USAA Casualty Insurance v. Alexander

445 S.E.2d 145, 248 Va. 185, 10 Va. Law Rep. 1526, 1994 Va. LEXIS 96
CourtSupreme Court of Virginia
DecidedJune 10, 1994
DocketRecord 930919
StatusPublished
Cited by28 cases

This text of 445 S.E.2d 145 (USAA Casualty Insurance v. Alexander) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
USAA Casualty Insurance v. Alexander, 445 S.E.2d 145, 248 Va. 185, 10 Va. Law Rep. 1526, 1994 Va. LEXIS 96 (Va. 1994).

Opinions

JUSTICE KEENAN

delivered the opinion of the Court.

In this appeal, we consider several automobile insurance coverage issues involving Code § 38.2-2206, which addresses uninsured motorist (UM) and underinsured motorist (UIM) insurance.

On April 28, 1991, Sherman G. Alexander and his son, Scott S. Alexander, were seriously injured when their vehicle was struck by a car negligently operated by Jerry Lee Jackson. At the time of the accident, Jackson had in effect an automobile liability policy issued by Allstate Insurance Company, with a limit of $50,000 for a single bodily injury claim.

In addition, Sherman and Scott Alexander had the benefit of UM coverage under three automobile insurance policies. At the time this accident occurred, Sherman Alexander and his two sons, Scott and John M. Alexander, were residents of the same household in Fairfax. Each Alexander had a separate automobile policy in effect at the time of the accident. The declarations page of Sherman Alexander’s policy, which was issued by United Services Automobile Association (USAA), listed $25,000 UM coverage for each person injured. Scott Alexander’s policy, issued by USAA Casualty Insurance Company (USAA Casualty), provided $100,000 UM coverage per injured person, and John Alexander’s policy, issued by USAA Casualty, provided $50,000 UM coverage per injured person.

[188]*188Sherman and Scott Alexander filed a motion for declaratory judgment against USAA and USAA Casualty (the insurers), seeking a determination of their rights under the UM endorsements of the three policies issued to the Alexanders. After conducting an evidentiary hearing, the trial court ruled that Sherman and Scott each enjoyed $250,000 UIM coverage, before application of a credit for any payment made by Jackson’s liability insurer.

On appeal, the insurers contend: (1) that the trial court erred in holding that Sherman Alexander’s UM coverage was equal to his liability coverage, despite his execution of a waiver form in 1984 in which he selected $25,000 UM coverage; (2) that because only Scott Alexander’s UM coverage was in an amount greater than Jackson’s liability coverage, the three Alexander policies should not be “stacked” together to produce higher amounts of UIM coverage for the injured parties; and (3) that because Sherman had purchased only “minimum limits” UM coverage, his policy afforded no UIM insurance.

I. WAIVER OF HIGHER LEVEL OF UM COVERAGE

Code § 38.2-2206(A) requires an issuer of an automobile insurance policy to provide UM coverage in limits equal to the limits of liability insurance provided by the policy, unless the insured rejects that level of coverage and chooses to purchase a lesser amount of UM coverage “by notifying the insurer as provided in subsection B of § 38.2-2202.” Code § 38.2-2202(B) requires that each “new policy or original premium notice of insurance” include a statement advising the insured that UM coverage, equal to the limits of liability coverage, will be provided unless the insured acts within 20 days to notify the insurer that a lesser amount of coverage is desired.

Code § 38.2-2202(B) further provides: “After twenty days, the insurer shall be relieved of the obligation imposed by this subsection to attach or imprint the foregoing statement to any subsequently delivered renewal policy, extension certificate, other written statement of coverage continuance, or to any subsequently mailed premium notice.” Thus, once the insured has effectively reduced the level of coverage by notifying the insurer, in accordance with Code § 38.2-2202(B), the waiver and reduction of coverage remains in effect during subsequent renewals of the pol[189]*189icy. Code § 38.2-2202(B); see also Insurance Co. of North America v. MacMillan, 945 F.2d 729, 730 (4th Cir. 1991).

In this case, the trial court found that, in 1984, Sherman Alexander had executed and returned a waiver form to USAA by which he requested $25,000 UM coverage and rejected the higher level of coverage, which would have been $100,000. He continued to be insured by USAA from 1984 through the date of the accident in 1991. The declarations pages issued by USAA during this time, as well as the premiums required to be paid, reflected that the renewal policies provided $25,000 UM coverage. In 1990, USAA mailed Sherman a renewal policy for the 1991 period covering the date of the accident; USAA also sent him the notice required by Code § 38.2-2202(B) and a waiver form by which a lower level of UM coverage could be requested. However, Sherman did not return this waiver form to USAA.

The trial court held that “USAA’s action in sending Sherman Alexander a waiver form triggered a new policy limit selection decision” and that, because Sherman did not return the form, he did not effectively reject the higher UM limits. Because no effective waiver had been made, the court held, the UM coverage available under Sherman’s policy was $100,000, not $25,000.

On appeal, the insurers argue that Sherman’s 1984 waiver of higher UM coverage remained effective through later renewals of his policy, so that his UM coverage at the time of the accident remained $25,000. In response, the Alexanders argue that the trial court’s decision was correct, based on White v. National Union Fire Insurance Co., 913 F.2d 165 (4th Cir. 1990). Noting the factual similarities between the present case and White, they contend that Sherman was required to respond to the 1990 waiver form sent him by USAA in order to make an effective rejection of the higher UM limits. Because he failed to return the form, they argue, he was provided with the higher UM limits by operation of law, pursuant to Code § 38.2-2206(A).

In White, the insurer, National Union, had sent its insured a form on which the insured could indicate the desired level of UM coverage. An employee of the insured signed and returned the form, but failed to check any of the options for coverage listed on the form. The Fourth Circuit held that National Union could not rely on a communication by which the insured, in an earlier year, had rejected the higher UM limits, because National Union had chosen to send another coverage selection form, which prompted [190]*190the insured to communicate in return. Because the incomplete coverage selection form was inadequate to constitute a rejection, the Fourth Circuit concluded that the insured had not rejected the higher level of UM coverage. Id. at 169-70.

The Alexanders contend that here, as in White, the insurer chose to send a waiver form to Sherman Alexander in connection with the policy renewal in 1990, and that, as in White, Sherman took no action that was adequate to constitute a rejection of the higher UM limits. We disagree with the Alexanders’ analysis of White.

We believe that White is distinguishable on its facts because in that case “a subsequent, albeit inadequate, rejection was furnished” by the insured’s employee to National Union. Id. at 170. It was the fact that the insured attempted to respond to the insurer’s request for a selection of coverage, and did so ineffectually, that led to the result in White.

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Bluebook (online)
445 S.E.2d 145, 248 Va. 185, 10 Va. Law Rep. 1526, 1994 Va. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/usaa-casualty-insurance-v-alexander-va-1994.