Geico v. Wells
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THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
GEICO GENERAL INSURANCE COMPANY,
a foreign corporation,
)
)
)
Plaintiff/Counterdefendant/ )
Appellant, )
)
v.
)
)
BRANDON WELLS and JANE DOE WELLS, )
husband and wife,
)
)
Defendant/Counterclaimant/ )
Appellee. )
__________________________________)
1 CA-CV 10-0266
DEPARTMENT E
DIVISION ONE
FILED: 09/27/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
AMENDED MEMORANDUM DECISION
(Not for Publication Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2008-025174
The Honorable J. Kenneth Mangum, Judge
REVERSED AND REMANDED
Jones, Skelton & Hochuli, P.L.C.
by
Eileen Dennis GilBride
Jennifer Erickson
Sanford K. Gerber
Attorneys for Plaintiff/Counterdefendant/Appellant
Phoenix
Palumbo Wolfe
by
Scott I. Palumbo
and
Treon Aguirre Newman & Norris, P.C.
by
Brett L. Slavicek
Attorneys for Defendant/Counterclaimant/Appellee
Phoenix
Phoenix
P O R T L E Y, Judge
¶1
We
are
asked
to
decide
whether
Arizona
Revised
Statutes (“A.R.S.”) section 20-259.01(B) (Supp. 2010) requires
that
an
insured
sign
(“UIM”) coverage.
a
form
rejecting
underinsured
motorist
Because the statute does not require a signed
form, we reverse the summary judgment granted to Brandon Wells
and remand this matter to the trial court with instructions to
enter
summary
judgment
for
Government
Employees
Insurance
Company (“GEICO”).
FACTS AND PROCEDURAL BACKGROUND
¶2
Wells was injured in a July 2007 auto accident.
The
vehicle Wells was driving was insured by GEICO, but Wells was
not the named insured. 1
named
insured
purchased
The insurance policy indicated that the
liability
person and $300,000 per accident.
coverage
for
$100,000
per
The policy also indicated
that the named insured purchased UIM coverage of $15,000 per
person and $30,000 per accident. 2
¶3
Wells
underinsured.
settled
with
the
other
driver,
who
was
He then submitted a claim to GEICO requesting
$100,000 for UIM coverage. 3
GEICO denied his claim and asserted
1
The named insured is not a party to this lawsuit.
The policy also indicated that the named insured purchased the
same amount of uninsured motorist (“UM”) coverage, which is
governed by § 20-259.01(A).
3
Section 20-259.01(B) allows UIM coverage to be provided up to
the maximum liability policy limits.
2
2
that Wells was only entitled to the $15,000 that was provided
under the policy.
¶4
GEICO
subsequently
sued
Wells
for
a
declaratory
judgment to determine how much UIM coverage Wells was entitled
to receive.
breach
of
Wells filed a counterclaim against GEICO alleging
contract
and
bad
faith.
Both
parties
moved
for
partial summary judgment on the declaratory judgment issue, and
the trial court granted summary judgment for Wells.
The parties
then settled the remaining claims, and GEICO appealed after the
final judgment was entered.
The only issue on appeal is whether
Wells is entitled to UIM coverage pursuant to § 20-259.01(B).
DISCUSSION
¶5
Summary judgment is appropriate when no genuine issue
of material fact exists and the moving party is entitled to
judgment as a matter of law.
independently
determine
Ariz. R. Civ. P. 56(c).
whether
any
issue
of
material
exists and whether the court properly applied the law.
We
fact
Prince
v. City of Apache Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49
(App. 1996).
summary
Because the burden is on the party requesting
judgment,
the
evidence
and
all
reasonable
inferences
that follow are construed in favor of the opposing party.
Nat’l
Bank of Ariz. v. Thurston, 218 Ariz. 112, 116, ¶ 17, 180 P.3d
977, 981 (App. 2008).
When the evidence is disputed, but a
reasonable jury could only find for the plaintiff or defendant,
3
the court should uphold a grant of summary judgment.
