Maynard, Chief Justice, dissenting:
I would affirm the ruling of the circuit court that Horace Mann was not
obligated to pay UIM benefits to Mr. Adkins because he did not, in settling his underlying
claim, exhaust the available limits of liability coverage.
This Court has held that “[w]here provisions in an insurance policy are plain
and unambiguous and where such provisions are not contrary to a statute, regulation, or
public policy, the provisions will be applied and not construed.” Syllabus, Tynes v. Supreme
Life Ins. Company of America, 158 W.Va. 188, 209 S.E.2d 567 (1974). The majority opinion
acknowledges that “the exhaustion clause incorporated by Horace Mann into the Adkins'
policies of insurance appears to be facially capable of but one construction: that all applicable
policies of liability coverage must be exhausted before an insured may recover UIM benefits
thereunder.” I would have ended my analysis there and upheld the policy language. Unlike
the majority opinion, I simply do not believe this language violates public policy, and I see
no need to adopt a new-fangled and confusing legal doctrine to get around the policy's plain
language.
Accordingly, I respectfully dissent.