HUNTER, ROBERT C., Judge.
Defendant Jaimie Martinson ("Mrs. Martinson"), as administratrix of the estate of John Gilbert Martinson ("Mr. Martinson"), appeals from the trial court's 26 August 2009 order denying her motion for summary judgment and granting plaintiff Nationwide Property and Insurance Company's ("Nationwide") motion for summary judgment. After careful review, we affirm the trial court's order.
In 2006, Mr. and Mrs. Martinson moved to Charlotte, North Carolina so that Mr. Martinson could begin a new job. In March 2007, the couple purchased a home located in the Eastwood Homes Withrow Downs subdivision. At the time, Eastwood Homes had a relationship with the Doug Helms Agency (the "Helms Agency"), an independent Nationwide agency in Gastonia, North Carolina. Eastwood Homes agreed to refer buyers in their community to the Helms Agency to assist them with their home insurance needs. Mary Plybon ("Ms. Plybon"), a representative of the Helms Agency, was trained by Nationwide and instructed to discuss all coverage needs with potential customers, including uninsured motorist ("UM") and underinsured motorist ("UIM") coverage.
In March 2007, Ms. Plybon first contacted Mr. Martinson by telephone and asked if he would be interested in general information regarding homeowners' insurance and other Nationwide services. Mr. Martinson expressed interest in obtaining Nationwide insurance so Ms. Plybon mailed him several brochures to his home address. In July 2007, Ms. Plybon received information from Eastwood Homes that Mr. and Mrs. Martinson were expected to close on their new home soon. As a follow-up to their March conversation, Ms. Plybon called Mr. Martinson and asked if he was interested in receiving insurance quotes from Nationwide. Though Ms. Plybon does not remember all of the details of their conversation, the record shows that Ms. Plybon emailed Mr. Martinson the following quote on 17 July 2007, which was based on the same coverage the Martinsons had with Allstate at the time: (1) "Bodily Injury" coverage of "50/100" "Per Person/Occurrence"; (2) "Uninsured Motorists-Bodily Injury" coverage of "50/100" "Per Person/Occurrence"; (3) "Uninsured Motorists-Property Damage" coverage of "25000" "Per Occurrence"; and (4) "Underinsured Motorists-Bodily Injury" coverage of "50/100" "Per Occurrence[.]" The same day, Mr. Martinson emailed Ms. Plybon and
On 2 August 2007, having not received the requested information, Ms. Plybon contacted Mr. Martinson and asked that he forward the information to her and reminded him that his Allstate policy was scheduled to automatically renew on 22 August 2007. On 8 August 2007, Mr. Martinson called Ms. Plybon with the requested information and finalized the coverage he had selected, which included the 100/300 UM and UIM coverage. Ms. Plybon sent Mr. Martinson an email verifying his coverage selections. The parties do not dispute that Ms. Plybon never discussed with Mr. Martinson the fact that he could select up to $1,000,000.00 in UM/UIM coverage; however, Ms. Plybon stated in her deposition that had Mr. Martinson requested additional coverage beyond the 100/300 discussed, she would have been prepared to offer him a quote.
On 20 August 2007, Ms. Plybon spoke with Mr. Martinson again and processed his application for insurance per his request. Mr. Martinson paid the $465.00 premium for six months of coverage — 22 August 2007 through 22 February 2008. The declarations page provided in the record shows that Mr. Martinson is the "Named Insured" on the policy and Mrs. Martinson is listed as an "Insured Driver." Mrs. Martinson never spoke with anyone at the Helms Agency prior to her husband's purchase of coverage. At that point, Mr. Martinson had purchased the six-month policy, but had not signed any documentation with Nationwide.
According to Ms. Plybon, Mr. Martinson requested that the application be mailed to his new home at 603 Wrayhill Drive. Ms. Plybon then requested that Melissa Melton ("Ms. Melton"), an operations manager at the Helms Agency, mail the application and the selection/rejection form promulgated by the North Carolina Rate Bureau to Mr. Martinson. Ms. Melton testified at her deposition that when she processes a payment for insurance coverage, the Nationwide computer automatically prints the insured's application and a selection/rejection form. Ms. Melton claimed that once Mr. Martinson's materials were printed, she checked to make sure that the application and selection/rejection form were in order before applying the proper postage and addressing the envelope to 603 Wrayhill Drive. Ms. Melton then emailed Ms. Plybon to inform her that she had prepared the Martinson materials as requested. A copy of the application and the selection/rejection form were retained in the Helms Agency's files.
