GENERAL SECURITY INDEM. CO. v. Tipton

2007 UT App 109, 158 P.3d 1121
CourtCourt of Appeals of Utah
DecidedMarch 29, 2007
Docket20050486-CA
StatusPublished

This text of 2007 UT App 109 (GENERAL SECURITY INDEM. CO. v. Tipton) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
GENERAL SECURITY INDEM. CO. v. Tipton, 2007 UT App 109, 158 P.3d 1121 (Utah Ct. App. 2007).

Opinion

158 P.3d 1121 (2007)
2007 UT App 109

GENERAL SECURITY INDEMNITY COMPANY OF ARIZONA, fka Fulcrum Insurance Company, an Arizona corporation, Plaintiff and Appellee,
v.
Susan Rice TIPTON, dba The Automobile Source, Defendant and Appellant.

No. 20050486-CA.

Court of Appeals of Utah.

March 29, 2007.

*1122 Daniel F. Bertch and Kevin R. Robson, Bertch Robson, Salt Lake City, and Dustin Lance and Samuel Adams, Siegfried & Jensen, Murray, for Appellant.

Tim Dalton Dunn and Paul J. Simonson, Dunn & Dunn, Salt Lake City, for Appellee.

Before GREENWOOD, Associate P.J., ORME and THORNE, JJ.

OPINION

ORME, Judge:

¶ 1 Appellant Susan Rice Tipton appeals the trial court's grant of summary judgment in favor of Appellee General Security Indemnity Company of Arizona, formerly known as Fulcrum Insurance Company (Fulcrum). Tipton claims that Fulcrum violated Utah Code section 31A-22-305(3)(b) by failing to provide her with an acknowledgment form and failing to obtain a waiver of a higher level of uninsured motorist (UM) coverage. See Utah Code Ann. § 31A-22-305(3)(b)(i)-(iii) (Supp.2006). Fulcrum maintains that the waiver required by section 31A-22-305(3)(b) was unnecessary because Tipton actually purchased UM coverage. See id. We reverse and remand for entry of summary judgment in favor of Tipton.

BACKGROUND

¶ 2 In February 2001, Tipton applied for a garage insurance policy[1] with the Dixie-Leavitt Agency. Under the portion of the application designated for requested coverage amounts, there were a series of boxes the applicant could check to specify the type of coverage desired, along with a space available for the applicant to indicate the dollar amount of coverage requested. Tipton marked an "X" in the box next to "Garage Liability" and requested $300,000 in liability coverage. Tipton also marked an "X" in the box next to "Uninsured Motorist" and requested $65,000 in UM coverage. The application did not, however, specify whether the UM coverage was for property damage or bodily injury or both. At the end of the application, Tipton signed her name immediately following the pre-printed sentence, "I have completed and signed a state form selecting or rejecting Uninsured Motorist Coverage." But in fact, no such form was ever presented to or signed by Tipton.[2]

¶ 3 Nearly five months later, Fulcrum issued a garage policy (the Policy) to Tipton. The "Declarations" page of the Policy indicated that the limit for liability coverage was $300,000, with a corresponding $530 premium. The limit for UM coverage, however, was listed as "SEPARATELY STATED IN THE ENDORSEMENT." While the Policy contained an endorsement for UM property damage coverage in the amount of $65,000, due to a clerical error an endorsement for UM bodily injury coverage was not included in the Policy.

¶ 4 In November 2001, Tipton's vehicle was hit by an uninsured motorist. Thereafter, Tipton brought suit for UM bodily injury *1123 damages in the amount of $300,000, the amount of her liability coverage. Fulcrum contended that the Policy only provided $65,000 in UM coverage, and brought an action for declaratory relief to limit its liability for UM bodily injury coverage to $65,000, the amount stated in the endorsement for UM property damage coverage.[3]

¶ 5 In July 2004, Tipton filed a motion for summary judgment, arguing that because the Policy did not contain an endorsement for UM bodily injury coverage, under Utah Code section 31A-22-305(3)(b) the UM coverage should be equal to the liability coverage. See Utah Code Ann. § 31A-22-305(3)(b) (Supp. 2006) ("[T]he limits of [UM] coverage shall be equal to the lesser of the limits of the insured's motor vehicle liability coverage or the maximum [UM] coverage limits available by the insurer under the insured's motor vehicle policy[.]") (emphasis added). Further, Tipton argued that because the missing endorsement rendered the Policy ambiguous, the Policy should be construed against the insurer, without resort to extrinsic evidence. Fulcrum filed a cross-motion for summary judgment, arguing that Utah Code section 31A-22-305(3)(b) was inapplicable because Tipton had selected, not rejected, UM coverage. Further, Fulcrum urged the trial court to refer to extrinsic evidence in order to resolve the ambiguity caused by the missing endorsement.

¶ 6 The trial court determined that the Policy was ambiguous and resorted to extrinsic evidence, including the Dixie-Leavitt application form and Tipton's prior garage policy with Western Heritage Insurance Company, to conclude that Tipton had requested only $65,000 in UM coverage. Furthermore, the trial court interpreted "the maximum [UM] coverage limits available by the insurer under the insured's motor vehicle policy," see id. (emphasis added), to mean the UM coverage available under the policy Tipton actually purchased — $65,000 — as opposed to some amount she could have purchased. Therefore, the trial court concluded that Fulcrum had complied with Utah Code section 31A-22-305(3)(b) because $65,000 was the maximum UM coverage amount available under Tipton's policy, and granted summary judgment in Fulcrum's favor. This appeal followed.

ISSUE AND STANDARD OF REVIEW

¶ 7 Tipton argues that summary judgment was erroneously granted because the trial court incorrectly interpreted section 31A-22-305(3)(b). In an appeal from a grant of summary judgment, "we view the facts and all reasonable inferences drawn therefrom in the light most favorable to [the non-moving party], and we give no deference to the trial court's decision." State Farm Mut. Auto. Ins. Co. v. Green, 2003 UT 48, ¶ 3, 89 P.3d 97. "Likewise, a district court's interpretation of a statutory provision is a question of law that we review for correctness." State v. Tooele County, 2002 UT 8, ¶ 8, 44 P.3d 680. Where there is ambiguity in a written document, the first order of business is to consider any extrinsic evidence which might resolve the ambiguity. See Wilburn v. Interstate Elec., 748 P.2d 582, 585 (Utah Ct.App.1988), cert. dismissed, 774 P.2d 1149, 1149 (Utah 1989) (noting certiorari was "improvidently granted"). Only if extrinsic evidence does not resolve the ambiguity is it appropriate to construe the document against its drafter. See id.

ANALYSIS

¶ 8 Tipton argues that Fulcrum failed to comply with Utah Code section 31A-22-305(3)(b) because she was not provided with an acknowledgment form that "reasonably explain[ed] the purpose of uninsured motorist coverage," see Utah Code Ann. § 31A-22-305(3)(b)(ii), and she did not waive a higher level of UM coverage. See id. § 31A-22-305(3)(b)(i). Tipton further contends that section 31A-22-305(3)(b) is designed to protect insureds by requiring insurers to provide information about the advantages of UM coverage, as well as the costs associated with *1124 different levels of coverage.

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Wilburn v. Interstate Electric
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Bluebook (online)
2007 UT App 109, 158 P.3d 1121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/general-security-indem-co-v-tipton-utahctapp-2007.