* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 12 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

EUGENE PERKINS,

Plaintiff-Appellant,

v. USAA CASUALTY INSURANCE COMPANY, a corporation,

Defendant-Appellee. No. 96-6186 (D.C. No. CIV-95-1232-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK, EBEL, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.1 “Stacked” UM limits represent the per person limit of liability of the

insured’s UM coverage multiplied by “the number of vehicles insured under the policy for which a separate premium for uninsured m otorist coverage is charged,” Cofer v. Morton , 784 P.2d 67, 71 (Okla. 1989). The policy here co vered two vehicles, for which plaintiff was charged separate premiums for UM coverage. -2- Plaintiff, who was injured in a pedestrian-auto acc ident in December 1994, made a claim for uninsured/underinsured motorist (U M) benefits under the auto policy defendant USAA issued him in November 1994. By state statue, every automobile liability policy issued in Oklahoma mustprovide minimum UM coverage of $10,000 per person/$20,000 per occurren ce unless the insured rejects this minimum amount in writing. See Okla. Stat. tit. 36, § 3636; Okla. Stat. tit. 47, § 7-204. The declarations page of plaintiff’s USAA policy reflected that the policy provided the statutorily minimum UM coverage , for which plaintiff was charged a premium. See Appellant’s App. at 52. In June 1995, USAA tendered plaintiff payment in th e amount of $20,000, representing what USAA contended were the stacked U M limits 1 under plaintiff’s policy. In August 1995, plaintiff sued USAA for br each of contract and for bad faith. Plaintiff contended that the stacked UM lim its under the policy should be imputed by law to be equal to the stacked liability limits, or $200,000, because USAA had failed to send plaintiff a written offer o f increased UM limits, as required by Okla. Stat. tit. 36, § 3636(B), (H), wh en it issued the new policy in November 1994. In so arguing, plaintiff relied upo n the Oklahoma Court of-3-

Appeals’ decision in Perkins v. Hartford Underwrite rs Insurance Co. , 889 P.2d 1262, 1264 (Okla. Ct. App. 1994). While the partie s’ cross-motions for summary judgment were pending in the district court, the Ok lahoma Supreme Court issued its opinion in May v. National Union Fire Insurance Co. , 918 P.2d 43 (Okla. 1996), which expressly overruled Perkins

. Thereafter, the district court granted summary judg ment to USAA on both of plaintiff’s claims. The court determined that p laintiff’s contract claim was governed by the Oklahoma high court’s opinion in May , which held that “[w]here an insurer fails to offer in writing or obtain a wr itten rejection of UM coverage such that UM coverage is imputed to an insured’s po licy as a matter of law, . . . the mandate of § 3636 is satisfied by imputat ion of the minimum limits of UM coverage required by statute. To impute a higher a mount of UM coverage [as the court did in Perkins ] would go beyond the mandate of § 3636.” Id. at 48. Therefore, the district court concluded, plaintiff was entitled to UM coverage of only $10,000 under the policy (resulting in stackedlimits of $20,000). The court further concluded that “there is no evidence in the record reasonably tending to show that defendant acted in bad faith in denying p laintiff’s claim for $200,000,” Appellant’s App. at 223, and, therefore, entered su mmary judgment for USAA on the bad faith claim as well.-4-

We review the grant of summary judgment de novo, ap plying the same standards as the district court under Fed. R. Civ. P. 56(c). Wolf v. Prudential Ins. Co. of Am. , 50 F.3d 793, 796 (10th Cir. 1995). We review the factual record and any reasonable inferences arising therefrom in the light most favorable to the nonmovant to determine whether there is a genuine i ssue as to any material fact. Id. If we determine there are no genuine issues of material fact in dispute, we then look to see whether the district court correct ly applied the substantive law. Id. Based upon our review of the record and the perti nent law, we affirm the grant of summary judgment to USAA for substantiallythe reasons given by the district court. We write additionally to address a matter that the district court did not discuss in its orders on summary judgment. Althoug h plaintiff has steadfastly maintained that USAA did not send him the statutori ly mandated offer form, he alternatively argued in the district court, though rather belatedly, that the offer form USAA contends it did send him is ambiguous. P laintiff contends that construing this ambiguity in his favor results in c onstructive UM limits equal to his liability limits, which were $100,000 per perso n/$200,000 per occurrence. The form USAA allegedly sent to plaintiff in Novemb er 1994 followed the prescribed form set forth in § 3636(H). The statut orily prescribed form notifies the proposed insured that he can make one of four c hoices about UM coverage:-5-

he can purchase UM coverage equal to his liability limits; he can purchase UM coverage in the minimum statutory amount; he can pu rchase UM coverage in an amount less than the liability limits but more than the statutory minimum; or he can reject UM coverage altogether. The manner in w hich USAA filled in the blanks in the prescribed form resulted in an offer to plaintiff to “buy Uninsured Motorist coverage equal to your bodily injury liabi lity coverage for $ 0.00 for 6 months.” Appellant’s App. at 54. Plaintiff argues that, because USAA offered him UM coverage equal to his liability limits for no additional charge, we shoul d construe his UM limits to be $100,000 per person/$200,000 per occurrence. This argument overlooks one fundamental fact: the record is devoid of any evid ence that plaintiff ever intended to, or actually did, accept this offer of increased coverage. “An offer becomes a binding promise and results in a contractonly when it is accepted. To constitute acceptance, there must be an expression of the intent to accept the offer, by word, sign, writing or act, communicated or delivered to the person making the offer or the offeror’s agent.” Garrisonv. Bechtel Corp. , 889 P.2d 273, 281 (Okla. 1995). USAA’s form, as required by § 3636(H), not only not ified plaintiff of his choices concerning UM coverage, but directed him to indicate what UM coverage he wanted. The form had a place for plaintiff to c heck which of the four-6-

alternatives concerning coverage he chose and it ha d a place for his signature. The form concluded with the following statement: “ THIS FORM IS NOT A PART OF YOUR POLICY AND DOES NOT PROVIDE COVERAGE.” Appellant’s App. at 54; see also Okla. Stat. tit. 36, § 3636(H) (mandating such language). Plaintiff has acknowledged that the statutorily prescribed form contains “a place for the insured’s signature indic ating receipt of the form and a specific election of the coverage desired,” and that the Oklahoma legislature obviously “intend[ed] the form to be signed.” Appe llant’s App. at 116. Yet, plaintiff admits that he never indicated his choice of coverage or signed the form. Indeed, plaintiff contends that he never even recei ved the offer of “free” increased UM coverage. Absent plaintiff’s acceptan ce of this offer, the policy terms remained as reflected on the declarations pag e. Therefore, whether USAA actually sent plaintiff the required written offer has no effect on plaintiff’s contract claim. Wheth er imputed by law or based on the written terms of the policy, plaintiff’s UM cov erage was the same: $10,000 per person/$20,000 per occurrence. As to plaintiff’s claim for bad faith, we agree with the district court that the evidence presented did not give rise to a reasonable inference of tortious conduct and, therefore, summary judgment for USAA was proper. See, e.g. , City Nat’l Bank & Trust Co. v. Jackson Nat’l Life Ins. , 804-7-

P.2d 463, 468-69 (Okla. Ct. App. 1990); Willis v. M idland Risk Ins. Co. , 42 F.3d 607, 612 (10th Cir. 1994). The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.

Entered for the Court

David M. Ebel Circuit Judge