Since the mail had already been picked up that day, Ms. Melton waited until the next day, 21 August 2007, to place the envelope in the Helms Agency's mailbox located in front of the office. According to Doug Helms, the envelope had a return address, but the envelope was never returned to the Helms Agency. Mr. Martinson never signed and returned the documents mailed to him, and, according to Ms. Melton, he never called the Helms Agency to say that he did not receive the envelope mailed on 21 August 2007. Mrs. Martinson claims that neither she nor her husband ever received that envelope.
On 11 September 2007, approximately three weeks after Mr. Martinson purchased the automobile policy from Nationwide, he was involved in a serious motor vehicle accident and was hospitalized. On 12 September 2007, Mrs. Martinson called Ms. Plybon to inform her that Mr. Martinson had been in an accident and may not survive. That same day, Angie Helms ("Mrs. Helms"), the wife of Doug Helms and part-time employee of the Helms Agency, called Mrs. Martinson to follow-up on the application that was mailed to Mr. Martinson, but never returned. In her deposition, Mrs. Helms claimed that she did not know that Mr. Martinson had been in an accident and her call was in accord with the Helms Agency's follow-up protocol. That same day, Mrs. Helms mailed Mrs. Martinson another copy of the application and selection/rejection form.
Mr. Martinson died on 18 September 2007 due to the injuries he suffered in the 11 September 2007 car accident. Mrs. Martinson stated in her affidavit that representatives from the Helms Agency continued to call her and ask that she sign and return the application and selection/rejection form. On 26 September 2007, Mrs. Martinson spoke with Ms. Melton and asked that the signature pages of the application be emailed to her. At this time, Mrs. Martinson was represented by counsel in connection with her husband's accident; however, it is disputed as to whether Mrs. Martinson informed the Helms Agency of this fact. It is undisputed that Mrs. Martinson did not seek her attorney's advice regarding the forms sent to her by Nationwide. On 26 September 2007, Mrs. Martinson signed the application and selection/rejection form and returned it to the Helms Agency. Although the pre-printed signature lines on the documents call for the signature of John Martinson, Mrs. Martinson signed the forms with her own signature.
On 20 August 2008, Nationwide filed a complaint for declaratory judgment pursuant to Rule 57 of the North Carolina Rules of Civil Procedure. Nationwide requested that "the Court issue a Declaration of Judgment indicating that the total available underinsured motorist coverage is in the amount of $100,000/$300,000. ..." On or about 18 September 2008, Nationwide filed an amended complaint for declaratory judgment. On or about 18 November 2008, Mrs. Martinson, as administratrix of her husband's estate, filed an answer in which she requested that "the Court declare that Plaintiff's policy provides $1,000,000.00 in UIM coverage for Defendant's claims arising from the September 11, 2007 Accident[.]"
The parties filed cross-motions for summary judgment, and on 26 August 2009, the trial court, after hearing arguments from counsel, granted Nationwide's motion for summary judgment and denied that of Mrs. Martinson. The trial court held that "Nationwide shall provide that amount of uninsured and underinsured motorist (UM/UIM) coverage to the Defendant ... as shown on the automobile declarations page in the amount of $100,000.00 per person and $300,000.00 per accident. ..." Mrs. Martinson timely appealed the trial court's order.
"`The standard of review on appeal [from] summary judgment is whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. The question is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is a genuine issue as to any material fact.'" Woods v. Mangum, ___ N.C.App. ___, ___, 682 S.E.2d 435, 438 (2009) (quoting Sellers v. Morton, 191 N.C. App. 75, 81, 661 S.E.2d 915, 920-21 (2008)), aff'd per curiam, 363 N.C. 827, 689 S.E.2d 858 (2010). "The burden is upon the moving party to show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law." McGuire v. Draughon, 170 N.C. App. 422, 424, 612 S.E.2d 428, 430 (2005) (citation omitted). "All facts asserted by the [nonmoving] party are taken as true and their inferences must be viewed in the light most favorable to that party." Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (internal citations omitted). On appeal, this Court reviews an order granting summary judgment de novo. McCutchen v. McCutchen, 360 N.C. 280, 285, 624 S.E.2d 620, 625 (2006). "Accordingly, we must examine the evidence herein to determine whether it reveals a genuine issue of material fact regarding the amount of UIM coverage provided in the policy; if not, the trial court properly granted plaintiff judgment as a matter of law." Hendrickson v. Lee, 119 N.C. App. 444,
Mrs. Martinson argues that the trial court erred in granting Nationwide's motion for summary judgment and denying her motion for summary judgment. Mrs. Martinson's primary assertion is that Nationwide failed to notify her husband prior to his accident that $1,000,000.00 in UM/UIM coverage was available, and, because of this total failure to notify, her husband's estate is entitled to $1,000,000.00 in UIM coverage for the 11 September 2007 accident. Mrs. Martinson relies heavily on N.C. Gen.Stat. § 20-279.21(b)(3) (2007) of the Financial Responsibility Act (the "Act") and Williams v. Nationwide Mutual Ins. Co., 174 N.C. App. 601, 621 S.E.2d 644 (2005).
