Progressive Casualty v. Estate of Palomera-Ruiz (CA1 5/20/10)

This fairly simple insurance coverage case is written to make the insurer’s argument sound pretty stupid (or maybe that’s how it really sounded) and has odd notions of evidence and procedure.

Giant Electric Corporation is a big name for a Benson electrician who obtained his company’s auto coverage by calling Progressive’s 800 number. He explained that his existing policy had liability/UM/UIM limits of one million dollars apiece. The Progressive agent told him that if he wanted to he could save money by reducing the UM and UIM limits to $100,000. He did. Then a passenger in one of his utility vans was killed by an uninsured motorist. Progressive filed this DJ action to confirm its UM/UIM limits

The statute, 20-259.01, requires written notice to the insured offering UM/UIM limits equal to the liability limits. Progressive didn’t do a written notice but the phone conversation was recorded. Progressive argued that that should be good enough. The trial court disagreed, as did the Court of Appeals.

The court made a big point of saying that “written” means “written.”

It dealt with the other, better argument in a footnote. Commercial statutes treat recorded calls as writings. Even if those applied here, the court says, the recording wasn’t provided to the insured. But the statute says “made available” to the insured. Presumably that wasn’t done, either, or at least the insured wasn’t informed of its availability; with appropriate facts, though, the distinction should make a difference.

Why deal with the best argument in a footnote? This tends to happen when oral argument focuses on something the court didn’t in the draft opinion. It can also happen when somebody wants more attention paid to the easy part than to the hard part, but those tend to be the usual suspects and we’re not really dealing with one of them here.

This opinion contains another example of a phenomenon we noted once before, when we made what we thought was just a smart-alec comment about something we didn’t really expect to see again. This court wanted to point out that if the Legislature had meant to include tape recordings then it could have said so. But somebody decided that that required evidence that recording had been invented as long ago as 1981. So somebody – we’d guess the same somebody – looked that up on the internet and cited it: “ (last accessed May 4, 2010).”

This should be an embarrassment. But we’re charitable folk, so we assume that the somebody was an eager and well-intentioned twenty-something whose grasp of what happened in the dark times before he or she graced the planet is as good as that of most Political Science majors. This is why we occasionally recommend adult supervision. First, there was no need. Phone calls have been recordable for a long time; that should have gone without saying or could at least have been the subject of judicial notice. Second, do this and Batty mean that the courts really have decided that they can supplement the record by surfing the web? Where do the rules say that? What happens when they get it wrong? What happens when a different web page says something different? Can we cite the web back at them?

We do get a kick out of that “(last accessed May 4, 2010),” though. What in the world does somebody think that adds to the cite? Does frequency of accession make it more accurate? We get accessed every day; does that mean we must be right? Should we add to our case citations “(last cited by my friend Joe just last month in the Smith case)?”