Opinion
C.A. No. 07C-06-050 JTV.
Submitted: December 28, 2007.
Decided: March 31, 2008.
Upon Consideration of Plaintiffs' Motion For Summary Judgment.DENIED.
Jeffrey A. Young, Esq., Young McNelis, Dover, Delaware. Attorney for Plaintiff.
Albert H. Manwaring, Esq., and Matthew A. Kaplan, Esq., Pepper Hamilton, Wilmington, Delaware. Attorney for Defendant.
OPINION
The plaintiffs, Donald and Barbara Cooper, seek reformation of the uninsured/underinsured coverage in an insurance policy issued to them by defendant Hartford Underwriters Insurance Company. The plaintiffs and the defendant have filed cross motions for summary judgment. The issue is whether Hartford made a meaningful offer of UM/UIM coverage to the plaintiffs as required by 18 Del. C. § 3902(b).
STANDARD OF REVIEW
Summary judgment should be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. The moving party bears the burden of establishing the nonexistence of material issues of fact. If a motion is properly supported, the burden shifts to the non-moving party to establish the existence of material issues of fact. In considering the motion, the facts must be viewed in the light most favorable to the non-moving party. Summary judgment is inappropriate "when the record reasonably indicates that a material fact is in dispute or if is seems desirable to inquire more thoroughly into the facts in order to clarify the application of law to the circumstances."
Super. Ct. Civ. R. 56(c).
Gray v. Allstate Ins. Co., 2007 Del. Super. LEXIS 124, at *3.
Id.
Pierce v. Int'l Ins. Co. of Ill., 671 A.2d 1361, 1363 (Del. 1996).
FACTS
In 1992, the plaintiffs obtained motor vehicle insurance from Hartford. Their liability coverage was $100,000 per person and $300,000 per accident. Their UM/UIM coverage was $15,000 per person and $30,000 per accident. The anniversary for renewal of the policy each year was February 14.On December 31, 2004, the plaintiffs bought a new vehicle, a Chevrolet Express, and had it added to their policy. The defendant has filed a sworn interrogatory answer, dated November 7, 2007, in which it states that when the Express was added, Hartford immediately sent the plaintiffs a revised declaration page documenting the addition of the Express together with a Hartford UM/UIM coverage DRA-849-0 form. The DRA-849-0 form is the Hartford form which offers UM/UIM insurance. The form was drafted pursuant to an agreement between Hartford and AARP. According to an additional affidavit executed by a Hartford representative, the company technology was such that whenever a change or amendment to a policy occurred, a DRA-849-0 form was automatically included with the revised declaration page which was sent to the insured. The plaintiffs have no memory of receiving a revised declaration page with a DRA-849-0 form.
Coincidentally, at approximately the same time, Hartford sent an annual mailing to the plaintiffs in anticipation of the upcoming, annual policy renewal. The annual mailing is a large and detailed packet of information sent in anticipation of the upcoming annual renewal of the policy. The defendant contends that the 2005-2006 renewal packet was sent out a few days after December 31, 2004. The plaintiffs contend that it was sent out on December 27. The record does not seem to document which mailing date is correct. The annual mailing was 48 pages. Pages 47 and 48 were the DRA-849-0 form.
DISCUSSION
Delaware law requires that whenever a policy change occurs, the insurer must offer the insured the option to purchase UM/UIM coverage up to a limit of $100,000 per person and $300,000 per accident, but not to exceed the limits of the liability coverage. Case law in this jurisdiction has established that the optional offer to buy additional UM/UIM coverage must meet and contain the following three elements: (1) the cost of the additional insurance; (2) a communication to the insured which clearly offers uninsured motorist coverage; and (3) an offer for uninsured motorist coverage made in the same manner and with the same emphasis as the insurer's other coverage. The burden of meeting these three elements is on the insurer.
Shukitt v. United Servs. Auto. Ass'n, 2003 Del. Super. LEXIS 303, at *11; Brintzenhoff v. Hartford Underwriters Ins. Co., 2004 Del. Super. LEXIS 295, at *4.
Skukitt, 2003 Del. Super. LEXIS 303, at *10.
In support of their motion for summary judgment, the plaintiffs contend that no meaningful offer of UM/UIM coverage was made at or about the time the Express was added; that the alleged mailing of the revised declaration page with DRA-849-0 form should have been by certified mail, return receipt requested, to verify such mailing and receipt by the plaintiffs; that Hartford should have obtained the plaintiffs' signatures on a DRA-849-0 form to verify their acceptance or non-acceptance of the offer; and that the annual mailing is not meaningful because of its timing and because DRA-849-0 form was an inconspicuous part of a large document.