"When examining cases to determine whether insurance coverage is provided by a particular automobile liability insurance policy, careful attention must be given to the type of coverage, the relevant statutory provisions, and the terms of the policy." Smith v. Nationwide Mutual Ins. Co., 328 N.C. 139, 142, 400 S.E.2d 44, 47 (1991) (emphasis added). A survey of the applicable case law based on changing statutory mandates is essential to resolving the case sub judice. Prior to 1991, "an automobile liability insurance policy with bodily injury liability limits in excess of the statutory minimum was required to provide UIM coverage equal to the policy's bodily injury liability limits, absent an effective rejection." State Farm Mutual Auto. Ins. Co. v. Fortin, 350 N.C. 264, 267, 513 S.E.2d 782, 783 (1999); N.C. Gen.Stat. § 20-279.21(b)(4) (1989). Effective 5 November 1991, the General Assembly amended the Act to allow an insured to select UM and UIM coverage "in an amount not to be less than the financial responsibility amounts for bodily injury liability as set forth in G.S. 20-279.5 [$25,000 and $50,000] nor greater than one million dollars." N.C. Gen.Stat. § 20-279.21(b)(4) (1991).
Fortin, 350 N.C. at 267, 513 S.E.2d at 783. The amendment also set forth:
N.C. Gen.Stat. § 20-279.21(b)(4) (emphasis added).
As a matter of first impression, this Court addressed in Maryland Casualty Co. v. Smith, 117 N.C. App. 593, 597, 452 S.E.2d 318, 320 (1995) "whether the insured's rejection of underinsured motorists coverage, prior to the statutory amendment and prior to the approval of the new form reflecting the substance of the statutory amendment, was still valid and effective with respect to an accident that occurred after the rejection form had been substantially revised and after the policy had been renewed." In Smith, the insured, Ralph Smith, signed a selection/rejection form on 29 September 1991 in which he rejected UM and UIM coverage on behalf of himself and the other members of his family listed on the policy. Id. at 595, 452 S.E.2d at 319. After passage of the 1991 amendment, Smith renewed the policy in March 1992, "but did not request that underinsured motorist coverage be added at that time." Id. On 2 May 1992, Joel Smith, Ralph Smith's son, was in an automobile accident. Id. The plaintiff insurance company claimed that the Smiths did not have UIM coverage because Ralph Smith did not add that coverage at renewal in 1992. Id. Smith argued before the trial court that his rejection of UIM was "ineffective" because the form he signed in September 1991 became "out-dated" after the 1991 amendment. Id.
This Court addressed a similar issue in Metropolitan Property and Casualty Ins. Co. v. Caviness, 124 N.C. App. 760, 478 S.E.2d 665 (1996). There, Caviness was involved in an automobile accident on 29 February 1992. Id. at 761, 478 S.E.2d at 666. "At no time prior to the accident did Caviness execute a selection/rejection form thereby establishing the limit of her UIM coverage. On 16 March 1992, however, Caviness executed the requisite form and selected coverage of $100,000 per person and $300,000 per accident." Id. This Court determined that the "dispositive issue" was "whether, absent selection or rejection of UIM coverage by the insured, N.C. Gen.Stat. § 20-279.21(b)(4) mandates UIM coverage in an amount equal to the limit of liability coverage, or, alternatively, in the amount of one million dollars." Id. at 763, 478 S.E.2d at 667. We recognized that:
Id. The Court determined that because the Financial Responsibility Act is a remedial statute, it must be construed in the insured's favor. Id. at 763-64, 478 S.E.2d at 668. Consequently, the Court concluded that "absent completion of an approved selection or rejection form the insured is, as a matter of law, entitled to one million dollars in UIM coverage." Id. at 765, 478 S.E.2d at 668.
