*1 C.J., STARCHER, сoncurring. 582 S.E.2d CANTRELL, 2003) (Filed Plaintiff Sheila July Below, Appellant majority’s decision I concur circuit court for back to the remand case remand, However, I findings. CANTRELL, believe Joseph full Farm Mutual Company, court should examine that the circuit Automobile Below, presented plaintiff-landlord Brewster, by the evidence D. Defendants Jack “damages.” circuit court support his Appellees. damages what claimed determine should No. 30850. caused the active plaintiff are losses defendant-tenant, Appeals Supreme Court misconduct of Virginia. simply and tear” that “wear what losses are any apartment. in rental of expected March 2003. Submitted in- presented this Court The record April 2003. Decided plaintiffs claim that the defendant cludes Opinion Dissenting of Chief Justice replacing pay the cost of should for July Starcher refrigerator refrigerator apartment —a years pay replace to 40 old' —and was 30 Also, plaintiff carpet. stated the worn man normally paid his maintenance he work, yet he pre- an horn' normal
$10.00 should an invoice that the defendant
sented
pay per hour 67 hours of labor— $28.50 $1,909.00 Lastly, repaint apartment. —to court, claimed, magistrate in plaintiff supplies from hard- bought
he $750.00 apartment; circuit
ware store for
court, only supplies he claimed $341.00 apartment. Whatever the used in the
were
amount, supplies no these there is evidence apartment. I actually used saw
were
nothing in the record to indicate exceptionally expenses
these —which reasоnable, pru- high' damages that a —are required to apartment dweller should be dent appears It
pay upon termination of a lease. apartment, plaintiff
as if remodeled the pay those
and now wants defendant
remodeling costs. remand,
Accordingly, on the circuit court impose take to not defen-
should care normal wear remodeling
dant costs for apartment.
tear to the *2 Masters, Ferrebee, April
Marvin W. D. Stuart, Taylor, L.C., David L. Masters & Charleston, for Sheila Cantrell. Piccirillo, Chamock, Kelly Charles S. R. Shaffer, Madison, PLLC, Shaffer & for State Farm and D. Jack Brewster.
PER CURIAM: Cantrell, appellant, appeals Sheila December order of Circuit Court Mingo County granted summary which judgment appellees, State Farm Mutu- Company agent al Automobile Insurance (State Farm). appel- Jack D. Brewster summary judgment lant avers that granted in error mo- because underinsured torist benefits should available to her under the insurance policy of in motor vehicle under her husband’s the circuit court en- December bodily injury liability On addition to the summary judg- granted an order which tered We find no error. received. *3 appel- Farm and dismissed the ment to State from that complaint. It is this order lant’s I. appeals. appellаnt the
FACTS February dispute. facts not On The II.
28, 2000,
in a
passenger
a
appellant
was
REVIEW
OF
STANDARD
by
was
1983
truck which
owned
Chevrolet
husband,
Joseph
appellee
Cantrell.
her
found, as a matter
circuit court
The
Taylorville in
driving
52
on Route
near
While
law,
agent,
Farm and its
Jack
of
that State
Mingo County,
Virginia, Mr. Cantrell
Brewster,
judg
summary
were
to
entitled
vehicle,
road-
ran off the
lost control
circuit
“[a]
It
that
ment.
well-settled
appellant was
way,
The
and struck a tree.
summary
entry
judgment
of
is re
court’s
by
injured.
was
Cantrell
1,
Syllabus
Painter
novo.”
Point
viewed de
injury
bodily
per
Farm with
State
189,
755
Peavy, 192
451 S.E.2d
W.Va.
$100,000 and
liability limits of
underinsured
(1994). Moreover,
(UIM)
per person
coverage
“
summary judgment
‘A motion for
$100,000.
injury
of
bodily
only
it
clear
granted
when
should
she
Shortly after the
but before
accident
of fact to be
genuine
that
is no
issue
there
counsel,
legal
Farm offered
retained
State
inquiry concerning the facts is
tried and
bodily
liability
injury
limit
appellant
clarify
application of
not desirable to
$100,000
Farm
her claim. State
of
settle
3,
Casualty
Syllabus Point Aetna
the law.’
ap-
a
from the
subsequently received
letter
Surety
&
Co. v. Federal
Co. of
payment
pellant’s attorney demanding
of
York,
160,
770
New
148 W.Va.
133 S.E.2d
reserving
right
liability limits and
(1963).”
