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April 26
08:27 2021

Rejection remains

John O’Donnell was insured under a $2 million personal umbrella liability policy issued in September 2011 by Allstate Indemnity Company. On September 27, 2011, O’Donnell submitted to Allstate a completed New Hampshire personal umbrella policy uninsured motorist selection/rejection form. The form O’Donnell signed provided that “[t]he following selection or rejection [of uninsured motorist coverage] will apply now and to all future renewals or continuations of my policy unless I notify you otherwise in writing.” O’Donnell checked the following box: “I wish to reject Uninsured Motorists Insurance … for my Personal Umbrella Policy.”

Each year Allstate sent O’Donnell a notice reminding him that the company offered uninsured motorist coverage and inviting him to “contact [his] agent” for more information about his “options concerning this coverage.”

In July 2015, Allstate again sent O’Donnell a renewal offer. O’Donnell requested that Allstate reduce his cover-age limit from $2 million to $1 million for the September 2, 2015, to September 2, 2016, coverage period. Allstate complied with O’Donnell’s request, which resulted in a nearly 50% decrease in O’Donnell’s premium. Allstate sent O’Donnell amended declarations for the 2015-16 coverage period that reflected the reduced coverage limit and premium. The declarations stated, in bold type, that O’Donnell had rejected uninsured motorist coverage. At approximately the same time that it sent the 2015-16 declarations, Allstate also sent O’Donnell a notice reminding him that the company offered uninsured motorist coverage.

It was undisputed that O’Donnell made no written request for uninsured motorist coverage. Moreover, in the affidavit that O’Donnell submitted to the court, he made no assertion that he otherwise requested uninsured motorist coverage.

The new coverage limit became effective on September 2, 2015. O’Donnell continued to have the same policy number, and, other than the reduced coverage limit and premium, the 2015-16 coverage terms were substantially the same as the terms during the previous coverage periods.

The new coverage limit was in effect on November 12, 2015, when O’Donnell was injured in a motor vehicle accident in which the car he was driving was rear-ended by another motorist. O’Donnell filed a claim for underinsured motorist coverage under his umbrella policy, which Allstate denied.

O’Donnell brought a declaratory judgment action to determine whether the 2015-16 policy provided uninsured motorist coverage. He argued that, because his coverage limit was reduced from $2 million to $1 million as of September 2, 2015, the 2015-16 policy was a new policy to which his 2011 waiver of uninsured motorist coverage did not apply. O’Donnell argued that, because he did not execute a new written waiver of uninsured motorist coverage in conjunction with the 2015-16 policy, Allstate was required by statute to provide him uninsured motorist coverage.

The relevant statute stated:

[U]mbrella or excess policies that provide excess limits to [motor vehicle liability policies] shall also provide uninsured motorist coverage equal to the limits of liability purchased, unless the named insured rejects such coverage in writing. Rejection of such coverage by a named insured shall constitute a rejection of coverage by all insureds, shall apply to all vehicles then or thereafter eligible to be covered under the policy, and shall remain effective upon policy amendment or renewal, unless the named insured requests such coverage in writing.

Allstate moved for summary judgment, arguing that O’Donnell’s September 2011 waiver of uninsured motorist coverage remained in effect at the time of the November 2015 accident because O’Donnell never revoked his waiver by requesting uninsured motorist coverage in writing, as required by statute. The court granted Allstate’s motion. The court noted that there was no dispute that O’Donnell had rejected uninsured motorist coverage in 2011, and that he had never subsequently requested uninsured motorist coverage in writing. The court found that O’Donnell’s 2015-16 policy “was a renewal of his previous umbrella policies, with amended coverage terms,” concluding that the reduction of the coverage limit effective September 2015 did not create a new policy such that O’Donnell’s 2011 waiver did not continue to apply. O’Donnell appealed.

On appeal, O’Donnell argued that the trial court erred in granting summary judgment because it incorrectly construed the statute cited above. O’Donnell argued that, because his coverage limit was reduced from $2 million to $1 million at the start of the 2015-16coverage period, the 2015-16 policy was not an “amendment or renewal” of his original policy but rather a new policy. Consequently, O’Donnell argued, his September 2011 waiver did not apply to the 2015-16 policy, and Allstate was therefore required to obtain a second written waiver of uninsured motorist coverage before denying him coverage.

Allstate countered that the decision of the trial court should be affirmed because O’Donnell’s 2011 waiver of uninsured motorist coverage remained in effect at the time of the 2015 accident. Allstate emphasized that, although O’Donnell made changes to his policy after executing the 2011 waiver, including a reduction of the coverage limit for the 2015-16 period, he never made a written request that Allstate add uninsured motorist coverage to his policy. Consequently, Allstate argued, O’Donnell “is not entitled to reform his policy after the fact.”

The appellate court agreed with Allstate. Referring to the above-cited statute, the court stated that the statute’s plain language did not suggest that policy changes taking effect at the start of a new coverage period are to be treated differently, such that an otherwise enforceable waiver of uninsured motorist coverage becomes unenforceable merely because a change happens to take effect at renewal. The fact that O’Donnell’s coverage limit and premium were reduced, and that these changes took effect at the start of a new coverage period, in no way invalidated O’Donnell’s initial written rejection of uninsured motorist coverage.

O’Donnell also contended that the 2015-16 policy could not be a “renewal” of his umbrella policy because a “renewal” requires that a succeeding policy have coverage limits that are at least equal to the limits under the preceding policy. The court rejected this argument because O’Donnell cited a statute that applied only to automobile policies.

The judgment of the lower court was affirmed.

O’Donnell v. Allstate Indemnity Company—Supreme Court of New Hampshire—May 22, 2020—No. 2018-0706.

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