Cox v. Amick

Citation466 S.E.2d 459,195 W.Va. 608
Decision Date11 December 1995
Docket NumberNo. 22799,22799
CourtSupreme Court of West Virginia
PartiesGlenna Griffith COX and James F. Cox, Administrator and Personal Representative for the Estate of John Carl Cox, Plaintiffs Below, Appellees, v. Brian Keith AMICK, Shane Wilkinson, Chad Wines, Clifford Reed, Raymond K. Amick, Esta Amick, Brett Patton, Allstate Insurance Company and Municipal Mutual Insurance Company, an Insurer Licensed to Write Liability Insurance Policies in the State of West Virginia, Defendants Below, Appellees. NATIONWIDE INSURANCE COMPANY, an Insurer Licensed to Write Automobile Insurance Policies in the State of West Virginia, Defendant Below, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Interpleader Below, Appellee.

Syllabus by the Court

1. " 'A circuit court's entry of summary judgment is reviewed de novo.' Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994)." Syl. pt. 1, Davis v. Foley, 193 W.Va. 595, 457 S.E.2d 532 (1995).

2. " ' "Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syl. pt. 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).' Syl. pt. 3, Cannelton Industries, Inc. v. Aetna Casualty & Surety Co. of America, 194 W.Va. 203, 460 S.E.2d 18 (1994)." Syl. pt. 3, Davis v. Foley, 193 W.Va. 595, 457 S.E.2d 532 (1995).

3. A circuit court's entry of a declaratory judgment is reviewed de novo.

4. " ' "Where the provisions of an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning intended." Syllabus, Keffer v. Prudential Ins. Co., 153 W.Va. 813, 172 S.E.2d 714 (1970).' Syl. pt. 1, Russell v. State Auto. Mut. Ins. Co., 188 W.Va. 81, 422 S.E.2d 803 (1992)." Syl. pt. 1, Miller v. Lemon, 194 W.Va. 129, 459 S.E.2d 406 (1995).

5. " ' "Language in an insurance policy should be given its plain, ordinary meaning." Syl. Pt. 1, Soliva v. Shand, Morahan & Co., 176 W.Va. 430, 345 S.E.2d 33 (1986).' Syl. pt. 2, Russell v. State Auto. Mut. Ins. Co., 188 W.Va. 81, 422 S.E.2d 803 (1992)." Syl. pt. 2, Miller v. Lemon, 194 W.Va. 129, 459 S.E.2d 406 (1995).

6. " ' "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).' Syl. pt. 4, Russell v. State Auto. Mut. Ins. Co., 188 W.Va. 81, 422 S.E.2d 803 (1992)." Syl. pt. 3, Miller v. Lemon, 194 W.Va. 129, 459 S.E.2d 406 (1995).

7. "Where an offer of optional coverage is required by statute, the insurer has the burden of proving that an effective offer was made, and that any rejection of said offer by the insured was knowing and informed." Syl. pt. 1, Bias v. Nationwide Ins. Co., 179 W.Va. 125, 365 S.E.2d 789 (1987).

8. "When an insurer is required by statute to offer optional coverage, it is included in the policy by operation of law when the insurer fails to prove an effective offer and a knowing and intelligent rejection by the insured." Syl. pt. 2, Bias v. Nationwide Ins. Co., 179 W.Va. 125, 365 S.E.2d 789 (1987).

9. " W.Va.Code 33-6-31(b) [1988], mandates that when an insurer fails to prove an effective offer and a knowing and intelligent waiver by the insured, the insurer must provide the minimum coverage required to be offered under the statute." Syl. pt. 2, Riffle v. State Farm Mut. Auto. Ins. Co., 186 W.Va. 54, 410 S.E.2d 413 (1991).

10. " 'A statute that is ambiguous must be construed before it can be applied.' Syl. pt. 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992)." Syl. pt. 1, State ex rel. Water Development Authority v. Northern Wayne County Public Service District, 195 W.Va. 135, 464 S.E.2d 777 (1995).

11. " ' "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syllabus Point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).' Syl. pt. 2, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992)." Syl. pt. 2, State ex rel. Water Development Authority v. Northern Wayne County Public Service District, 195 W.Va. 135, 464 S.E.2d 777 (1995).

