Withrow v. Pickard

ALMA WILSON, Chief Justice,

dissenting:

The majority opinion concludes that 36 O.S.1991, § 3636 does not require that an insurer sell or offer to sell multiple uninsured motorist coverage. I have concluded that the statute requires that automobile insurance companies offer separate UM coverage on every vehicle, with the result that the coverages may be stacked. Where companies have failed to follow the mandate of the statute, the coverages may be stacked even though only one UM premium has been paid on multiple vehicles.

The facts show that the Withrows carried a policy with Oklahoma Farmers Union Mutual Insurance Company (OFU) covering two vehicles, which limited UM coverage to the liability limits of one vehicle, and accordingly charged only one premium. They replaced their original two cars with two others. A third vehicle was added to their policy, and Mr. Withrow’s son, Larry, on behalf of his father, indicated a desire for the same amount of UM coverage as liability coverage for the vehicle. The majority opinion details the language in the application.

Section 3636(A) provides that: “No policy insuring ... a motor vehicle shall be issued, delivered, renewed, or extended ... with respect to a motor vehicle registered or principally garaged in this state unless the policy includes [uninsured motorist] coverage....” While it is settled that UM coverage is for the protection of persons and cannot be tied to vehicles alone,1 the coverage does have a connection to vehicles. Subsection A provides that no policy insuring a motor vehicle with respect to a motor vehicle shall be issued unless the policy, includes UM coverage. In both instances of the use of the words “motor vehicle” the singular is used. If the legislature had intended to allow the total *807amount of UM coverage for multiple vehicles to be limited to the insurance liability limit on any one vehicle, the legislature could have easily expressed this by providing “No policy insuring ... a motor vehicle or vehicles ... •with respect to a motor vehicle or vehicles. ...” The choice of the singular and the omission of the plural indicates that the UM coverage was to be offered for each vehicle insured.

Section 3636(F) provides that a named insured shall have the right to reject UM coverage in writing. Subsection G(2) provides that a new form affecting uninsured motorist coverage shall be required when another vehicle is added that is not a replacement vehicle. If the UM coverage was selected on the third vehicle, what did the Withrows get? According to the majority opinion, the Withrows received nothing. They had UM coverage already, in the same amount Larry requested. What if he had chosen to reject UM coverage on this third vehicle, would that have changed the UM coverage for the first two vehicles? What would be the implications if the insured selected a lesser coverage? Would the single premium in the original policy be reduced and the coverage lessened? Would the insured understand that was the step he was taking? It would appear that Larry’s choice was a vain act, a mere formality to comply with the legislative mandate that a new form be completed when an additional vehicle is added to a policy. But this, of course, also makes § 3636(G)(2) redundant if insureds have previously selected UM coverage for the vehicles in their original policy. If the insureds already have the statutory maximum UM coverage under one policy, the majority opinion nullifies any action taken on an additional vehicle.

Where the UM statute, 36 O.S.1991, § 3636, is involved, we are dealing primarily in public policy, not contractual rights. Even though the contract is clear on what it includes and excludes, provisions contrary to public policy are simply unenforceable. Lake v. Wright, 657 P.2d 643, 645 (Okla.1982). Although the insurance contract in the Lake case clearly precluded stacking the UM coverages, this Court held that the antistacking clause was contrary to public policy.

In construing statutes we have held that where a statute is ambiguous, it is to be given a reasonable construction if it will avoid absurd consequences without violating legislative intent, because the legislature will not be presumed to have done a vain and useless act in the promulgation of a statute. TRW/Reda Pump v. Brewington, 829 P.2d 15, 20 (Okla.1992). Unless the legislature truly intended that additional UM coverage be offered for vehicles added to existing policies, what is the purpose of subsection G? Subsection G(2) was added in 1990,2 long after the stacking issue was settled by Keel v. MFA Ins. Co., 553 P.2d 153 (Okla.1976).

I must conclude that the legislature intended that insurers offer insureds separate UM coverage with separate premiums whén vehicles are added to liability policies. When separate premiums are collected, stacking of UM coverage is proper. Additionally, where UM coverage is required to be offered and is not, such is written into the policy by operation of law. Moon v. Guarantee Ins. Co., 764 P.2d 1331 (Okla.1988). I would affirm the judgment of the trial court.

. State Farm Mut. Auto Ins. Co. v. Wendt, 708 P.2d 581, 585 (Okla.1985).

. 1990 Okla.Sess.Laws, ch. 297, § 4.