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OVERHOLT v. MCDANIEL

May 30, 1991

RUTH CHARLOTTE OVERHOLT, Plaintiff,
v.
BRADLEY WAYNE McDANIEL, et al., Defendants



The opinion of the court was delivered by: REVERCOMB

 On May 24, 1991, a bench trial was held in the above-referenced case. Upon consideration of the evidence presented at trial and the pleadings in the case, the Court issues the following findings of fact and conclusions of law.

 FINDINGS OF FACT

 The plaintiff, Ruth Charlotte Overholt, was injured in a motor vehicle collision which occurred in Riverdale, Maryland, on November 14, 1989. While stopped to make a left turn, the plaintiff's car was rear-ended and pushed into other cars in front of her by a vehicle driven by the defendant Bradley Wayne McDaniel. As a result of the collision, the plaintiff suffered injuries including herniated cervical and lumbar discs necessitating two surgical procedures.

 The plaintiff has incurred special/liquidated damages in an amount of $ 59,254.48. In addition, she has suffered a 40 percent total disability, extensive pain and suffering, inconvenience and other elements of damages which are unliquidated, for which the Court awards the plaintiff $ 250,000.00.

 The plaintiff subsequently initiated this suit against McDaniel, who is uninsured, and against Nationwide Property and Casualty Insurance Company, the plaintiff's insurer. The plaintiff's claim against Nationwide is for uninsured motorist benefits under the plaintiff's policy with that carrier. On November 16, 1990, the Court entered a default judgment against McDaniel.

 Although Nationwide does not contest the extent of the plaintiff's damages, it has raised a legal issue concerning the extent of uninsured motorist coverage ("UMC") to which the plaintiff is entitled under her policy. The facts relating to that issue were developed at trial.

 The plaintiff first purchased an automobile insurance policy from Nationwide in January 1983. The plaintiff does not recall having discussed the specific terms of her policy with the Nationwide representative at that time. In fact, the plaintiff testified that her recollection was that she purchased the policy in 1981 or 1982. This testimony is contradicted by exhibits and testimony presented by Nationwide. Nationwide introduced at trial a form dated January 29, 1983, which is signed by the plaintiff and titled "Coverage and Limits Statement to Policyholders." Def. Ex. 3. Michael Dorgan, an employee of Nationwide familiar with policy-writing procedures, testified at trial that it is the customary practice of agents to sit down with new customers and discuss possible coverage before filling out a form like Exhibit 3. Exhibit 3 reflects that the plaintiff chose to purchase bodily injury and property damage coverage beyond the minimum limits required by law, but that she chose only the minimum UMC. Mr. Dorgan explained that the agent would have informed the plaintiff of the opportunity to purchase additional UMC; the plaintiff says that this was not explained to her when she purchased her policy. The plaintiff also testified that she never received a copy of her policy until the discovery in this litigation. A copy was provided to the Court as Plaintiff's Exhibit 19. The plaintiff's Nationwide policy expressly provides for a six-month renewable term. Pl. Ex. 19, para. 6.

 In 1985, the State of Maryland enacted a provision to its Insurance Code stating that "there shall be offered in writing to the insured the opportunity to contract for higher [UMC] amounts than those provided under Title 17 of the Transportation Article if those amounts do not exceed the amounts of the motor vehicle liability coverage provided by the policy." Md. Insurance Code Ann. § 541(c)(2) (1991) (amended July 1, 1989). In response to this enactment, Nationwide printed a "stuffer" to be sent with premium notices to all Maryland insureds for the renewal cycle beginning August 30, 1985. A copy of the "stuffer" was admitted into evidence as Defendant's Exhibit 1. In addition, Nationwide has provided other internal memoranda evidencing its actions to have the "stuffer" added to renewal notices in 1986. The evidence presented shows that the plaintiff promptly paid her renewal premium in February, 1986; yet she testified that she does not recall receiving the "stuffer" with her renewal notice.

 CONCLUSIONS OF LAW

 The plaintiff has requested the Court to find that she is entitled to a higher limit of UMC coverage than that provided in her policy despite the fact that she never contracted for such coverage. *fn2" The plaintiff raises several legal and factual arguments in support of this claim. First, the plaintiff asserts that Nationwide failed at trial to prove that it in fact mailed the 1986 "stuffer" to her. Therefore, the plaintiff claims, Nationwide has filed to comply with the statutory requirement that it offer to her in writing the opportunity to purchase additional UMC.

 The Court disagrees. The defendant's exhibits and the testimony of Mr. Dorgan *fn3" suffice to establish that Nationwide did send the "stuffer" to Maryland insureds in 1986. The fact that Nationwide cannot provide an acknowledgement that the "stuffers" were sent does not trouble the Court in light of the evidence that plans were made and instructions were issued to have the stuffers inserted by machine into the renewal notices. *fn4" It would be impracticable to require Nationwide to have documented that each stuffer was sent to each insured.

 The plaintiff argues further that even had she received the 1986 "stuffer", the "stuffer" was not sufficient to advise her of her right to purchase additional UMC. In this respect, the plaintiff stresses that the notice was allegedly received 42 months prior to the accident which caused the plaintiff's injuries. In addition, the plaintiff argues that the language of the "stuffer", which describes the opportunity to purchase additional ...


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