JUSTICE DAVIS delivered the Opinion of the Court.
Davis, Justice:
The appellants herein and defendants below,
James P. Brown, D.D.S., and his wife, Lynn Brown [hereinafter collectively referred
to as “Dr. Brown”], appeal from an order entered July 21, 2004, by
the Circuit Court of Fayette County granting declaratory judgment to the appellee
herein, Shelby Casualty Insurance Company [hereinafter referred to as “Shelby”]. (See
footnote 1) By the terms of that order, the circuit court determined
that, at the time Dr. Brown initially purchased and later renewed his policy
of umbrella insurance with Shelby, W. Va. Code § 33-6-31(b) (1998)
(Repl. Vol. 2003) did not require Shelby to offer Dr. Brown uninsured or underinsured
motor vehicle coverage in an amount up to the liability limits of such policy.
On appeal to this Court, Dr. Brown contends that the circuit court erred because,
he claims, the Legislature had imposed such a duty upon Shelby prior to its 2001
enactment of W. Va. Code § 33-6-31f(a) (2001) (Repl. Vol. 2003),
which specifically imposes such a duty upon umbrella insurance carriers. Upon
a review of the parties' arguments, the record designated for appellate consideration,
and the pertinent authorities, we find that the circuit court did not commit
error in finding that Shelby did not have a duty, at the time of the events at
issue herein, to offer Dr. Brown uninsured and
underinsured motor vehicle coverage when he purchased his policy of umbrella
insurance. Accordingly, we affirm the circuit court's July 21, 2004, order.
[I]t appears to the Court that
the intention of the legislature during the period from April, 1994 through July,
2000, was to require the offer of uninsured and underinsured motor vehicle coverage
only to automobile liability insurance policies or contracts. It appears to the
Court that if the legislature had intended to include excess liability and umbrella
type policies
or any other general liability policies prior to July of 2001, as it did in
2001, it would have done so.
From this adverse ruling, Dr. Brown appeals to this Court.
[t]hat such policy or contract (See footnote 13) shall provide an option to the insured with appropriately adjusted premiums to pay the insured all sums which he shall legally be entitled to recover as damages from the owner or operator of an uninsured or underinsured motor vehicle up to an amount not less than limits of bodily injury liability insurance and property damage liability insurance purchased by the insured without setoff against the insured's policy or any other policy.
(Footnote added). Additionally, the pertinent language of W. Va. Code § 33-6-31f(a)
(2001) (Repl. Vol. 2003) provides that,
[n]otwithstanding any other provisions of this article, insurers issuing or providing liability policies that are of an excess or umbrella type and which are written to cover automobile liability shall offer uninsured and underinsured motor vehicle coverage on such policies in an amount not less than the amount of liability insurance purchased by the named insured[.]
Before addressing the issue directly before the Court, however, it is helpful
to review general principles of statutory construction.
Traditionally, when this Court is asked to
resolve a question regarding a matter of statutory construction, we first consider
the intent of the Legislature in enacting
the subject provision. “The primary object in construing a statute is
to ascertain and give effect to the intent of the Legislature.” Syl. pt.
1, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d
361 (1975). Then, “[o]nce the legislative intent underlying a particular
statute has been ascertained, we proceed to consider the precise language thereof.” State
ex rel. McGraw v. Combs Servs., 206 W. Va. 512, 518, 526 S.E.2d 34,
40 (1999). When the language chosen by the Legislature is plain, we apply,
rather than construe, such legislative language. “A statutory provision
which is clear and unambiguous and plainly expresses the legislative intent
will not be interpreted by the courts but will be given full force and effect.” Syl.
pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). Accord DeVane
v. Kennedy, 205 W. Va. 519, 529, 519 S.E.2d 622, 632 (1999) (“Where
the language of a statutory provision is plain, its terms should be applied
as written and not construed.” (citations omitted)).
In the case sub judice, we are faced
with two statutory provisions, both of which, by their express terms, impose
upon insurers the duty to offer uninsured and underinsured motor vehicle coverage
to an insured purchasing a policy of insurance in an amount not less than the
liability limits of such policy. However, these statutes differ insofar as W. Va.