Orme Sch.
v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990).
I.
Wells’ Motion for Summary Judgment
¶6
The key issue is whether § 20-259.01(B) requires that
an insurer obtain a written rejection of UIM coverage from an
insured.
The relevant part of the statute provides that:
Every insurer writing automobile liability
or motor vehicle liability policies shall
also make available to the named insured
thereunder and shall by written notice offer
the insured and at the request of the
insured shall include within the policy
underinsured motorist coverage which extends
to and covers all persons insured under the
policy,
in
limits
not
less
than
the
liability limits for bodily injury or death
contained within the policy.
The selection
of limits or rejection of coverage by a
named
insured
or
applicant
on
a
form
approved by the director shall be valid for
all
insureds
under
the
policy.
The
completion of such form is not required
where the insured purchases such coverage in
an amount equal to the limits for bodily
injury or death contained in the policy.
A.R.S. § 20-259.01(B). 4
¶7
The
first
sentence
of
the
statutory
subsection
requires that the insurer “both ‘offer’ and ‘make available’ UIM
coverage.”
Tallent v. Nat’l Gen. Ins. Co., 185 Ariz. 266, 267,
915 P.2d 665, 666 (1996); see Ballesteros v. Am. Standard Ins.
4
Section 20-259.01(B) has been amended numerous times since its
enactment in 1965.
Recent amendments have added new sentences
to the existing paragraphs without any attempts to restructure
the statute.
4
Co. of Wis., CV-10-0026-PR, 2011 WL 166319, at *2, ¶ 8 (Ariz.
Jan. 20, 2011).
After the offer is made, the insured must
affirmatively request the coverage.
State Farm Mut. Auto. Ins.
Co. v. Ash, 181 Ariz. 167, 173, 888 P.2d 1354, 1360 (App. 1994);
see
Tallent,
185
Ariz.
at
268,
915
P.2d
at
667;
Garcia
v.
Farmers Ins. Co., 191 Ariz. 410, 412, ¶ 23, 956 P.2d 537, 539
(App. 1998).
If the insurer does not provide the statutorily
mandated offer, the insured is entitled to receive UIM coverage
as a matter of law.
Estate of Ball v. Am. Motorists Ins. Co.,
181 Ariz. 124, 126-27, 888 P.2d 1311, 1313-14 (1995) (quoting
Ins. Co. of N. Am. v. Santa Cruz, 166 Ariz. 82, 85, 800 P.2d
585, 588 (1990)).
¶8
The
written
offer
requirement
applies specifically to “named insureds.” 5
in
§
20-259.01(B)
In Lawrence, a named
insured added his wife after the marriage as a named insured to
his existing auto insurance policy.
at 533.
184 Ariz. at 147, 907 P.2d
The husband’s former wife had rejected maximum UIM
coverage, and neither the husband nor his wife were provided a
written offer of coverage.
Id.
His wife was involved in an
accident and requested maximum UIM coverage.
Id.
We assumed
that proper notice was given to the husband, but stated that the
5
A “named insured” is not the equivalent to a “covered member”
or an “insured.” Lawrence v. State Farm Mut. Auto Ins. Co., 184
Ariz. 145, 148, 907 P.2d 531, 534 (App. 1995).
The phrase
“named insured” refers specifically to the policy holders. Id.
5
wife
“as
a
named
insured,
was
entitled
notice.”
Here,
separate
written
Id. at 148, 907 P.2d at 534.
¶9
to
Wells
is
not
the
named
insured,
and
therefore not entitled to a written offer of coverage.
was
Id.
(citing Schaffer v. S. Union Gas Co., 112 Ariz. 145, 146, 539
P.2d
902,
903
(1975)).
Wells,
instead,
asserts
that
he
is
entitled to maximum UIM coverage because the named insured did
not reject maximum coverage or otherwise provide any written
indication that he was rejecting maximum UIM coverage. 6
however,
presented
uncontested
evidence
that
it
GEICO,
provided
named insured with the statutorily mandated written offer.