1,
Syllabus
Andrick v.
Point
declaratory judg-
coverage in a
contest UIM
Buckhannon,
706, 421
Town of
lia-
agreed
Farm
to the
ment action.
(1992).
State
S.E.2d
bility
maintained that
settlement but
Syllabus Point
id.
did not
Cantrell vehicle
meet
definition
so
to afford
an
mоtor vehicle
as
III.
July
coverage
appellant.
UIM
On
a check in the
State
issued
DISCUSSION
$100,000
person bodily
per
amount of
for the
petition
appeal filed in this
In
her
appel-
exchange,
In
injury
limit.
Court,
circuit
appellant
that the
claimed
lant
full and final release of
executed a
First,
respects.
ar
she
court erred
two
husband,
filed
Joseph
She then
Cantrell.
summary
granted
gued
the circuit court
that
alia,
seeking,
complaint in circuit court
inter
prior
comple
judgment to State Farm
UIM benefits.
Second,
argued
discovery.
she
tion
granted
judgment was
without
summary
action to federal
Farm removed the
citizenship
analysis of her husband’s insur
diversity
proper legal
court on
basis
principles
under the
set forth
joinder
representa-
ance
of claim
and fraudulent
v. Broad
in the case Mitchell
appellant filed a
this Court
tive Jack Brewster. The
(2000).
nax,
W.Va.
S.E.2d
An
was
motion to remand.
order
entered
subsequent opin
19, 2001,
handed
our
July
remanding
to the After we
down
the case back
Findley
v. State Farm
County.
ion
the case of
Mingo
State Farm
Circuit Court
Co.,
80, 576
judgment
Ins.
summary
assert- Mut. Auto.
filed a motion for
(2002),
appellant abandoned
coverage
ing
was
available
that UIM
Instead,
ar
argument.
policy be-
her Broadnax
appellant
the Cantrell
under
appeal
gues
brief submitted
appellant in her
in which the
the vehicle
cause
§ 33-6-31
language of W.Va.Code
the clear
qualify
an underinsured
riding did not
(1998) requires
coverage
arising
caused
oper-
underinsurance
out of the
accident
ation,
apply
spouse
ato
of an underinsured driver.
maintenance or use of an underin-
court erred
appellant
by holding
maintains
that she cannot stack
the circuit
sured motor vehicle.
[*]
[*]
[*]
An underinsured motor vehicle does not
UIM
onto the
include a land motor vehicle:
already
which she
cоllected under the Can-
trell
She reasons
1.
insured under the
6—31(b)1
permit
§
policy;
W.Va.Code
does not
of this
33—
exceptions or exclusions to the
definition
regular
you,
furnished for
vehicle;” therefore,
“underinsured motor
your spouse
relative[.]
*4
State Farm’s definition of
mo-
“underinsured
commonly
This
is
clause
referred to as the
public policy
tor vehicle” violates
in that it is
“family use exclusion.”
more restrictive than the
As a
statute.
re-
(1998),
§
per-
W.Va.Code 33-6-31
in
statеs
sult,
appellant
that the
concludes
statuto-
part:
tinent
ry provision
appellee argues
is void. The
(b) “Underinsured motor vehicle” means
valid, enforceable,
policy language
that the
respect
a motor vehicle with
to the owner-
public policy.
and does not violate
ship, operation or
of
use
which there is
appellant’s reasoning
The
overlooks the
applicable
insurance
at the time of
рrior
fact that
this Court has on
occasions
accident,
but the limits of that insur-
approved language similar to that contained
(i)
either:
ance are
Less than limits the
fact,
policy.
in
during
Mr. Cantrell’s
In
oral
insured carried for underinsured motorists’
argument,
appellant
counsel for the
admitted
(ii)
coverage; or
by pay-
has been reduced
much and
opinions
as
asked
tous
revisit two
injured
ments to others
in the accident to
previously
published
this Court that deal
than
less
limits the insured carried
with this issue. Counsel contends that our
coverage.
for
motorists’
underinsured
No
460,
holdings in
Sweeney,
Deel v.
