 1977, two things happened which made the present policy a new policy, and which required the inclusion of uninsured motorist coverage. On July 8, 1979, the policy was cancelled for nonpayment. In August the policy was “reinstated” for the “balance of term.” On April 8, 1981, a notation is made by the appellants that the policy was “superceded” and converted to a plan raising coverage from $100,000/$300,000 to $250,000/$500,000. On June 2, 1981, Travis Mann’s 1980 Chevrolet pickup was added.

How can this Court find that a policy which has been cancelled and reinstated over a month later for the balance of the term, leaving a one month gap in coverage, and in which the coverage was more than doubled is a “renewal” policy? Conversely, if this is a new policy, where is the evidence that the appellants offered uninsured motorist coverage up to the liability limit of $250,000/$500,000 as required by 36 O.S.1981, § 3636(B)?

*470For the reasons stated, I would find that the appellees were covered by an uninsured motorist provision in the amount of the policy, $250,000/$500,000.

III.

May the coverage for the other vehicles included in the policy be stacked? The trial court citing the Shepard opinion concluded that they could not be. In State Farm Mutual Ins. Co. v. Wendt, 708 P.2d 581, 583 (Okla.1985) this Court held that, “[0]nce a person is insured under an uninsured motorist policy, subsequent exclusions inserted by the insurer in the policy which dilute and impermissively limit uninsured motorist coverage are void as viola-tive of the public policy espoused by 36 O.S.1981 § 3636.” In distinguishing Shepard from Wendt this Court stated: “In Shepard the insurance policy by definition precluded as an ‘insured’ any resident relative of the named insured who owned an automobile.” (Emphasis in original.) Wendt, 708 P.2d at 586. In the case at bar there is only one policy which lists multiple vehicles. In Wendt there were four policies, and this Court allowed recovery under each of the four policies reasoning “Where insurance premiums have been paid for separate policies, then the insurer must provide coverage under each policy.” Wendt, 708 P.2d at 585. But whether or not the insured may recover for multiple vehicles in the case at bar depends not on whether there are multiple policies, but upon whether the insured paid multiple premiums. In Richardson v. Allstate Insurance Co., 619 P.2d 594, 598 (Okla.1980), this Court held that where an insured had paid three premiums for uninsured motorist coverage in a single policy governing three vehicles, he was entitled to multiple coverage. This Court reasoned: “The basic premise underlying the rationales used to justify stacking is that consideration for multiple premiums is multiple coverage.” Richardson, 619 P.2d at 598.

Upon remand the fact finder must determine if the insured paid multiple premiums for the vehicles under his insurance policy. If so, then for the reasons I have stated, he is entitled to multiple coverage.

CONCLUSION

Accordingly, I would affirm the trial court’s conclusion that the limit of the uninsured motorist policy was $250,000/$500,-000. I would reverse the trial court’s conclusion that the Manns were not entitled to stack the coverage, and direct that a determination must be made as to whether or not multiple premiums were paid on the vehicles included in the policy. If so, as a matter of law, the insured is entitled to stack the coverage.

. Kimbrell v. Great American Ins. Co., 420 So.2d 1086 (Fla.1982).

. Fla.Stat.Ann. § 627.727(1) (West Supp.1988) provides in pertinent part:

The rejection or selection of lower limits shall be made on a form approved by the Insurance Commissioner. The form shall fully advise the applicant of the nature of the coverage and shall state that the coverage is equal to bodily injury liability limits unless lower limits are requested or the coverage is rejected. The heading of the form shall be in 12-point bold type and shall state: “You are electing not to purchase certain valuable coverage which protects you and your family or you are purchasing uninsured motorist limits less than your bodily injury liability limits when you sign this form. Please read carefully.’ If this form is signed by a named insured, it will be conclusively presumed that there was an informed, knowing rejection of coverage or election of lower limits.

. Significantly the Legislature exchanged the word "may" in 36 O.S.1971, § 3636(B) for "shall” in mandating that "increased limits of liability shall be offered" in the 1976 amendment. 1976 Okla.Sess. Laws, ch. 28, § 1.

. Hicks v. State Farm Mutual Automobile Ins. Co., 568 P.2d 629 (Okla.1977), provides an example of a notice which is sufficient to satisfy 36 O.S.1981, § 3636. The issue in Hicks was whether or not the insured voluntarily and knowingly rejected uninsured motorist coverage. The insurer had mailed the insured a proposed endorsement which, if it had been accepted, would have provided the insured with uninsured motorist coverage by the payment of a small additional premium charge. The policy defined the coverage in plain language so that the waiver could be understood, and the policy contained a strong recommendation that the insured accept the uninsured motorist coverage. The insured signed the rejection of coverage, dated it, subtracted the additional premium from the amount due and mailed the proposed endorsement and rejection back to the insurer. Had a similar method of notice been followed in the case at bar, the insured would have clearly understood what additional premium he would have to pay to increase his uninsured motorist coverage to equal his bodily injury liability limit, and what his present coverage was. As noted in the majority opinion in note 12, Hicks has subsequently been modified by Beauchamp v. Southwestern National Ins. Co., 746 P.2d 673 (Okla.1987).