Castaneda v. Progressive Classic Insurance

Annabelle Clinton Imber, Justice,

concurring. I concur ustice, trial court should be affirmed. I agree with the majority that the named-driver exclusion clause in Ms. Castaneda’s policy was clear and unambiguous in its effect of denying “all claims” when the excluded driver, Aaron Castaneda, was operating a covered vehicle. I write to clarify a point about the intersection between the named-driver exclusion and the Arkansas Uninsured Motorist Coverage Statute. This intersection seems to be at the heart of Ms. Castaneda’s argument that she was covered by uninsured motorist benefits at that time of her accident, and that the named-driver exclusion did not waive her uninsured motorist protection without a clearly articulated rejection of that protection. I believe the simple answer to this problem is found within the statute itself.

From the time Ms. Castaneda signed her insurance application through the date of the accident on August 6, 2001, the Arkansas Uninsured Motorist Coverage Statute, codified at Ark. Code Ann. § 23-89-403, read in pertinent part:

(a)(1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto and is not less than limits described in § 27-19-605, under provisions filed with and approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.
(2) However, the coverage required to be provided under this section shall not be applicable where any insured named in the policy shall reject the coverage, and this rejection shall continue until withdrawn in writing by the insured.

Ark. Code Ann. § 23-89-403(a)(l) & (2) (Repl. 1999) (emphasis added).

Ms. Castaneda focuses on subsection (a)(2) and states that, because she did not reject uninsured motorist coverage when Aaron was driving, and because the statute requires such coverage be provided, she was covered by her uninsured motorist coverage at the time of the accident. However, by the terms of the statute, the mandatory offer of uninsured motorist protection in conjunction with liability insurance occurs only when that policy covers liability arising out of the ownership, maintenance or use of a motor vehicle. By the terms of her policy, Dora Castaneda and her vehicles were not covered with liability protection when her son Aaron was driving. Since there was no liability coverage when Aaron was driving, Progressive had no obligation to provide uninsured motorist protection under § 23-89-403 when Aaron was driving. Furthermore, Ms. Castaneda made no argument and provided no proof that Progressive provided uninsured motorist coverage over and above what was required by statute. Indeed, her arguments focused on the Uninsured Motorist Coverage statute and its mandatory requirements. Thus, Ms. Castaneda’s “rejection” argument fails because Progressive was not required to obtain a rejection of coverage that was never offered in the first place.

In sum, the Uninsured Motorist Coverage statute requires uninsured motorist protection only when there is liability coverage, and the named-driver exclusion in Ms. Castaneda’s policy provided that there was no liability coverage when her son Aaron was driving. Therefore, since Aaron was driving at the time Ms. Castaneda was injured, she had no uninsured motorist coverage in effect at all.