Marvin W. Masters, Esq.
Charles S. Piccirillo, Esq.
April D. Ferrebee, Esq.
Kelly R. Charnock, Esq.
David L. Stuart, Esq.
Shaffer & Shaffer, PLLC
Masters & Taylor, L.C.
Madison, West Virginia
Charleston, West Virginia Attorneys for State Farm and
Attorneys for Sheila Cantrell Jack D. Brewster
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE STARCHER
and JUSTICE McGRAW dissent and reserve the right to file
dissenting opinions.
1. “A circuit court's entry of summary judgment is reviewed de novo.” Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. “'“A motion for summary judgment should be granted only when it is
clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law.” Syllabus Point 3, Aetna Casualty & Surety
Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).'
Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).”
Syllabus Point 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
3. “'Insurers may incorporate such terms, conditions and exclusions in an automobile insurance policy as may be consistent with the premium charged, so long as any such exclusions do not conflict with the spirit and intent of the uninsured and underinsured motorists statutes.' Syl. pt. 3, Deel v. Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989).” Syllabus Point 1, Thomas v. Nationwide Mut. Ins. Co., 188 W.Va. 640, 425 S.E.2d 595 (1992).
4. “When an insurer issues an automobile insurance policy which provides
both liability and underinsured motorists coverage, but which policy contains what is
commonly referred to as a 'family use exclusion' for the underinsured motorist coverage, and
when, in a single car accident, the passenger/wife receives payments under the liability
coverage for the negligence of the driver/husband, such exclusion is valid and not against the
public policy of this state. That exclusion, which excludes from the definition of
'underinsured motor vehicle' any automobile owned by or furnished for the regular use of
the insured or a relative, has the purpose of preventing underinsured coverage from being
converted into additional liability coverage.” Syllabus Point 2, Thomas v. Nationwide Mut.
Ins. Co., 188 W.Va. 640, 425 S.E.2d 595 (1992).
Per Curiam:
The appellant, Sheila Cantrell, appeals the December 31, 2001 order of the
Circuit Court of Mingo County which granted summary judgment to the appellees, State
Farm Mutual Automobile Insurance Company and agent Jack D. Brewster (State Farm). The
appellant avers that summary judgment was granted in error because underinsured motorist
benefits should be available to her under her husband's policy of insurance in addition to the
bodily injury liability limits which she received. We find no error.
Shortly after the accident but before she retained legal counsel, State Farm
offered the appellant the bodily injury liability limit of $100,000 to settle her claim. State
Farm subsequently received a letter from the appellant's attorney demanding payment of the
liability limits and reserving the right to contest UIM coverage in a declaratory judgment
action. State Farm agreed to the liability settlement but maintained that the Cantrell vehicle
did not meet the definition of an underinsured motor vehicle so as to afford UIM coverage
to the appellant. On July 5, 2000, State Farm issued a check in the amount of $100,000 for
the per person bodily injury liability limit. In exchange, the appellant executed a full and
final release of her husband, Joseph Cantrell. She then filed a complaint in circuit court
seeking, inter alia, UIM benefits.
State Farm removed the action to federal court on the basis of diversity of citizenship and fraudulent joinder of claim representative Jack Brewster. The appellant filed a motion to remand. An order was entered on July 19, 2001, remanding the case back to the Circuit Court of Mingo County. State Farm filed a motion for summary judgment asserting that UIM coverage was not available to the appellant under the Cantrell policy because the vehicle in which the appellant was riding did not qualify as an underinsured motor vehicle under the insurance policy. On December 31, 2001, the circuit court entered an order which granted summary judgment to State Farm and dismissed the appellant's complaint. It is from this order that the appellant appeals.
The circuit court found, as a matter of law, that State Farm and its agent, Jack
Brewster, were entitled to summary judgment. It is well-settled that “[a] circuit court's entry
of summary judgment is reviewed de novo.” Syllabus Point 1, Painter v. Peavy, 192 W.Va.
189, 451 S.E.2d 755 (1994). Moreover,
“'A motion for summary judgment should be granted
only when it is clear that there is no genuine issue of fact to be
tried and inquiry concerning the facts is not desirable to clarify
the application of the law.' Syllabus Point 3, Aetna Casualty &
Surety Co. v. Federal Insurance Co. of New York, 148 W.Va.
160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town
of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).
Syllabus Point 2, id.
The appellant maintains
that the circuit court erred by holding that she cannot stack UIM coverage
onto the liability insurance which she already collected under the Cantrell
insurance policy. She reasons that W.Va. Code § 33-6-31(b)
(See footnote 1) does
not permit exceptions or exclusions to the definition of “underinsured
motor vehicle;” therefore, State Farm's definition of “underinsured
motor vehicle” violates public policy in that it is more restrictive
than the statute. As a result, the appellant concludes that the statutory
provision is void. The appellee argues that the policy language is valid,
enforceable, and does not violate public policy.
The appellant's reasoning overlooks the fact that this Court has on prior
occasions approved language similar to that contained in Mr. Cantrell's policy. In fact,
during oral argument, counsel for the appellant admitted as much and asked us to revisit two
opinions previously published by this Court that deal with this issue. Counsel contends that
our holdings in Deel v. Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989), and Thomas v.
Nationwide Mut. Ins. Co., 188 W.Va. 640, 425 S.E.2d 595 (1992), cannot be reconciled with
W.Va. Code § 33-6-31(b); consequently, the exclusion cannot apply to the appellant. We
disagree.
