Randall v. Progressive Classic Insurance Company

IN THE UTAH COURT OF APPEALS

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Rex Randall, ) MEMORANDUM DECISION
)
Plaintiff and Appellant, ) Case No. 20110364‐CA
)
v. ) FILED
) (September 7, 2012)
Progressive Classic Insurance Company, )
Inc., ) 2012 UT App 250
)
Defendant and Appellee. )

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Second District, Ogden Department, 100903913
The Honorable Ernest W. Jones

Attorneys: Mark H. Gould, Ogden, for Appellant
Joseph J. Joyce and Ryan J. Schriever, South Jordan, for Appellee

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Before Judges Davis, Thorne, and Christiansen.

THORNE, Judge:

¶1 Rex Randall appeals from the district court’s entry of summary judgment in
favor of Progressive Classic Insurance Company, Inc. (Progressive). Randall had
sought declaratory relief establishing that he was entitled to underinsured motorist
(UIM) coverage through his Progressive automobile insurance policy, but the district
court determined that no factual dispute existed and that Randall had rejected such
coverage pursuant to statute. We affirm.

¶2 On June 3, 2005, Randall obtained a Progressive automobile policy covering his
1989 Ford Escort. He initiated the policy through a local insurance brokerage, Shroader‐
Blackley. On May 18, 2006, Randall was struck from behind by another vehicle and
sustained extensive neck and back injuries. Randall eventually settled with the other
driver’s insurance company for that driver’s liability policy limit of $25,000, but the
settlement did not cover all of Randall’s medical expenses. Randall notified Progressive
that he intended to pursue a claim for UIM benefits under his Progressive policy. In
response, Progressive claimed that Randall had rejected UIM coverage at the time he
obtained his policy.

¶3 Randall sought declaratory relief, asking the district court to determine that he
was entitled to UIM coverage in the same amount as the automobile liability coverage
that he had carried under his Progressive policy. His complaint alleged that
Progressive would be unable to produce a signed acknowledgment form showing that
he had rejected UIM coverage. Randall’s legal theory was that he was statutorily
entitled to the claimed UIM coverage unless Progressive could actually produce his
signed acknowledgment form. See generally Utah Code Ann. § 31A‐22‐305.3(3)(a)
(Supp. 2012) (requiring the provision of UIM coverage “unless a named insured rejects
or purchases coverage in a lesser amount by signing an acknowledgment form”); id. §
31A‐22‐305(9)(g)(i) (2005) (“A named insured may reject underinsured motorist
coverage by an express writing to the insurer . . . .”).1 Both parties sought summary
judgment.

¶4 In its summary judgment memoranda, Progressive conceded that it could not
produce the acknowledgment form signed by Randall but argued that he had in fact
signed such a document. Progressive admitted that Randall’s actual acknowledgment
had been destroyed by Schroader‐Blackley three years after Randall purchased his
policy, in accordance with Schroader‐Blackley’s document retention policy. However,
Progressive provided various insurance declaration sheets and other documents
reflecting that Randall had never been charged for UIM coverage, as he would have
been had he elected coverage. An affidavit from the Schroader‐Blackley agent who had

1
The statute in effect when Randall purchased his policy in 2005 required an
“express writing” for rejection of UIM coverage. See Utah Code Ann. § 31A‐22‐
305(9)(g)(i) (2005). The current version of the statute is substantially similar for
purposes of our analysis, and we cite to the current version, including its term
“acknowledgment form,” throughout this opinion. See generally id. § 31A‐22‐305.3(3)(a)
(Supp. 2012).

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worked with Randall stated that “[t]he insurance policy forms were entered in
electronically with the Randalls[’] selections on coverage, then the insurance policy
forms were printed out for the Randalls to sign.” Progressive also provided an
unsigned sample of the acknowledgment form that it alleged Randall had signed,
authenticated by an affidavit from a Progressive employee stating that based on
Randall’s policy number, he would have been provided such an acknowledgment form.
The Schroader‐Blackley agent’s affidavit also stated that she always explained and
recommended UIM coverage because of her own personal experience with an
underinsured motorist and that it was Schroader‐Blackley’s “policy and practice . . . to
have each customer sign a form if the customer desires to reject UIM coverage.”

¶5 The district court granted Progressive’s motion for summary judgment, ruling
that the facts alleged by Progressive in its motion for summary judgment were deemed
admitted because Randall had failed to adequately dispute those facts under rule 7 of
the Utah Rules of Civil Procedure.2 See generally Utah R. Civ. P. 7(c)(3)(B) (requiring
that a memorandum opposing a motion for summary judgment identify and dispute
controverted facts asserted by the moving party). These facts included that Randall
admitted that he did not remember the contents of the several application documents he
had signed when purchasing his policy, that documents from Schroader‐Blackley and
Progressive indicated that Randall had rejected UIM coverage, and that there was no
evidence that Schroader‐Blackley had destroyed Randall’s application documents in
bad faith. In light of these facts, the district court concluded that Progressive had
demonstrated that Randall had signed an acknowledgment rejecting UIM coverage at
the time he procured his Progressive policy. See generally Utah R. Evid. 1004(1)
(allowing the use of other evidence to show the contents of a writing when the original
has been lost or destroyed in good faith). Accordingly, the district court granted
Progressive’s motion for summary judgment.