Code § 33-6-31f(a) specifically states that it applies to policies
of umbrella insurance coverage whereas W. Va. Code § 33-6-31(b)
is silent as to whether it applies to umbrella policies. When faced with a choice
between two statutes, one of which
is couched in general terms and the other of which specifically speaks to the
matter at hand, preference generally is accorded to the specific statute. “The
general rule of statutory construction requires that a specific statute be
given precedence over a general statute relating to the same subject matter
where the two cannot be reconciled.” Syl. pt. 1, UMWA by Trumka v.
Kingdon, 174 W. Va. 330, 325 S.E.2d 120 (1984). Accord Syl.
pt. 6, Carvey v. West Virginia State Bd. of Educ., 206 W. Va. 720,
527 S.E.2d 831 (1999). See also Bowers v. Wurzburg, 205 W. Va.
450, 462, 519 S.E.2d 148, 160 (1999) (“Typically, when two statutes govern
a particular scenario, one being specific and one being general, the specific
provision prevails.” (citation omitted)); Daily Gazette Co., Inc. v.
Caryl, 181 W. Va. 42, 45, 380 S.E.2d 209, 212 (1989) (“The rules
of statutory construction require that a specific statute will control over
a general statute[.]” (citations omitted)).
Applying this rule of statutory construction
to the statutes at issue, it is apparent that W. Va. Code § 33-6-31f(a),
as the statute specifically governing the obligations of insurers who issue policies
of umbrella insurance, should prevail over the more general provisions of W. Va.
Code § 33-6-31(b). That said, it is apparent that the Legislature imposed
upon insurers a duty to offer uninsured and underinsured motor vehicle coverage
to insureds in conjunction with their purchase of umbrella coverage when it enacted
W. Va. Code § 33-6-31f(a) in 2001.
Moreover, the Legislature's act of promulgating
W. Va. Code § 33-6-31f(a) strongly suggests that the requirements
of W. Va. Code § 33-6-31(b) do not, and were not intended to,
apply to umbrella policies. If W. Va. Code § 33-6-31(b) had been
intended to apply to policies of umbrella insurance, the Legislature's subsequent
enactment of W. Va. Code § 33-6-31f(a) would have been an unnecessary,
redundant, and futile act, which we presume the Legislature would not have done. “'It
is always presumed that the legislature will not enact a meaningless or useless
statute.' Syllabus Point 4, State ex rel. Hardesty v. Aracoma-Chief Logan
No. 4523, Veterans of Foreign Wars of the United States, Inc., 147 W. Va.
645, 129 S.E.2d 921 (1963).” Syl. pt. 1, Richards v. Harman, 217
W. Va. 206, 617 S.E.2d 556 (2005).
Moreover,
“[t]he Legislature must be presumed to know the language employed in former acts, and, if in a subsequent statute on the same subject it uses different language in the same connection, the court must presume that a change in the law was intended.” Syl. pt. 2, Hall v. Baylous, 109 W. Va. 1, 153 S.E. 293 (1930).
Syl. pt. 2, Butler v. Rutledge, 174 W. Va. 752, 329 S.E.2d 118
(1985). See also Syl. pt. 11, Rice v. Underwood, 205 W. Va.
274, 517 S.E.2d 751 (1998) (“'“'A statute should be so read and applied
as to make it accord with the spirit, purposes and objects of the general system
of law of which it is intended to form a part; it being presumed that the
legislators who drafted and passed it were familiar with all existing law,
applicable to the subject
matter, whether constitutional, statutory or common, and intended the statute
to harmonize completely with the same and aid in the effectuation of the general
purpose and design thereof, if its terms are consistent therewith.' Syllabus
Point 5, State v. Snyder, 64 W. Va. 659, 63 S.E. 385 (1908).” Syl.
Pt. 1, State ex rel. Simpkins v. Harvey, 172 W. Va. 312, 305 S.E.2d
268 (1983), superseded by statute on other grounds as stated in State
ex rel. Hagg v. Spillers, 181 W. Va. 387, 382 S.E.2d 581 (1989)[, superseded
by statute on other grounds as stated in State v. Yoak, 202 W. Va.
