Summary
rejecting claim that agent's act of orally describing notice and obtaining in sured's signature on a form kept by agent satisfied the "make available" and "by written notice offer" terms in AR.S. § 20-259.01
Summary of this case from Progressive Cas. v. Estate of Palomera-RuizOpinion
No. 2 CA-CV 91-0016.
May 16, 1991.
Appeal from the Superior Court, Pima County, Cause No. 262410, J. Richard Hannah, J.
Law Offices of Paul G. Rees, Jr. by Paul G. Rees, Jr., Tucson, for plaintiff/appellant.
Cronin Stanewich by Robert J. Cronin, Jr., Phoenix, for defendants/appellees.
OPINION
Viewing the facts most favorably to the plaintiff Joyce Giley, as we must on this appeal from an adverse summary judgment, she purchased automobile insurance coverage from an agent of defendant Liberty Mutual Fire Insurance Company. During the conversation leading to this purchase, according to her, the agent described uninsured motorist coverage but did not describe underinsured coverage. Instead, he handed her a form, asked her to sign it if she wanted coverage, and then kept that form in the company files. Unknown to Ms. Giley, that form contained a written offer of underinsured motorist coverage. The issue is whether these facts establish as a matter of law that Liberty Mutual satisfied the requirement of A.R.S. § 20-259.01(C) that it "make available . . . [and] by written notice offer" underinsured motorist coverage to new policyholders. The trial court found that they did. We disagree and reverse.
The basis of the trial court's ruling was that the statute does not require that an insurer explain underinsured coverage to a potential insured only that it offer such coverage by written notice, that such notice was given, and that nothing was done to prevent Ms. Giley from reading that notice. We question these conclusions, as we believe a trier could, on two bases. First, the phrase "make available" requires that the insurer offer such coverage in a way reasonably calculated to bring to the insured's attention that which is being offered. If Ms. Giley's testimony is credited, the agent did not do so. Second, handing a form to her, asking her to sign it if she wants coverage, and then retaining the form is, in fact, conduct likely to prevent Ms. Giley from reading the form. A trier could reasonably conclude that the Liberty Mutual agent, intentionally or negligently, engaged in conduct that did not make underinsured coverage available and did not by written notice offer such coverage because the insured was led to believe she was simply signing an application for insurance.
Reversed.
HATHAWAY and LACAGNINA, JJ., concur.