                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       June 26, 2013
                      UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                    TENTH CIRCUIT                      Clerk of Court



 AMERICAN NATIONAL PROPERTY
 & CASUALTY,

          Plaintiff - Appellant,

 v.                                                      No. 12-4108
                                                 (D.C. No. 11-CV-00250-BSJ)
 CHRIS CHECKETTS; SANDRA                                   (D. Utah)
 CHECKETTS,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, GORSUCH, and BACHARACH, Circuit Judges.


      Plaintiff-Appellant American National Property and Casualty Company

(ANPAC) appeals the district court’s partial grant of summary judgment in favor

of Defendants-Appellees Chris and Sandra Checketts (the Checketts). Am. Nat’l

Prop. & Cas. Co. v. Checketts, Civil No. 2:11-CV-250 BSJ, 2012 WL 1835866

(D. Utah May 21, 2012). The district court determined that the addition of the

Checketts’ teenage daughter to an insurance policy issued by ANPAC created a



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
“new policy” under Utah’s Underinsured Motorist (UIM) statute. The issue on

appeal is whether the district court failed to properly consider Utah’s revised UIM

statute, Utah Code Ann. § 31A-22-305.3 (2012), which became effective while

the parties’ cross-motions for summary judgment were pending. Exercising

jurisdiction under 28 U.S.C. § 1291, we reverse and remand with instructions for

the district court to reconsider its decision in light of Utah’s revised statute.



                                     Background

      The relevant facts are not in dispute. In 1996, the Checketts purchased car

insurance from ANPAC. Aplt. App. 43. As part of their policy, they rejected all

UIM coverage, checking the box “I do NOT desire to purchase [UIM coverage].”

Id. at 44. Each policy renewal notice they subsequently received indicated that

“[t]his policy does not provide underinsured motorist coverage.” Id. at 47–72.

In 2006, the Checketts added their teenage daughter, Alisha, to the policy as a

vehicle operator. Id. at 73.

      On June 18, 2007, Sandra Checketts and her son, Jacob, were involved in a

car accident with another driver. Id. at 74. The Checketts exhausted the driver’s

insurance policy limits and sought $200,000 in UIM benefits from ANPAC,

despite having rejected UIM coverage. Id. at 151–52. The Checketts argued that

they were entitled to coverage because ANPAC had failed to comply with certain

notice requirements under Utah Code Ann. § 31A-22-305(9)(g) (2000). Id. at

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144. ANPAC denied the claim, and on March 16, 2011, sought a declaratory

judgment that the Checketts’ rejection of UIM coverage was enforceable. Id. at

78.

      Shortly thereafter, the Utah Supreme Court decided Iverson v. State Farm

Mut. Ins. Co, 256 P.3d 222, 224 (Utah 2011), which held that application of

consumer notification requirements in the UIM statute depended on whether the

policy in question was a “new policy.” The Utah Supreme Court concluded that a

“new policy” may be found where “material changes to an existing policy [] alter

the risk relationship between the insurer and the insured.” Id. at 226. Following

Iverson, the parties submitted cross-motions for summary judgment. Aplt. App.

21, 79. The Checketts argued that Iverson controlled, and that the addition of

Alisha “meaningfully altered” their risk relationship with ANPAC and created a

“new policy.” Id. at 33–34. The court heard argument on the motions on

November 9, 2011, and took the matter under advisement. Am. Nat’l Prop. &

Cas. Co., 2012 WL 1835866, at *1.

      Meanwhile, the Utah Legislature, in response to Iverson, amended the UIM

statute with an effective date of May 8, 2012. The revised statute defined “new

policy” as

      (i) any policy that is issued which does not include a renewal or
      reinstatement of an existing policy; or

      (ii) a change to an existing policy that results in:


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      (A) a named insured being added to or deleted from the policy; or

      (B) a change in the limits of the named insured’s motor vehicle
      liability coverage.

Utah Code Ann. § 31A-22-305.3(3)(b) (2012). The legislature made the revised

statute retroactive, stating “[s]ubsection (3)(b) applies retroactively to any claim

arising on or after January 1, 2001 for which, as of May 1, 2012, an insured has

not made a written demand for arbitration or filed a complaint in a court of

competent jurisdiction.” Id. § 31A-22-305.3(3)(e)(i).

      On May 21, 2012, the district court issued its opinion, granting in part and

denying in part both parties’ motions for summary judgment. Am. Nat’l Prop. &

Cas. Co., 2012 WL 1835866, at *10. The court accepted the Checketts’ reliance

on Iverson, and held that the addition of Alisha “meaningfully altered” the risk

relationship to create a “new policy.” Id. In footnote 23, the court addressed the

revised Utah statute, ultimately concluding that the statute led to the same result

as Iverson because the addition of Alisha was, as set forth in the statute, “a named

insured being added to . . . the policy.” Id. at *10 n.23. ANPAC timely

appealed. Aplt. App. 284–85.



                                     Discussion

      We review a grant of summary judgment de novo, applying the same

standards as the district court. Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25,


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34 (10th Cir. 2013).

      Relying on Iverson, the district court held that the Checketts’ addition of

Alisha to their insurance policy created a “new policy.” Am. Nat’l Prop. & Cas.

Co., 2012 WL 1835866, at *10. The court added that the revised statute was in

accord with Iverson because the addition of Alisha constituted “a named insured

being added to . . . the policy.” Id. at 10 n.23. Both parties agree that this

conclusion is incorrect. See Aplt. Br. 20; Aplee. Br. 19. It is well-established

that adding a new driver to a policy is different than adding a “named insured.”

See, e.g., McWeeney v. Estate of Strickler, 61 A.3d 1023, 1029 (Pa. Super. Ct.

2013) (individual identified as a “driver” was not “named insured” under policy);

7A Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 110:1 (3d ed. 2012)

(noting the distinction between “insured” and “named insured”); see also Curtis v.

State Farm Mut. Auto. Ins. Co, 591 F.2d 572, 578 (10th Cir. 1979) (“‘[N]amed

insureds’ . . . carries special meaning in such policies affecting the rights and

obligations of the parties.”). Thus, the Checketts’ decision to add Alisha as a

driver did not add a “named insured” to their policy.

      The parties, however, ask us to go one step further and decide whether the

revised statute precludes the Checketts from obtaining UIM benefits for their

accident. We hesitate to do so absent the district court’s consideration of the

parties’ arguments. We thus leave it to the district court to consider this question




                                         -5-
upon remand. See Estate of B.I.C. v. Gillen, 710 F.3d 1168, 1175 (10th Cir.

2013).

         REVERSED and REMANDED.

                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




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