181 W.Va.
payable
sums
aas
result of underinsured
(1989),
We and above[.j property damage legally an insured is en- precise applied titled to collect from the owner or driver This statute was to a “fami- ly an underinsured motor vehicle. The bodi- exclusion” in an included ly injury property damage policy purchased by plaintiffs must be husband in pertinent § 1. The quoted opinion. sections W.Va.Code 33-6-31 later in this insured, paid by the and not Ins. Mut. been v. Nationwide of Thomas the case Therefore, (1992). coverage. Co., 425 S.E.2d W.Va. public facts not violate the similar an exclusion would of Thomas are The facts Thomas, us. In compensation before of full an insured. in the case now riding hus- with her Thomas Deborah Id., at at 425 S.E.2d road and struck a he off the band when went holding expressed Syllabus Point of high speed. Ms. utOity at rate of pole a presently dispositive of the issue Thomas multiple fractures to sustained Thomas us: before permanent legs hips which resulted an automobile an insurer issues When vehi- impairment. Thomases owned two provides liabil- policy which both single insur- insured under a which were cles coverage, ity and underinsured motorists carried policy. The vehicles ance what is contains common- but $100,000/$300,000 each. UIM limits “family use ly to as a exclusion” referred $100,000 full company The insurance coverage, underinsured motorist for the coverage. liability coverage but denied UIM accident, when, single car declaratory judgment filed Ms. Thomas passenger/wife payments under receives *5 rights in circuit court to determine the action liability coverage negligence for of the the parties. The circuit obligations of the driver/husband, is such exclusion valid the questions to this Court. court certified public policy against of this the by question primary addressed exclusion, which excludes from state. That Thomas Court reads follows: the motor definition of “underinsured vehi- the fol- in instant case the by 3. Whether the any or furnished automobile owned cle” (known exclusion as the lowing definitional regular of the insured or a for the use Exclusion) is valid exclusion Family relative, preventing Use purpose the of un- has public policy light in current law and of the being from converted derinsured Virginia? of the State of West coverage. liability into additional as an underin- ‘2. will not consider We of purpose op We reiterate the (e) any vehicle motor vehicle: sured coverage “is the in to enable tional UIM by regular the or furnished for owned herself], if protect [or he [or himself sured you or a relative.’ use of so, occa against to do losses chooses she] Id., at at S.E.2d negligence of other drivers who the sioned law, discussing applicаble case After Deal, at are underinsured.” W.Va. that: reasoned Court added). (Emphasis at 95. “Oth S.E.2d recovery plaintiff under- by a of Because necessarily of infers the drivers er drivers” dependent on motorist benefits is owned and vehicles other than the vehicle policies, the tortfea- the of two existence operated the insured. insured’s, plaintiff when a sor’s and the promptly paid the Mr. insurer Cantrell’s underinsured, plaintiff in- is tortfeasor liability available under appellant the third-party liabili- normally sured recovers reject appel- the insurance We tortfeasor’s insurance ty from the benefits public policy argument that underin- lant’s recovery, if supplements this coverage and stacked on liabili- surance benefits should be necessary, with underinsured ty coverage. through his or her own insurance. benefits reasons, judgment foregoing exclusion, For family excludes A use County is af- Mingo Court Cirсuit motor definition of from the “underinsured firmed. any by or furnished vehicle owned vehicle” regular or a of the insured for the Affirmed. terms,
relative, purpose in like has coverage from preventing underinsured STARCHER, dissents CHIEF JUSTICE liability into additional being converted dissenting opinion. and files exclusion is coverage, when the because dissents. McGRAW that has JUSTICE applied, it is the (Filed 11, 2003) July coverage: insurance, and insurance Adkins policy should be construed to contain the Ins. nеntal relied bus Point Bell v. State Farm Mut. Auto. requirements language, purpose fore unenforceable. by-word comparison insurance in this cy that ble against public (1974); lant’s automobile insurance statutes. As accord with West 185 W.Va. our considering Universal When STARCHER, C.J., dissenting: I contrary statute.” Provisions automobile dissent, Co., argument: upon by case Casualty Syllabus Point are more restrictive than the policy, it should be construed in 606, Meador, Underwriters Ins. Co. v. (1973). to whether because (and many language eases should