In Fortin, our Supreme Court faced an almost identical question of law as that presented in Smith. The insured, Toni Fortin, was injured in an automobile accident on 18 November 1994. Fortin, 350 N.C. at 266, 513 S.E.2d at 782. On 15 July 1991, Fortin had executed a selection/rejection form which stated: "I choose to reject Uninsured/Underinsured Motorists Coverage and select Uninsured Motorists Coverage at limits of [Bodily Injury] 100/300[.]" Id. at 266, 513 S.E.2d at 783. On 16 January 1992, Fortin's policy renewed and he was not given a fresh opportunity to reject or select UM/UIM coverage. Id. As this Court determined in Smith, the Supreme Court in Fortin held that Fortin's July 1991 rejection was no longer effective after the November 1991 amendment. Id. at 267, 513 S.E.2d at 783. Accordingly, "there was no valid rejection of UIM coverage in th[at] case." Id. In determining the amount of coverage owed to Fortin, the Supreme Court's remedy took into account the 1992 amendment to the statute. Effective 1 October 1992, N.C. Gen.Stat. § 20-279.21(b)(4) was amended and resolved the ambiguity described in Caviness. As revised, the statute states: "If the named insured does not reject underinsured motorist coverage and does not select different coverage limits, the amount of underinsured motorist coverage shall be equal to the highest limit of bodily injury liability coverage for any one vehicle in the policy." N.C. Gen.Stat. § 20-279.21(b)(4)
Six years later, this Court decided Williams. There, a minor, Ashley Williams, was injured in an accident caused by the driver of the automobile, Jeremy Canady. Williams, 174 N.C.App. at 602, 621 S.E.2d at 645. On the date of the accident, 17 July 2001, the Canady's vehicle was insured by Nationwide with bodily injury coverage of $50,000.00 per person and $100,000.00 per accident. Id. The parties in the case stipulated to the following facts:
Id. at 603, 621 S.E.2d at 645-46. This Court determined that, unlike in Fortin, there was a "total failure to provide the insured with an opportunity to select UIM coverage." Id. at 604, 621 S.E.2d at 647. The Court then acknowledged that N.C. Gen.Stat. § 20-279.21(b)(4) "does not address the applicable default policy limits where the insured is not given the opportunity to select or reject the UIM policy limits[.]" Id. at 605, 621 S.E.2d at 647. Relying on Caviness, where the Court resolved the statute's ambiguous language in favor of the insured, the Williams Court held that the insured was entitled to $1,000,000.00 in UIM coverage. Id. The Court went on to state:
Id. at 605-06, 621 S.E.2d at 647 (emphasis added).
In examining the case law and the relevant statutory modifications, it is clear that an insured must be given the opportunity by the insurer to select or reject UIM and UM coverage. Since 1991, our legislature has required that a named insured sign a selection/rejection form promulgated by the North Carolina Rate Bureau indicating his or her selection or rejection of coverage. N.C. Gen.Stat. § 20-279.21(b)(4). Where the insurer attempts to notify the insured of the $1,000,000.00 maximum UM/UIM coverage, but there is neither a valid rejection of that coverage nor a selection of different coverage limits, an insured is entitled to the highest limit of bodily injury liability coverage on the insured's policy. Id.; Fortin, 350 N.C. at 271, 513 S.E.2d at 786. However, if there is a total failure by the insurer to notify the insured that he or she may purchase up to $1,000,000.00 in UM/UIM coverage, then the insured is entitled to $1,000,00.00 in coverage. Williams, 174 N.C.App. at 605-06, 621 S.E.2d at 647.
Mrs. Martinson relies on Williams and claims that there was a total failure by Nationwide to inform Mr. Martinson that UM/UIM coverage limits of up to $1,000,000.00 was available, and, therefore, Mr. Martinson had UIM coverage in the amount of $1,000,000.00 for the 11 July 2007 accident. We disagree.
