In a classic “he said” “she said” dispute, a driver won the prize of uninsured motorist coverage. In Rodriguez v. Ocean Risk Retention Group, Inc., a cab driver sought uninsured motorist coverage for an accident. However, he was not listed as a driver on the cab company’s policy.

 The insured cab company’s president claimed that he had advised his insurer’s managing agent that he was hiring a new driver. He allegedly telephoned to request that the insurer add the new driver to the policy. The managing agent denied ever having received such notice.

 The policy actually required written notice to request the addition of new drivers by endorsement. Additionally, in practice, when such notice was given, the insurer’s managing agent would evaluate all proposed drivers by their driver abstracts to determine their insurability. However, this practice was not always followed, and, in fact, during the policy period, thirty-seven such endorsements were permitted, five of which were by telephonic rather than written request.

 The managing agent certified that she had received a request for the plaintiff driver – but not until seven months after the accident. Moreover, when she obtained his abstract, she determined that he was not acceptable.

 In a hearing, the judge found the insured’s testimony more compelling and credible. Yet, in awarding underinsured motorist coverage, the judge did not make a finding as to exactly when the alleged phone call was made. Nonetheless, he apparently accepted that the call was made sometime prior to the accident. The appellate division did not disturb the court’s decision and affirmed the coverage determination.

 A lingering question remains whether the result might have been different if the written notice requirement had been fastidiously observed.

 For more information, contact Denise Fontana Ricci at