THIS OPINION HAS BEEN VACATED

Automobile insurers must, by statute, offer uninsured and underinsured coverage. The cases have said that the offer must be reasonably calculated to come to the insured’s attention. Ballesteros claimed that American Standard’s offer wasn’t because its UM/UIM offer form was in English and his “primary language” is Spanish. This was an attempt at a class action but the trial court denied certification. It did, however, grant Ballesteros summary judgment on the merits, from which American Standard appealed.

The statute (29-259.01) says that “The selection . . . or rejection of [UM/UIM] coverage by a named insured or applicant on a form approved by the director [of the Department of Insurance] is valid for all insureds under the policy.”   American Standard argued that this created a “safe-harbor,” that because its form had been approved by the director it was adequate as a matter of law. Ballesteros argued that it simply means that if the form isn’t approved then the selection/rejection isn’t binding. The Court of Appeals punted, deciding that even if the safe-harbor “generally exists” it is “not absolute.” In other words, its a safe harbor with reefs and sandbars, which might strike you as somewhat of a contradiction.

American Standard contended that the legislature inserted the quoted language into the statute specifically for the purpose of creating a safe-harbor. This was based on legislative history. But the legislators themselves didn’t expressly and exactly say that. A bunch of people who testified at the relevant committee meeting apparently did, though the opinion carefully avoids telling us what they said; in any event, they were merely “nonlegislators” whose statements (quoting from earlier cases) “are not persuasive evidence of legislative intent ‘unless the circumstances provide sufficient guarantees that the statements reflect legislators’ views.’” “We do not find such indicia of reliability here,” says the opinion. From what little we are told, this apparently means that the legislators themselves didn’t say on the record the things the non-legislators were said to have said, whatever they were.

American Standard then pointed out that the Department of Insurance had in various ways at various times said that use of an approved form satisfied the requirements of the statute. The court admitted that that was true but said that this missed the point, which was not “whether the specific contents of the form offered to Ballesteros contained the appropriate information” but “whether the offer was provided to Ballesteros in a way that reasonably could apprise him of what it contained.” In other words, the question was not whether the American Standard presented appropriate information but whether it presented information that was appropriate. This is the sort of thing that passes for sophisticated analysis in many insurance opinions, especially when trying to escape the fact that they disagree with both other branches of government.

The court ended up deciding that by using an approved form the insurer “facially” complies with the statute but must do more when it “knew or should have known” that the form was insufficient “because the insured could not read it.” The intriguing idea of “facial compliance” with a statute lends itself to more ironic comments than we have space for at the moment. In any event, it isn’t clear why the courts logic (let’s be generous and call it that; its the Holiday season, after all) is limited to Spanish-speakers who can’t read the form. What about any other language? What about people who the insurer “should have known” had intellectual limitations or emotional problems or forgot their reading glasses that day or endless et-ceteras?

In this case, what more should American Standard have done? It need not, the court held, have provided him with a form in Spanish (so much for any lingering hope of an easy, effective class action). But the insurer is required “to take action reasonably calculated to inform the insured of the written offer’s contents.” As a practical matter, of course, this means using a form in Spanish after all (as some insurers already do), in order to avoid endless disputes about how good some insured’s English was or how good some agent’s Spanish was or whether anything in any language was ever said at all.

And those were issues in this very case, so the court remanded for trial of whether American Standard had done enough to help Ballesteros in Spanish and/or had known how bad his English was and/or etc.