Orme Sch., 166 Ariz. at 311, 802 P.2d at 1010.
the
See
GEICO argues
that a written rejection of UIM coverage is unnecessary; the
plain language of § 20-259.01(B) only requires that the insurer
provide a written offer.
¶10
The
trial
summary judgment.
court
disagreed
with
GEICO
and
granted
Focusing on the second and third sentences of
§ 20-259.01(B), the court stated that:
6
GEICO’s written offer of UIM coverage states, “Please complete,
sign and return this form to us if you have been instructed to
do so or wish to make any changes to these coverages.” The form
also has a check box to indicate a rejection of coverage and an
area for the insured’s signature.
6
GEICO had the choice once
offer automobile polices:
it
decided
to
1. To charge a premium to cover UM
and UIM coverage in the same
amounts as the liability limits,
or
2. To charge a lesser amount after
it obtains a signed request from
the policy holder to have a lesser
coverage or no coverage. 7
¶11
Our decision in Ash would appear to resolve the issue.
There, we considered a similar argument and held that “[t]he
insurer need only make the written offer.
The insured must then
request that the offered coverage be included in his policy.
express rejection is required.”
No
181 Ariz. at 173, 888 P.2d at
1360.
7
Arizona is unlike other states that mandate UIM coverage equal
to liability policy limits unless the insured rejects the
coverage in writing.
See, e.g., Conn. Gen. Stat. Ann. § 38a336(2) (West 2010); 215 Ill. Comp. Stat. Ann. 5/143a-2(2), (4)
(West 2010); Ind. Code Ann. § 27-7-5-2(a) (West 2010); Kan.
Stat. Ann. § 40-284(c) (West 2010); Me. Rev. Stat. Ann. tit. 24A, § 2902(2) (2009); Or. Rev. Stat. Ann. § 742.502(2)(a)-(b)
(West 2010); Utah Code Ann. § 31A-22-305.3(2)(b)(i)-(iv) (West
2010); Va. Code Ann. § 38.2-2206(A) (West 2010); Wash. Rev. Code
Ann. § 48.22.030(2), (4) (West 2010). Arizona previously had a
similar scheme for UM coverage, which specifically required a
rejection to forego mandatory minimum coverage.
Geyer v.
Reserve Ins. Co., 8 Ariz. App. 464, 465, 467, 447 P.2d 556, 557,
559 (1968) (citing A.R.S. § 20-259.01 (1966)) (“The fact that an
issuee may reject the coverage altogether does not mean that, if
he fails to reject it, his coverage can be any less than the
stated minimal amount.”).
7
¶12
Ash, however, interpreted a prior version of § 20-
259.01(B). 8
The statute was amended in 1992 and 2003.
The 1992
amendment added the second sentence to § 20-259.01(B), which
provides “[t]he selection of limits or rejection of coverage by
a named insured . . . on a form approved by the director shall
be valid.”
1992 Ariz. Sess. Laws, ch. 147, § 1 (2d Reg. Sess.).
The third sentence was added eleven years later and provides
that “[t]he completion of such form is not required where the
insured purchases such a coverage in an amount equal to the
limits
for
bodily
injury
or
death
contained
in
the
policy.”
2003 Ariz. Sess. Laws, ch. 86, § 1 (1st Reg. Sess.).
¶13
Wells
argues
that
overrule our holding in Ash. 9
8
these
two
amendments
implicitly
We disagree.
At that time, A.R.S. § 20-259.01(C) (1981)
provided:
Every insurer writing automobile liability
or motor vehicle liability policies . . .
shall also make available to the named
insured thereunder and shall by written
notice offer the insured and at the request
of the insured shall include within the
policy
underinsurance
motorist
coverage
which extends to and covers all persons
insured under the policy . . . .
9
We need not resolve whether the 2003 amendment is retroactive.
See A.R.S. § 1-244 (2002) (“No statute is retroactive unless
expressly declared therein.”).
