Starcher, J., concurring:
I concur with the majority's opinion, but I write separately to detail the factual background supporting the majority opinion's result.
Plaintiff Sheryl Lynn Jewell
was seriously injured on February 16, 2000, when defendant Lisa Ford, who was
driving drunk, lost control of her vehicle and slammed headlong into the plaintiff's
vehicle. The plaintiff has been unable to walk on her own, run, or work since
the collision.
The plaintiff applied for automobile
insurance from defendant Nationwide Insurance Company (“Nationwide”)
in August 1996. The policy she purchased had uninsured motorist coverage in
the amounts of $25,000.00 per person for bodily injury, $50,000.00 per occurrence,
and $25,000.00 in property damage (“25/50/25”).
At the time she purchased the
coverage from Nationwide, the plaintiff was given a form regarding uninsured
motorist coverage which was prescribed by the Insurance Commissioner. See
W.Va. Code, 33-6-31d(a) [1993] (“Optional limits of uninsured motor
vehicle coverage . . . shall be made available to the named insured at the time
of initial application . . . on a form prepared and made available by the insurance
commissioner.”). The form was published by the Insurance Commissioner in Information Letter No.
88 in July 1993, and was the form required to be used so that an insurance company
could make a commercially reasonable offer of coverage, and the policyholder
can make a knowing and intelligent choice of coverage, as a matter of law. See
Bias v. Nationwide, 179 W.Va. 125, 365 S.E.2d 789 (1987).
The Insurance Commissioner's
form had blanks which required the insurance company to list the various amounts
of uninsured motorist coverage being offered to the plaintiff, and the premiums
for each type of coverage. Important to the instant case, the form had blanks
which required the insurance company to list the plaintiff's current insurance
coverage and the premiums she was currently paying.
(See footnote 1) The form states that the “company
must complete the blank spaces below to create an effective offer in order for
the consumer to exercise a knowing and intelligent selection.”
When the plaintiff applied for
insurance in August 1996, on the form under the heading “Your Present Coverage
Is,” Nationwide failed to complete the blanks indicating the plaintiff's
current level of uninsured motorist coverage and the premiums she was paying.
This failure to provide the plaintiff with information was critical to the plaintiff
choosing only “25/50/25” in coverage.
Prior to August 1996, the plaintiff had been insured by another insurance company and had purchased uninsured motorist coverage from the other company. She paid $31.20 every 6 months for “20/40/10” coverage, information which was not given to her by Nationwide as required by the Insurance Commissioner. When the plaintiff applied for coverage in August 1996 with Nationwide, according to the briefs of the parties, she could have paid $29.70 to buy 100/300/10 uninsured motorist coverage from Nationwide. In other words, had the plaintiff been provided with information regarding her existing level of uninsured motorist coverage, she could have knowingly considered that she could buy $80,000 more coverage than she had prior to August 1996 for $1.50 less.
Nationwide clearly failed to complete
the form established by the Insurance Commissioner, and as a result the plaintiff
did not make a knowing and intelligent waiver of her right to purchase additional
coverage. I therefore concur with the majority opinion.