Plaintiff appealed from a judgment in her favor against defendant American International Insurance Company (A.I.U. Ins. Co.) that limited the uninsured motorist coverage to $5,000.00.
The sole issue is the limit of plaintiff's uninsured motorist coverage.
Mrs. Roberts was injured as the result of the negligence of an uninsured motorist. The court, in consolidated trials, awarded plaintiff damages in the amount of $14,943.39 against the tortfeasor and plaintiff's uninsured motorist carrier, A.I.U. Ins. Co., but limited A.I.U. Ins. Co.'s liability to $5,000.00. The policy had been originally issued to plaintiff with $5,000/$10,000 uninsured motorist limits. The coverage was automatically raised to $25,000/$50,000 by Act 154 of 1974 which imposed uninsured motorist coverage in an amount not less than bodily injury liability coverage. In December, 1975, plaintiff requested the uninsured motorist coverage be dropped. By oral request in January, 1976, plaintiff asked for reinstatement of the uninsured motorist coverage at limits of $5,000/$10,000. From that time, plaintiff paid premiums on the policy at six month intervals reflecting $25,000/$50,000 liability limits and $5,000/$10,000 uninsured motorist limits. The policy in effect at the time of the accident, which occurred July 13, 1978 had been last renewed on May 2, 1978.
Plaintiff claims that because she did not consent in writing to a lesser limit, she is entitled to uninsured motorist coverage equal in amount to her bodily injury liability coverage of $25,000. LSA-R.S. 22:1406 (D)(1)(a),
Plaintiff cites Walker v. Coleman, 367 So.2d 395 (La.App. 2d Cir. 1979), writ denied La., 369 So.2d 1365, and LeBoyd v. Louisiana Transit Co., et al., 375 So.2d 749 (La.App. 4th Cir. 1979). The first decision could have rested on the insufficiency of proof of absence of a genuine issue of a material fact in a summary judgment proceeding. However, the court did say that because of strong public policy, proof of a waiver of such statutorily mandated coverage must be in writing to be effective, under the provisions of La.R.S. 22:628, even though the latter were not directly on point.
At any rate in Turner v. Allstate Ins. Co., 368 So.2d 797 (La.App. 2d Cir. 1979), the same circuit held that a policy effective on June 17, 1976, did not require a new rejection or selection document attached to the policy under the terms of LSA-R.S. 22:1406 (D)(1)(a) as amended by Act 494 of 1975, if there had been a rejection or selection of lower limits. The court reasoned that the general provisions of LSA-R.S. 22:628 would yield to the special provisions of LSA-R.S. 22:1406 (D)(1)(a).
In LeBoyd v. Louisiana Transit Co., supra, the policy effective December 21, 1974 to December 21, 1975, issued prior to the effective date of Act 494 of 1975, September 12, 1975, contained no provision for uninsured motorist coverage. The parties stipulated that there had been an oral rejection. The court, reasoning that the requirement of uninsured motorist coverage was mandatory, held that the public policy considerations behind LSA-R.S. 22:628 required a rejection of such required coverage to be in writing. The provision of Act 494 of 1975 to the effect that "[S]uch coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer," was found inapplicable because the policy had been issued prior to the effective date of the act. We therefore find LeBoyd also to be inapplicable.
Under the uninsured motorist statute, plaintiff's uninsured motorist coverage was automatically raised to the liability of his policy. Plaintiff then rejected all uninsured motorist coverage. The following month, plaintiff specifically selected a lower coverage than imposed by law. He reaffirmed that selection at six-month intervals for the next three years.
We hold the policy considerations behind LSA-R.S. 22:628, the general statute, do not require the invalidation of such an oral modification of the uninsured motorist contract effective prior to the 1977 amendment to LSA-R.S. 22:1406 (D), the special statute, where the insured is aware of the options afforded to him by law and he specifically chooses a lower coverage. Cf. Breaux v. Government Employees Insurance Company, 373 So.2d 1335 (La.App. 1st Cir. 1979). The legislature did enact the statute requiring the election to be in writing. The position urged would convert this legislation into a vain and unnecessary thing.
For the above reasons, the judgment of the trial court is affirmed at appellant's costs.
EDWARDS, J., dissents and will assign reasons.
EDWARDS, Judge, dissenting.
On July 13, 1978, plaintiff, Margaret B. Roberts, was injured in an automobile accident caused by the negligence of Neil B. Burris, an uninsured motorist. Suit was brought against Burris and American International Insurance Company (A.I.U.), the uninsured motorist carrier of Mr. and Mrs. Roberts. Following trial, Burris was cast for $14,000 in damages plus interest and costs. The award against A.I.U. was limited to $5,000 because the trial court found that, despite carrying $25,000 in bodily injury liability coverage, plaintiff had chosen to carry only $5,000 of uninsured motorist insurance. Plaintiffs appealed.
In affirming the trial court judgment, an affirmation which effectively limits Mrs. Roberts' recovery to some $9,000 less than that actually awarded, the majority has both misconstrued the statutory provisions relating to uninsured motorist coverage and chosen to ignore the jurisprudence, albeit imprecise at times, interpreting those provisions.