12. " 'Statutes which relate to the same persons or things, or to the same class of persons or things, or statutes which have a common purpose will be regarded in pari materia to assure recognition and implementation of the legislative intent. Accordingly, a court should not limit its consideration to any single part, provision, section, sentence, phrase or word, but rather review the act or statute in its entirety to ascertain legislative intent properly.' Syl. pt. 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907 (1975)." Syl. pt. 1, State ex rel. Lambert v. County Commission of Boone County, 192 W.Va. 448, 452 S.E.2d 906 (1994).

13. Under W.Va.Code, 33-6-31d [1993] a knowing and intelligent rejection of optional uninsured and underinsured motorists coverages by any named insured under an insurance policy creates a presumption that all named insureds under the policy received an effective offer of the optional coverages and that such person exercised a knowing and intelligent rejection of such offer. The named insured's rejection is binding on all persons insured under the policy.

14. When an insurance policy clearly and unambiguously provides uninsured motorists coverage for damages suffered by the insured or a relative from the "owner or driver of an uninsured motor vehicle" if such damages have resulted from an accident arising out of the ownership, maintenance or use of the uninsured motor vehicle, the insured or relative may not recover damages pursuant to his or her uninsured motorists coverage from a person who was not occupying an uninsured motor vehicle involved in the accident when it occurred and who was not the owner or driver of the uninsured motor vehicle involved in the accident even though such person may be liable to the insured or relative under other appropriate causes of action.

Mary H. Sanders, James C. Stebbins, Huddleston, Bolen, Beatty, Porter & Copen, Charleston, for Appellant.

Phillip D. Gaujot, Morgantown, for Appellee, Glenna Griffith Cox.

John R. Hoblitzell, Kevin A. Nelson, Crystal S. Stump, Kay, Casto, Chaney, Love & Wise, Charleston, for Appellee, James F. Cox.

McHUGH, Chief Justice:

The appellant, Nationwide Insurance Company (hereinafter "Nationwide"), appeals the December 8, 1994 order of the Circuit Court of Kanawha County which resolved two insurance coverage issues in favor of the appellees, Glenna Griffith Cox and James F. Cox, the administrator and personal representative for the estate of John Carl Cox. For reasons explained below, we reverse the order of the circuit court.

I.

This action arose out of an automobile accident which occurred on March 27, 1992, on U.S. Route 21 in Kanawha County when a vehicle driven by Brian Amick crossed the center line of the highway and struck a vehicle driven by John Carl Cox head on. John Carl Cox was killed and his wife, Glenna Griffith Cox, who was a passenger in the car, was seriously injured.

The facts leading up to the accident are in dispute; however, it is not necessary for us to resolve the disputed issues of fact as they will be resolved at trial. For purposes of this opinion, we will briefly discuss what is alleged to have occurred.

Evidently, Brian Amick and three other Sissonville High School students, Shane Wilkinson, Chad Wines, and Clifford Reed, decided to skip school before the first period class began on the day of the accident. Allegedly, the four boys shared two or three marihuana joints and drank a liter of vodka while driving around in Amick's car that morning.

The four boys also allegedly broke into a motor vehicle and robbed items which were within the motor vehicle. Subsequently, the four boys took the stolen items to a pawn shop in Charleston. After receiving money for the pawned items, Amick drove his car to a gas station. At the gas station Reed got out of Amick's car and allegedly was to take the money received from the pawn shop and buy concert tickets. Amick drove off with Wilkinson and Wines in the car. The accident occurred within minutes after Amick left Reed at the gas station.

The two insurance coverage issues relating to the car accident arose in a declaratory judgment action filed by the appellees in order to enforce uninsured and underinsured motorists coverage in a policy issued by Nationwide to John Carl Cox, the decedent. The declaratory judgment action had been filed as a third amended complaint in a pending tort action which sought recovery for the death of John Carl Cox and the personal injuries of Glenna Griffith Cox.

In the December 8, 1994 order which Nationwide appeals, the circuit court resolved one of the insurance coverage issues by entering a declaratory judgment that Nationwide must provide underinsured motorists coverage to Glenna Cox because Nationwide failed to show that Glenna Cox, as an "insured" under Nationwide's policy, was offered and rejected underinsured motorists coverage. In that same order the circuit court resolved the other insurance coverage issue by granting summary judgment against Nationwide upon determining that Clifford Reed met the definition of an uninsured motorist pursuant to the Nationwide policy even though he was not the owner of a vehicle involved in the accident nor a driver or passenger in a vehicle involved in the accident at the time of the accident.

II.

At the outset, ...

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