331, 504 S.E.2d 158 (1998)].' Syl. Pt. 2, State ex rel. Hall v. Schlaegel,
202 W. Va. 93, 502 S.E.2d 190 (1998).” (emphasis added)); Banker
v. Banker, 196 W. Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996) (“It
is not for [courts] arbitrarily to read into [a statute] that which it does
not say. Just as courts are not to eliminate through judicial interpretation
words that were purposely included, we are obliged not to add to statutes
something the Legislature purposefully omitted.” (emphasis added)
(citations omitted)).
It is apparent, then, that the Legislature's
decision to promulgate W. Va. Code § 33-6-31f(a) signifies that
it did not intend W. Va. Code § 33-6-31(b) to apply to policies
of umbrella insurance and, thus, that W. Va. Code § 33-6-31(b)
does not impose a duty upon insurers to offer insureds uninsured and underinsured
motor vehicle coverage in connection with their purchase of umbrella coverage.
Therefore, we hold that W. Va. Code § 33-6-31(b) (1998) (Repl.
Vol. 2003) does not require insurers to offer an insured
uninsured and underinsured motor vehicle coverage in an amount not less than
the policy's liability limits when an insured purchases a policy of umbrella
insurance.
Finally, having ascertained that W. Va.
Code § 33-6-31f(a) is dispositive of an insurer's obligation to offer
uninsured and underinsured motor vehicle coverage upon an insured's purchase
of an umbrella policy, we must consider the language employed by the Legislature
to determine the nature of such a duty. In pertinent part, W. Va. Code § 33-
6-31f(a) directs that “insurers issuing or providing liability policies
that are of an excess or umbrella type and which are written to cover automobile
liability shall offer uninsured and underinsured motor vehicle coverage
on such policies in an amount not less than the amount of liability insurance
purchased by the named insured[.]” (Emphasis added). Prominent in this mandate
to insurers is the Legislature's use of the word “shall”. We repeatedly
have held that “[i]t is well established that the word 'shall,' in the absence
of language in the statute showing a contrary intent on the part of the Legislature,
should be afforded a mandatory connotation.” Syl. pt. 1, Nelson v. West
Virginia Pub. Employees Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982). Accord Syl.
pt. 6, State v. Myers, 216 W. Va. 120, 602 S.E.2d 796 (2004), cert.
denied, ___ U.S. ___, 125 S. Ct. 925, 160 L. Ed. 2d 813 (2005). See
also State ex rel. Brooks v. Zakaib, 214 W. Va. 253, 264-65,
588 S.E.2d 418, 429-30 (2003) (“Ordinarily, the word 'shall' has a mandatory,
directory connotation.” (citations omitted)); State v. Allen, 208
W. Va. 144, 153, 539 S.E.2d 87, 96 (1999)
(“Generally, 'shall' commands a mandatory connotation and denotes that
the described behavior is directory, rather than discretionary.” (citations
omitted)).
We noted above that statutory language that
is plain should be applied as written and not construed. See, e.g., Syl.
pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488. That said,
we find the language of W. Va. Code § 33-6-31f(a) to be plain
and to impose a mandatory duty upon insurers to offer their insureds uninsured
and underinsured motor vehicle coverage when the insureds purchase policies of
umbrella insurance that provide coverage for automobile liability. Accordingly,
we hold that W. Va. Code § 33-6- 31f(a) (2001) (Repl. Vol. 2003)
specifically requires that insurers “shall offer uninsured and underinsured
motor vehicle coverage on . . . policies [that are of an excess or
umbrella type and which are written to cover automobile liability] in an amount
not less than the amount of liability insurance purchased by the named insured.”
Despite this statutory duty imposed upon
insurers vis-a-vis umbrella insurance policies, we nevertheless agree with the
circuit court's decision finding that Shelby did not, under the facts of this
case, have an obligation to offer Dr. Brown uninsured and underinsured motor
vehicle coverage when he purchased or renewed his Shelby umbrella policy because
the Legislature did not create this duty until 2001, nearly one year after the
events giving rise to Dr. Brown's underinsurance claim. Insofar as there existed
no
statutory duty for insurers to make such an offer in connection with policies
of umbrella insurance prior to this date, we affirm the circuit court's ruling
awarding declaratory judgment to Shelby.