John M. Kirby March 25, 2014

In Robinson v. Discovery Insurance (unpublished), decided on November 5, 2013, the Court of Appeals affirmed a finding that the insured had not been given an opportunity to select higher underinsured motorist (UIM) coverage, and as a result that his UIM coverage was $1,000,000.

In this case, the insured was in an automobile accident, and sought UIM coverage under his policy. He claimed that the insurance agent did not offer him higher limits of UIM coverage. Pursuant to a case decided in 2005, the result of this failure was that the insured had UIM limits of $1,000,000. (This result was changed by statute, effective February 1, 2010.) The insurer produced a “selection/rejection” form, and contended that the insured had rejected higher UIM limits on his policy of automobile insurance. The insurer also argued that its standard procedure was to provide the insured with this form. The insured argued that the signature on the form was not his, and he produced a handwriting expert to testify that the signature was not his. The case was tried to a jury, and the jury found that the insured was not offered the higher limits, resulting in the insured having $1,000,000 in UIM limits.

On appeal, the insurer argued that its motion for a directed verdict should have been allowed. The insurer relied on several cases holding that where the insurer presents evidence that its policy is to have the insured sign the form, or that it mailed the form, the insurer is entitled to judgment as a matter of law, notwithstanding an allegation by the insured that e.g. he did not receive the notice. The court distinguished this case on the basis that these other cases did not have evidence to undermine the testimony of the insurance company or agent. The court thus affirmed the verdict.

John Kirby has handled many UM/UIM cases at the trial and appellate levels in North Carolina, and has taught courses to attorneys and insurance adjusters on UM/UIM law in North Carolina.