Mark Rimas v. Progressive Insurance Company , 292 F. App'x 833 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11766 ELEVENTH CIRCUIT
SEPT 11, 2008
Non-Argument Calednar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-04733-CV-SLB
MARK RIMAS,
Plaintiff-Appellant,
versus
PROGRESSIVE INSURANCE COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(September 11, 2008)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Mark Rimas appeals the district court’s grant of summary judgment in favor
of Progressive Insurance Company on his breach of contract and bad faith claims.
Rimas contends he was entitled to uninsured motorist coverage under a
Progressive motorcycle policy issued to another party because Rimas, a listed
driver on the policy, never rejected uninsured motorist coverage. After thoroughly
reviewing the record and considering the parties' briefs, we affirm.
Wendell Robinson purchased the motorcycle policy at issue in this case, and
the policy was issued in his name. Rimas is listed in the “Drivers and household
residents” section of the policy’s Declarations Page. The Progressive agent who
sold Robinson the policy knew the vehicles covered by the policy “were for the
Rimas[es].” When Robinson purchased the policy, he expressly waived
uninsured/underinsured motorist coverage. The waiver provides:
I understand and agree that this rejection of Uninsured/Underinsured
Motorist Coverages shall be binding on all persons insured under the
policy, and that this rejection shall also apply to any renewal,
reinstatement, substitute, amended, altered, modified, or replacement
policy with this company or any affiliated company, unless a named
insured submits a request to add the coverage and pays the additional
premium.
Robinson is the only party that signed the waiver.
Under Alabama law, all motor vehicle liability insurance policies must
provide uninsured/underinsured motorist coverage unless the named insured
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rejects such coverage. Ala. Code § 32-7-23 (1975). In Progressive Specialty Ins.
Co. v. Naramore, 950 So. 2d 1138 (Ala. 2006), the Alabama Supreme Court
confronted a situation much like that before us. Hannah Naramore was struck by
an uninsured motorist while attempting to cross the street. Id. at 1138. Her
mother, Stephanie Naramore, was the sole named insured on a Progressive
automobile insurance policy. Id. When she purchased the policy, Stephanie
signed a form rejecting uninsured motorist coverage. Id. This waiver is identical
to the one signed by Robinson in this case. Hannah’s father, Stephen Naramore,
brought an uninsured motorist claim against Progressive on behalf of Hannah. Id.
The Alabama Supreme Court held Stephen, who was not a named insured, was not
entitled to uninsured motorist coverage, despite the fact that he never signed the
waiver. Id. at 1142. The Court noted, “once Stephanie, as the sole named insured,
rejected the uninsured/underinsured-motorist coverage, those benefits were no
longer available to Stephen or to Hannah." Id.
Like Stephen in Naramore, Rimas was not a named insured on the
Progressive motorcycle policy. The policy does not define “named insured,” but
Robinson purchased the policy, and it was issued in his name. The policy was not
issued in Rimas’s name and instead listed Rimas as a driver and household
resident. Rimas was certainly insured under the policy, but this does not mean he
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was a named insured, one who would be entitled to uninsured motorist coverage
unless he explicitly waived it. Since Rimas was not a named insured, he had no
right to sign the uninsured motorist coverage waiver. See id. Thus, he is not
entitled to uninsured motorist coverage on account of his never having rejected it.
Rimas contends he was an “intended insured” and a “listed insured,” and as
such, was entitled to uninsured motorist coverage unless he rejected it. However,
he cites no case law whatsoever to support this conclusion. Indeed, it is common
that a named insured intends others to be covered under the policy he purchases,
but not everyone who is covered under such a policy is entitled to uninsured
motorist coverage unless he specifically rejects it. Under Alabama law, only
named insureds are. See Progressive Speciality Ins. Co. v. Green, 934 So. 2d 364,
368 (Ala. 2006) (holding a deceased person’s spouse, who was not a named
insured on the deceased person’s policy, is not entitled to uninsured motorist
coverage when the deceased expressly rejected uninsured motorist benefits).
The “Uninsured/Underinsured Motorist Coverage” waiver signed by
Robinson bolsters our conclusion that Rimas did not have to sign the waiver for it
to be enforceable against him. The rejection provides: “I understand and agree
that this rejection of [UM/UIM coverage] shall be binding on all persons insured
under the policy . . . .” While Alabama law requires the named insured to waive
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uninsured motorist coverage, this policy language unambiguously indicates the
policy does not require the signatures of all the parties insured under it for the
rejection of uninsured motorist coverage to be valid. Further supporting our
conclusion that Rimas is not entitled to uninsured motorist coverage is the fact that
neither Robinson nor Rimas ever paid premiums for this coverage. See Naramore,
950 So. 2d at 1142 n.4. We cannot afford coverage where the policy provides
none.
In sum, because Rimas was not a named insured, his affirmative rejection of
uninsured motorist coverage was not required for that coverage to be waived.
Robinson’s waiver of uninsured motorist coverage operated to waive such
coverage for all the insureds under his policy, including Rimas. Thus, we affirm
the district court’s grant of summary judgment in favor of Progressive on Rimas’s
breach of contract claim and the related bad faith claim.
AFFIRMED.
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