No. 47675-1-IThe Court of Appeals of Washington, Division One.
Filed: January 18, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 98-2-27383-6. Judgment or order under review. Date filed: 10/18/2000. Judge signing: Hon. Harriett M Cody.
Counsel for Appellant(s), Satwant K Atwal, Attorney at Law, 2200 6th Ave Ste 600, Seattle, WA 98121-1849.
William Scott Clement, Attorney at Law, 2200 6th Ave Ste 600, Seattle, WA 98121-1849.
Counsel for Defendant(s), Edwin J Snook, Snook Schwartz, 25 Central Way Ste 410, Kirkland, WA 98033-6158.
Counsel for Respondent(s), William John Crittenden, Attorney at Law, 927 N Northlake Way Ste 301, Seattle, WA 98103-3406.
Steven J. Thomas, Attorney at Law, PO Box 822, Enumclaw, WA 98022-0822.
Bradley Alan Maxa, Gordon Thomas Honeywell, PO Box 1157, Tacoma, WA 98401-1157.
COX, C.J.
This matter is before us on remand from the state supreme court.[1] We earlier held that there was no uninsured motorist (UIM) coverage under the T.H.E. Insurance Company policy for Jeffrey A. Butzberger, the deceased.[2] Accordingly, we did not reach the issue of whether there was a valid uninsured motorist coverage reduction of limits (UIM waiver) under that policy.[3] On review of our decision, the supreme court held there is coverage for Butzberger under the policy.[4]
Thus, the court directed that we decide the waiver issue.[5]
We now hold that summary judgment on the waiver issue was proper.[6]
UIM WAIVER VALIDITY
The personal representative of Butzberger (Estate) argues that the trial court improperly granted summary judgment in favor of T.H.E because there are genuine issues of material fact regarding the validity of the UIM waiver forms produced by T.H.E. during this litigation. This argument is unpersuasive.
Summary judgment is appropriate only if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law.[7] All facts and reasonable inferences must be considered in the light most favorable to the nonmoving party.[8] Our review is de novo.[9] T.H.E. has produced three UIM waiver forms and all are in the record. One is undated.[10] Another is dated December 28, 1995.[11] The third is dated December 3, 1994 and was in effect at the time of the November 1995 accident. The first two waiver forms are contained on one page, and do not include the `Page 2 of 2′ notation that is on the December 3, 1994 UIM waiver form. Nonetheless, all the forms clearly outline the UIM coverage options and also specify which of those options the insured chose. The December 3, 1994 form is the relevant form to consider because it was in effect at the time of the accident. The other two forms, one undated and one dated after the accident, do not create genuine issues of material fact.
Ambiguity
The Estate first argues that the 1994 UIM waiver form is itself ambiguous and should be construed against the insurer, making the reduction of limits invalid. We disagree.
The language in the UIM waiver is clear. It states the purpose of the waiver, UIM coverage options, and indicates by checkmarks which options the insured chose. The agreement shows that the insured chose a limitation on coverage of $50,000 for Bodily Injury Liability and waived Property Damage Coverage by checking the appropriate, clearly labeled boxes on the form. There is no ambiguity in the language of the UIM waiver agreement — an average person purchasing insurance would understand the waiver as it is written.
The Estate essentially argues that a page is missing from the 1994 UIM waiver, making it ambiguous. This argument is unpersuasive. Nothing suggests that `Page 1 of 2′ would have made `Page 2 of 2′ of the UIM waiver ambiguous. The assertion that a critical page is missing is merely speculation that does not raise a genuine issue of material fact as to the validity of the unambiguous waiver on page 2, which reduces coverage to $50,000.
Notation of `DROP’ on Waiver Form
Butzberger’s Estate next argues that the written notation of the word `DROP’ near the top of the December 3, 1994 UIM waiver form creates an inference that the insured cancelled the waiver. We reject this argument. The unexplained word `DROP’ on the policy does not indicate that the insured cancelled the waiver. The form clearly indicates that the insured reduced UIM coverage to $50,000. The governing statute requires that the insured `subsequently request [increased UIM] coverage in writing.’[12] RCW 48.22.030(4) states:
A named insured or spouse may reject, in writing, underinsured coverage for bodily injury or death, or property damage, and the requirements of subsections (2) and (3) of this section shall not apply. If a named insured or spouse has rejected underinsured coverage, such coverage shall not be included in any supplemental or renewal policy unless a named insured or spouse subsequently requests such coverage in writing. The requirement of a written rejection under this subsection shall apply only to the original issuance of policies issued after July 24, 1983, and not to any renewal or replacement policy.
The UIM form reflects this statute by declaring, `The choices you make will apply to all renewals, continuations and changes to your policy, unless you notify your agent or broker in writing.’ There is no indication that the word `DROP’ is either in the handwriting of the insured or is a request by the insured `in writing’ to increase UIM coverage above the prior $50,000 limitation. Simply stated, there is no genuine issue of material fact on this point.
We affirm the trial court’s grant of summary judgment that T.H.E. established a valid UIM waiver that limited the amount of its UIM coverage to $50,000.
APPELWICK, J. and AGID, J., concur.
(2004).
(2004).
If the Supreme Court reverses a decision of the Court of Appeals that did not consider all of the issues raised which might support that decision, the Supreme Court will . . . remand the case to the Court of Appeals to decide those issues.