daSilva v. Equitable Fire & Marine Ins. Co.

• Decision Date: 20 March 1970
• Docket Number: No. 704-A,704-A
• Citation: 263 A.2d 100,106 R.I. 729
• Parties: Raimundo R. daSILVA v. EQUITABLE FIRE AND MARINE INSURANCE COMPANY. ppeal.
• Court: Rhode Island Supreme Court

Page 100

263 A.2d 100

106 R.I. 729

Raimundo R. daSILVA v. EQUITABLE FIRE AND MARINE INSURANCE COMPANY.

No. 704-Appeal.

Supreme Court of Rhode Island.

March 20, 1970.

SaoBento & SaoBento, Antonio SaoBento, Jr., East Providence, for plaintiff

Gunning & LaFazia, Bruce M. Selya, John F. McDonough, Providence, for defendant.

OPINION

JOSLIN, Justice.

This is a civil action in which the plaintiff-insured seeks to recover damages from his automobile liability insurer for personal injuries caused him as the result of an uninsured motorist's operation of a motor vehicle. A trial justice in the Superior Court found that there was no genuine issue as to any material fact, and then, sua sponte, withdrew the case from the jury and ordered judgment to be entered for the defendant. The plaintiff appealed.

The facts are not in dispute. The plaintiff, acting through Antonio Goulart, his cousin, sought out Joseph C. Prisco in order to purchase an automobile liability insurance policy. Prisco, a soliciting agent, was connected with the office of Weston & Preston Associates, Inc., an agent for defendant, and Goulart had previously purchased insurance through him. The three of them met at the Goulart residence. Because plaintiff could not write, speak, or understand English, Goulart interpreted and made it possible for plaintiff to convey to Prisco the information which was required in order to complete an application for the desired insurance. That information was recorded on an application which, upon completion, was signed by plaintiff at the appropriate place. The application was then forwarded to defendant, and in due course a policy issued.

The application consisted of a single sheet of paper. The front side is designated 'Automobile Insurance Application And Policy Order' and requests the applicant to furnish his name, address and occupation, to describe the vehicle to be insured, and to select the kind of coverage to be written. The reverse side of the form is labeled 'Applicant's Statement.' It asks the applicant to provide a variety of information including the names of the members of his household who are age 15 and over the name of any previous insurer, and relevant data concerning his prior driving record. A space is also provided for the applicant to affix his signature and to certify that the information which is set out is correct to the best of his knowledge and belief.

For our purposes the pertinent part of the application is the portion on the front where plaintiff selected the types of coverage desired. There, opposite the coverage designated as 'Uninsured Motorist Protection,' Prisco, the soliciting agent, wrote the words 'Not Preferred.' In addition he testified, and his testimony is undisputed and uncontradicted, that these words were written after plaintiff, in direct response to a direct inquiry, said that he did not want that kind of coverage.

The parties agree that during the life of the policy plaintiff suffered damages of $4,500 when he sustained personal injuries as the result of the negligence of the owner and operator of an uninsured motor vehicle in which he was riding as a passenger. The dispute is whether the failure to include uninsured motorist protection in the policy prevents recovery from defendant for those damages. The plaintiff argues that the omission is not fatal to his claim.

The plaintiff relies upon the principle which reads into insurance contracts standard insurance provisions which are mandated by statutory law. 13 J. Appleman, Insurance Law & Practice § 7382 (1943); Mangus v. Doe, 203 Va. 518, 520, 125 S.E.2d 166, 168; Prosk v. Allstate Insurance Co., 82 Ill.App.2d 457, 459, 226 N.E.2d 498, 499; Amidzich v. Charter Oak Fire Ins. Co., 44 Wis.2d 45, 170 N.W.2d 813. Applying that principle he argues that the omission of uninsured motorist coverage should be cured by enlarging the policy to include the provisions of G.L.1956, § 27-7-2.1. That enactment, in effect when the policy was issued as well as now, requires, in substance, that any automobile liability insurance contract issued in this state shall protect the insured against the negligent operation of an uninsured motor vehicle.

The flaw in plaintiff's argument is that § 27-7-2.1 has a qualifying clause. While that enactment requires the inclusion of a provision protecting against the negligence of an uninsured motorist, it also provides that the named insured on the policy 'shall have the right to reject such coverage.' And in this case the coverage was rejected when Prisco, acting under plaintiff's orders, wrote the words 'Not Preferred' on the application and thereby clearly and unambiguously indicated that the applicant did not want to purchase coverage against the negligence of the uninsured motorist. In preparing that application, Prisco, who on this record was empowered only to accept or solicit applications for insurance, was acting as plaintiff's agent. Pieri v. John Hancock Mutual Life Ins. Co., 92 R.I. 303, 306, 168 A.2d 277, 278; Ferla v. Commercial Casualty Ins. Co., 74 R.I. 190, 194, 59 A.2d 714, 716; Wolf v. Prudential Ins. Co. of America, 62 R.I. 270, 276, 4 A.2d 897, 899....