Mid-Century Ins. Co. v. Lyon

• Decision Date: 20 February 1997
• Docket Number: No. 19734,MID-CENTURY,19734
• Citation: 562 N.W.2d 888,1997 SD 50
• Parties: INSURANCE COMPANY, Plaintiff and Appellant, v. Honorable Darla L. LYON, Director, South Dakota Division of Insurance, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 888

562 N.W.2d 888

1997 SD 50

MID-CENTURY INSURANCE COMPANY, Plaintiff and Appellant, v. Honorable Darla L. LYON, Director, South Dakota Division of Insurance, Defendant and Appellee.

No. 19734.

Supreme Court of South Dakota.

Considered on Briefs Feb. 20, 1997.

Decided April 30, 1997.

David A. Gerdes of May, Adam, Gerdes & Thompson, Pierre, for plaintiff and appellant.

Mark Barnett, Atty. Gen., Timothy E. Reilly, Asst. Atty. Gen., Division of Insurance, Pierre, for defendant and appellee.

Douglas M. Deibert of Cadwell, Sanford, Deibert & Garry, Sioux Falls, for Amicus Curiae American Standard Ins. Co. of Wisconsin.

KONENKAMP, Justice.

¶1 We are confronted with the question whether a restrictive endorsement must be on a separate sheet or if it can be included within the body of an automobile insurance policy. Based upon statutory language and industry usage, we conclude such an endorsement must be on a separate page added or attached to the policy. Accordingly, we uphold a declaratory judgment in favor of the South Dakota Division of Insurance in its interpretation of SDCL 58-11-9.3.

Facts

¶2 On June 5, 1991, Carl Benedict was driving a vehicle with permission of the owner, who was insured by Mid-Century Insurance Company. Benedict collided with Rebecca Waack and was cited for failure to yield--circumstances giving rise to a claim against Benedict. Mid-Century's policy carried a bodily injury liability limit of $50,000 per person and $100,000 per accident; however, it asserted that only the financial responsibility statutory limit of $25,000 applied in this instance. It relied upon the following language in its E-Z Reader Car Policy:

We will not provide insurance for a person, other than you or a family member, if that person has other insurance applicable to a loss covered by this part with limits equal to at least those of the South Dakota Financial Responsibility Law. If there is no other insurance then the insurance provided to that person will be limited to the requirements of the South Dakota Financial Responsibility Law.

This provision, commonly known as a "step-down clause," was brought to the Division's attention, and it ruled the clause invalid, requiring Mid-Century to make its full policy limits available.

¶3 Based upon the following statute, the Division reasoned a restrictive endorsement must appear on a separate page, apart from the main policy language:

An insurance policy covering a private passenger automobile or other motor vehicle registered or principally garaged in this state may by written agreement with the named insured exclude a named individual from coverage. The policy may also contain a restrictive endorsement reducing the limits of liability or collision coverage when the vehicle is operated by a named person or class of persons. However, if the policy does not provide liability coverage to a person or persons named in the restrictive endorsement, the liability coverage may not be less than the minimum prescribed by chapter 32-35.

SDCL 58-11-9.3 (1996). ¹ In a declaratory judgment action, the circuit court concurred with the Division, noting ambiguity in the statute and finding the legislative intent in using the words "restrictive endorsement" required additional disclosure. Mid-Century appeals, contending the trial court erred in ruling its step-down clause invalid. ²

Standard of Review

¶4 We review declaratory judgments as we would any other order, judgment, or decree. SDCL 21-24-13; Schull Constr. Co. v. Koenig, 80 S.D. 224, 228-29, 121 N.W.2d 559, 561-62 (1963). A trial court's findings of fact are examined under a clearly erroneous standard and its conclusions of law under a de novo standard. Northwestern Bell Tel. Co., Inc. v. Stofferahn, 461 N.W.2d 129, 134 (S.D.1990). Insurance contract interpretation, as well as statutory construction, are questions of law, reviewable de novo. National Farmers v. Universal, 534 N.W.2d 63, 64 (S.D.1995); State Farm Mut. Auto. Ins. Co. v. Vostad, 520 N.W.2d 273, 275 (S.D.1994).

Analysis and Decision

¶5 The Division maintains that the use of the term "restrictive endorsement" in the second sentence of SDCL 58-11-9.3 means, in accordance with common industry usage, the endorsement must be on a separate page or piece of paper apart from the body of the policy. ³ It argues the Legislature's use of such words would be surplusage if, in fact, a restrictive endorsement may abide within the body of the policy. See SDCL 58-11-9.3: "The policy may also contain a restrictive endorsement reducing the limits of liability or collision coverage when the vehicle is operated by a named person or class of persons."