The material facts in this case are undisputed. Nationwide claims that it mailed Mr. Martinson his application and selection rejection form on 21 August 2007 to the proper address. Mrs. Martinson claims that she never received that form, and, to the best of her knowledge, Mr. Martinson did not receive that form. The question, therefore, is whether the mailing of the selection/rejection form by Nationwide was sufficient to satisfy the standard of notice established by our case law upon interpretation of N.C. Gen. Stat. § 20-279.21(b)(3) even where the insured does not receive it prior to an accident in which he claims UIM coverage. We hold that it does and that there was not a total failure on the part of Nationwide to provide an opportunity for Mr. Martinson to reject UIM coverage or select different UIM policy limits. The mailing of the selection/rejection form to Mr. Martinson the day after he paid for the coverage prevents us from holding that a total failure to inform occurred. In Williams, the parties stipulated that there was no effort whatsoever on the part of the insurer to provide the insured a selection/rejection form. 174 N.C.App. at 603, 621 S.E.2d at 646. That is not the case here.
Though Mrs. Martinson claims that neither she nor her husband received the form, there is no evidence to contradict Nationwide's assertion that it was mailed on 22 August 2007.
Talbert v. Choplin, 40 N.C. App. 360, 363-64, 253 S.E.2d 37, 40 (1979). Nationwide has established through testimony of its employees, and through supporting electronic documentation, that the envelope containing the selection/rejection form was mailed on 22 August 2007. That envelope was never returned by the postal service and Mr. Martinson never called to say that he did not receive the forms. Mrs. Martinson claims that she and her husband were very tidy and that the mail that came into the house was always placed on a certain table so that she and Mr. Martinson could both see what had arrived. When asked how she knew that they never received the envelope, Mrs. Martinson responded: "Because I didn't see — because I don't ever remember receiving this." Mrs. Martinson's assertions pertain to her receipt
Mrs. Martinson argues in her brief to this Court that the mailbox rule, which creates a rebuttable presumption that an envelope sent via the postal service with proper postage was delivered to the intended party, Sherrod v. Farmers' Mutual Fire Ins. Ass'n, 139 N.C. 167, 51 S.E. 910 (1905), is not applicable in this case.
Our holding in this case is in line with this Court's recent decision in Nationwide Mutual Ins. Co. v. Burgdoff, ___ N.C.App. ___, 698 S.E.2d 500 (2010). There, the Nationwide insurance agent, Ms. Bare, provided an affidavit in which she stated that she had verbally informed Mrs. Burgdoff that she could select UIM coverage in an amount up to $1,000,000.00. ___ N.C.App. at ___, 698 S.E.2d at 504. The Burgdoffs claimed that they were never informed of that option. Id. It was undisputed that a selection/rejection form was never mailed. Id. at ___, 698 S.E.2d at 502. The Burgdoffs relied on Williams and argued that Nationwide's "failure to provide [them] with [a] selection/rejection form constitute[d] a per se total failure to provide an opportunity to reject UIM coverage or select different UIM policy limits[.]" Id. at ___, 698 S.E.2d at 503. In analyzing Williams, this Court in Burgdoff stated: "There is nothing in Williams that would support expanding its holding beyond situations where an insured was never given the opportunity to reject or select different coverage limits." Id. The Court further stated: "Along these same lines, the deciding factor for the Williams Court was not that the insured was not provided with the proper selection/rejection form; instead, the Court emphasized that the insured was not provided with any opportunity at all to even consider UIM coverage." Id. The Burgdoff Court determined that there was a material issue of fact as to whether the Burgdoffs were verbally informed by Ms. Bare that they could purchase up to $1,000,000.00 in UIM coverage. Id. at ___, 698 S.E.2d at 503-04. Accordingly, the issue of whether there was a total failure was left to the jury. Id. Nevertheless, the Court's holding clearly establishes that verbally informing an insured of the UIM coverage limits is sufficient to distinguish the case from Williams.
In the present case, Mr. Martinson was not verbally informed of the UIM coverage limits, but the selection/rejection form was mailed to him in a timely manner. There is no issue of material fact as to that point. As stated in Williams, and reiterated in Burgdoff, the critical determination is whether the insured was given some "opportunity to reject or select different coverage limits." Id.; Williams, 174 N.C.App. at 605, 621 S.E.2d at 647. Mr. Martinson was insured at the time of the accident for 100/300 UM/UIM coverage and we cannot say that mailing a selection/rejection form by Nationwide that was never signed prior to the accident is a total failure on the part of Nationwide to inform the insured of available coverage that would require adherence to Williams. Consequently, we affirm the trial court's order.
Based on the foregoing analysis, we hold that the trial court did not err in denying Mrs. Martinson's motion for summary judgment and properly granted Nationwide's motion for summary judgment.
Affirmed.
Judges BRYANT and CALABRIA concur.