There is no doubt that “'[i]nsurers may incorporate such terms, conditions and
exclusions in an automobile insurance policy as may be consistent with the premium charged,
so long as any such exclusions do not conflict with the spirit and intent of the uninsured and
underinsured motorists statutes.' Syl. pt. 3, Deel v. Sweeney, 181 W.Va. 460, 383 S.E.2d 92
(1989).” Syllabus Point 1, Thomas v. Nationwide Mut. Ins. Co., 188 W.Va. 640, 425 S.E.2d
595 (1992). The UIM clause in the Cantrell policy of insurance specifically states:
We will pay damages for bodily injury and property damage an
insured is legally entitled to collect from the owner or driver of
an underinsured motor vehicle. The bodily injury or property
damage must be caused by accident arising out of the operation,
maintenance or use of an underinsured motor vehicle.
W.Va. Code § 33-6-31 (1998), states in pertinent part:
(b) “Underinsured motor vehicle” means a motor
vehicle with respect to the ownership, operation or use of which
there is liability insurance applicable at the time of the accident,
but the limits of that insurance are either: (i) Less than limits the
insured carried for underinsured motorists' coverage; or (ii) has
been reduced by payments to others injured in the accident to
limits less than limits the insured carried for underinsured
motorists' coverage. No sums payable as a result of
underinsured motorists' coverage shall be reduced by payments
made under the insured's policy or any other policy.
(c) As used in this section, the term “bodily injury”
shall include death resulting therefrom and the term “named
insured” shall mean the person named as such in the
declarations of the policy or contract and shall also include such
person's spouse if a resident of the same household and the term
“insured” shall mean the named insured and, while resident of
the same household, the spouse of any such named insured and
relatives of either, while in a motor vehicle or otherwise, and
any person, except a bailee for hire, who uses, with the consent,
expressed or implied, of the named insured, the motor vehicle to
which the policy applies or the personal representative of any of
the above[.]
This precise statute was applied to a “family use exclusion” included in an
insurance policy purchased by the plaintiff's husband in the case of Thomas v. Nationwide
Mut. Ins. Co., 188 W.Va. 640, 425 S.E.2d 595 (1992). The facts of Thomas are similar to
the facts in the case now before us. In Thomas, Deborah Thomas was riding with her
husband when he went off the road and struck a utility pole at a high rate of speed. Ms.
Thomas sustained multiple fractures to her hips and legs which resulted in permanent
impairment. The Thomases owned two vehicles which were insured under a single insurance
policy. The vehicles carried liability and UIM limits of $100,000/$300,000 each. The
insurance company paid the full $100,000 liability coverage but denied UIM coverage. Ms.
Thomas filed a declaratory judgment action in circuit court to determine the rights and
obligations of the parties. The circuit court certified questions to this Court.
The primary question addressed by the Thomas Court reads as follows:
3. Whether in the instant case the following
definitional exclusion (known as the Family Use Exclusion) is
a valid exclusion in light of the current law and public policy of
the State of West Virginia?
'2. We will not consider as an underinsured
motor vehicle: (e) any vehicle owned by or
furnished for the regular use of you or a relative.'
Id., 188 W.Va. at 642, 425 S.E.2d at 597. After discussing applicable case law, this Court
reasoned that:
Because recovery by a plaintiff of underinsured motorist
benefits is dependent on the existence of two policies, the
tortfeasor's and the plaintiff insured's, when a tortfeasor is
underinsured, the plaintiff insured normally recovers third-party
liability benefits from the tortfeasor's insurance coverage and
supplements this recovery, if necessary, with underinsured
motorist benefits through his or her own insurance. A family
use exclusion, which excludes from the definition of
“underinsured motor vehicle” any vehicle owned by or furnished
for the regular use of the insured or a relative, or in like terms,
has the purpose of preventing underinsured coverage from being
converted into additional liability coverage, because when the
exclusion is applied, it is the liability coverage that has been
paid for by the insured, and not underinsured coverage.
Therefore, such an exclusion would not violate the public policy
of full compensation of an insured.
Id., 188 W.Va. at 645, 425 S.E.2d at 600. The holding expressed in Syllabus Point 2 of
Thomas is dispositive of the issue presently before us:
When an insurer issues an automobile insurance policy
which provides both liability and underinsured motorists
coverage, but which policy contains what is commonly referred
to as a “family use exclusion” for the underinsured motorist
coverage, and when, in a single car accident, the passenger/wife
receives payments under the liability coverage for the
negligence of the driver/husband, such exclusion is valid and not
against the public policy of this state. That exclusion, which
excludes from the definition of “underinsured motor vehicle”
any automobile owned by or furnished for the regular use of the
insured or a relative, has the purpose of preventing underinsured
coverage from being converted into additional liability coverage.
We reiterate that the purpose of optional UIM coverage “is to enable the
insured to protect himself [or herself], if he [or she] chooses to do so, against losses
occasioned by the negligence of other drivers who are underinsured.” Deel, 181 W.Va. at
463, 383 S.E.2d at 95. (Emphasis added). “Other drivers” necessarily infers the drivers of
vehicles other than the vehicle owned and operated by the insured.
Mr. Cantrell's insurer promptly paid the appellant the liability limits available under the insurance policy. We reject the appellant's public policy argument that underinsurance benefits should be stacked on liability coverage.
For the foregoing reasons, the judgment of the Circuit Court of Mingo County
is affirmed.
Affirmed.