Present: All the Justices 

GOVERNMENT EMPLOYEES INSURANCE COMPANY 

 OPINION BY 

v. Record No. 992820 JUSTICE LAWRENCE L. KOONTZ, JR. 

September 15, 2000 

BERTHA HALL, CO-ADMINSTRATOR 

 OF THE ESTATE OF PATRICIA 

 PALMER, DECEASED, ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

John K. Moore, Judge 

 The issue we decide in this case is whether an insured 

under a motor vehicle liability insurance policy effectively 

waived the maximum uninsured motorist insurance coverage 

mandated by Code § 38.2-2206(A) for that policy when she 

submitted an uninsured motorist waiver form more than 20 days 

after receiving it from her insurer. 

BACKGROUND 

 Evelyn Perry Palmer (Palmer) purchased the automobile 

liability insurance policy under consideration from Government 

Employees Insurance Company (GEICO) in 1974. On August 23, 

1997, Palmer’s daughter, Patricia Palmer, was a passenger in a 

car owned and operated by Alicia Danetta Palmer, one of Palmer’s 

granddaughters. The car swerved off a highway in Sussex County, 

striking a guardrail. Patricia Palmer died as a result of 

injuries sustained in the accident. At the time of the 

accident, Patricia Palmer resided with her mother and, thus, was 
a “person insured” under a provision of Palmer’s policy with 

GEICO extending coverage to “any resident of the same 

household.” This policy provided $300,000 in bodily injury 

liability coverage. 

 On or about July 1 during each year relevant to this 

appeal, GEICO mailed Palmer a “Renewal Solicitation Package” in 

anticipation of the policy’s September anniversary date. 

Included in this package was a form denoted as M-316-VA (the 

waiver form) allowing the policyholder to reduce the amount of 

uninsured motorist insurance coverage otherwise statutorily 

mandated to equal the amount of bodily injury liability coverage 

provided by the policy. Code § 38.2-2206(A). GEICO’s waiver 

form explicitly notified the policyholder that she was required 

to return the form within 20 days in order to select the lower 

uninsured motorist insurance coverage. 

 On July 9, 1991, Palmer executed the waiver form included 

in the 1991 renewal package in an attempt to reduce the amount 

of the uninsured motorist insurance coverage under her policy 

from $300,000 to $30,000 per person/$60,000 per occurrence. 

Although Mrs. Palmer’s husband, Edward J. Palmer, was also a 

“named insured” under the policy, he failed to endorse the 

waiver form. GEICO nonetheless honored the waiver form and 

reduced the uninsured motorist insurance coverage and the policy 

premium accordingly. 

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 The 1992 renewal package was mailed to Palmer on July 1, 

1992. However, Palmer did not execute the waiver form in that 

renewal package until August 12, 1992, and GEICO received it on 

August 18, 1992. Because her husband had died on May 9, 1992, 

Palmer’s signature was the only one required on the 1992 waiver 

form. Palmer returned no other waiver forms in subsequent 

years, and GEICO continued to provide uninsured motorist 

insurance coverage at the reduced rate.1 The lower cost of the 

reduced coverage saved Palmer approximately $14 annually in 

premiums for 1991 and 1992, and the savings have risen to 

approximately $40 annually in recent years. The policy 

declaration form covering the six months in which the accident 

occurred indicates uninsured motorist insurance coverage of 

$30,000 per person/60,000 per occurrence. 

 Bertha Hall and Angela Hicks qualified as co-administrators 

of Patricia Palmer’s estate on August 29, 1997 and November 25, 

1997, respectively. In that capacity, they filed a motion for 

judgment alleging that the August 23, 1997 accident was caused 

by the combined negligence of Alicia Palmer and “John Doe,” the 

driver of an oncoming vehicle which allegedly forced Alicia 

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Palmer did not return waiver forms sent in 1993 and 1994. 

Beginning in 1995, GEICO only sent the waiver form to tenured 

policyholders every five years rather than annually. 

3
Palmer’s car off the highway.2 The administrators subsequently 

filed a declaratory judgment action against GEICO in the Circuit 

Court of the City of Virginia Beach. It is this latter action 

that is the subject of this appeal. In this action, the 

administrators sought a determination that GEICO was obligated 

to provide the estate the maximum uninsured motorist insurance 

coverage, that is $300,000, rather than the $30,000 stated in 

the policy.3

The trial court found that both the 1991 and 1992 waivers 

were ineffective and, therefore, required GEICO to provide 

$300,000 in uninsured motorist insurance coverage under Palmer’s 

policy. With respect to the 1991 waiver, the trial court ruled 

that the then applicable provisions of Code § 38.2-2206(A) 

required that each named insured under an automobile insurance 

policy reject the statutorily mandated amount of uninsured 

motorist insurance coverage in order for a waiver to be valid, 

and cited State Farm Mut. Auto. Ins. Co. v. Weisman, 247 Va. 