2
Rather than provide a “verbatim restatement of each of [Progressive’s] facts that
[was] controverted,” Utah R. Civ. P. 7(c)(3)(B), and “an explanation of the grounds for
any dispute, supported by citation to relevant materials,” id., Randall’s opposition to
Progressive’s motion for summary judgment merely identified certain facts that he did
not dispute and stated, “All other ‘facts’ stated by [Progressive] are either disputed or
irrelevant to the disposition of this case. Above all, [Randall] does deny signing a
waiver of UIM coverage.”

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¶6 On appeal, Randall argues that Progressive’s failure to produce a signed
acknowledgment form waiving UIM coverage should have entitled him to such
coverage, as a matter of law, pursuant to Utah Code section 31A‐22‐305.3. Randall
argues that the district court erred by allowing Progressive to use extrinsic evidence to
establish that he had signed an acknowledgment form.3 “[W]e review questions of
statutory interpretation for correctness giving no deference to the trial court’s
interpretation.” In re S.C., 1999 UT App 251, ¶ 8, 987 P.2d 611 (internal quotation marks
omitted).

¶7 Utah Code section 31A‐22‐305.3(3)(a) provides as follows:

For new policies written on or after January 1, 2001, the
limits of underinsured motorist coverage shall be equal to
the lesser of the limits of the named insured’s motor vehicle
liability coverage or the maximum underinsured motorist
coverage limits available by the insurer under the named
insured’s motor vehicle policy, unless a named insured
rejects or purchases coverage in a lesser amount by signing
an acknowledgment form . . . .

Utah Code Ann. § 31A‐22‐305.3(3)(a) (Supp. 2012). Section 31A‐22‐305.3(3)(a) also
enumerates several requirements for such acknowledgment forms, including that they
reasonably explain the purpose of UIM coverage and disclose the additional premium
required for the purchase of UIM coverage. See id. § 31A‐22‐305.3(3)(a)(i)–(v).
However, the statute is silent as to whether a rejection of UIM coverage can be proved
by extrinsic evidence in the event that a signed acknowledgment is lost or destroyed.

¶8 Randall urges us to adopt a bright line rule that an insurance company must
either produce the acknowledgment form signed by an insured or provide UIM
coverage pursuant to Utah Code section 31A‐22‐305.3(3)(a) whenever a policy has been

3
Randall does not challenge any other aspect of the district court’s summary
judgment order, such as the district court’s application of rule 7 or its ultimate
determination that no material factual dispute existed.

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issued.4 We observe nothing in the statutory language to justify such a rule. We are
also unpersuaded by Randall’s argument that the public policy behind UIM coverage is
so strong that we must prohibit insurance companies from establishing a UIM waiver
by any means other than the production of the acknowledgment form signed by an
insured. See generally McArthur v. State Farm Mut. Auto. Ins. Co., 2012 UT 22, ¶ 14, 274
P.3d 981 (“[W]e do not understand the legislature to have elevated the goal of ensuring
UIM coverage above all others and at all costs.”).

¶9 We further note that the Utah Rules of Evidence have long provided that the
contents of documents that have been lost or destroyed in good faith can be shown by
extrinsic evidence. See Utah R. Evid. 1004; State v. Loughton, 747 P.2d 426, 431 (Utah
1987) (“The Utah Rules of Evidence, modeled after the federal rules, were adopted
April 13, 1983, and made effective September 1, 1983 . . . .”). Rule 1004 predates the
legislature’s first enactment of the statutory “express writing” requirement in 1985, see
Utah Code Ann. § 31A‐22‐305(4)(a) & history (1986), and has remained in effect ever
since. We presume that the legislature was aware of rule 1004 and would have drafted
around the potential application of that rule if that was its intent. Cf. Corwell v. Corwell,
2008 UT App 49, ¶ 13, 179 P.3d 821 (“We presume that the legislature was aware of this
possibility and intentionally chose not to include annulled marriages as grounds for
cohabitant status under the [Cohabitant Abuse] Act.”).

¶10 We therefore agree with the district court that rule 1004 of the Utah Rules of
Evidence allowed Progressive to use extrinsic evidence to establish that Randall had
signed an acknowledgment rejecting UIM coverage in accordance with Utah Code
section 31A‐22‐305.3. Rule 1004 provides, “The original is not required, and other
evidence of the contents of a writing, recording, or photograph is admissible if: . . . [a]ll
originals are lost or have been destroyed, unless the proponent lost or destroyed them
in bad faith . . . .” Utah R. Evid. 1004(1). Here, the district court determined on the basis
of admitted facts that Schroader‐Blackley had destroyed Randall’s acknowledgment
form and that there was no evidence that it had done so in bad faith. The district court

4
Randall concedes in his reply brief that a copy of the acknowledgment form
would also likely suffice to satisfy the statute. See also Utah R. Evid. 1003 (allowing
duplicate documents to be admitted to the same extent as originals in most
circumstances).

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therefore properly considered Progressive’s extrinsic evidence in considering whether
Randall had in fact signed an acknowledgment rejecting UIM coverage.
¶11 In conclusion, we decline to adopt Randall’s requested bright line rule requiring
automobile insurance companies to provide UIM coverage pursuant to Utah Code
section 31A‐22‐305.3 whenever they cannot produce the insured’s signed
acknowledgment form rejecting that coverage. The district court properly allowed
Progressive to use rule 1004 of the Utah Rules of Evidence to prove the contents of
Randall’s acknowledgment form, including Randall’s signature thereon, and we affirm
the district court’s entry of summary judgment in favor of Progressive.

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William A. Thorne Jr., Judge

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¶12 WE CONCUR:

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James Z. Davis, Judge

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Michele M. Christiansen, Judge

20110364‐CA 6