¶6 Our insurance code, SDCL tit 58, gives no definition of "restrictive endorsement." Legal treatises and encyclopedias uniformly suggest, however, endorsements of any type in an insurance context are attached to policies and are not part of the policy proper. For instance, a leading treatise on the subject states, "Insurers often seek to change the rights of parties under an existing insurance policy by issuing 'riders' or endorsements that are designed to be attached to the original insurance policy provisions which were previously sent or delivered to an insured." Keeton & Widiss, Insurance Law § 6.10(d) (1988)(emphasis added). See also 2 Couch Cyclopedia of Insurance Law 3d § 18:17 (1996)("A rider or endorsement is a writing added or attached to a policy ... which expands or restricts its benefits or excludes certain conditions from coverage."); 44 CJS Insurance § 302 (1993)("A policy of insurance must have endorsed thereon, or attached thereto, such papers and documents as the statutes may require."); 39 CalJur Insurance Contracts § 48 (1996)("An indorsement on an insurance policy, or, as it is sometimes called, a 'rider,' forms part of the insurance contract, if properly attached, and is to be construed as if set forth in the body of the policy."); 13A Appleman, Insurance Law and Practice § 7537 (1976)("The insurance contract includes the printed form policy, declarations therein, and any endorsements thereto. Provisions of the policy and an endorsement thereon are to be read together....").

¶7 Mid-Century directs us to cases from other jurisdictions which refer to an endorsement as something contained within the body of a policy. Upon close review, however, these cases are not profitable to Mid-Century's assertion. In Givens v. Aetna Life Ins. Co., 59 S.W.2d 761 (Mo.Ct.App.1933), a Missouri court of appeals considered a stamped endorsement. It held this arrangement did not prohibit the application of the endorsement to coverage as it was clearly stamped on the margin, writing:

It is not hidden away, in small type, amongst a mass of rubbish, on the back side of the policy, so that it would not arrest the attention of the insured; it is printed on the face of the policy, in large honest type, and is the most conspicuous provision in the policy.

Id. at 764. Stamped endorsements are quite different from endorsements printed as part of the body of a policy, because, as the court noted, they draw an insured's attention to the limitations they impose. While we pass no judgment on the merits of such a configuration, we acknowledge such a stamp has the same obvious and distinct characteristics as a restrictive endorsement by separate attachment, alerting the reader coverage has been altered.

¶8 Similarly, Mid-Century cites Loubat v. Audubon Life Insurance Company for the rule that a rider or endorsement may become part of the policy if "sufficiently attached or referred to therein, or if made part of the body of the instrument...." 248 La. 183, 177 So.2d 281, 285 (1965)(quoting 29 AmJur Insurance § 268 at 654-55). Two points render this quote unconvincing. First, that case concerned the validity of an independent "Statement of Insurance Protection," later advanced as an amendment to the policy, not the issue we consider here. Secondly, the full American Jurisprudence quote from that case states an endorsement, "in order that it may be considered a part of the insurance contract, ... must be incorporated, attached or referred to in the instrument in so clear a manner as to leave no doubt of the intention of the parties in such respect." Id. Attached endorsements or riders, of course, must be fully incorporated to ensure proper construction. Id. This authority supports the Division's position that a restrictive endorsement is generally regarded as an attachment to a policy, so arranged to put the insured on notice coverage is reduced.

¶9 Given the industry usage for this term, we must determine whether the Legislature intended such use when inserting the words "restrictive endorsement" in the second sentence of SDCL 58-11-9.3. "In arriving at the intention of the Legislature, it is presumed that the words of the statute have been used to convey their ordinary, popular meaning." National Farmers v. Universal, 534 N.W.2d at 65; Weger v. Pennington County, 534 N.W.2d 854, 856 (S.D.1995); Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180, 183-84 (S.D.1986). "This court assumes that statutes mean what they say and that legislators have said what they meant." In re Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984). "When the language of the statute is clear, certain, and unambiguous, there is no occasion for construction, and the court's only function is to declare the meaning of the statute as clearly expressed in the statute." Id. The term "restrictive endorsement" carries a meaningful connotation in the insurance industry, and perhaps in common parlance, as well. This terminology signals to insureds coverage is different from the boilerplate, printed language in the policy. Insureds, of course, seek to maintain coverage. We believe the Legislature, with this in mind, intended an extra measure of disclosure, contemplating by the use of this language that restrictive endorsements would be positioned in a separate,...