199, 203, 441 S.E.2d 16, 19 (1994). Because Palmer’s husband 

 2

Evelyn Palmer’s uninsured motorist insurance coverage is 

relevant to the administrators’ action for two reasons: Alicia 

Palmer’s lack of insurance at the time of the accident, and the 

alleged negligence of John Doe, the unidentified driver of the 

other vehicle. 

3

The trial court rejected the administrators’ requested 

determination that the policy permitted a “stacked” recovery in 

the event of judgments against both Alicia Palmer and John Doe. 

The stacking issue is not before this Court on appeal. 

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was a named insured and did not sign the 1991 waiver form, the 

trial court ruled that the waiver was invalid.4

 Citing Code § 38.2-2202(B), the trial court further ruled 

that the 1992 waiver form was also invalid because it was not 

returned to GEICO within 20 days as required by the statute. In 

so ruling, the trial court stated that if GEICO “reduced the 

level of Mrs. Palmer’s [uninsured motorist] coverage, despite 

the fact that she had not properly rejected the [statutorily 

mandated] amount of coverage, the insurer has no one to blame 

but itself.” 

 GEICO filed a motion to reconsider the trial court’s ruling 

with respect to the validity of the 1992 waiver. In response, 

the trial court recognized that GEICO’s evidence established 

that GEICO mailed further premium notices on August 13, 1992 and 

September 1, 1992, which, GEICO asserted, would have brought 

Palmer’s waiver within the 20 days required by the statute.5 

Nonetheless, the trial court ruled that GEICO “has consistently 

chosen to impose greater responsibilities on itself than the law 

 4

While GEICO argued the validity of the 1991 waiver on 

brief, counsel conceded at oral argument of this appeal that the 

1991 waiver was invalid under Weisman. Accordingly, we will not 

disturb the trial court’s ruling with respect to that waiver. 

5

A GEICO representative, Alice Hinkle, testified that the 

September 1992 policy had two issue dates because the policy was 

processed on August 13, 1992, but that a new endorsement 

reflecting changes requested by Palmer was issued on September 

1, 1992. 

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requires by giving Mrs. Palmer the option of electing a lesser 

amount of uninsured motorist coverage with each renewal policy.” 

Accordingly, because the waiver form sent with the July 1, 1992 

renewal package specified that the executed waiver form be 

returned to GEICO within 20 days and it was not, the trial court 

declined to modify its prior ruling and entered final judgment 

consistent therewith. We awarded GEICO this appeal. 

DISCUSSION 

GEICO contends that the trial court improperly applied Code 

§ 38.2-2202(B) to the 1992 waiver form because the statute 

applies only to new policies. Code § 38.2-2202(B) specifically 

provides that “[n]o new policy or original premium notice of 

insurance covering liability arising out of the ownership, 

maintenance, or use of any motor vehicle shall be issued or 

delivered unless it contains” a notice to the policyholder that 

uninsured motorist coverage in the same amount as the liability 

coverage will be included with the policy unless voluntarily 

reduced by the policyholder “within 20 days of the mailing of 

the policy or the premium notice, as the case may be.” The 

statute further provides that “[a]fter twenty days, the insurer 

shall be relieved of the obligation imposed by this subsection 

to attach or imprint the foregoing statement to any subsequently 

delivered renewal policy, extension certificate, other written 

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statement of coverage continuance, or to any subsequently mailed 

premium notice.” 

Title 38.2 was adopted by the 1986 Acts of Assembly, 

Chapter 562, which concurrently repealed Title 38.1. Code 

§ 38.1-380.2(B), the predecessor to § 38.2-2202(B), explicitly 

provided a notice applicable to each “new or renewal policy

. . . and . . . original or renewal premium notice . . . .” 

(Emphasis added.) 

