Insurance – Uninsured Motorist – Coverage Limits

Nationwide Mut. Ins. Co. v. Burgdoff. (Lawyers Weekly No. 10-07-0868, 10 pp.) (Ann Marie Calabria, J.) Appealed from Rowan County Superior Court. (John L. Holshouser, J.) N.C. App.

Holding: The issue of whether an insurance company failed to offer an opportunity to select or reject different uninsured motorist limits is a matter for the jury to decide.

Summary judgment for plaintiff is reversed and remanded.

Facts

In 1995 defendants moved to North Carolina and obtained automobile insurance from Nationwide. Defendant filled out an application which requested bodily injury insurance covering for uninsured and underinsured motorists in the maximum amount of $100,000 per person and $300,000 per accident. However, defendant did not execute a rate bureau selection/rejection form when she signed the closing statement form. The policy was issued and was repeatedly renewed.

In 2006, defendant’s 8-year-old daughter was killed in an accident involving a motorist, and a wrongful-death action was filed. The motorist’s policy contained a personal liability limit of $100,000 per person.

In 2009, plaintiff filed a complaint for declaratory judgment seeking a determination of the amount of UM coverage available to defendant. The court issued an order that defendants were entitled to the coverage in the amount of $100,000 per person and $300,000 per accident. Defendants appeal.

The parties agree that no form involving UM rejection or selection form had been executed at the time of the death, and that the plaintiff was in violation of the statute when it failed to provide defendants with the form. Our court has held that when an insurance company failed to allow their insured to choose their policy benefits as required by statute, the coverage limits did not apply.

Whether the defendants were provided the opportunity to reject or select different uninsured motorist coverage is best resolved by a jury. The record reveals a genuine issue of material fact as to whether plaintiff provided defendants with that opportunity. As a result, the trial court’s order granting summary judgment to plaintiff must be reversed and remanded for a jury trial on this issue.

If the jury determines that plaintiff provided defendants with the opportunity to select or reject different coverage limits, then the trial court shall enter a judgment that defendants’ coverage limits were $100,000 per person and $300,000 per accident. If the jury determines there was a failure to provide the defendants the opportunity to select or reject different coverage limits, the trial shall issue a judgment that the limits were $1 million under Williams v. Nationwide Mut. Ins. Co., 174 N.C. App. 601, 621 S.E.2d 644 (2005).