8
¶14
We review issues of statutory interpretation de novo.
City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544,
547, ¶ 8, 105 P.3d 1163, 1166 (2005).
Our principal goal when
interpreting a statute is to give effect to the legislature’s
intent.
Blum v. State, 171 Ariz. 201, 205, 829 P.2d 1247, 1251
(App. 1992).
and
We primarily rely on the language of the statute
interpret
Mercy
the
Healthcare
terms
Ariz.,
according
Inc.
v.
to
their
Arizona
common
Health
meaning.
Care
Cost
Containment System, 181 Ariz. 95, 98, 887 P.2d 625, 628 (App.
1994).
“When
the
language
of
a
statute
is
clear
and
unambiguous, a court should not look beyond the language but
rather
‘simply
apply
it
without
using
other
means
of
construction, assuming that the legislature has said what it
means.’”
Cundiff v. State Farm. Mut. Auto Ins. Co., 217 Ariz.
358, 360, ¶ 8, 174 P.3d 270, 272 (2008) (quoting Hughes v.
Jorgenson, 203 Ariz. 71, 73, ¶ 11, 50 P.3d 821, 823 (2002))
(internal quotation marks omitted).
But when the language is
ambiguous, we may also look to the historical background, the
consequences, and the purpose of the statute.
Phx. Newspapers,
Inc. v. Dep’t of Corrections, 188 Ariz. 237, 244, 934 P.2d 801,
808 (App. 1997).
¶15
Our
supreme
court
has
stated
that
§
20-259.01
is
“remedial, and should be liberally construed in order to carry
out the intent of the Legislature.”
9
Calvert v. Farmers Ins. Co.
of Ariz., 144 Ariz. 291, 294, 697 P.2d 684, 687 (1985).
purpose
of
the
responsible
Uninsured
drivers
Motorist
will
have
Act
an
is
‘to
“[T]he
guarantee
opportunity
to
that
protect
themselves and their loved ones as they would others.’”
Estate
of Ball, 181 Ariz. at 127, 888 P.2d at 1314 (quoting Ormsbee v.
Allstate
Ins.
(1993)).
To
Co.,
176
Ariz.
effectuate
the
109,
112,
859
legislature’s
required strict compliance with the statute.
P.2d
732,
intent,
735
we
have
Id. at 128, 888
P.2d at 1315 (“Requiring strict compliance with the statute is
not form over substance.”).
¶16
The
plain
language
of
the
1992
amendment
does
not
require a written rejection of UIM coverage nor does it require
that an insured use a form approved by the Arizona Department of
Insurance (“ADOI”) to select or reject coverage.
1992 Ariz.
Sess. Laws, ch. 147, § 1 (2d Reg. Sess.) (“The selection of
limits or rejection of coverage by a named insured . . . on a
form approved by the director shall be valid.”).
It simply
states that if the named insured selects or rejects coverage on
a form approved by ADOI, that selection or rejection is valid
for all insureds under the policy.
¶17
See id.
If the legislature wanted to require an insured to
complete a form, or otherwise expressly reject UIM coverage, it
10
could
have
legislature
done so
amended
explicitly. 10
§
For
20-259.01
to
example, in
require
1997,
that
the
“[t]he
department . . . prescribe a consumer information and coverage
selection form . . . to be signed by the purchaser and to be
used by all insurers offering automobile coverage.” 11
1997 Ariz.
Sess. Laws, ch. 125, § 1 (1st Reg. Sess.) (emphasis added).
The
legislature did not, however, remove the requirement that “the
selection of limits of coverage for uninsured and underinsured
motorist coverage or failure to select coverage . . . by a named
insured or applicant on a form approved by the director shall be
valid
for
policy.”
all
Id.
insureds
under
the
motor
vehicle
liability
We presume that the legislature intended that
both sentences serve different functions.
Otherwise, the second
sentence would be superfluous if it required that the insured
use a form provided by ADOI to select or reject coverage.
