Opinion
03C-08-007 (JTV).
Submitted: April 4, 2006.
Decided: July 27, 2006.
Upon Consideration of Defendants' Motion for Summary Judgment, GRANTED.
William D. Fletcher, Jr., Esq., Schmittinger Rodriguez, Dover, Delaware. Attorney for Plaintiff.
Daniel A. Griffith, Esq., Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, Delaware. Attorney for Defendants.
ORDER
Upon consideration of the motion for summary judgment filed by defendants Seacoast Cab Company, James W. Brown and Evanston Insurance Company, the plaintiff's opposition, and the record of the case, it appears that:
1. Superior Court Rule 56(c) provides that judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." On a motion for summary judgment, the Court examines the record to determine whether any material issues of fact exist. The facts must be viewed in the light most favorable to the non-moving party. Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
Super. Ct. Civ. R. 56(c).
Guy v. Judicial Nominating Comm'n, 659 A.2d 777, 780 (Del.Super.Ct. 1995); Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1087 (Del.Super.Ct. 1994).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
2. On August 11, 2001, the plaintiff was a paying passenger in the back seat of a taxi cab owned by defendant Seacoast Cab Company ("Seacoast") and operated by defendant James W. Brown ("Brown"). While traveling through the intersection of Front Street and North Walnut Street in Wilmington, a vehicle driven by defendant Christopher Hewitt ("Hewitt"), an uninsured motorist operating an uninsured vehicle, ran a red light and struck the taxi. Hewitt fled the scene but was later identified.
3. G. Thomas Brown is, or was, the president of Seacoast. He obtained insurance on the taxi cab in question from Evanston Insurance Co., ("Evanston"). The named insured was Seacoast Cab Co. The initial effective date of the policy was September 27, 2000. The cab continued to be insured by Evanston through the date of the accident. On the day before the initial effective policy date — September 26, 2000 — Mr. Brown rejected, in writing, on a form provided by Evanston Insurance Company, uninsured motorist coverage.
4. The moving defendants contend that Evanston has no obligation or liability in this case because uninsured motorist coverage was rejected. The plaintiff responds with two contentions. The first is that Evanston violated a pertinent Delaware statute by failing to offer Seacoast uninsured motorist coverage. Secondly, the plaintiff argues that Seacoast was not legally created until after the alleged rejection of uninsured motorist coverage.
5. Delaware law requires that motor vehicles registered in this state be covered with uninsured motorist coverage. However, the statute also permits the named insured to reject such coverage in writing, on a form furnished by the insurer describing the coverage being rejected. The provision allowing for rejection of such coverage also provides that it may be referred to simply as uninsured vehicle coverage. There does not seem to be any exception prohibiting rejection of uninsured motorist coverage for taxi cab companies, or shuttle or limousine services, or other means of motor vehicle transportation which carries members of the public for a fee.
Id.
6. In support of their motion, the moving defendants have filed an affidavit signed by Bernard Geis. The affidavit recites that Mr. Geis was an employee of H W Underwriting Services, Inc. ("H W"); that he was personally involved in the transaction for the issuance of liability insurance to Seacoast; that W.C. Ungerer was the insurance broker for Seacoast; that W.C. Ungerer contacted H W to market the Seacoast account in September 2000; that on September 19, 2000 Sandy Wilson of the Markel Group, which includes Evanston Insurance Company, submitted a quote to H W for liability insurance coverage for Seacoast which specifically excluded uninsured and underinsured motorist coverage; that on September 20, 2000 Mr. Geis, the affiant, faxed a copy of the quote to W.C. Ungerer; that on the same day he faxed Sandy Wilson a sample form for rejection of uninsured and underinsured motorist coverage; that the form was approved and a copy of it was provided to Seacoast with the policy quote; that on September 25, 2000 H W received from W.C. Ungerer a request to bind coverage for Seacoast; that the same day he contacted Sandy Wilson to bind coverage for Seacoast which specifically excluded uninsured and underinsured motorist coverage, with coverage effective September 27, 2000; that on September 26, 2000 he received a copy of the uninsured/underinsured motorist coverage rejection from W.C. Ungerer on the form which had been provided; that the rejection form was signed by G. Thomas Brown; that the signed and dated rejection form was accepted for the issuance of an insurance policy by Evanston insuring Seacoast with a coverage period of September 27, 2000 to September 27, 2001; that he is personally familiar with the signature of G. Thomas Brown; and that Mr. Brown's signature was routinely accepted as an authorizing signature for Seacoast for the issuance of insurance policies by Evanston in 2000 and subsequent years. Filed with the affidavit are copies of the September 19, 2000 quote from Sandy Wilson to H W, a letter from Mr. Geis to Ungerer faxing the quote, the fax transmittal of the rejection form with a copy of the form, W.C. Ungerer's request that coverage be bound, Mr. Geis' request to Sandy Wilson that coverage be bound, and the rejection form signed by Mr. Brown. The forms are consistent with the affidavit and they all refer to "Seacoast Cab" or "Seacoast Cab Co.," except the rejection form. The rejection form contains a brief explanation of uninsured and underinsured motorist coverage. It then provides that the "undersigned insured makes the following selections." It then has a hand-written check mark in a box next to a sentence which reads "I hereby reject Uninsured and Underinsured Motorist Coverage." Below that is a recitation that "[t]he undersigned warrants that he/she has specific authority for all corporations or other parties shown as a named insured to select or reject Uninsured Motorist Coverage on behalf of all persons covered under this policy." The form is then signed by Mr. Brown over a line above the phrase "Signature of Named Insured." Mr. Brown's signature appears on that line. To the right of that is a second line above the phrase "Named Insured (please print)." Above that line the name "G. Thomas Brown" is printed by hand. Finally, the form is dated Setpember 26, 2000. A line for the policy number is not filled in.
