Moore v. Globe American Casualty Co.

LAMBERT, Chief Justice,

dissenting.

Moore contends that the application for the policy at issue misled her into believing that she had purchased the basic automobile insurance required by law, and misled her into believing that uninsured motorist coverage was an additional coverage that was merely offered to her. She asserts that but for being misled, she would have *871had the uninsured motorist coverage the law requires to be included.

In Allstate Insurance Company v. Dicke1 this Court held that the distinction between uninsured motorist coverage and underinsured motorist coverage was minimal where it was clear that both types of coverage had been purchased. However, we emphasized that the statutory distinction is significant as to the means by which the coverage arises. While the insurer must provide underinsured motorist coverage only if it is requested, the insurer must provide uninsured motorist coverage unless it is rejected. The Globe policy under review ignores this distinction.

KRS 304.20-010 provides in pertinent part:

No automobile liability ... policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out or the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state ... unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in KRS 304.39-110 ... 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 ... resulting therefrom; provided that the named insured shall have the right to reject in writing such coverage[.]

An appropriate reading of this statute leads directly to the conclusion that uninsured motorist coverage was intended to be included unless the policyholder affirmatively elects to have it excluded. Contrary to the tenor of the statute, however, the application for the policy at issue was written in the following manner:

OFFER TO PROVIDE UNINSURED MOTORISTS AND UNDERIN-SURED MOTORISTS BODILY INJURY COVERAGES.

You have the right to purchase Uninsured Motorists and Underinsured Motorists Coverages....

While the statute uses the term “supplemental,” that term must be properly defined and understood. In The American Heritage Dictionary,2 the word “supplement” is defined as “1. Something added to complete a thing, make up for a deficiency, or extend or strengthen the whole. 2. A section added to a book or document to give further information or to correct errors.” In Black’s Law Dictionary,3 the word “supplemental” is defined as “That which is added to a thing to complete it,” and a “supplemental act” is defined as “That which supplies a deficiency, adds to or completes, or extends that which is already in existence without changing or modifying the original.” The majority and concurring opinions fail to acknowledge that supplemental is for the purpose of perfecting something that is otherwise incomplete, and that without the supplement, the thing would remain imperfect.

The majority holds that the policy at issue was compliant with the statute because the insurance application offered uninsured motorist coverage. However, the statute mandates that the insured be given the right to “reject” the coverage, not the right to “purchase” the coverage. By its plain language, this statute requires an insurer to include uninsured motorist coverage in its default minimum package *872of benefits rather than present it as additional coverage.

In my view, the statute mandates that the policy application fairly present uninsured motorist coverage as an “opt out,” rather than an “opt in” choice as presented by Globe’s application. Merely because the policy uses the language “reject” beside of the box that was checked does not cure the defect in the policy which, viewed as a whole, presents the coverage as an “opt in” choice, suggesting that it is additional rather than basic coverage. Accordingly, I must respectfully dissent.

WINTERSHEIMER, JJ., joins this dissenting opinion.

. 862 S.W.2d 327 (Ky.1993).

. 1292 (New College Edition 1980).

.Id. at 1290 (5th ed.1979).