While we recognize the presumption that a recodified 

statute is not substantively changed unless a contrary intent 

appears plainly in the revised version, we will not merely 

assume that a recodified statute has the identical effect of its 

predecessor where a change exists in the language of the 

recodified provision. State Farm Mut. Auto. Ins. Co. v. Major, 

239 Va. 375, 378, 389 S.E.2d 307, 309 (1990). The terms 

“renewal policy” and “renewal premium notice” are conspicuously 

absent from the corresponding first paragraph of this recodified 

statute. These deletions, together with the retention of the 

language concerning new policies and original premium notices, 

amply demonstrate the General Assembly’s intent to remove 

renewal notices from the scope of Code § 38.2-2202(B). The 

maxim expressio unius est exclusio alterius applies. “This 

maxim provides that mention of a specific item in a statute 

implies that omitted items were not intended to be included 

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within the scope of the statute.” Turner v. Sheldon D. Wexler, 

D.P.M., P.C., 244 Va. 124, 127, 418 S.E.2d 886, 887 

(1992)(citing Tate v. Ogg, 170 Va. 95, 103, 195 S.E. 496, 499 

(1938)). Moreover, the final paragraph of Code § 38.2-2202(B) 

expressly permits the insurance company to exclude the notice 

from a “renewal policy.” Accordingly, we hold that the trial 

court erred in ruling that the time limit contained in the 

statute applied to renewal notices sent to Palmer. 

We next consider whether the 20-day limit stated in the 

waiver form mailed to Palmer with the 1992 renewal package, 

although not required by Code § 38.2-2202(B), nevertheless bound 

GEICO to provide the uninsured motorist insurance coverage 

mandated by Code § 38.2-2206(A) because Palmer returned the 

waiver form to GEICO more than 20 days after it was mailed to 

her. Examining the course of dealing between the parties, we 

find that the 20-day limit was not an essential term and, thus, 

could be waived by GEICO. Moreover, the subsequent actions by 

both GEICO and Palmer were consistent with an agreement for the 

lower amount of uninsured motorist insurance coverage. 

In Stanley’s Cafeteria, Inc. v. Abramson, 226 Va. 68, 73, 

306 S.E.2d 870, 873 (1983), we discussed the import of a course 

of dealing regarding the modification of a contract: 

We agree that a course of dealing by contracting 

parties, considered in light of all the circumstances, 

may evince mutual intent to modify the terms in their 

8
contract. See Kent v. Kent, 2 Va. Dec. 674, 678, 34 

S.E. 32, 33 (1899). . . . But the circumstances 

surrounding the conduct of the parties must be 

sufficient to support a finding of a “mutual 

intention” that the modification be effective, Warren 

v. Goodrich, 133 Va. 366, 388, 112 S.E. 687, 694 

(1922), and such intention must be shown by “clear, 

unequivocal and convincing evidence, direct or 

implied,” id. at 389, 112 S.E. at 694. 

226 Va. at 73, 306 S.E.2d at 873; see also Cardinal Development 

Co. v. Stanley Constr. Co., 255 Va. 300, 305-06, 497 S.E.2d 847, 

850-51 (1998)(finding subsequent conduct of parties established 

mutual intent to modify contract). 

 In the instant case, the mutual intent of the parties that 

Palmer’s policy provide for a reduced amount of uninsured 

motorist insurance coverage is established by unequivocal 

evidence. Although not within the 20 days specified in the 

waiver form, Palmer signed and returned the form to GEICO which 

clearly indicated that she wanted to be provided uninsured 

motorist insurance coverage under her policy in the amount of 

$30,000 per person/$60,000 per occurrence. Consistent with 

Palmer’s expressed intent to waive the higher available 

coverage, GEICO issued a renewal policy to her with the 

requested uninsured motorist insurance coverage and reduced her 

premium accordingly. Both parties received what they bargained 

for: a reduced premium in exchange for reduced insurance 

coverage. Accordingly, we hold that the 1992 waiver was 

effective to reduce the amount of Palmer’s uninsured motorist 

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insurance coverage from $300,000 to $30,000 per person/$60,000 

per occurrence. That waiver was effective at the time of the 

accident in question. See USAA Casualty Ins. Co. v. Alexander, 

248 Va. 185, 190, 445 S.E.2d 145, 147 (1994)(waiver and 

reduction of coverage remains in effect during subsequent 

renewals of the policy). 

CONCLUSION 

 For these reasons, we will reverse the trial court’s 

judgment, and will enter final judgment establishing GEICO’s 

maximum uninsured motorist insurance liability in this case at 

$30,000 per person/$60,000 per occurrence. 

Reversed and final judgment. 

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