10
See
The legislature has explicitly required that a “form approved”
by a state agency be completed in different contexts.
See
A.R.S. § 20-465(B)(2) (2002) (“The service charge and the
specific services for which the charge is made are disclosed and
agreed to in writing by the insured on a form that is approved
by the director.”); A.R.S. § 36-449.03(F)(5) (2009) (“If the
patient refuses, a refusal form approved by the department shall
be signed by the patient and a witness and included in the
medical record.”); A.R.S. § 41-2198.01(C) (Supp. 2010) (“The
petition shall be in writing on a form approved by the
department, shall list the complaints and shall be signed by or
on behalf of the persons filing . . . .”).
11
The 1997 amendments to § 20-259.01 were repealed in 1998 in
response to insurance industry concerns and a referendum on the
changes.
1998 Ariz. Sess. Laws, ch. 288, § 2 (2d Reg. Sess.);
Final Revised Senate Fact Sheet for Senate Bill (“S.B.”) 1273,
43d Leg., 2d Reg. Sess. (June 25, 1998).
11
Phx. Newspapers, 188 Ariz. at 244, 934 P.2d at 808 (“We presume
that the legislature does not enact superfluous or reiterative
legislation.”); Devenir Associates v. City of Phx., 169 Ariz.
500,
503,
821
P.2d
161,
164
(1991)
(“The
court
must,
if
possible, give meaning to each clause and word in the statute or
rule
to
avoid
rendering
anything
superfluous,
void,
contradictory, or insignificant.”).
¶18
Moreover,
our
legislative history.
interpretation
is
supported
by
the
Our supreme court found that “[a]fter the
passage of the 1992 amendment, if an insurer provides and the
insured signs a DOI-approved form, the insurer has satisfied the
statutory requirement to ‘make available’ and ‘by written notice
offer’ UM/UIM coverage.”
Ballesteros, CV-10-0026-PR, 2011 WL
166319, at *5, ¶ 21 (emphasis added).
1992
amendment
“create[d]
a
method
The court stated that the
by
demonstrate compliance with § 20-259.01.”
which
insurers
may
Id. at ¶ 20 (emphasis
added).
¶19
amendment
In fact, the Senate Fact Sheet explaining the 1992
stated
that
“[t]he
proposed
language
has
been
requested to clarify an acceptable procedure for the offering of
this supplemental insurance.”
Senate Fact Sheet for House Bill
(“H.B.”) 2062 as Passed by the Senate, 40th Leg., 2d Reg. Sess.
(May 14, 1992).
See Ballesteros, CV-10-0026-PR, 2011 WL 166319,
at *5, ¶¶ 20-21.
During committee hearings, Senate research
12
staff testified that “[t]his amendment puts in the statute that
the insurance agent can use a form approved by the Director of
the
Department
of
Insurance
to
satisfy
the
requirement.”
Minutes of Meeting Before the S. Comm. On Commerce & Labor on
April 22, 1992, 40th Leg., 2d Reg. Sess. (Statement of Kathy
Clayton, Assistant Research Analyst).
The legislative history
is clear — the 1992 amendment provides “an acceptable procedure”
and an “insurance agent can use a form approved by [ADOI]” to
comply with the written offer requirement of § 20-259.01(B).
There is no indication that the legislature intended that an
insured must use a form approved by ADOI for the selection or
rejection of coverage in all instances.
¶20
Wells, however, focuses on the 2003 amendment, which
states that “[t]he completion of such form is not required where
the insured purchases such a coverage in an amount equal to the
limits
for
bodily
injury
or
death
contained
in
the
2003 Ariz. Sess. Laws, ch. 86, § 1 (1st Reg. Sess.).
policy.”
He argues
that the 2003 amendment clarifies that the only situation where
an insured is not required to accept or reject coverage on an
ADOI approved form is when the insured purchases maximum UIM
coverage.
We disagree.
13
¶21
“The last antecedent rule is recognized in Arizona and
requires that a qualifying phrase be applied to the word or
phrase immediately preceding as long as there is no contrary
intent indicated.”
