Hicks v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 26 July 1977
• Docket Number: No. 49713,49713
• Citation: 568 P.2d 629
• Parties: George D. HICKS and Molly Hicks, as Father and Mother and Next of Kin of Monroe Hicks, Deceased, and Lahoma Hicks, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign Corporation, Appellee.
• Court: Oklahoma Supreme Court

Page 629

568 P.2d 629

George D. HICKS and Molly Hicks, as Father and Mother and

Next of Kin of Monroe Hicks, Deceased, and Lahoma

Hicks, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign

Corporation, Appellee.

No. 49713.

Supreme Court of Oklahoma.

July 26, 1977.

Rehearing Denied Sept. 26, 1977.

Appeal from District Court of Oklahoma County; Homer Smith, Judge.

Appeal from an order of the Trial Court sustaining Appellee's Motion for Summary Judgment and finding that Appellee had complied with the terms of 36 O.S.1971, § 3636, that Appellant had signed an uninsured motorist rejection form in 1968, that there was no uninsured motorist coverage available for the 1973 accident, and no question of fact for a jury. AFFIRMED.

Robert T. Keel, Oklahoma City, for appellants.

Calvin W. Hendrickson, Oklahoma City, for appellee; Pierce, Couch, Hendrickson & Short, Oklahoma City, of counsel.

BARNES, Justice:

This case involves an appeal by Appellants from the Trial Court's sustention of Appellee's Motion for Summary Judgment. The parties agree as to the essential facts.

Prior to November, 1968, Appellant, George D. Hicks, carried automobile liability insurance with State Farm Mutual Automobile Insurance Company, hereinafter called "Appellee", under Policy No. 716-059-36C, on a 1965 Ford. In November, 1968, Appellant Hicks received in the mail from Appellee, along with his automobile insurance premium notice, a form entitled "ENDORSEMENT UNINSURED MOTORIST AUTOMOBILE COVERAGE", and in parenthesis underneath this language: "Applies only to State Farm Mutual Automobile Liability Policies". This proposed "endorsement" was to be attached to Appellant's policy and would have afforded him uninsured motorist insurance. However, the offer was rejected by Appellant Hicks.

At the time of the rejection Appellant was a 44-year-old full blood Creek Indian, with a seventh grade education, who could read and write English. Appellant read the endorsement form, but was allegedly unable to comprehend the meaning. He signed and returned the form to Appellee. This act was done in Appellant's home, without a representative of Appellee to explain Appellant's statutory right to the coverage, or the scope and significance of such coverage.

In 1972 Appellant traded his 1965 Ford for a 1969 Ford and was issued a new policy by Appellee. Comprehensive and collision coverages were added to the policy and Appellant's insurance premium rate was increased. Appellee did not obtain an uninsured motorist coverage rejection, relying on the rejection obtained in 1968.

In May, 1973, Monroe Hicks, son of Appellant, was killed while driving Appellant's car, and his sister, Lahoma Hicks, a passenger, was severely injured by the negligence of an uninsured motorist. Appellants presented a claim under their uninsured motorist coverage, which was denied by Appellee. Appellee based its denial on the rejection form obtained in 1968.

Appellants, George Hicks and Molly Hicks, father and mother of Monroe Hicks, deceased, and Lahoma Hicks, brought suit against the uninsured motorist and obtained a judgment in the sum of $20,000.00. Appellants then filed this suit against Appellee for collection of that judgment.

Appellee answered Appellants' petition, alleging that Appellant, George Hicks, was given an opportunity to purchase uninsured motorist coverage, but rejected it. Appellant, George Hicks, filed a reply denying that he knowingly or voluntarily rejected the coverage. Appellee then filed its Motion for Summary Judgment, alleging that since Appellant had admittedly signed an uninsured motorist rejection form in 1968, there was no uninsured motorist coverage available for the 1973 accident and no question of fact for a jury.

Appellant contends by operation of law uninsured motorist coverage was automatically included with the policy issued in 1972. Appellant, by affidavit and deposition, denied knowingly and voluntarily rejecting uninsured motorist coverage. He argues that whether the rejection was knowingly and voluntarily given is a question of fact for a jury to determine and that the case should not have been disposed of by granting summary judgment for Appellee.

