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09/01/95 CHARLES ZITTEROW v. NATIONWIDE MUTUAL

September 1, 1995

CHARLES ZITTEROW
v.
NATIONWIDE MUTUAL INSURANCE COMPANY



Appeal from Mobile Circuit Court. (CV-93-3544). Chris N. Galanos, TRIAL JUDGE.

Application For Rehearing Granted September 1, 1995. This Opinion Substituted on Grant of Rehearing for Withdrawn Opinion of June 16, 1995, Previously . Released for Publication March 2, 1996.

Houston, Maddox, Shores, Cook, and Butts, JJ., concur.

The opinion of the court was delivered by: Houston

On Application for Rehearing

HOUSTON, JUSTICE.

The opinion of June 16, 1995, is withdrawn and the following is substituted therefor.

Charles Zitterow appeals from a summary judgment for Nationwide Mutual Insurance Company in Zitterow's action alleging breach of contract, misrepresentation, fraudulent suppression, and deceit. Nationwide issued a policy of automobile insurance to Zitterow, a Virginia resident. The policy was in effect when Zitterow was injured in Alabama by a vehicle operated by Truman Ball, an uninsured motorist. It is undisputed that Virginia law applies in interpreting this policy. Gravley v. Nationwide Mutual Ins. Co., 553 So. 2d 52 (Ala. 1989).

Zitterow contends that the policy provided uninsured motorist coverage of up to $100,000 for his injury. Although Nationwide disputed Zitterow's right to any uninsured motorist coverage, it paid into court $25,000, which Nationwide contended was the maximum amount that Zitterow would be entitled to for any injury to one person by an uninsured motorist. Nationwide moved for a summary judgment on the basis that under the terms of the policy, as interpreted by Virginia law, Zitterow was not entitled to "stack" uninsured motorist coverage and that Zitterow had failed to present substantial evidence of any misrepresentation, fraudulent suppression, or deceit by Nationwide.

It is undisputed that in the usual course of business, after issuing the policy, Nationwide followed its procedures and sent the policy, and every six months sent the "Family Automobile Policy Declarations," by first class mail to Zitterow at his correct address.

The declarations provided:

"These Declarations are a part of the policy named above and identified by policy number below. They supersede any Declarations issued earlier. Your policy provides coverages and limits shown in the schedule of coverages. They apply to each insured vehicle as indicated. Your policy complies with the motorists' financial responsibility laws of your state only for vehicles for which Property Damage and Bodily Injury Liability coverages are provided.

"INSURED VEHICLE(S) AND

"SCHEDULE OF COVERAGES

"VEHICLE COVERAGES AND LIMITS OF LIABILITY

"1 1989 FORD RANGER ID #

"A1COMPREHENSIVE ACTUAL CASH VALUE LESS $100

"A2PERSONAL EFFECTS $100

"B COLLISION ACTUAL CASH ...


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