Phx. Control Sys., Inc. v. Ins. Co. of N.
Am., 165 Ariz. 31, 34, 796 P.2d 463, 466 (1990).
amendment simply qualifies the 1992 amendment.
The 2003
It provides that
in cases where an insured purchases maximum UIM coverage, that
selection is valid for all insureds under the policy, regardless
of whether coverage was selected on a form provided by ADOI.
The 2003 amendment did not expand § 20-259.01(B) to require that
the approved form be used in all other instances.
¶22
and
Although Wells contends that the legislative history
ADOI
policy
statements 12
indicate
a
contrary
legislative
intent, when considered in conjunction with the 1992 amendment,
neither supports his assertion.
Sheets
stated
that
“[a]
Both the Senate and House Fact
selection
of
limits
or
rejection
of
coverage must be provided to the customer on a form approved by
the Department of Insurance when a policy is offered.”
Summary
for H.B. 2151 as Transmitted to the Governor, 46th Leg., 1st
Reg. Sess. (April 28, 2003); Senate Fact Sheet for H.B. 2151,
12
One of the ADOI statements that Wells submitted was withdrawn
in 2002.
Arizona Department of Insurance, Circular Letter No.
1994-3, Form for Selection of Limits or Rejection of Uninsured
Motorist or Underinsured Motorist Coverage (April 11, 1994)
(withdrawn by Arizona Department of Insurance, Regulatory Bull.
No. 2002-5, Review of Department Substantive Policy Statements
(May 20, 2002)).
14
46th Leg., 1st Reg. Sess. (March 6, 2003).
During a committee
hearing, legislative staff testified that “[i]nsurers must still
complete the [ADOI approved] form if an insured elects UM/UIM
coverage under the limits of the policy.”
Minutes of Meeting
Before the H. Comm. On Fin. Inst. & Ins. on Jan. 28, 2003, 46th
Leg., 1st Reg. Sess. 2 (Statement of Melissa Taylor, Majority
Research Analyst).
¶23
The issue here, however, is not whether the insurer is
required to offer an insured UIM coverage on an ADOI approved
form. 13
Instead, it is whether the insurer is required to obtain
a written rejection of UIM coverage on an ADOI approved form.
The legislative history of § 20-259.01(B) does not require that
an insured reject UIM in writing.
Prior to the 2003 amendment,
an insured was required to complete an ADOI approved form, even
when
the
insured
purchased
maximum
coverage,
if
the
insured
wanted the selection or rejection of coverage to be valid for
all
insureds
under
the
policy.
13
The
2003
amendment
simply
ADOI appears to interpret § 20-259.01(B) to require that an
insurer use the ADOI approved form to offer UM/UIM coverage.
Arizona Department of Insurance, Regulatory Bull. No. 2003-10,
Form for Selection of Limits or Rejection of Uninsured Motorist
Coverage or Underinsured Motorist Coverage (July 15, 2003)
[hereinafter ADOI, Regulatory Bull. No. 2003-10]. ADOI provides
insurers with sample forms that insurers can elect to use, or
ADOI will consider similar forms provided by insurers. Arizona
Department of Insurance, Regulatory Bull. No. 2003-3, Revision
of Form for Selection of Limits or Rejection of Uninsured
Motorist or Underinsured Motorist Coverage (March 24, 2003).
GEICO’s form was approved by ADOI and does not state that
coverage will be provided unless it is rejected by the insured.
15
removed
coverage.
that
requirement
if
the
insured
purchased
maximum
Unless the insured wants the selection or rejection
of coverage to be valid for all insureds under the policy, there
is no indication that an insured must otherwise complete the
form to select or reject coverage.
¶24
The ADOI policy statements do not suggest a different
result.
After the 2003 amendment, an ADOI regulatory bulletin
stated that “the completion of the notice and offer form is not
required
when
the
coverage. . . .
insured
purchased
both
[UM/UIM]
.
.
.