statute are void and 408 insurance (1997), Virginia in Co., and intent of the S.E.2d 358 majority) policy language I appropriate of the and agree See policy language “In construing an statutes and there- begin therefore law. The Johnson of the an insurance Syllabus language insurance language with the is ineffective (1991); 148, 153, with a word- passenger, thereby causing contrary S.E.2d light precedents we held statutory v. void, begin by terms Pоint applica at issue Taylor, of our Conti policy appel- Sylla poli 147 the as 2, vehicle[.]” the insurance ... covering liability arising from motor ing in another phasis operation or use of such vehicle.” W.Va. kinds Code, 33-6-31(a) bodily injuries. The defendant driver sustained ... as a feasor policy insures “the imposed upon the driver for against underinsured motorists. The oimers gent and drove the car off another ship, operation, maintenance or use of such law ... ... unless it shall Through torts, the against ownership, every car paid added). who vehicle, or plaintiff named insured loss from the way, insurance. damages arising we can contract of car W.Va.Code, liability breached his statute, person the driver of carry liability ... operation shall This was a maintenance separate [1998] say result of contain a for death or using which states that “[n]o requirement named therein and be issued bodily pаssenger Virginia and (emphasis 17D-4-12 [1991] liability imposed by premiums of our common law duty the car was out of the owner- any negligence provision his or injury liability of care to his bodily injury. car is bodily injury other law or passenger’s use of *6 is mirrored road. Put added). in the car. has been delivered requires person a tort- insur- negli- (em- both any ... case, coverage required by Virginia West In this was in law. there effect a State W.Va.Code, liability policy 33-6-17 Farm insurance [1957] mandates that: driver, any person using the or other the Any rider, policy, insurance or endorse- vehicle, “against loss from im- the ment hereafter issued and otherwise valid posed by damages arising law for out of the any provision
which contains condition or ownership, operation, or maintenance in compliance requirements with the such portion this vehiele[.]” Under chapter, thereby this shall not be rendered of the policy, State Farm Farm State invalid but shall applied be construed and passenger of the car the full limits of the in accordance with such conditions and liability policy. provisions applied as would have had such rider, policy, or endorsement been full not, however, passenger car did compliance chapter. with this her damages, receive full the driver because why policy To understand car protect State To “underinsured.” contrary in this case is to our insurance Virginia the citizens of West from drivers statutes, void, requires buy and an therefore un- who insufficient in- amounts of surance, derstanding very Legislature facts. The facts are that in ev- decreed simple: poli- ery State Farm issued an policy insurance motor vehicle that is sold in West cy on a car that Virginia, company contained two kinds of “pro- must bicycle, or buy motorcycle, on a whether afoot to option” for “insured”
vide an a pogo even on stick. all on horseback or coverage “pay sums that will the insured motorist [up to the of underinsured Co., Bradley Mid-Century Mich. Ins. legally shall coverage purchased] (1980). which he 1, 24-38, 141, 145-152 294 N.W.2d damages to from the own- entitled recover as also, Widiss, Alan I. and See Uninsured ... operator of underinsured motor 4.2, er or an § at Underinsured Motorist against (“Persons in- (2d 1992) setoff vehicle ... without who are ei- 60-61 ed. any policy.” W.Va. or other family sured’s or rе- insureds members ther named added). 6—31(b) sum, Code, (emphasis In ... siding are afforded with a named insured 33— type relatively comprehensive protection benefits under insur- recover prove that coverage, “insured” must provisions ance in most motorist used uninsured legally they to recover dam- coverages.” or she is entitled “are he As insureds ages they have or protected operating from a tortfeasor who doesn’t are when are vehiсle, fully coverage indemnify the in- a enough passengers in motor as well as activity they engaged other sured’s losses. when walking, riding bicycle, driving a a an defines “insured” mean The statute wagon, sitting porch.”) on a hay or even front page of person named on the declarations case, that it In this State Farm admits sold household, policy; living if the same coverage plain- person spouse and relatives of the named tiff-passenger. Virginiа law mandates page; per- on the declarations supposed follow that the W.Va.Code, 33- son who “uses” the vehicle. be, walking might