Ford v. American States Ins. Co – UIM Waiver is Close Enough
Sometimes, a few words can be very expensive; sometimes, they don’t matter. 75 Pa.C.S.A. § 1731 of the Motor Vehicle Financial Responsibility Law (“MVFRL”) prescribes a form to be used verbatim by insurance companies when offering an insured the right to waive Underinsured Motorist coverage (“UIM coverage”) on their car insurance policy. For those unfamiliar, UIM coverage is what your insurance company pays out when your injuries exceed the policy limits of the responsible driver, and while insurance companies are required to offer UIM to their Pennsylvania customers, the insured may waive UIM protection in exchange for lower premiums. After explicitly mandating the wording of the form to be used, (“The named insured shall be informed that he may reject uninsured motorist coverage by signing the following written rejection form:”), the statute goes on to emphasize that any company that does not “specifically comply with this section” will have to pay the insured’s UIM claim up to the policy’s bodily injury limits, even though the insured paid the lower, non-UIM premium leading up to the accident.
So what really happens when an insurance company does not “specifically comply” with the form in the statute? Or perhaps the better way to frame the argument—and the framing the Court appears to have accepted—is what it means to “specifically comply” with a statute that provides explicit language for insurers to use. Is it the precise wording of the statute the legislature was requiring, or the underlying meaning of the words?
In the case at hand, Audrey Ford purchased insurance on her 2000 Chevrolet Cavalier and waived the UIM offering from American States Insurance Company. (Note that on this site, we strive not to judge anyone’s lifestyle choices, and so we’ll allow both Ms. Ford’s waiver of UIM and her choice of the Chevy Cavalier to pass without comment). She waived UIM and paid the resultant lower premiums until one fateful day in 2013, when her Chevy Cavalier was struck in Union Township (birthplace of Mr. Radio Baseball). Ms. Ford’s injuries exceeded the limits of the other party’s insurance (the Court helpfully identifies the other driver only as “Tortfeasor”), and she subsequently made a claim against her own insurance company for UIM.
American Insurance’s UIM waiver form contained two minor additions to the statutory language, underlined as follows:
By signing this waiver I am rejecting underinsured motorists coverage under this policy, for myself and all relatives residing in my household. Underinsured motorists coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have enough insurance to pay for all losses and damages. I knowingly and voluntarily reject this coverage.
The Court, speaking by Justice Baer, preferred function over form, in this case. The majority’s reasoning relied on two points: first, it was “important” that Ms. Ford had paid lower premiums in exchange for the understanding that she was waiving UIM. Presumably, the Justices did not like the idea that someone could reap the benefit of a bargain for lower coverage, and then still cash in on the higher coverage she had declined. More centrally, however, while acknowledging a long line of cases requiring strict compliance with the statutory waiver form, the majority points out that the statute requires only “specific compliance” with the statute, not “verbatim reproduction” of the form within the statute. Calling any insurer’s decision to deviate, even slightly, from the form in the statute “ill-advised,” the majority goes on to hold that, “when a UIM rejection form differs from the statutory form in an inconsequential manner, the form will be construed to specifically comply with Section 1731 of the MVFRL.” Because the Insurance Company’s addition of a letter and a word injected no ambiguity into the meaning of the form, the General Assembly’s intention that an insured be put on notice of the rights she was waiving was still accomplished.
If you’re wondering how we’ll know when a UIM-waiver form’s deviation is “inconsequential” in the future, you’re not alone. Justice Donohue, joined by Justice Todd, offers a dissent rebuking the Majority’s approach as “contrary” to the statute, and to the General Assembly’s express intent, and predicting that insurance companies are now invited to “tinker, ad nauseam, with the statutorily required language.” The courts will be called on to “oversee case after case” regarding an infinite variety of ways to express the underlying ideas into the statute. Justice Dougherty concludes, “I am at a loss to understand why this Court would inject uncertainty into this abundantly clear expression of legislative direction.”
This case reflects another interesting deviation in that Justice Baer is normally the Court’s most textualist writer. His opinion attempts to reconcile that textualism with a fairly-clear statute, and the Justice seems comfortable with his view that the term “specifically comply” does not mean “strictly verbatim.” The big takeaway for insurance defense is to check your clients’ UIM waivers; there’s just no reason to risk tinkering with the statute’s language. But the takeaway for the plaintiff finding verbal discrepancies in the form is this: don’t get your hopes up.