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Libby v. Government Employees Insurance Co.6/12/1989
s Appellate Court in Tucker will not be applied to this case. That four-part test derived from the statutorily imposed duty to offer the coverage; the Maryland requirement that the coverage be available was not intended to impose such strict obligations on the insurer. Whether the four part test of Hastings and Tucker should be applied to the Maryland statute after the amendment becomes effective is not an issue that can be addressed in this opinion.
Indeed, we perceive some subtle but arguably significant difference between the language of the Maryland statute -- "there shall be available to the insured the opportunity to contract" -- and the "made available" language of the original Minnesota statute and the "shall be provided an opportunity" language of the Tennessee statute. Both "made available" and "shall be provided an opportunity" imply an obligation to take some affirmative action specifically directed to the insured; "be available" has a somewhat more passive connotation.
Nevertheless, we believe that an insured who is unaware of an opportunity to obtain increased coverage cannot be said to have that opportunity available to him. We conclude, therefore, that the statute does impose an affirmative duty upon the insurer to notify its insureds that the coverage is available. We are not certain what constitutes a "commercially reasonable" manner of giving that notice, as that term was used by the Minnesota and Illinois Courts and by appellant, since none of them bothered to define the term, but if the insurer is required to give notice to its insured of an opportunity to increase his coverage, it must surely be required to do so in a reasonable manner, i.e., a manner reasonably calculated to get the information into the hands of the party to be notified. This does not mean that the insurer will fail in its obligation to notify the insured if the insured receives the notice but neglects to read it. We hold, therefore, that the statutory duty is met and that the opportunity to contract for the additional
coverage is available if the insurer (1) will issue it upon request and (2) has taken reasonable steps to inform its insureds that such coverage is available to them.
II
Judge Cave found, and there was sufficient evidence to justify that finding, that through some misunderstanding or lack of communication Mr. Libby did not receive the underinsured motorist coverage notice that GEICO normally gives applicants for insurance and therefore was unaware at the time he became insured by GEICO that he could obtain increased uninsured motorist coverage. In view of what happened subsequently, however, we agree with Judge Cave that it is not necessary to decide whether this inadvertence amounted to a violation of GEICO's statutory duty. The court found, and there was sufficient evidence to support that finding, that GEICO corrected this error in the fall of 1985 when it sent out the renewal package containing its M-9 form (the document giving notice of the availability of underinsured coverage) and that the package was received by Mr. Libby. That package was described as containing a form letter of transmittal, a questionnaire, and several papers referred to by appellant as "stuffers," at least four of which were advertisements or sales pitches for other types of insurance available from GEICO.
We hold that GEICO complied with its statutory duty to give notice when it sent out the M-9 form advising the insured of the availability of increased underinsured motorist coverage in various specific amounts up to the bodily injury liability limits, informing the insured that the cost of such additional coverage would range from $13 to $91 depending on t
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