whether wherever 6-31(c). road, hay riding bicycle, driving a a down the plainly The statute mandates horseback, bouncing wagon, riding on operator underin- driver or an stick, sitting porch. pogo on a front protects sured motor 33-6-31(b) (c) W.Va.Code, no make ex- page named the declarations ceptions. rеlatives, against spouse their and their Farm, however, ignored the statute injuries bodily caused the underinsured exception an and went ahead and made *7 driver, they regardless of where are when W.Va.Code, 33-6-31(b) requirements of injury spatial is no or occurs. There (c), squeezed in its and and an exclusion requirement that the insured be temporal any policy plaintiff-passenger that denied the coverage riding in car for to the insured hap- protection if the underinsured motorist stated, one underinsured apply. As court any pened “spouse or or be her relative” coverage motorist “in- being that was the vehicle driven family portable: ... is The insured and liability coverage sured under the only are when occu- members covered policy.” vehicle, pying but also when in the covered 33-6-31(b) Furthermore, W.Va.Code, de- foot, automobile, another and when on as “a an “underinsured motоr vehicle” fines sitting
bicycle porch.... on a or even respect ownership, vehicle motor operation or use of which there is of the insured his The status named applicable at time the acci- persons against negli- relatives as dent, are by but the limits that gent uninsured motorists is not altered (i) Less than limits the insured car- being family having no either: there other vehicles coverage; They motorists’ or coverage. ac- for underinsured uninsured motorist ried (ii) by coverage payments has reduced to others quire when been their insured status than any injured in the accident to limits less purchased for household vehicle. Thereafter, they are insured no carried underinsured matter the insured Remarkably, Leg- injured. They coverage.” they are insured motorists’ where repeats “[n]o the statement injured in an vehicle named in islature when owned payable as a result underinsured policy, in an ownеd not named sums vehicle, by pay- coverage a motorists’ shall be reduced policy, in the in an unowned policy parties raents made under the insured’s or Both should be allowed get that for any policy.” they paid. other which plaintiff-passenger policy Farm this case State limits this definition protection against bodily injuries that of underinsured motor vehicle to exclude might by be caused an underinsured driver. by vehicles those insured it, As fate would havе portion underinsured policy, same or vehicles rou- driver was her husband. Our tinely automobile family. Again, used State insurance laws statute, mandate that ignored underinsured gives less protection motorist follow the plaintiff-pas- Legislature than what the mandat- senger goes, wherever she but Farm’s passed ed when it again, the statute. it And blatantly contrary exclusion is ignored statu- the mandate that is found twice in tory W.Va.Code, 33-6-31(b) mandate. that motorist cannot “bе reduced policy language State Farm’s contrary payments made under policy the insured’s or statute, plaintiff and denies the that for policy.” other bargained paid. I therefore respectfully dissent. summarize, first, To exceptions con- tained State Farm are found
nowhere in Virginia If Code.
Legislature wanted insurance consumers to buy protection against
be able to underin-
sured motorists that had more holes than cheese,
Swiss it would have said so. It didn’t, and the law comprehensive mandates
coverage. WINES, Patricia Petitioner Second, Legislature mandates un- Below, Appellant coverage pay derinsured motorist the “in- sured” his damages or her “without setoff insured’s JEFFERSON COUNTY BOARD OF
policy.” policy language State Farm’s vio- EDUCATION, Respondent statutory lates this provision, because it es- Below, Appellee. sentially offsets the insured’s underinsured No. 30848. coverage by any amounts recovered under another Supreme Appeals Court *8 Third, argued major- Virginia. the—and ity appears opinion bought have it—that Submitted Feb. 2003. plaintiff-passenger trying was to convert April “relatively Decided 2003. inexpensive underinsured cover- age words, coverage.” In other Concurring Dissenting Opinion plaintiff-passenger trying aget “dou- April Davis Justice recovery” just ble This under wrong. separate premiums Two were coverages,
for these two coverages and the
protect people, two regardless different
the amount company charged the insurance premium.
for a plaintiff-passenger
bought underinsured motorist
protect of a mo- herself torist too little insurance. The tortfea- bought
sor protect should he ever become liable himself bodily injury damages to someone else.