Hartford contends that it made two meaningful offers that satisfied the statutory and case law requirements of an offer of UM/UIM coverage. Hartford submits that it made a first offer when it mailed the DRA-849-0 form with the revised declaration page after the Express was added. It contends that the annual mailing constituted a second meaningful offer.
After carefully examining the DRA-849-0 form, I am satisfied that, as a form, it adequately conveys an offer of UM/UIM coverage. I reject the plaintiffs' contention that the defendant had an obligation to send the revised declaration page and DRA-849-0 form by certified mail, return receipt requested. I see nothing in the statute or the case law which requires an insurer to use certified mail, return receipt requested, when making an offer of UM/UIM coverage. I also reject the plaintiffs' contention that the defendant was required in this case to ensure that the plaintiffs signed and returned the DRA-849-0 form. The form does provide a place for the insured's signature following blocks where the insured accepts coverage in specific amounts or rejects coverage. In some instances, an insurer does obtain signatures on the form. However, I am not persuaded that where, as here, the offer is triggered by a change in the policy, which is accomplished through mailing, the insurer is under an obligation to go to the length of following-up with subsequent contacts with the insured until such time as the insured chooses to sign and return the form.
By sworn interrogatory answer and affidavit, the defendant states that it is their policy to mail a declaration page and DRA-849-0 form when the insured makes a material change, and that these two documents were sent to the plaintiffs after they added the Express in accordance with this company policy. This mailing would have consisted of only a few pages, no more than five, with the DRA-849-0 form being two pages. I am satisfied that this mailing, if sent, was a meaningful offer of UM/UIM coverage. Therefore, a question of fact exists which requires that the plaintiffs' motion for summary judgment be denied.
Turning to the defendant's motion, I accept as fact that if the revised declaration page was sent to the plaintiffs, the DRA-849-0 form went with it. However, the evidence of the mailing consists of sworn statements made almost three years after the fact. There is no evidence in the record from any time relevant to December 31, 2004 which confirms that the revised declaration page was, in fact, sent. A copy of the revised declaration page is not in the record, and there is no paper or electronic business record from the time to confirm that it was sent.
I believe that the record should contain some business record or other contemporary evidence confirming that the revised declaration page was sent, or an explanation as to why no such record exists or can be found. I think that the facts on this point need to be more thoroughly developed. Therefore, summary judgment will not be granted at this time, but if and when the record is more thoroughly developed, I will reconsider granting summary judgment in favor of the defendant.
The defendant also contends that the annual mailing contains a meaningful offer of UM/UIM coverage. However, for the reasons which follow, I find that the annual mailing, by itself, is legally insufficient to satisfy the defendant's obligation based on the existing record.
As mentioned above, the annual packet consists of 48 pages. After the initial cover, a two-page policy index appears, which is then followed by a 31-page policy. The rest of the pages consist of endorsements and other attachments. The index begins by informing the insured, in pertinent part, that the document is not the insurance contract and only the actual policy provisions will control. The index then addresses the 31 pages of the policy. The DRA-849-0 form appears at the back, pages 47 and 48. The index includes Part C — Uninsured Motorist Coverage, pages 15 through 18, which also addresses Underinsured Motor Coverage, but those pages do not contain any cross-reference to the DRA-849-0 form at pages 47 and 48. At the end of the index, one does see language which informs the insured that the index is not inclusive, that there may be endorsements attached to the policy, and, in bold face, that the insured should read the policy and all endorsements carefully.
However, the packet does not contain a declaration page or the information that one would normally expect to see on a declaration page. There is no insured identified by name and no premium quotations for liability, personal injury protection, property damage or other coverages. The vehicles insured are not identified. The policy contains the coverages and exclusions one would expect to see in an insurance policy, but does not contain any actual offer of specific coverages at specific premium amounts, except the coverage and premium amounts on the DRA-849-0 form.
Under the third element mentioned above, the insurer has the burden of establishing that the offer for UM/UIM coverage was made in the same manner and with the same emphasis as the insurer's other coverages. The generic document involved here does not show the manner and nature in which the plaintiffs were offered their other coverages. Without a showing as to the manner and nature in which the plaintiffs were offered their other coverages, one cannot determine whether or not the offer contained at pages 47 and 48 is made with the same emphasis as the offer of other coverages. For these reasons alone, I do not believe that summary judgment based on the annual mailing can be granted to the defendants on the current record.
Accordingly, the plaintiffs' motion for summary judgment and the defend ant's motion for summary judgment are both denied.
IT IS SO ORDERED.