If the insured rejects either . . . the form is
still required.”
ADOI, Regulatory Bull. No. 2003-10; Arizona
Department of Insurance, Circular Letter No. 1998-5, Form for
Selection
of
Limits
or
Rejection
of
Uninsured
Motorist
or
Underinsured Motorist Coverage (Aug. 11, 1998) (“[A]n insurer
must
provide
written
motorist
to
notice
all
and
applicants
an
coverage.
offer
The
a
of
form
selection
uninsured
used
by
an
form
and
containing
underinsured
insurer
to
offer
uninsured and underinsured motorist coverage must be approved by
the director prior to its use by the insurer.”).
¶25
Ordinarily, we defer to an agency’s interpretation of
a statute it administers.
Ariz. Water Co. v. Ariz. Dep’t of
Water Res., 208 Ariz. 147, 154, ¶ 30, 91 P.3d 990, 997 (2004).
Here,
however,
ADOI’s
interpretations
16
are
substantive
policy
statements, 14 which are “advisory only.”
A.R.S. § 41-1001(21)
(Supp. 2010); see also Holsum Bakery v. Indus. Comm’n of Ariz.,
191 Ariz. 255, 257, 955 P.2d 11, 13 (App. 1997) (holding that an
administrative law judge could not rely on a substantive policy
statement
extent
it
because
the
conflicts
statement
with
our
was
advisory
interpretation,
only).
we
do
To
not
the
find
ADOI’s interpretation controlling.
¶26
our
To
decision
summarize,
in
Ash
despite
is
subsequent
controlling
—
statutory
no
changes,
express
written
rejection is required to comply with § 20-259.01(B).
If the
insured wants the selection or rejection of coverage to be valid
for all insureds under the policy, the insured must select or
reject UIM coverage on an ADOI approved form, unless the insured
purchases
maximum
regarding
potential
UIM
coverage.
abuse
by
Wells’
insurance
policy
companies
are
concerns
matters
more properly addressed by the legislature.
II.
GEICO’s Motion for Summary Judgment
¶27
GEICO contends that it is entitled to judgment as a
matter of law because there is no material question of fact that
the
named
insured
received
the
14
statutorily
mandated
written
A substantive policy statement is “a written expression which
informs the general public of an agency’s current approach to,
or opinion of, the requirements of . . . state statute, . . .
including, where appropriate, the agency’s current practice,
procedure or method of action based upon that approach or
opinion.” A.R.S. § 41-1001(21).
17
offer.
“[W]here the issues can be decided as a matter of law,
we have the authority both to vacate the trial court’s grant of
summary judgment in favor of one party and to enter summary
judgment
for
the
other
party
if
appropriate.”
Anderson
v.
Country Life Ins. Co., 180 Ariz. 625, 628, 886 P.2d 1381, 1384
(App. 1994).
GEICO submitted evidence that the named insured
received a written offer for UIM coverage, and Wells did not
controvert that evidence.
Because there is no genuine issue of
material fact, we reverse summary judgment for Wells and remand
with instructions to enter summary judgment for GEICO.
ATTORNEYS’ FEES ON APPEAL
¶28
A.R.S.
GEICO requests attorneys’ fees on appeal pursuant to
§
12-341.01(A)
discretionary
and
allows
(2003).
the
Section
successful
12-341.01(A)
party
in
an
arising out of contract to recover attorneys’ fees.
discretion,
we
however,
entitled
is
decline
to
to
award
recover
compliance with ARCAP 21.
18
attorneys’
costs
on
fees.
appeal
is
action
In our
GEICO,
subject
to
CONCLUSION
¶29
Based on the foregoing, we reverse the trial court’s
grant of summary judgment in favor of Wells and remand the case
with instructions to enter summary judgment for GEICO.
/s/
____________________________
MAURICE PORTLEY, Judge
CONCURRING:
/s/
_______________________________
PETER B. SWANN, Presiding Judge
/s/
_______________________________
PATRICK IRVINE, Judge
19
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