Uninsured motorist coverage, by nature wholly statutory, reached its present state only after years of legislative meandering. Despite seemingly innumerable changes in particular definitions, evidentiary presumptions and procedural mechanics, one principle has remained steadfast—that insurance shall be made available to all drivers as a means of compensation in the event they are injured by the negligent vehicular operation of other drivers, both uninsured and underinsured.
Act 137 of 1972,
Act 154 of 1974,
Act 494 of 1975,
Act 438 of 1977,
This case turns on two questions. First, were plaintiff's oral requests of December 6, 1974, and January 15, 1975, sufficient to constitute a rejection and lower limit selection, respectively. Second, presuming the oral requests sufficient, were the rejection and lower limit selection operative as to policy renewals absent further communication from the insured. The trial court and a majority of this court answer both questions in the affirmative. I cannot agree.
Until Act 438 of 1977 mandated that rejection or lower limit selection of UM coverage be in writing, LSA-R.S. 22:1406 D, standing alone, required no specific mode of rejection or lower limit selection. However, the general insurance law, LSA-R.S. 22:628,
Clearly, to be valid, any rejection or lower limit selection prior to September 9, 1977, must have been both in writing and attached to the policy or incorporated by specific reference. Because A.I.U. did not require plaintiffs to reduce the oral requests of December 6, 1974, and January 15, 1975, to writing and attach same to the policy, those requests cannot operate to relieve A.I.U. of the legal obligation imposed by Act 154 of 1974 to provide $25,000 in UM coverage, the amount equal to plaintiffs' bodily injury liability provision.
LeBoyd v. Louisiana Transit Company, 375 So.2d 749 (La.App. 4th Cir. 1979), is directly in point. An insured whose policy was written under the strictures of Act 154 of 1974 attempted to orally reject UM coverage. The appellate court, holding that R.S. 22:628 applied "because rejection conflicted with the coverage" required by R.S. 22:1406 D, found the oral rejection ineffective.
The majority, noting that Act 494 of 1975 was not yet applicable to plaintiff's policy in LeBoyd, nevertheless concludes "We therefore find LeBoyd also to be inapplicable." I am mystified how the majority can, by facile reliance on an irrelevant fact, completely ignore jurisprudence contrary to its position.
Walker v. Coleman, 367 So.2d 395 (La. App. 2nd Cir. 1979), writ denied 369 So.2d 1365 (La.1979), also involved the applicability of R.S. 22:628. In Walker, the UM carrier's motion for summary judgment was sustained on the ground that plaintiff had orally rejected UM coverage. In reversing, the court of appeal stated "We therefore hold that proof of a waiver of such statutorily mandated coverage must be in writing to be effective." The court also found that "there has not been a sufficient showing in the instant case of an absence of a genuine issue of material fact ... to sustain a motion for summary judgment."
The majority further seeks to discredit Walker as authority by citing Turner v. Allstate Insurance Company, 368 So.2d 797 (La.App. 2nd Cir. 1979), a later case decided by the same panel of judges as Walker. In Turner, the court held that R.S. 22:628 did not apply because Act 494 of 1975 had amended R.S. 22:1406 D to allow past rejection to operate automatically in the future. To that extent only, R.S. 22:628 was held not to control.
Even if I were to assume that the useless oral requests of plaintiff were valid, I could not conclude that the rejection and subsequent lower limit selection operated prospectively on a continuing basis.
Plaintiff's oral requests of December 6, 1974, and January 15, 1975, to add $5,000 of UM coverage could not have remained effective on June 6, 1975, when the policy was next renewed since Act 494 of 1975 was not yet effective. Furthermore, passage of Act 494 did not resurrect and make effective the earlier rejection and lower limit selection, even presuming their validity, since their lifelessness on June 6, 1975, was beyond doubt.
Act 494 of 1975 made a substantive change in the statutory law of uninsured motorist coverage. Prior to September 12, 1975, an insured would receive equal amounts of bodily injury liability and UM coverage unless he rejected same or selected lower limits. No statute permitted even a valid rejection or lower limit selection to be effective at the next policy renewal. Therefore, to derogate from the substantive right of UM coverage, a new and valid rejection or lower limit selection was required at each policy renewal. Act 494 permitted continuing rejection or lower limit selection effective September 12, 1975, but, as substantive law, can only be applied prospectively.
Act 438 of 1977, requiring written rejections or lower limit selections and abrogating the attachment or reference requirements of R.S. 22:628, both clarifies the law and changes it. The passage of Act 438 shows that what was formerly required by general insurance law is now either required or dispensed with by particular statute.
Based on a review of the law and jurisprudence, I am certain that no oral rejection or lower limit selection of UM coverage is or has been valid. The second and fourth circuits so hold. I am likewise sure that no valid rejection or lower limit selection made prior to September 12, 1975, can be effective after that date.
Because the majority has chosen to ignore jurisprudence clearly on point, a conflict