7. The plaintiff argues that an offer of uninsured motorist coverage is mandatory under the statute, that Evanston made no offer of uninsured motorist coverage, that such coverage was excluded from the outset by Evanston, that Evanston's conduct had the effect of placing the burden upon the plaintiff of requesting the coverage and/or inquiring about its cost, that Evanston's failure to offer uninsured motorist coverage is a violation of the statute, and that for these reasons the purported rejection of uninsured motorist coverage is invalid.
8. Title 18 Del. C. § 3902 "imposes on an insurance carrier the duty to provide to the purchaser of a motor vehicle liability insurance policy certain minimal uninsured motor vehicle coverage unless the insured rejects that coverage in writing." Providing this coverage is mandatory, unless the proposed insured rejects the coverage writing. Thus, "the mechanism under subsection (a), by which a motor vehicle liability insurance policy is issued with or without the minimum uninsured coverage . . . does not require the traditional offer and acceptance normally required to form a contract." As stated in Humm v. Aetna Casualty Surety Company, the coverage is provided unless it is rejected in writing, which is what happened in this case. Therefore, had G. Thomas Brown refused to sign the rejection form, the coverage would not have been rejected and any policy issued to the cab company would have had to include such coverage.
Humm v. Aetna Cas. Sur. Co., 656 A.2d 712, 713 (Del. 1995).
Id. at 715.
656 A.2d 712 (Del. 1995).
9. In addition, this Court in Johnson v. AIG Insurance Co. reasoned that insurance companies are not required to give insureds the details of what it would cost to acquire uninsured motorist coverage. In fact, "[w]hy one decides to waive the coverage or their knowledge of its costs simply is not relevant." The Court in Johnson also observed that subsection (a) of Section 3902 is not like subsection (b), which provides for additional coverage for personal injury, including underinsured coverage, Subsection (b), the Court observed, requires "(1) an explanation of the cost of the coverage, and (2) a communication that clearly offers the specific coverage in the same manner and with the same emphasis as was on the insured's other coverage." The Court in Johnson distinguished subsection (a) from subsection (b) of Section 3902 by stating:
2004 Del. Super. LEXIS 237, Carpenter, J.
Johnson, at *10-11.
Id. at *7 citing Mason v. USAA, 697 A.2d 388 (Del. 1997).
Mason, 697 A.2d at 393.
[S]ubsection (a) in the Court's opinion merely reflects a legislative mandate that if liability automobile insurance is written by a company, it is legally obligated to include, unless waived by the insured, a minimum threshold of uninsured motorist coverage. If this occurs, the company has fulfilled its responsibility under this section of the statute. It does not require an "offer" like subsection (b) nor a detailed listing of the cost of the various insurance coverages available to the insured. While perhaps it would be a benefit to the consumer if such pricing notice was required, the Court finds no support for imposing such a requirement in the absence of a clear legislative mandate to do so.
Johnson, at *9.
The plaintiff in Johnson specifically rejected uninsured motorist coverage on an assigned risk application by checking a box stating "I want . . . to reject the coverage entirely."
Id. at *2.
10. Under the facts of this case, I conclude that Seacoast's rejection of uninsured motor coverage was valid and effective.
11. The plaintiff also argues that summary judgment should be precluded because Seacoast Cab Co., Inc. was not legally created until after G. Thomas Brown rejected the uninsured motorist coverage. The plaintiff does not cite any authority to support this argument. In the 2000 paperwork, Seacoast is referred to as "Seacoast Cab Co." Whether Mr. Brown intended that Seacoast be a corporation at that time and failed for some reason to file the incorporation paperwork or, whether he was using the term as a trade name at that time and decided to incorporate later is not entirely clear from the record. As to either circumstances, however, I find that the subsequent incorporation of the company, between the issuance of the policy and the accident, is legally immaterial. I find that the rejection of uninsured motorist coverage was valid and in effect despite the fact that the corporation did not come into existence until after the policy was issued.
12. For the foregoing reasons, the defendants' motion for summary judgment is granted.