holding that although Lowes did not raise equal protection/equal privileges claim before the trial court, claim was not waived where Lowes' position before the trial court included a claim that Farm Bureau's interpretation of the statute would establish unfair classifications of policyholders and that policyholders should be treated alike, and therefore Farm Bureau had notice and opportunity to defend against it and court would alternately address it as an equal protection/equal privileges claim
How later courts described this case
- holding that although Lowes did not raise equal protection/equal privileges claim before the trial court, claim was not waived where Lowes' position before the trial court included a claim that Farm Bureau's interpretation of the statute would establish unfair classifications of policyholders and that policyholders should be treated alike, and therefore Farm Bureau had notice and opportunity to defend against it and court would alternately address it as an equal protection/equal privileges claim
- statute does not divide insureds into arbitrary and unreasonable classes because insureds whose policies were first issued prior to 1987 amendments may request such underinsured coverage
- insurer not required to offer uninsured or underinsured motorist coverage at the insured's bodily injury limits
- although the 1982 version of the statute did not mention underin-sured motorist coverage, it also did not prohibit it and parties were free to contract for such coverage if they so desired
Written by the judges who cited it.
The opinion
CHEZEM, Judge,
dissenting.
I respectfully dissent. First, assuming that the policies were "renewed," the statute in question contains language indicating that it applies to these "renewed" policies. Indeed, only certain types of renewed policies are excluded from coverage, as follows:
Renewals of policies issued or delivered in this state which have undergone interim policy endorsement or amendment do not constitute newly issued or delivered policies for which the insurer is required to provide the coverages described in this section.
Ind.Code § 27-7-5-2(b). Certainly, if the legislative intent was to exclude all renewed policies, there would be no need for such qualifying language in the statute.
Of course, our foremost objective in reviewing the statute is to determine and implement legislative intent. Spaulding v. International Bakers Services, Inc. (1990), Ind., 550 N.E.2d 307, 809 . Every word and phrase should be given effect and meaning, and no part should be held meaningless if it can be reconciled with the rest of the statute. Id. "We examine the statute as a whole, giving words common and ordinary meaning 'and not overemphasizing a strict literal or selective reading of individual words.'" Id. The plain language of the statute is the best evidence of its meaning. Avco Financial Services v. Metro Holding Co. (1990), Ind.App., 563 N.E.2d 1323, 1325 , reh. denied.
Here, the plain language indicates that legislative intent was to exclude only certain renewed policies. While the statute also provides "[it] applies only to policies first issued after December 31, 1987," we should not overemphasize a strict literal reading of the word "first." Spaulding, 550 N.E.2d at 309 . We must harmonize the phrase containing the word "first" with the other phrase stating that only certain renewals do not constitute "newly issued or delivered policies for which the insurer is required to provide the coverages described in this section."
Second, the record indicates that the policles were first issued after the statute was amended in 1988. Indeed, the policy attached to the Complaint has a declarations page, which states: "Issue Date 08-24-88. In addition, it states that "it replaces and supersedes" any preceding policy. There is a distinction between a policy which has been extended or renewed, and one which has been replaced or superseded. The latter means an entirely new policy has been issued to the insured for the first time; it is "first issued." In this case, the policy in question was not continued or renewed; it was a new policy "first issued" in 1988.
This case should be affirmed. We should uphold the legislature's intent "that an insured's coverage protecting him from other drivers be of the same magnitude as his own bodily injury liability coverage." Meridian Mutual Insurance Co. v. Richie (1989), Ind., 540 N.E.2d 27, 31 , vacated on other grounds, 544 N.E.2d 488 . For the foregoing reasons, I dissent.