The Trial Court specifically found that Appellee properly submitted to Appellant, George Hicks, the opportunity to have uninsured motorist coverage in compliance with 36 O.S.1971, § 3636; that Appellant rejected the offered uninsured motorist coverage; that Appellant renewed his insurance coverage with Appellee and did not thereafter request uninsured motorist coverage; and that under 36 O.S.1971, § 3636, as a matter of law, there was no material question of fact, and, thus, Appellee's Motion for Summary Judgment should be sustained.

Title 36 O.S.1971, § 3636, provides in part:

"(A) No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be issued, delivered, renewed, or extended in this state with respect to a motor vehicle registered or principally garaged in this state unless the policy includes the coverage described in subsection (B) of this section.

(F) The named insured shall have the right to reject such uninsured motorist coverage in writing, and except that unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer."

In compliance with the mandate of this statute, Appellee sent to Appellant Hicks the aforementioned proposed endorsement to his then existing policy, which, if accepted by Appellant, would give him "uninsured motorist" coverage by the payment of a small additional premium charge. The instrument was captioned in large lettering: "ENDORSEMENT UNINSURED MOTORIST AUTOMOBILE COVERAGE". Below the heading appeared the following:

"The Oklahoma Legislature has enacted legislation requiring all automobile liability insurance policies in the State to provide Uninsured Automobile Coverage (Coverage U) unless rejected in writing by the policyholder. This legislation also broadens the protection provided by Uninsured Automobile Coverage.

"This coverage protects you in the event of bodily injury liability damages sustained by you, your family, or your passengers in an accident for which an unidentified or uninsured driver is legally liable. * * *

"In accordance with the new law, State Farm is providing Uninsured Automobile Coverage for all Oklahoma auto liability policies. If you are not now carrying this coverage, your enclosed premium notice states: 'Coverage U Added' and indicates the limits of liability. The semi-annual premium for this additional coverage is $3.00 for $10,000/$20,000 limits or $2.70 for $5,000/$10,000 limits and is included in the total Amount Due. Payment of the total Amount Due automatically adds Coverage U to your automobile policy, effective with your policy's renewal date." (Emphasis added)

In the last paragraph of the explanatory statement the following language appears "If you presently do not have Coverage U, State Farm strongly recommends that you accept this important additional protection.

"If You Want This

IMPORTANT COVERAGE . . .

Pay the entire AMOUNT DUE shown on your Premium Notice and place this endorsement with your policy. This will automatically make Uninsured Automobile Coverage a part of your auto liability policy. " (Emphasis added)

The premium notice above referred to was in the amount of $27.50 and was contained in the envelope with the proposed "uninsured motorist" endorsement.

Since 36 O.S.1971, § 3636, provides the insured shall have the right to reject "uninsured motorist" coverage, the proposed endorsement then stated:

"If You Do Not Want

UNINSURED AUTOMOBILE COVERAGE . . .

Please follow these three steps:

1. Complete and sign the Notice of Rejection (at the right), and . . .

2. Subtract $2.70 from the total Amount Due on the enclosed premium notice if you have $5,000/$10,000 Bodily Injury Liability limits; $3.00 if you carry $10,000/$20,000 Bodily Injury Liability limits;

3. Return the amount that is left as your premium payment enclosing your signed Notice of Rejection."

The Notice of Rejection contained this language:

"NOTICE OF REJECTION

UNINSURED MOTORIST COVERAGE

"The undersigned, an insured named in the policy, hereby rejects the provisions covering damage caused by an uninsured motor vehicle under a policy of bodily injury liability insurance on the following described car: * * *."

From our review, we think the provision to delete uninsured motorist coverage was conspicuous to the Appellant insured, to whom it was tendered for acceptance; that the language of the endorsement clearly and specifically apprised the insured of the right he was relinquishing. The policy defined the disputed coverage in language plain enough to enable the insured to comprehend the waiver and its meaning.

Appellant argues he did not voluntarily and knowingly reject uninsured motorist coverage, relying heavily on Johnson v. Concord Mutual Ins. Co., 450 Pa. 614, 300 A.2d 61 (1973). In Johnson, supra, a 69-year-old insured with a fourth grade education met with his insurance agent and signed a printed form which contained a purported waiver of uninsured motorist coverage. The insured was required to sign the form in two places, one below the printed text of the application and the other below the waiver which read in fine print, "I HEREBY STATE THAT I DO NOT DESIRE UNINSURED MOTORIST COVERAGE IN MY AUTO LIABILITY POLICY". The Pennsylvania Supreme Court found the single line on the carrier's printed form insufficient on its face to constitute a valid rejection and that the insured had not met its burden of proving the insured intelligently and knowingly waived uninsured motorist...